Liberalism and Legitimacy: An Indictment (original) (raw)

Law, Liberalism, and the Common Good

2004

There is a tendency in contemporary jurisprudence to regard political authority and, more particularly, legal intervention in human affairs as having no justification unless it can be defended by what I shall call the principle of modern liberal autonomy (MLA). According to this principle, if consenting adults want to do something, unless it does specific harm to others here and now, the law has no business intervening. Harm to the self and general harm to society can constitute no justification for legal regulation or prohibition. So pervasive is this understanding of legal intervention in human affairs, that it is common now to encounter arguments in favour of permissive laws on, for example, private drug use, pornography, and sexual and reproductive choice, based on the idea that to intervene in these areas would constitute a breach of the liberal ideal.

Liberalism, Democracy, and the State: Reclaiming the Unity of Liberal Politics - eScholarship

2000

Working Papers published by the Institute of Governmental Studies provide quick dissemination of draft reports and papers, preliminary analysis, and papers with a limited audience. The objective is to assist authors in refining their ideas by circulating results and to stimulate discussion about public policy. Working Papers are reproduced unedited directly from the author's page. Liberalism, Democracy, and the State: Reclaiming the Unity of Liberal Politics Gus diZerega This is a work in progress. It is intended to serve both as the foundation for some articles and as the core of a book project. I welcome any critical comments on the argument presented. My email is gusdz@sonic.net In the broad philosophic sense liberalism is the most complete statement of the basic principles we now associate with modernity. More than anything else, the modern world is the institutional result of these principles' triumph, first in the West and increasingly worldwide. Yet, by an extraordinary irony, at the time of its greatest success to date, liberalism is deeply divided against itself and, in this division, unable to comprehend the world that is in so many ways its product. This division within liberalism grows from tensions between two liberal institutions, democracy and the market, and the near universal failure of liberals in either camp to grasp the systemic character of democratic government. Liberalism has strengthened the intellectual, legal, economic and political status of individuals within society. It has done so with primary attention to equality of status for all people. The result, among other things, has been the rise of three institutions which flourish best within liberal societies. Science, the market, and democracy all depend upon similar underlying liberal values of formal equality among participants, equal status for all, and the absolutely central role played by peaceful persuasion rather than force, or its threat. Even in representative democracy, political force enters in only after a prolonged process of persuasion has first determined the details of public policy. But democracy, science, and the market are more the spontaneous institutional outcome of applying liberal principles than their intended result. Consequently these institutions have presented later liberals with an enormous challenge, to which they have responded in many ways: how to evaluate institutions which arose within liberal dominated societies, and in many ways reflect liberal principles, but of which liberalism's seminal thinkers were largely unaware? Within the American context these evaluations can be divided into two broad perspectives: classical, or traditional, liberalism and modern liberalism. Each applies core liberal principles in different ways in evaluating democracy, the market, and science. Each has grasped a part of the puzzle these institutions present to liberal ideology and policy. What they share in common is an error: both regard 2 democracies simply as another variant of state. Political analyses in both camps turns on this identification, although in different ways and with different conclusions. But democracies are not states. They are selforganizing systems and, as systems, have more in common with science and the market than with undemocratic governments. Since liberals of all stripes regard democracies as states, they fail adequately to grasp the character of democratic politics. Classical liberals make a seemingly unending series of false predictions while modern liberals' cures for democratic failings reflect, and so are undermined by, their misunderstanding. Neither is able to grasp the character of a democratic public sphere. There are historical reasons for this error. All of liberalism's defining institutions, the market, science, and democracy, were at most embryonic when liberalism first developed. This was particularly the case with democracy. As they arose to prominence, science, the market, and democracy fundamentally changed the conditions of individual life from what prevailed in earlier times. As a consequence, basic liberal principles developed within one historical context could later be applied in a variety of ways when confronting new circumstances. The relationships between even complementary principles can always be weighted differently. This is why when liberals explored the new world that was arising, their analyses split and fractured, turning liberalism against itself. Liberalism and the Market With respect to the market, the split within liberalism was largely over what to make of the enormous business organizations and mass wage labor that characterized the new industrial civilization. Neither Locke nor Jefferson nor any other seminal thinkers had foreseen these developments. As it now manifested in the market order, private property was far different from the acorn that Locke's man first made his own in a hypothetical state of nature. The bargaining between employer and employees in a large factory was of a far different scale than bargaining between two people in the market place. The complexity of products sold in the market challenged the time-honored principle of caveat emptor. Liberalism's principles had mostly been applied to encounters at a human scale. Increasingly liberal society transcended that scale. Classical liberals insist that, on balance, the rise of giant businesses and mass production is simply an institutional expression of freedom of contract. Dependence upon voluntary purchases by consumers in a competitive context inevitably subordinates even the largest enterprises to individual choice. The

Introduction: the vicissitudes of liberalism

The Research Handbook on Liberalism, 2024

An introduction to my edited collection, 'A Research Handbook on Liberalism' (Elgar, 2024). The demise of liberalism has been predicted almost since it was born. In this comprehensive review of the current state of the literature on the history and future of liberalism, I identify five types of liberalism in play today and three overarching concerns about its future viability that chapters in the book engage with from different philosophical, methodological, and historical perspectives. (This chapter has been made available as Open Access on the Elgar website here: https://www.elgaronline.com/edcollbook/book/9781839109034/9781839109034.xml)

Liberalism, Democracy, and the State: Reclaiming the Unity of Liberal Politics

The Review of Politics, 2001

The world we know is largely the institutional outcome of liberalism's political triumph, first in the West and increasingly worldwide. Yet today liberal thought is deeply divided against itself and, in this division, often unable to comprehend a world in many ways its product. This division grows primarily from tensions between two liberal institutions: liberal, or representative, democracy and the market, and also from the near universal failure of liberals to grasp democratic government's unusual systemic character. Tensions between liberal democracy and the market are continually addressed, whereas the character of democratic government receives far less attention. Yet how the first issue is evaluated depends in part on understanding the last.

Liberal politics and the judiciary: The supreme court and american democracy

Res Publica, 1997

In recent years, constitutional government has come to be identified largely with the judicial protection of individual rights. This characterisation of constitutionalism draws inspiration from both standard liberal concerns and the recent practice of the United States Supreme Court. Indeed, there has been a tendency amongst contemporary analytical American legal and political philosophers - most notably John Rawls and Ronald Dworkin and those influenced by, or critical of, their work - to conflate liberalism with the judgments of the Warren and Burger Courts. As a result, the philosophical treatment of a whole range of important social issues, from abortion and pornography, to racial and gender discrimination, has been framed to a remarkable degree by the concerns of American constitutional jurisprudence. Curiously, however, scholars outside America rarely have a direct knowledge of these landmark decisions or the reasoning underlying them. In consequence, a somewhat rarefied understanding of liberal principles and judicial decision making has emerged amongst many social and political philosophers, that rarely engages with the real contexts within which such ideals supposedly operate. It is the great merit of the books under review that in different ways they all seek to explore the actual theory and practice of the Supreme Court. In the process, they are led, albeit to varying extent, to critically examine the philosophical assumptions as well as the workings of the liberal interpretation of the American Constitution and its related view of democracy.

Taking Liberalism (And Its Critics) Seriously

Philosophical Books, 1996

Waldron's defence of welfare rights is perhaps the most distinctive feature of this book of essays. While many, if not most, other liberal political theorists currently writing in the United States focus their attention on analyses and defences of so-called "first-generation rights", such as free speech, religious liberty, the right to a fair trial, and other provisions in the Bill of Rights, Waldron argues that the socioeconomic claims referred to as "secondgeneration rights" are no less important. Rather, he argues, following Henry Shue, that one cannot "fully enjoy any right that he is supposed to have if he lacks the essentials for a reasonably healthy and active life" @. 7). These essentials include necessary food, clothing, shelter, medical care and other social services, education, and employment (for those who are able to work). What 'enjoyment' of a right means, for Waldron, as for Shue, is not merely taking pleasure in a right, but "actually having the right, in the substantive sense in which the right is thought to be worth having" (p. 9).