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Saturday, March 03, 2018

An Addendum to Rick Hills: DeGirolami on "Why Liberalism Failed" and "Legal Liberalism"

One of the things I admire about our Prawfs colleague Rick Hills's writing here and elsewhere is that it so often has an interesting and at least somewhat category-defying take on a broad range of issues. I'm glad that in his most recent post he calls attention to, and critiques, Patrick Deneen's interesting new book, Why Liberalism Failed. It's a book that legal academics, whether they are what legal academics and others would call "liberals" or "progressives" or "conservatives," ought to read and ponder. Depending on the press of other obligations, I hope (in vain, I fear) to have a more substantive set of reactions of my own, either to the book or Rick's post or both.

In the meantime, let me call attention to a review of the book by Marc DeGirolami. The review is titled "The Long Tail of Legal Liberalism," and its specific aim is to consider the relevance of the book to law and "legal liberalism."

Marc offers his own definition of that term, but a fairly standard one within the legal literature is Laura Kalman's: "confidence in the ability of courts to change society for what judges [and, I think one could add, lawyers and legal academics] believe is the better." It was generally associated with a specific reverence for and desire to defend the Warren Court, although one could surely extend that description taking into account later decisions and courts. William Simon has written that "There is no canonical definition of Legal Liberalism, but we know it when we see it," and adds that it is generally associated with general liberal politics: "Legal liberals are liberals in the broader sense that connotes, first, a scheme of values that gives priority to moderate versions of equality and liberty and, second, a position on the American political spectrum between the middle and the far left."

One might ask whether, to the extent that one sees modern "progressives" as different in some sense or set of positions from "liberals," rather than merely having adopted a re-labeling strategy, this definition applies to them as well. I personally think the "progressive" position on liberty and equality is different from the conventional or perhaps older "liberal" position, and that this can be viewed either as a meaningful difference between progressives and liberals or as a change in the values and substantive positions of liberals. Although I think these differences are important, in many or most respects I think of legal academic progressives as still falling roughly within the position occupied by legal liberals. From a critical (or Critical) or class-based perspective, I think one could conclude that legal academic progressives still 1) roughly represent the legal, or legal academic, establishment; 2) still think of themselves largely as representing the "consensus" position of reasonable educated lawyers; and 3) still position themselves, at least in some ways, as occupying a middle perspective between the middle and the "far left," one reason being that one can be (and generally is) a legal or legal academic "progressive" without being especially interested in questioning or upsetting things like one's own position, status, and professional and class prerogatives. As recent critics from both the left and right have written, they may be more interested these days in giving primacy of place to equality and voicing concerns about economic inequality, but their concerns are largely about "horizontal equality"; they are less interested in seriously attacking "vertical inequality" or the many pathways to elite status. I do not understand any of these definitions or positions to be incontestable. 

Marc wonders whether legal liberals will like the book--I wonder whether they will even read it or, given the narrowness of our epistemic communities and sources of information these days, know of its existence--and concludes that they won't:

Indeed, one might well suppose that the partisans of legal liberalism would be the least receptive to what Deneen has to say, devoted as they are to maintaining and enlarging the power structures and ideological commitments of the liberal status quo. Lawyers and legal academics will be particularly prone to dismiss Deneen. The legal elite is adept at inventing stratagems of self-validation. It is quick to enforce internal codes of civility, conformity, right thinking, and right speaking that mark membership in the club. It drives itself to distraction in the latest Supreme Court intrigues, investing its preferred justices with a superhuman heroism and a cult of personality (while demonizing the others). It jealously guards its own birthright. It will not like this book.

I tend to agree with him, to my regret. (Hence my opening compliment to Rick Hills for having a wider view of interesting topics and sources.) On that point, it's worth noting a passage in the foreword to the book, written by the editors of the Yale University Press series of which Deneen's book is a part:

Deneen’s book is disruptive not only for the way it links social maladies to liberalism’s first principles, but also because it is difficult to categorize along our conventional left-right spectrum. Much of what he writes will cheer social democrats and anger free-market advocates; much else will hearten traditionalists and alienate social progressives. Some of these readers nonetheless will be tempted to place the book in one or another familiar category, the better to manage and perhaps dismiss its critique. They should resist that temptation, which is itself a symptom of our polarized times and perhaps the chief reason why Deneen’s argument is precisely the kind we most need to hear now.

Although it's not written by Deneen, I think this is in some ways the most important passage in his book. Many early reviews of the book in mainstream and other publications suggest that the warning was not heeded. Readers sought to categorize the book, and praise or reject aspects of it, according to their position within the standard and tedious debates between "left" and "right" (a terribly general phrase that should generally be avoided) or "liberals/progressives" and "conservatives." They sought, in other words, to "manage and...dismiss its critique" of liberalism. I think most legal liberals, and for that matter most legal academics of whatever political stripe, are so locked in to those debates and their terms of reference that they will either read the book strictly through this lens or, having decided that it falls within the category of "conservative," ignore it altogether--that is, if they hear about it at all.

I may be wrong about that. If I'm right, it would be unfortunate. There's a lot in the book, and it is often written in the manner of a polemic rather than a careful academic exercise, so there is plenty to disagree with as well as much to agree with or find thought-provoking. (Marc has his own criticisms of the book.) It is certainly highly relevant to law, legal liberalism, and the legal academic project as many legal scholars understand or practice it. I encourage readers to look at Marc's review in addition to Rick's post.  



Posted by Paul Horwitz on March 3, 2018 at 09:34 AM | Permalink


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