Liberalism Undressed Jethro K
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digitalcommons.nyls.edu Faculty Scholarship Books 2012 Liberalism Undressed Jethro K. Lieberman New York Law School Follow this and additional works at: https://digitalcommons.nyls.edu/fac_books Recommended Citation Lieberman, Jethro K., "Liberalism Undressed" (2012). Books. 1. https://digitalcommons.nyls.edu/fac_books/1 This Book is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion in Books by an authorized administrator of DigitalCommons@NYLS. Liberalism Undressed JETHRO K. LIEBERMAN OXFORD VNlVIHlSlTY PJ.F.~S OXFORD VNIVBR.SITY PllBSS Oxford Univ~rst!y l'rtss is a department of the University ofOxford. It furthers the University's objective of exceilence in ruurch, scholarship, and education by pubU<bing worldwide. For Charles E. Lindblom Oxford N-York Auckbnd Cape Town Oar •• SaLum Hong Kong Karachi Kualal.umpur Madrid Melbourne MtxicoCity N•irob1 Ntw Dtlhi Sh•nghal Taipti Toronto With offices in Arg<ntma Au•tria Brazil Chilt Czech Repubhc France Greecr Guatemal• I lunguy Italy Japan Poland Portugal Sing•port South Koru Switzerland Thailand Turkey Ukmnt Vietnam Oxford is a rtglstered trade nurk of Oxford University Press in the UK and certain other countries. Published In the United States of Amtrica by Oxford University Press 198 Madison Avenue, New York, NY 10016 (')Jethro K. Lieberman 2012 All rights ruerved. No part of this public•Uon maybe reproduced, ltortd in a r<triev•l system, or transmitted, in •ny form or by any means, Without the prior perm iuion 1n writing of Oxford University Press, or as expressly permitted by bw, by hcense, or under terms •greed with the appropri>te reproduction right< organl10t1on.1nquirits concerni•g reproduction OUI>idt the scopt o!tht abovtshould burnt to tht Rights Deportment, Oxford Umversity Prt>S, •t tht address •hove. You must not circulate this work in any other form and you must Impose this ume condition oo any acquiror. l.lbraryofCongress Cataloging-ln-Pub.icallon Data l,ieberman,Jethro Koller. L1btralism undrturd I Jethro K. Lieberman. p. em. locludu b•bhographicalrtforences and index. ISBN 978-0-19-991984-0 l.l.iberahsm. L T1tle. JC574.LS5 2012 320.51 dc23 2011053132 135798642 Prmtrd in thr United Statrs ofA merit> on aCid-free paper CONTENTS 1. The Liberal Premise 3 2. Constructing Harm from Natural Rights: The Cases of Locke and Nozick 29 3. The Meaning of Harm Derived from Interests: Joel Feinberg's Harm Principle 47 4. Collective Harms and the Market: Problems of Causation 69 S. Taxation, Welfare, and Benefits 97 6. The Duty to Act: Toward the Fiduciary Ethic m 7. The Forms oflntervention 143 8. What Who? 162 9. Paternalism and the Timeline 1so 10. Harm to Norms 201 11. Liberalism Redressed 242 Appendix: Four Liberal Premises and Their Problems 255 Acknowledgments 271 Notes 275 References 343 Index 363 The Liberal Premise Commitments in Search ofa Premise The fundamental human dilemma is how to escape from the jungle without landing in the zoo. How is it possible to prevent the community from fracturing into fearful and ruinous hostilities while protecting the individual from the heel of an intolerant, superior ruler? Nearly four centuries ago, a beguiling idea seized the western imagi nation: A just balance between disorder and repression could be achieved if the state withdrew from the business of imposing an ultimate good. Liberalism, the philosophical venture that promoted this apparently simple idea, holds that it is not only possible but also morally proper to govern by refraining from decreeing ulti mate ends, and that the state's only business is to prevent people from harming each other, not to engage in moral projects. Laws and political institutions should free us to seek and fulfill our own good as best we can without interfering in the same pursuit by others. Liberalism is thus a common life led at arm's length: We can live together, but not so close that either we must watch our backs or someone else must look over our shoulders. This regime of "ordered liberty"1 has empowered large numbers ofpeople to shape their own lives, and the release of energy has led to the most astonishing transformation in the human condition known to history. The liberal venture was audacious, and for two significant reasons. First, it flew in the face of historical evidence. The state had always been an ordainment of God, not an artifact of man. The place of people, families, citizens, subjects, and slaves was fated and fixed-from ancient times through the Renaissance, the state that bound them was thought to be part of the natural order.2 Although history records many kinds of states, in all of them rulers ruled1 they did not serve, and they ruled to pro mote the good that they commanded. To do otherwise would risk disorder, even chaos and depravity. The liberal venture was audacious, second, because it required the paradoxical belief, as things worked out, that only in the state and by obedience to law was it possible to be free. Contrived to remove the yoke of the state, liberalism ultimately 3 LJBI!RALISM UNDil£SSI!O The Ltbera/ Premise s was tethered to it. Some acclaimed philosophers of liberty went further, arguing "something damnable, unhealthy, and odious.''13 On the left, a noted legal scholar that freedom requires wholesale submission-in Rousseau's famous words, citizens proclaimed that "life in modern, liberal society continually denies us the possession 3 14 "shall be forced to be free." Without a fine balance, liberalism risks devouring itself. of coherent personality.'' A political philosopher, summarizing a strand of commu Liberalism did not arrive all at once or anywhere conquer the ground com nitarian thought, notes that "liberalism is said to undermine community, to restrict pletely.'' Nevertheless, a set of foundational beliefs took root and ripened into polit unduly opportunities for democratic participation, to create inegalitarian hierarchy, ical institutions and practices that today are widely familiar as the halhnarks ofliberal and to reinforce egoistic social conflict at the expense of the common good."15 regimes. Although no two writers provide the same list- liberalism is a voluminous The less academically inclined, on entering any used bookstore, can find tracts 5 1 collection of commentaries without a central scripture -most of these institutions many by well-known commentators, that procla.im liberalism a "mentaJ disorder" and practices can easily enough be named. "The core practices of a liberal political " ill I go ess," a "sin~·· "evil," a "tragedy1' an "assault,~ laclting common sense, "fascist," order," says Stephen Holmes, "death," "a demonic mob/' and1 more limp, though starkly oxvmoronic wanting ~ ~ ~ I erty. And from the modern medium of the blogosphere comes a jejune com- are religious toleration, freedom of discussion, restrictions on police plaint about the very sound of it: "The biggest problem with modern American behavior, free elections, constitutional government based on a separation liberalism may be the word itself -it just hits the car wrong."17 Cynically one might 1 of powers, publicly inspectable state budgets to inhibit corruption, and suppose the truer claim is that liberalism foments hysteria. economic policy committed to sustained growth on the basis of private How can these attacks on liberalism (which by its very principles encourages ownership and freedom of contract. Liberalism's four core norms or ~he':") ~e squared with the reality of widespread and deeply rooted liberal political values are personal sewrity (the monopolization oflegitimate violence by mst~tu~.~ns? The most obvious answer is that the word has multiple meanings. "Lib agents of the state who are themselves monitored and regulated by law), ~r~lism, IS a confederation of connotations, not all consistent or necessarily con· impartiality (a single system oflaw applied equally to all), individualltberty JO~ed. Overuse and overextension of [the tcnn) have rendered it so amorphous," (a broad sphere of freedom from collective or governmental supervision, Judith Shklar insisted1 "that it can now serve as an all-purpose word, whether of 18 including freedom of conscience, the right to be different, the right to pur abuse or praise.'' Liberalism, says Raymond Geuss, "has no definition.''19 He means, sue ideals one's neighbor thinks wrong, the freedom to travel and emi I should suppose, that it has too many. 20 grate, and so forth), and democracy or the right to participate in lawmaking In the realm ofpolitics, especially American party politics, liberalism can stand for 6 by means of elections and public discussion through a free press. minimalist government, an expansive welfare state, and everything in between. 21 It is sometimes taken as a synonym for utilitarianism or egalitarianism (moral theories Other practices that belong on this list include freedom of association; a universal ab~ut.h~an ends) or democracy {a theory about means).22 In a more philosophical franchise; fair hearings; jury trials; an independent bar; public education; universal vem, 1t IS associated with a general idea about individuality, "the belief that the literacy; civilian control of the military; equal right to pursue occupations; and pro ~eedom of the individual is the highest political value, and that institutions and prac hibitions against hereditary privileges, secret and ex post facto laws, group guilt, the tices are to be judged by their success in promoting it."23 Individuality itself can be 24 selling of public office, and self-exemption (i.e., everyone, including the lawmaker, is expressed in a multitude of ways. A political-sociological approach has it that "no to be subject to the Jaw).' An additional practice, less often remarked but essential to person may be forcibly imprisoned w1thin the class or clan or even family into which 25 the notion of fair procedure, is that people are to be held accountable by the norms he was born." A political-psychological approach holds that "liberals are committed 8 ofscientifically accessible evidence.