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ARTICLE
LIBERALISM, RADICALISM, AND LEGAL
SCHOLARSHIP
Steven Shiffrin*t
INTRODUCTION
In the eighteenth century, Kant answered the utilitarians.I In
the nineteenth century, without embracing utilitarianism, 2 Hegel
***** Professor of Law, UCLA. (^) This project started out (^) as a broad piece entitled
"Away From a General Theory (^) of the First Amendment." It has taken on un- bounded proportions and might as well be called "Away From A General Theory of Everything." During the several years I have worked on it, more than thirty (^) friends and colleagues have read one version or another and have given me helpful com- ments. Listing them all would look silly, (^) but I am grateful to each of them, especially to those who responded (^) in such detail. I would especially like to thank Dru Cornell, who served early in the project as a research assistant and thereafter offered counsel, particularly lending her expertise on continental philosophy. Finally, I appreciate the comments (^) suggested to me by several groups at UCLA (Critical Legal Studies, Law and Philosophy, the Ad Hoc Eclectics), at USC (in the Law and Social Sciences Workshop), and in the halls while visiting at Boston University.
t Editors' (^) note: The following notes, insofar as the citations for books and pe- riodicals are concerned, depart from rules 15 and 16 of A UNIFORM SYSTEM OF CITA- TION (13th ed.). (^) Such departures are confined to the subsequent citation of works previously cited. This has been (^) done in the interest of clarity.
i. See, e.g., I. KANT, FOUNDATIONS OF THE METAPHYSICS OF MORALS (^) (L. Beck trans. 1959). (^) See also infra note 15. By utilitarianism, I mean a particular form of consequentialism (i.e., (^) the theory that the moral value of actions lies in their conse- quences), one that values actions exclusively by their tendency to increase or maxi- mize people's pleasure or happiness. See, e.g., J. SMART & B. WILLIAMS, UTILITARIANISM: FOR AND AGAINST 79-80 (1973). Although we ordinarily (^) associate utilitarianism with the nineteenth century (owing to the work of J. Bentham, J.S. Mill, and others), it was well developed in the philosophical literature before then. For the claims that utilitarianism was England's "most characteristic, if not most important contribution to the development (^) of ethical theory" and that its "true founder" was seventeenth-century (^) Bishop Richard Cumberland, see E. ALBEE, A HISTORY OF ENG-
LISH UTILITARIANISM 1, 14 (1901).
- See, e.g., G. HEGEL, PHILOSOPHY (^) OF RIGHT §§ 119-28, at 81-86 (T.M. Knox trans. 1942). See generally C. TAYLOR, HEGEL 3-50 (1975).
UCLA LAW REVIEW
answered Kant, 3 and Marx answered Hegel.^4 The world has not
recovered.
America, however, rushed on, moving easily between
Benthamite utilitarianism and Lockean conceptions of natural
law, not oblivious to the great continental dispute but not moved
either.' And if America was not moved, American legal scholar-
ship was hardly touched. Twentieth century American legal
scholarship has been dominated by utilitarians-by pragmatists,
social engineers, and instrumentalists. 6 These scholars have been
allied with an always-present group of (mainly constitutional) the-
orists who emphasize the need to mix a bit of natural law into the
utilitarian calculus. 7 Even legal philosophers in the post-World
War II era, although often critical of the utilitarian mode, 8 have
been generally uninterested in the schematic approaches of conti-
nental philosophy, 9 occupying themselves instead with "piecemeal
3. See, e.g., G. HEGEL, supra note 2, at 89-90; G. HEGEL, THE PHENOMENOL- OGY OF MIND 446-53 (^) (J.B. Baillie trans. 1910) [hereinafter cited as G. HEGEL, THE PHENOMENOLOGY OF MIND]. See generally J. HYPPOLITE, GENESIS AND STRUCTURE OF HEGEL'S Phenomenology of Spirit (S. Cherniak & J. Heckman trans. 1974).
- K. MARX, Critique of the Hegelian Dialectic and Philosophy as a Whole, in THE ECONOMIC AND PHILOSOPHIC MANUSCRIPTS OF 1844, at 190-93 (M. Milligan trans. 1964). 5. See, e.g., L. HARTZ, THE LIBERAL TRADITION IN AMERICA 10 (1955). [L]aw has flourished on the corpse of philosophy in America, for the settlement of the ultimate moral question is the end of speculation upon it. Pragmatism, interestingly (^) enough America's great contribution to the philosophic tradition, does not alter this, since it feeds itself on the Lockean settlement. It is only when you take your ethics for granted that all problems emerge as problems of technique. _Id.
- See_ Tribe, Policy Science.- Analysis or Ideology?, 2 PHIL. & PUB. AFF. 66, 82 (1972) [hereinafter cited as Tribe, Policy (^) _Science].
- See generally_ M. COHEN, AMERICAN THOUGHT: A CRITICAL SKETCH 135- (1954). 8. See B. BARRY, THE LIBERAL THEORY OF JUSTICE 7 (1973) (contending that utilitarianism (^) among philosophers is "an almost dead stalking-horse"). For a more recent attempt to show that the horse can run another race, see generally D. REGAN, UTILITARIANISM AND CO-OPERATION (1980).
- The tendency of legal philosophers to stay within the universe of discourse suggested by utilitarian analysis is illustrated by two collections (^) of essays edited by Robert S. Summers. MORE ESSAYS IN LEGAL (^) PHILOSOPHY (R. Summers ed. 1971); ESSAYS IN LEGAL PHILOSOPHY (R. Summers ed. 1968). Summers referred (^) to a revival of interest in Bentham and a "developing faith in (^) the role of reason in social ordering [that] appeared in some quarters [in this century] which (^) was quite unlike anything since Bentham." (^) Summers, Legal Philosophy Today-An Introduction, in ESSAYS IN LEGAL PHILOSOPHY, supra, at 19 [hereinafter (^) cited as Summers, Legal Philosophy To- day]. The point is not that (^) legal philosophers were Benthamites; rather, the issues
believed centrai to legal philosophy developed in a philosophical tradition heavily influenced by utilitarian thought. Thus, H.L.A. Hart in his John Dewey Memorial Lecture in 1978 remarked, "I do not think a satisfactory (^) foundation for a theory of rights will be found as long as the search is conducted (^) in the shadow of utilitarianism " Hart, Between (^) Utility and Rights, in THE IDEA OF FREEDOM: ESSAYS IN HON-
OUR OF ISAIAH BERLIN 98 (A. Ryan ed. 1979). Cf. R. SENNETT, AUTHORITY 84-
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of law and philosophy in^ American^ law^ journals.^^14
In the thousands^ of^ pages^ produced,^ two^ models or^ visions^ of
the world are of central interest in this article. The first is ethical
liberalism or neo-Kantian1^5 liberalism. Many of the themes in
radical thinkers together, and radicals tend to do the same to liberals and conserva- tives who write in styles of discourse outside their own tradition. Indeed, Kronman rightly criticizes Unger for doing just that. Kronman, supra, at 183.
To put it another way, Unger is steeped in Hegel and Marx,^ but^ is^ no more^ a Hegelian or a Marxist (see infra note 21) than Laurence Tribe is^ a^ Burkeian^ (see^ infra note 42). Unger's book, KNOWLEDGE AND POLITICS, powerfully^ raises^ issues^ legal scholarship has slighted; it has provoked a great deal^ of^ fruitful scholarship.^ Arthur Leff well described Unger's contribution:
[F]ew people, if any (and those mostly living^ in^ absurd^ places^ like Frankfurt and Budapest), have seen or described as creatively and ac- curately all the necessary interconnections among human mispercep- tions of themselves, their societies and their universe, especially the devastating 'antinomies' of modem human thought-those basic posi- tions about reality that are simultaneously necessary and contradictory.
Leff, supra, at 880.
- An^ unpublished^ bibliography^ of^ writing^ in^ Critical^ Legal^ Studies^ lists^ more than one hundred and twenty articles, almost all of which were produced in the sev- enties (on file at UCLA Law Review). For a partial bibliography of the many publica- tions on Rawls' work, see READING RAWLS 348-50 (N. Daniels ed. 1975).
- There are many senses in which the scholars mentioned in the text accompa- nying this note are not Kantian. For example, they generally do not subscribe to Kant's easy toleration of the massive inequality^ of^ wealth.^ Kant,^ On the^ Common Saying. "This may be True in Theory, but It does not Apply in Practice," in KANT'S POLITICAL WRITINGS 75 (Reiss ed. 1970) [hereinafter cited as Kant, Theory and Prac- tice]. "This uniform equality of human beings as subjects of a state is, however, per- fectly consistent with the utmost inequality of the^ mass^ in^ the degree^ of^ its^ possessions .... Nevertheless, they are all equal as subjects before the law. I..."Id. (emphasis in original). But cf. I. KANT, THE METAPHYSICAL ELEMENTS OF JUSTICE 134 (J. Ladd trans. 1965)^ [hereinafter^ cited^ as^ I.^ KANT,^ THE^ METAPHYSICAL^ ELEMENTS^ OF JUSTICE] (permitting state funds for the poor, the disabled, and the sick). These scholars presumably^ do not^ share^ his^ stern^ views^ of^ punishment^ (id.^ at^ 98-108, 131-32) or his absolutist views about the moral duty to obey the law (id. at 86-87; Kant, Theory and Practice, supra, at 81). Like Kant,^ however,^ they^ do^ reject^ utilitari- anism, exalt rights, and^ emphasize the concepts^ of^ respect^ and^ dignity.^ They are all rationalists, believing that many of the most^ important^ political^ issues^ of^ our^ time^ can be solved by attention to and deduction from basic principles. And they are all indi- vidualists who resist the social conception of human beings that I shall attribute to the radicals. Kant is usually regarded as a horrible^ writer,^ but^ he^ has^ written an^ accessible summary of his political thought. See Kant, Theory and Practice, supra, and Kant, Ideafor a Universal History With Cosmopolitan Intent, in THE PHILOSOPHY OF KANT 116-31 (C. Friedrich ed. 1949) [hereinafter cited as Kant, Universal History]. The latter essay (or his CRITIQUE OF JUDGMENT) is indispensable for understanding his moral thought, and the failure to attend to the principles there embraced has caused some scholars to misinterpret Kant's most important moral writings. See infra note
The standard works on Kant's moral and political writings include: L. BECK, A COMMENTARY ON KANT'S CRITIQUE OF PRACTICAL REASON (1960); M. GREGOR, LAWS OF FREEDOM (1963) (on part two of THE METAPHYSICS OF MORALS; part one is THE METAPHYSICAL ELEMENTS OF JUSTICE, supra); H. PATON, THE CATEGORICAL
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this model can be found in the writings of John Rawls, 16 Ronald
Dworkin,1^7 Bruce Ackerman, 18 and, in many respects, David
Richards 19 and Charles Fried. 20 What is distinctive about this
model is the effort, to defend liberalism by deriving liberal conclu-
sions about social justice from rather sparse premises about
human nature, premises which purport to remain neutral about
the nature of the good in life. To be sure, all political theories are
neutral about some plans of life. Ethical liberalism, however, in-
vokes neutrality (or variants of it) as a principle from which large
and powerful political conclusions are to be drawn.
Lurking behind this neutrality is a conception of what human
beings ought^ to^ be^ like^ and^ how^ they^ ought^ to^ think.^ My^ criticism
is that this underlying conception of human nature will not sup-
port general conclusions about individual rights, about property,
or about education. Indeed, I will suggest that the entire enter-
prise of drawing general political conclusions from sparse prem-
ises, rooted as it is in a rationalistic desire to transcend human
differences, obscures the diversity of human beings, denigrates our
IMPERATIVE (1948) (on THE FOUNDATIONS OF THE METAPHYSICS OF MORALS, supra note 1). A particularly helpful guide for the legal scholar has been written by Bruce Aune. B. AUNE, KANT'S THEORY OF MORALS (1979). See also William Galston's lucid and penetrating discussion of Kant's theory of history. W. GALSTON, KANT AND THE PROBLEM OF HISTORY (1975). From the perspective of most legal scholars, the difficulty with much of the philo- sophical commentary on Kant's moral and political philosophy is the commentary's preoccupation with the relationship between Kant's moral theory and his epistemol- ogy as detailed in the CRITIQUE OF PURE REASON. That commentary is a gold mine for those interested in the debate over free will and responsibility but contains only a handful of gold nuggets for those interested in the relationships among freedom, equality, property, community, and the like. This is true even of Kant scholars whose moral and political writings are otherwise loaded with insights of importance for legal scholars. Compare R. WOLFF, THE AUTONOMY OF REASON (1973) [hereinafter cited as R. WOLFF, THE AUTONOMY OF REASON] (helpful discussion of Kant but without much focus on legal or political theory) with R. WOLFF, THE POVERTY OF LIBER- ALISM (1968) [hereinafter cited as R. WOLFF, THE POVERTY OF LIBERALISM] (attack on Mill's On Liberty with much of interest to legal scholars).
- See infra note 56. 17. See, e.g., R. DWORKIN, TAKING RIGHTS SERIOUSLY (1977) [hereinafter cited as R. DWORKIN, TAKING RIGHTS SERIOUSLY] (the edition so cited includes Appendix- A Reply to Critics); Dworkin, Liberalism, in PUBLIC AND PRIVATE MORALITY (S. Hampshire ed. 1978) [hereinafter cited as Dworkin, Liberalism]. 18. See, e.g., B. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE (1980).
- See, e.g., D. RICHARDS, THE MORAL CRITICISM OF LAW (1977) [hereinafter cited as D. RICHARDS, MORAL CRITICISM]; D. RICHARDS, A THEORY OF REASONS FOR ACTION (1971) [hereinafter cited as D. RICHARDS, A THEORY OF REASONS]; Richards, Human Rights and Moral Ideals: An Essay on the Moral Theory of Liber- alism, 5 Soc. THEORY AND PRAC. 461, 484-85 (1980) [hereinafter cited as Richards, Human Rights].
- See, e.g., C. FRIED, RIGHT AND WRONG (1978) [hereinafter cited as C. FRIED, RIGHT AND WRONG]; C. FRIED, AN ANATOMY OF VALUES (1970) [hereinafter cited as C. FRIED, AN ANATOMY OF VALUES].
1983] 1107
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Tushnet, 27 and, in some respects, C. Edwin Baker. 28 What distin-
guishes this model and unites these authors are the beliefs that
liberalism is excessively individualistic, that it cannot be defended
by rationalistic premises, that any^ purported^ neutrality^ is^ a^ mask
for unjustified domination, and that the better course lies in radi-
cal politics (that is, supporting alternative structures that are
hoped to be more democratic, less competitive, and less individu-
alistic, while retaining commitments to individuality and humane
values).
In describing democratic radicalism, I will take Roberto Un-
ger as representative, 29 though in many respects no single scholar
can be representative. Democratic radicals are delightfully icono-
clastic. Among them, however, Unger's critique of liberalism
seems to be unanimously respected. His views of knowledge,
morals, and politics are drawn from the noblest and most demo-
cratic currents of the radical tradition: a rich mixture of Hegel's
- See, e.g., Brest, The Fundamental Rights Controversy: The Essential Contra- dictions of Normative Constitutional Scholarship, 90 YALE L. J. 1063 (1981) [hereinaf- ter cited as Brest, Fundamental Rights]; Brest, The Substance of Process, 42 OHIO ST. L. J. 131 (1981).
- See, e.g., Tushnet, Truth, Justice, and the American Way: An Interpretation of Public Law Scholarship in the Seventies, 57 TEx. L. REV. 1307 (1979) [hereinafter cited as Tushnet, Truth, Justice, and the American Way]; Tushnet, The Dilemmas of Liberal Constitutionalism, 42 OHIO ST. L. J. 411 (1981) [hereinafter cited as Tushnet, The Dilemmas of Liberal Constitutionalism].
- See, e.g., Baker, The Process of Change and the Liberty Theory of the^ First Amendment, 55 S. CAL. L. REV. 293 (1982) [hereinafter cited as Baker, The Process of Change]; Baker, Counting Preferences in Collective Choice Situations, 25 UCLA L. REV. 381 (1978) [hereinafter cited as Baker, Counting Preferences]; Baker, The Ideol- ogy of the Economic Analysis of the Law, 5 PHIL. & PUB. AFF. 3 (1975). Baker per- ceives himself as a democratic radical, but his emphasis on rationality and individualism sets him apart. See, e.g.,^ Baker,^ Scope^ of^ the^ First^ Amendment^ Freedom of Speech, 25 UCLA L. REV. 964 (1978) [hereinafter cited as Baker, Scope of the First Amendment Freedom of Speech]. The Process of Change piece, supra, is designed to reconcile the opposing strains of his thought.
- Although C. Edwin Baker has written a sophisticated analysis of the process of change that is generally compatible with Unger's discussion of change (Baker, The Process of Change, supra note 28), it is not at all clear that Unger's views of change are representative. Many radicals have been circumspect about how, if at all, their view of how society ought to be organized might come about. Indeed some of^ them are skeptical about the possibilities for change. Brest, Fundamental Rights, supra note 26, at 1109; Kennedy, Form and Substance, supra note 25, at 1777-78;^ Tushnet,^ Truth, Justice, and the American Way, supra note 27, at 1309, 1359.
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romantic 30 idealism and Marx's humanism 3 1^ set against a back-
ground of Catholic 32 theology.
My critique of democratic radicalism will not fault its will-
ingness to depart from the rationalism (^) of ethical liberalism. By
departing from rationalism, however, democratic radicals flee to
excessive romanticism. Recognizing that political values cannnot
be legitimized by resort to abstract premises, they turn to demo-
cratic utopias where all will be equal and where individuality will
be everywhere encouraged. This sunny view, however, cannot be
sustained even when qualified, as it usually is, by sober doses (^) of
realism.
33
My critique of ethical liberalism and democratic radicalism
suggests a synthesis that captures the best of both traditions, a syn-
thesis that reformulates the assumptions of the political debate
and places them in perspective. At a cavalier level, my position is
the same as that in most articles and books-I'm right and they're
wrong. All of them are wrong: the instrumentalists, the ethical
- [A]t the heart of Hegel's system one finds the best of romanticism: emphasis on the primacy of passion... rejection of Kantian slass in favor of the 'fluidity' of reason and the openness of human forms of life; and appreciation for not only morality (^) but the preconscious founda- tions of morality in the family, the tribe, and the religious cult .... (^) It is a mistake to think that despair, meaninglessness, and cynicism are essential to romanticism .... Hegel's view of a swirling human uni- verse in violent motion-with ourselves and our confused, tentative concepts and often ignorant actions caught up in and contributing (^) to the core of it, for God (and Hegel) knows what purpose-that is the romantic vision at its finest. R. SOLOMON, HISTORY AND HUMAN NATURE 304 (1979). For another appreciative discussion of Hegel's romanticism, see R. RORTY, CONSEQUENCES OF PRAGMATISM 148-50 (1982). In the final analysis, however, (^) Hegel was no part of the revolt against reason in favor of intuition and imagination. It is the latter point Charles Taylor has in mind when he says "Hegel cannot be called a Romantic." (^) C. TAYLOR, supra note 2, at 42. Or as Robert Solomon puts it, "Hegel transcends romanticism." R. SOLO- MON, supra, at 304. 31. See supra note 4.
- Unger would emphasize that this aspect of his thought (among others) distin- guishes him from Hegel and Marx, and, of course, it does. See supra note 21. At the same time, Unger could not deny that many of his major themes modernize signifi- cant aspects of Hegel's and Marx's thoughts.
- To the extent radicals recognize that the "contradictions" of liberal thought cannot be reconciled and that utopia will never arrive (see supra note 29 and infra note 414), this recognition deprives them (^) of an "objective" standard of judgment, undercuts their criticism, and promotes alternating attitudes of cynicism and despair. See infra text accompanying notes 341-45 (^) and 382-90. Indeed, the device of labeling the conflict between autonomy and community a contradiction instead of a tension (see, e.g., Kennedy, Blackstone's Commentaries,supra note 25) depends for its efficacy on an available (^) means of reconciling the two or on the unpalatable position of aban-
doning one for the other.
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The model of eclectic liberalism, as presented here, is more
concerned with how to defend liberalism than it is with actually
defending it. The model, therefore, forms only part of an overall
theory, but even that part has important substantive implications.
A commitment to an eclectic method of justification rules out
some theories altogether and necessarily proceeds from a particu-
lar conception of human nature and social reality. The model of
eclectic liberalism is founded on the complexity of human nature
and of social reality. This foundation is more helpful than those
of the other models in thinking about the most basic legal issues,
ranging from freedom of speech to judicial review, from distribu-
tion of property to structures for building community. In place of
excessive rationalism, eclectic liberalism emphasizes the need to
build more humane structures in light of the diversity, interests,
and needs of particular beings in a particular social context. In-
stead of romanticizing the possibilities for social reality, eclectic
liberalism recognizes the need to accommodate values and reflects
on the appropriate structures for making such accommodations.
Although this brand of liberalism stresses the need for an eclectic
attitude (that is, a willingness to draw from the positive strains of
diverse traditions), it is committed to a liberal society, one that
rejects skepticism and values tolerance over neutrality. It rejects
structures of domination, valuing programs designed to distribute
wealth and meaningful work in a more equitable way. It also re-
jects the model of state as night watchman, recognizing the affirm-
ative responsibilities of government in creating a community
committed to humane values without overwhelming human
autonomy.
A methodological point should be emphasized. The models I
describe are not fantasies; variations on these models have been
advanced and defended by influential scholars. But many of the
scholars I have mentioned vigorously disagree with each other.
Indeed disputes among those with similar. world views are fre-
quently the most violent. 4 1^ Many of these scholars would be ap-
palled if readers were led to believe that they held all of the views
I attribute to ethical liberals or democratic radicals.
I have tried to indicate most of the important departures in
the notes. I also employ the notes, rather than cluttering up the
40. See, e.g., L. TRIBE, AMERICAN CONSTITUTIONAL LAW (1978) [hereinafter cited as L. TRIBE, AMERICAN CONSTITUTIONAL LAW]; Tribe, The Puzzling Persistence ofProcess-BasedConstitutional Theories, 89 YALE L.J. 1063 (1980); Tribe, Technology Assessment and the Fourth (^) Discontinuity. The Limits of Instrumental Rationality, 46 S. CAL. L. REV. 617 (1973) [hereinafter cited as Tribe, Technology Assessment]. See also supra note 6.
- See L. KOLAKOWSKI, supra note 21, at 97.
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text, to show that it is not unfair to link the scholars I group
together.
Apologies aside, the models stand on their own. They are
important ways of looking at the world, and they have persisted
precisely because they appeal to powerful and persistent intuitions
that war inside us all. Eclectic liberalism tries to coordinate these
intuitions, but, more importantly, it tries to show why universal
answers cannot be given to particular questions. Without deni-
grating the importance of theory, it stresses the need for appreciat-
ing theoretical limits.
I make three claims for eclectic liberalism. First, eclectic lib-
eralism is part of a great philosophical tradition that reaches back
through Isaiah Berlin to John Stuart Mill. That claim is advanced
in notes. Precious little turns on how closely eclectic liberalism is
tied to the ideals of John Stuart Mill. Mill is an inspiration, not a
bible. The same applies to Berlin, Greenawalt, Haksar, Gutmann,
Karst, and Tribe.
Second, I think that eclectic liberalism is more descriptive of
the beliefs of contemporary American liberal politicians than are
the other models, but nothing turns on that claim either. Indeed
that contention is not much pursued in text or notes.
Third, eclectic liberalism is the best game in town.
It is a small town, however. It has no conservatives. Liber-
tarians arrive intermittently like transients, departing quickly.
Utilitarians, conservative or liberal, make only brief appearances.
The article begins with a description of two quite different polit-
ical theories I put under an umbrella labelled "classical liber-
alism." Classical liberalism is opposed by both ethical liberals
and democratic radicals, neither of which can be understood with-
out reference to this, their common enemy. I describe classical
liberalism in quite general terms; I do not delve into the qualifica-
tions, nuances and new varieties that would have to be considered
if classical liberalism were the focus of the critique. It is not, but
classical liberals and other theorists will be alternately soothed
and outraged by what appears here. They will perhaps find com-
fort in the attack on the ethical liberals and the democratic radi-
cals, but when the dust clears, the strategy of the essay will be
clear. Liberalism exhibits no monolithic character or deep struc-
ture. 42 It has many meanings. Even though some can be toppled
- Liberalism is a label that has embraced many different theories that have almost nothing to do with each other. Unger is clear that the liberal model he attacks is hypothetical, "both broader and narrower than the one occupied by what we now ordinarily take for liberalism." R. UNGER, KNOWLEDGE AND POLITICS, supra note 13, at 3. See also id. at 8 (acknowledging that no one thinker accepts the liberal theory as he describes it, but arguing that the theory as he presents it is the "deep structure"). Others have been more daring. See, e.g., M. HORKHEIMER, supra note
19831 1113
19831 LEGAL^ SCHOLARSHIP^^1115
and of freedom, 46 the character of rights^ and their importance,
4 7
the role of property in moral 48 and political life4 9^ (even on the
question of whether it would be desirable for the state to redistrib-
ute wealth),^50 the^ importance^ of^ the^ conception^ of^ community,
(^5) '
AND LEGISLATION, in THE UTILITARIANS 7 (Dolphin ed. 1961)) with Kant's focus upon free will and his emphasis upon man's ability freely^ to^ choose^ duty^ over^ plea- sure. I. KANT, supra note 1.
- Compare J.^ BENTHAM,^ supra^ note^44 (moral^ questions reduced^ to^ that^ which will give pleasure, with no distinctionsas to kinds of pleasures) with J.S. MILL, UTILI- TARIANISM, supra^ note^ 34,^ at^410 (moral questions^ dependent^ on^ what^ produces^ hap- piness, distinguishing between kinds of pleasure) ("better to be a human being dissatisfied than a pig satisfied") and I. KANT, supra note 1 (rejecting happiness or pleasure as the basis of morals):
As nature has elsewhere distributed capacities suitable to the functions they are to perform, reason's proper function must be to produce a will good in itself and not one good merely as a means, for to the former reason is absolutely essential.^ This^ will^ must^ indeed not^ be^ the^ sole^ and complete good but the highest good and the condition of all others, even of the desire for happiness.
Id. at 12. But cf. infra note 120.
- Compare Locke's contention that freedom from absolute, arbitrary power is so necessary that it cannot be waived (J. LOCKE, Two TREATISES OF GOVERNMENT bk. 1I, ch. IV § 23, at 325 (P. Laslett rev. ed. 1960)) with Rousseau's concept of^ forced freedom (J.J. ROUSSEAU, THE SOCIAL CONTRACT bk. I, ch. VII, at 18 (G. Cole trans. 1950)): [W]hoever refuses to obey the general will shall be compelled to do so by the whole body [politic]. This means nothing less than that he will be forced to be free; for this is the condition which, by giving each citi- zen to his country, secures him against all personal dependence. Id.
- Compare J. BENTHAM, ANARCHICAL FALLACIES, in 2 THE WORKS OF JER- EMY BENTHAM 501 (Bowring ed. 1843) ("Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense,-nonsense upon stilts.") with J.S. MILL, ON LIBERTY, supra note 34, at 485 (endorsing rights but foregoing any notion of abstract right independent of utility) and J. LOCKE, supra note 46 (endorsing natu- ral rights).
- Compare J. LOCKE, supra note 46, bk. II, ch. V § 50, at 344 (apparently en- dorsing unlimited accumulation of wealth as in accord with reason and natural law) with 3 J.S. MILL, PRINCIPLES OF POLITICAL ECONOMY, supra note 34, at 753-57 (op- posing materialism and urging limits on economic growth) and J.J. ROUSSEAU, supra note 46, at 50, 93 (opposing materialism).
- Compare generally J. LOCKE, supra note 46 and I. KANT, THE METAPHYSICAL ELEMENTS OF JUSTICE, supra note 15 (role of state to preserve preexisting just acquisi- tions of property (but cf. supra note 15) (allowing state funds for the poor)) with 2 J.S. MILL, PRINCIPLES OF POLITICAL ECONOMY, supra note 34, at 199-201^ (role^ of^ state^ to distribute property in a way that maximizes happiness) and id. at 203-14 (socialism better than capitalism, but capitalism reformed in^ a^ humane^ way^ might^ be^ better than socialism). In many respects, Locke's and Kant's political theories are similar. The ethical liberals draw upon Kant's moral theory but infer different political implica- tions. See supra note 15.
- Compare Bentham's belief that redistribution endangers security and thus utility (C. MACPHERSON, LIBERAL DEMOCRACY, supra note 34, at 27-34) with Mill's belief that redistribution is required to achieve justice (2 J.S. MILL, PRINCIPLES OF POLITICAL ECONOMY, supra note 34, at 203-14) which for him was a subcategory of utility (J.S. MILL, UTILITARIANISM, supra note 34,^ at^ 446-70).
- Compare Hobbes' and Bentham's conception of community as a fiction, the
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the meaning of equality, 52 and the scope of the authority of the
state to command the allegiance of its citizens. 5 3
Indeed liberalism might be finally susceptible of precise defi-
nition only by negation, that is, in terms of its common conceptual
foe: the political theory that characterizes individuals as being
naturally suited to accept their place in a hierarchical society
where all pay unswerving homage to the king. The common
theme of individualism sets liberalism against monarchical con-
servatism, but if attention be paid to the diversity of liberals, even
that common theme may conceal more than it reveals.
The phrase "classical liberalism," as used in this article, refers
to only a small part of the liberal tradition, a part rejected by both
ethical liberalism and democratic radicalism. For our purposes,
"classical liberalism" embraces both of two alternative models
of
human, moral, and political life. One model, the pleasure model,
contains premises largely traceable to Jeremy Bentham; the other,
the property rights freedom model, reaches back to John Locke.
These models arrive at similar conclusions by quite different
routes. My purpose, again, is merely to sketch the perspectives
jointly opposed by ethical liberals and democratic radicals, so that
we can appreciate the rhetorical context in which their theories
emerge.
A. The Pleasure Model
The pleasure model of classical liberalism is at most points a
rough amalgam of the views of Thomas Hobbes and Jeremy Ben-
tham.1^4 Simply stated, its thesis is that a human being is a selfish
pleasure center by nature, seeking out pleasure and striving to
avoid pain.^55 There is nothing wrong with this-it simply is. The
individual being all (D. GERMINO, MACHIAVELLI (^) TO MARX 234 (1972) with Rous- seau's conception (^) of community as an organic body (S. WOLIN, POLITICS AND VISION 371 (1960) ("Like D.H. Lawrence, Rousseau believed that 'men are (^) free when they belong to a living, (^) organic, believing community,'" quoting D.H. LAWRENCE, STUD- IES IN CLASSIC AMERICAN LITERATURE 17 (1953) (emphasis (^) in original)).
52. Compare Kant's conception of material inequality but formal equality before the law (^) (see supra note 15) with Rousseau's belief in the need for substantive equality (J.J. ROUSSEAU, supra note 46, at 32) ("Under bad government this equality is merely ostensible, ie., an illusion: it serves (^) only to perpetuate the poor man's poverty and the rich man's possessions.").
- Compare J. LOCKE, supra note 46, bk. II, ch. XVIII §§ 199-210, at (^) 446- (right (^) of revolution) with I. KANT, THE METAPHYSICAL ELEMENTS OF JUSTICE, supra note 15, at 86 (duty not to revolt).
- For an excellent and brief discussion of Hobbes, (^) see S. WOLIN, supra note 51, at 239-85. See also C. MACPHERSON, POSSESSIVE INDIVIDUALISM, (^) supra note 22, at 9-106. For a brief discussion of (^) Bentham, see C. MACPHERSON, LIBERAL DEMOC- RACY, (^) supra note 34, at 23-43.
- 1 ignore any questions concerning the relationship (^) between pleasure and pain, or pleasure and happiness.
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B. The Property Rights Freedom Model
An alternative model of classical liberalism starts from differ-
ent premises but arrives at similar conclusions. Under this view,
roughly derived from John Locke, 58 God created humans as free,
equal, and independent beings, granting to none of them (or to no
group of them) the right to impinge upon the freedom of any
other except as a just infliction of punishment. To deny another's
freedom would be to make one person slave to another, and slav-
ery is the antithesis of what the natural law requires. Government
becomes necessary because, without the establishment of rules
and their enforcement, humans could not be free from the re-
straint or violence of those who failed to respect the natural law.
But government derives the power to impose rules on individuals
only if they (in one way or another) have consented to the rule of
government. And the exclusive purpose of government is to pro-
tect individuals from the arbitrary will of others, that is, to pre-
serve their freedom.
Central to the idea of freedom is the right to private property.
Humans, at a minimum, own their own bodies, and God intended
that the industrious be able to use their bodies and their minds to
give value to the resources of the world and to enjoy the fruits of
their labor. The invention of money as a medium of exchange by
the mutual consent 59 of the governed allows us to store wealth in a
way that can lead to unequal distribution of wealth. Because we
own our own bodies, however, we can freely work to lead a full
life. Moreover, government would depart from its function if it
attempted to redistribute property. Because government's only
purpose is to preserve freedom (including the freedom to possess
property), to take property from some to give to others would be
theft. If people are to help others in need, their actions must be
free. To take property, then, circumscribes freedom-it is a form
of slavery.
58. See J. LOCKE, supra note 46, at 305-477. A useful summary is contained in
D. GERMINO,supra note 51, at 117-49. Indispensable commentary is contained in C. MACPHERSON, POSSESSIVE INDIVIDUALISM, supra note 22, at 194-262 and Laslett, Introduction to J. LOCKE, supra note 46, at 15-135. Although I (^) think MacPherson's reading of Locke's property views is generally on the mark, there are ambiguities, and Locke can be read for far greater state regulation of property than is ordinarily (^) attrib- uted to him or than is attributed in this model. See Laslett, supra, at 114-20. For a bibliography of works on Locke, see J. LOCKE, (^) supra note 46, at 545-56. For an attempt (^) to modernize Locke by a prominent non-Lockean scholar, see R. NozicK, ANARCHY, STATE, AND UTOPIA (1974).
- (^) This is a notoriously weak point in Locke's theory. See, e.g., A. GUTMANN,
supra note^ 37,^ at^ 30-33.
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C. ClassicalLiberalism Viewed Through a Democratic Radical
Lens
A glimpse of the democratic radical's
60 counterpoint may
place the^ classical^ liberal^ models^ in^ perspective.^ The^ democratic
radicals reject^ the^ model^ of^ man^ as^ an^ egoistic^ pleasure^ seeker^ and
the model of^ government^ as^ night^ watchman^ or^ preserver^ of^ ac-
quisitive freedom.^ Human^ beings,^ they^ say,^ secure^ their^ identities
as pleasure-seeking animals^ to^ the^ extent^ that^ society^ trains^ them
to be that way, but society need^ not^ be^ so^ arranged.
The democratic radicals would substitute altruism for^ egoism
on the ground that egoism is unsatisfying and morally bankrupt.
They believe that the model^ of^ an^ individual^ standing^ alone^ is
hardly an appropriate symbol for^ all^ that^ is^ human, and^ persons
are not truly free if they are poor or lack^ power.^ For^ the^ anomie
of individualism, democratic radicals would^ substitute^ friendship;
for the egoism of competition, they would substitute^ cooperation;
instead of the night watchman, they^ propose^ community.^ In
short, the democratic radical opposes the^ idea^ of^ a^ civil^ society^ of
ego-maximizing individuals striving for greater and^ greater^ wealth
at the expense^ of^ their^ fellow^ citizens.^
6 ' Instead they offer the
hope of friendship,^ community,^ cooperation,^ love,^ trust,^ and^ shar-
ing. To defend liberalism, the democratic^ radicals^ say,^ is^ to^ de-
fend selfishness, widespread inequality, the misery^ produced^ by
private property and freedom of contract,^ and^ the^ sense^ of^ loneli-
ness and anomie that^ comes^ from^ isolation.
II. ETHICAL OR NEO-KANTIAN LIBERALISM
Ethical or Neo-Kantian liberalism^ opposes^ many^ of^ the same
features of classical liberalism that^ rankle the democratic^ radicals.
Ethical liberals reject^ both^ of^ the^ classical^ liberal^ models.^ Justice
and equality are their organizing principles,^ not^ efficiency^ in^ max-
imizing happiness or a concept of^ freedom^ based^ on^ rights^ of^ pri-
vate property.
Perhaps the most extravagant claims for^ ethical^ liberalism
have been advanced by^ Ronald Dworkin.^ He^ not^ only^ has^ made
- See generally supra notes 13 & 25.
- In many ways, so did many of the devotees of^ the^ pleasure model.^ For^ exam- ple, Bentham, who is commonly caricatured^ as^ the^ epitome^ of^ the^ selfish^ individualist, did not believe that people invariably^ act^ out^ of^ self-seeking^ motives.^ He^ regarded good will (under which he collected benevolence, charity,^ philanthropy^ and^ love)^ as the motive most^ certain^ to^ coincide^ with^ utility.^ See^ generally^ J.^ BENTHAM,^ supra note 44, at 109-17.
19831 1119
1983] LEGAL^ SCHOLARSHIP^^1121
right."'^69 It is morally required that government treat its citizens
with equality and respect.
This concept of^ respect^ for^ persons^ is^ at^ the^ heart^ of^ Kantian
and neo-Kantian scholarship, 70 and Kant's^ elaboration^ of^ the
point is worth exploring.^ In^ one^ of^ the^ most^ important^ passages in
moral philosophy Kant stated:
"[Mlan and, in general every rational being exists as an end in
himself and not merely as a means to be arbitrarily used by this
or that will. In all his actions, whether they are directed to him-
self or to other rational beings, he must always be regarded at
the same time as an end.. .. [RIational beings are designated
persons because their nature indicates that they are ends in
themselves, i.e., things which may not be used merely as a
means. Such a being is thus an object of respect and, so far,
restricts all [arbitrary]^ choice."^
- Dworkin, Liberalism, supra note 17, at 142.
- Most ethical liberals explicitly recognize that their thinking has been influ- enced by Kant. Dworkin,^ Philosophy^ and^ Politics,^ in^ MEN^ OF^ IDEAS^ 259-60^ (B. Magee ed. 1978) [hereinafter cited as^ Dworkin,^ Philosophy^ and^ Politics]^ ("It^ is^ abso- lutely necessary for liberals now ... to show that the true father of liberalism is not Bentham, who is in fact rather an embarrassment for liberals, but Kant, whose con- ception of human nature cannot be called impoverished.") But cf. R. DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 17, at 175-76 (rejecting Kantian duty-based theories in favor of rights-based theories) Dworkin, Is Wealth a Value?, 9 J. LEGAL STUD. 91, 233 n. 14 (1980) (not Kantian to the extent Kant endorses maldistribution of property); C. FRIED, RIGHT AND WRONG, supra note 20, at 33 n.* (recognizing de- spite several later criticisms of aspects of Kant that his thesis is "basically Kantian"); J. RAWLS, supra note 12, § 40, at 251 (following Kant's notion of autonomy and cau- tioning against emphasizing the place of generality and universality in Kant's ethics); Richards, Human Rights, supra note 19, at 465 ("Kant.. .is, I believe, the most profound philosophical theorist of liberalism"). Ackerman is quite cagey about the relationship of his thoughts to Kant. B. ACK- ERMAN, supra note 18, at 349-78. He maintains that there^ is^ more^ than^ one^ path^ to liberalism and that individuals must decide their own^ path^ for themselves.^ Id.^ He rejects utilitarianism and intuitionism, but he^ is^ also^ unhappy^ with^ what^ he^ calls deductionism. Id. at 356-57. Moreover, he tries to root his defense of neutrality in a conception of undominated dialogue that is reminiscent of what some regard as post- Kantian continental philosophy, particularly^ that^ of^ Habermas.^ See^ Ackerman,^ What is Neutral about Neutrality, 93 ETHICS 372, 375 n.l (1983); Weale, Book Review, 65 MINN. L. REV. 685, 689-92 (1981). For discussions of Habermas' relationship to Kant, see HABERMAS: CRITICAL DEBATES (J. Thompson & D. Held eds. 1982). Nonetheless, Ackerman's emphasis on rationality, respect, and autonomy is distinctly Kantian. See, e.g., B. ACKERMAN, supra note 18, at 57, 75, 111, 182, 255, 289, 302, 320, 347, 354. In particular, see id. at 367-68. Ackerman's major qualification of Kantianism appears to be that he is unwilling to swallow rationalism wholesale when its results are particularly outrageous (but see infra note 137), and he rejects social contract theories.^ The^ former^ position^ is^ shared^ by J.^ RAWLS,^ supra^ note^ 12,^ §^ 4,^ at 19-20. Ackerman has also suggested in earlier work that he leans toward a qualified
Kantianism. B. ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION 76, 85, 225
n.19 (1977). Indeed, the approach he takes in the latter work is one Kant could have endorsed with enthusiasm.
- 1. KANT, supra note I, at 46 (brackets around "arbitrary" in original).
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The idea that man is not to be treated merely 72 as a means,
although not without subtlety, has an easily comprehensible core of meaning. A person is not to be treated as a mere object, as an incidental means to the satisfaction of the desires of others. Men
are never^ to^ be^ treated^ as^ if^ they^ were^ rocks.^
73
The Kantian prescription, however, goes on to direct that a
person is to be regarded as an "end," and that usage has puzzled some scholars. 74 What does it mean to treat a person as an end?
Humans should act, according to Kant, as if they were the
end of nature. 7 " From this perspective, vegetables should be re-
garded as means to feed animals and animals in turn to serve
- The word "merely" has to distinguish the many circumstances in which we treat individuals as means to ends, e.g., purchasing an object from them without any personal interaction. The prohibition against treating people merely as a means does not necessarily extend to such actions. 73. The analogy is not perfect, however. Sadists derive pleasure not because their victims are rocks, but rather because they inflict pain on persons.
- See, e.g., R. WOLFF, THE AUTONOMY OF REASON, supra note 15, at 175: Now, in what sense can a moral agent-whether myself or another-be an end of my action? Can a person be my purpose? No. The question makes no grammatical sense.... When I say, for example, that I took my son to the dentistfor his sake, I mean that I did it in order to further his well-being. My end was his happiness, which I assume is his end too, insofar as he is capable of choosing ends. So I did what I did for the sake of his purpose. It was his end which I took as my end, not him. Id. (emphasis in original).
- I. KANT, CRITIQUE OF JUDGMENT, in THE PHILOSOPHY OF KANT § 83, at 347 (C. Friedrich ed. 1949) (hereinafter cited as I. KANT, CRITIQUE OF JUDGMENT]: We have shown in the preceding section that looking to principles of reason there is ample ground-for the reflective, though not of course for the determinant, judgment-to make us consider man as not merely an end of nature, such as all organized beings are, but as the being upon this earth who is the ultimate end of nature, and the one in relation to whom all other natural things constitute a system of ends. See also generally Kant, Universal History, supra note 15. The failure to consider or understand Kant's elaboration of the concept of an end in the CRITIQUE OF JUDGMENT and in his historical writings has caused some scholars to ignore or deny Kant's teleology. See, e.g., A. MACINTYRE, AFTER VIRTUE 52 (1981) (Kant rejects "any teleological view of human nature .... [To understand this is to understand why [his] project of finding a basis for morality had to fail."). The failure to recognize Kant's belief that man is the end of nature and that practical reason should be guided by an account of nature's purpose has led many to attack Kant's moral theory as being empty and merely formal. See, e.g., R. UNGER, KNOWLEDGE AND POLITICS, supra note 13, at 85-86; R. WOLFF, THE AUTONOMY OF REASON, supra note 15, at 176. Kant did not maintain that we could know the pur- pose of nature; rather he thought that our practical reason could be guided by assump- tions about that purpose. Only in that sense does Kant deny a teleological view of human nature. Compare C. TAYLOR, supra note 2, at 77 n.I with id. at 321 n.l. See generally I. KANT, CRITIQUE OF JUDGMENT, supra. Rawls is quite correct therefore when he states that "[tlo be avoided at all costs is the idea that Kant's doctrine simply provides the general, or formal elements for a utilitarian (or indeed for any other) theory.... The CritiqueofJudgment, Religion Within the Limits of Reason, and the political writings cannot be neglected without distorting his doctrine." J. RAWLS,
