The Volokh Conspiracy - Further roots

(See my first post on "liberalism's roots" here. See more from John Holbo; Matt Yglesias and again and again; and some of the original GOldberg posts, here and here, that I neglected to link to in my original post. )

I had the following e-mail exchange with Steven Postrel yesterday.

Steven:

This is out of my bailiwick and right in the middle of yours, but...it seems to me that while Rawls doesn't cite people like Croly (or Woodrow Wilson) he implicitly accepts much of their view of the proper balance between collective and individual action. Specifically, the whole device of the original position and people voting on how society should be arranged is a fairly technocratic way of looking at things--we collectively decide on the income distribution and other results-oriented matters and that takes precedence over classic freedoms of association, property, etc.

It is true that the Rawlsian vision is slightly less specific and results-oriented in its collectivism than is Crolyism, but it still amounts to deploying Leviathan for collective purposes in a way that treats society more as an organization than as an order, despite all the lip service paid to Millsian individual freedom. The practical problems of trying to enforce the supposedly "high-level" or "constitutional" commitments of the Rawlsian state require a highly anti-Millsian and intrusive state apparatus. Thus, we end up with federal prosecutors threatening local homeowner associations that try to lobby against public housing, classified ads being censored to prevent discrimination, printers forced to print ads for practices they find immoral and hateful, and so on. Actual, formal, implementation of Rawls's maximin principle, were it ever to occur, would lead to even more bizarre interventions of this kind.

I think Rawls simply assumes from the start that the Croly/Wilson view of the proper role of government is OK and doesn't need to be defended; I haven't read him in quite a while, but I don't recall him ever making an argument about why collective determination of end-states is morally appropriate in the first place. All he really does is bound the set of collective objectives which the Crolyist state is morally allowed to pursue.

To which I replied:

At some level of course I agree with you-- which is why, after all, I'm a Hayekian not a Rawlsian. But I do think the defense of civil liberties is much more than lip service, and distinguishes Rawls in a fundamental way from the progressives. I think one roughly-accurate shorthand is: Rawls is the progressives minus Hegel. But that's a very, very, very big difference. The progressives and the original self-proclaimed new liberals like Green and Hobhouse were Hegelian through and through; their understanding of society really was holistic and organic, and it really was the society over the individual, each and every time.

The Rawlsian contract device is subject to the criticisms you (and Nozick) make of it. As far as I'm concerned it doesn't sufficiently respect, in Rawls' own phrase, "the separateness of persons." But what a phrase! The progressives would never have accepted that as a foundational moral standard.

In any event, the Rawlsian contract is not that kind of Hegelian move. It's an attempt to replicate liberal rule-of-law intuitions in a way that's admittedly more Kantian than Lockean but that owes very little to either Rousseau or Hegel. It's not dissimilar in kind (despite protestations from both sides) to the Buchanan and Tullock contractarianism that has impeccably libertarian credentials. Using an original contract as a heuristic might be a bad idea, but it's not sufficient to build an indictment of collectivism or holism. I don't think Rawls' moral individualism goes far enough; but I do think he's quite clearly and strongly a moral individualist, in a way that's very different from progressivism or social democracy. The fact that they all believe in the legitimacy of substantial state action to redistribute property and regulate economic transactions doesn't make them all the same.

Two further things [self-quotation's over now]. One is: I am utterly agnostic, which is to say ignorant, on the question fo whether the Anglo-American left-Hegelians of the late 19th and early 20th centuries understood Hegel correctly, whether Hegel reall ywas as holistic and collectivist as the lessons people took from him suggest. This is on the list of matters about which to acquire an informed opinion before finishing my second book. (Yes, there really is such a list, and yes, this really is on it.) But I have no opinion at the moment.

The second is: I saw someone, in a comments section somewhere that I now can't find again, [UPDATE: Whoops, it was Peter Levine, on his own blog) say that contemporary American left-liberals owe intellectual debts, not to philosophers, but to political and judicial leaders (MLK, LBJ, FDR, Earl Warren). Now, there is something to this. The conservative and libertarian embrace of intellectual work came, in part, as a rebuilding strategy during a half-century of being shut out of power completely. The equivalent intellectual energy on the center-left went into actually doing stuff in government or on the courts. When I look back to the 40s for a forbear, I see Hayek or Rose Wilder Lane, and a conservative sees Kirk, but a left-liberal at least might see Truman or Frankfurter.

But I also think this is easily overstated. Contemporary left-liberalism certainly doesn't owe very much to the legal realism that was one of the major intellectual movements on the center-left in the first half of the twentieth century, and that apparently captured the Supreme Court for a while. Richard Posner and the crits are the heirs-apparent of legal realism, while the liberal legalist attempt to rationalize the Warren Court (e.g. Dworkin) has remarried a kind of legal formalism with a moral-realism-that-dare-not-speak-its-name. Dworkin owes as little to Felix Cohen as Rawls owes to Croly. I think if you asked the roomsful of College Democrats Goldberg mentions how many believed that we really do have individual rights like freedom of speech and sexual/ reproductive freedom that the courts are morally and legally bound to uphold, you'd get a lot of hands these days. In the 30s, that would have been thought hopelessly bourgeois, superstitious, or both. Similarly, a contemporary American left-liberal might find him- or herself inspired by FDR's speeches, but also remembers the internment of Japanese-Americans and even the court-packing plan as bad and illiberal. The Great Society might be a phrase to warm some hearts, but the reality of LBJ isn't a very fond memory.

UPDATE: John Rosenberg thinks I may be understating the degree of liberal legal realism still prevalent. But most of his examples seem to me cases of thinking that the real content of our rights is something other than what Rosenberg thinks they are, e.g. thinking that our real right to free speech does not include a right to hate speech, rather than thinking that there are no real judicially-enforceable rights. Indeed, he seems to imply that Dworkin is a realist, which just can't be right, on the grounds that Dworkin supports racial preferences. It might be that Dworkin and all the Warren Court liberals like him are deluding themselves, that they really are just seeking to impose their own partisan policy preferences. But it's a big difference from the realists that they deny this is what they're doing, and say it would be illegitimate to do.

	[Jacob T. Levy, May 22, 2004 at 6:58pm] Trackbacks Further roots (See my first post on "liberalism's roots" here. See more from John Holbo; Matt Yglesias and again and again; and some of the original GOldberg posts, here and here, that I neglected to link to in my original post. ) I had the following e-mail exchange with Steven Postrel yesterday. Steven: This is out of my bailiwick and right in the middle of yours, but...it seems to me that while Rawls doesn't cite people like Croly (or Woodrow Wilson) he implicitly accepts much of their view of the proper balance between collective and individual action. Specifically, the whole device of the original position and people voting on how society should be arranged is a fairly technocratic way of looking at things--we collectively decide on the income distribution and other results-oriented matters and that takes precedence over classic freedoms of association, property, etc. It is true that the Rawlsian vision is slightly less specific and results-oriented in its collectivism than is Crolyism, but it still amounts to deploying Leviathan for collective purposes in a way that treats society more as an organization than as an order, despite all the lip service paid to Millsian individual freedom. The practical problems of trying to enforce the supposedly "high-level" or "constitutional" commitments of the Rawlsian state require a highly anti-Millsian and intrusive state apparatus. Thus, we end up with federal prosecutors threatening local homeowner associations that try to lobby against public housing, classified ads being censored to prevent discrimination, printers forced to print ads for practices they find immoral and hateful, and so on. Actual, formal, implementation of Rawls's maximin principle, were it ever to occur, would lead to even more bizarre interventions of this kind. I think Rawls simply assumes from the start that the Croly/Wilson view of the proper role of government is OK and doesn't need to be defended; I haven't read him in quite a while, but I don't recall him ever making an argument about why collective determination of end-states is morally appropriate in the first place. All he really does is bound the set of collective objectives which the Crolyist state is morally allowed to pursue. To which I replied: At some level of course I agree with you-- which is why, after all, I'm a Hayekian not a Rawlsian. But I do think the defense of civil liberties is much more than lip service, and distinguishes Rawls in a fundamental way from the progressives. I think one roughly-accurate shorthand is: Rawls is the progressives minus Hegel. But that's a very, very, very big difference. The progressives and the original self-proclaimed new liberals like Green and Hobhouse were Hegelian through and through; their understanding of society really was holistic and organic, and it really was the society over the individual, each and every time. The Rawlsian contract device is subject to the criticisms you (and Nozick) make of it. As far as I'm concerned it doesn't sufficiently respect, in Rawls' own phrase, "the separateness of persons." But what a phrase! The progressives would never have accepted that as a foundational moral standard. In any event, the Rawlsian contract is not that kind of Hegelian move. It's an attempt to replicate liberal rule-of-law intuitions in a way that's admittedly more Kantian than Lockean but that owes very little to either Rousseau or Hegel. It's not dissimilar in kind (despite protestations from both sides) to the Buchanan and Tullock contractarianism that has impeccably libertarian credentials. Using an original contract as a heuristic might be a bad idea, but it's not sufficient to build an indictment of collectivism or holism. I don't think Rawls' moral individualism goes far enough; but I do think he's quite clearly and strongly a moral individualist, in a way that's very different from progressivism or social democracy. The fact that they all believe in the legitimacy of substantial state action to redistribute property and regulate economic transactions doesn't make them all the same. Two further things [self-quotation's over now]. One is: I am utterly agnostic, which is to say ignorant, on the question fo whether the Anglo-American left-Hegelians of the late 19th and early 20th centuries understood Hegel correctly, whether Hegel reall ywas as holistic and collectivist as the lessons people took from him suggest. This is on the list of matters about which to acquire an informed opinion before finishing my second book. (Yes, there really is such a list, and yes, this really is on it.) But I have no opinion at the moment. The second is: I saw someone, in a comments section somewhere that I now can't find again, [UPDATE: Whoops, it was Peter Levine, on his own blog) say that contemporary American left-liberals owe intellectual debts, not to philosophers, but to political and judicial leaders (MLK, LBJ, FDR, Earl Warren). Now, there is something to this. The conservative and libertarian embrace of intellectual work came, in part, as a rebuilding strategy during a half-century of being shut out of power completely. The equivalent intellectual energy on the center-left went into actually doing stuff in government or on the courts. When I look back to the 40s for a forbear, I see Hayek or Rose Wilder Lane, and a conservative sees Kirk, but a left-liberal at least might see Truman or Frankfurter. But I also think this is easily overstated. Contemporary left-liberalism certainly doesn't owe very much to the legal realism that was one of the major intellectual movements on the center-left in the first half of the twentieth century, and that apparently captured the Supreme Court for a while. Richard Posner and the crits are the heirs-apparent of legal realism, while the liberal legalist attempt to rationalize the Warren Court (e.g. Dworkin) has remarried a kind of legal formalism with a moral-realism-that-dare-not-speak-its-name. Dworkin owes as little to Felix Cohen as Rawls owes to Croly. I think if you asked the roomsful of College Democrats Goldberg mentions how many believed that we really do have individual rights like freedom of speech and sexual/ reproductive freedom that the courts are morally and legally bound to uphold, you'd get a lot of hands these days. In the 30s, that would have been thought hopelessly bourgeois, superstitious, or both. Similarly, a contemporary American left-liberal might find him- or herself inspired by FDR's speeches, but also remembers the internment of Japanese-Americans and even the court-packing plan as bad and illiberal. The Great Society might be a phrase to warm some hearts, but the reality of LBJ isn't a very fond memory. UPDATE: John Rosenberg thinks I may be understating the degree of liberal legal realism still prevalent. But most of his examples seem to me cases of thinking that the real content of our rights is something other than what Rosenberg thinks they are, e.g. thinking that our real right to free speech does not include a right to hate speech, rather than thinking that there are no real judicially-enforceable rights. Indeed, he seems to imply that Dworkin is a realist, which just can't be right, on the grounds that Dworkin supports racial preferences. It might be that Dworkin and all the Warren Court liberals like him are deluding themselves, that they really are just seeking to impose their own partisan policy preferences. But it's a big difference from the realists that they deny this is what they're doing, and say it would be illegitimate to do.