« Eighth Circuit on municipal liability | Main | Reply to Rosenthal's "Response to Adam Kolber’s 'Punishment and Moral Risk'" »

Sunday, May 13, 2018

Liberalism for Conservatives: The Art of Separation

There has been a lot of writing lately by Catholics criticizing “liberalism.” Patrick Deenen insists that “liberalism” has failed us by undermining community, religion, and morality with its relentlessly individualistic anthropology. Adrian Vermeule argues that “liberalism” is a religion of secular materialism that denounces all other beliefs as superstitious bigotry. I have criticized Deneen’s understanding of “liberalism” here and Vermeule’s here, but these criticisms imply that I have some other conception of “liberalism” in mind.

So here a rival understanding of liberalism. To my mind, “liberalism” refers the ideology supportive of rules and governmental institutions designed to protect the jurisdiction of differentiated social institutions —- e.g., churches, newspapers, families, lawyers, universities, and the like — from inappropriate encroachments by each other and the government. The space preserved by these rules and institutions is known as “liberty” (hence, the term “liberalism”). The rules and institutions that provide this protection include due process of law, independent courts, juries, separation of executive from legislative powers, freedom of the press, and so forth.

So understood, “liberalism” is, in Michael Walzer’s phrase, “the art of separation.” Contrary to Ryszard Legutko, liberalism is not a “modernizing project” commenced by the Jaobins but rather a tradition-preserving project commenced by the English Civil War and the Glorious Revolution. Far from being tied to scientific materialism, this version of “liberalism” as Institutional Separationism is closely tied to Western European Christianity: As Harold Berman argued more than three decades ago, Pope Gregory VII may have invented this liberalism in the 10th century when he defended separate jurisdictions for church and state.

After the jump, I’ll give an explanation for why my brand of “liberalism” is truer to the usage of the term and the history of the practices most commonly associated with the term than Deneen’s or Vermeule’s. Moreover, I’ll also urge my fellow conservatives, especially Catholic conservatives, to sign up. International and cosmopolitan institutions governed by universalist principles like the Catholic Church depend on liberalism as institutional separation to protect them from the homogenizing force of populist nationalism.


1. Liberalism properly understood is institutional separation

First, let me re-state my version of “liberalism” a little more plainly and pedantically. The liberal as institutional separationist believes that, in a socially differentiated world, different institutions should govern different parts of society according to different principles. Families should generally determine the best interests of children; lawyers, the best interests of their clients; universities and colleges, the proper pursuit of academic disciplines; churches, the proper worship of God; etc. Liberalism as Institutional Separation requires that these jurisdictional divisions be protected, using various procedures like jury trial, independent courts, limits on properly governmental purposes, private property, separation of legislative and executive power, etc., to protect this institutional separation.

2. Will the Real Liberalism Please Stand Up?

One might reasonably ask why I think my usage of the term “liberalism” is better than Deneen’s or Vermeule’s (or Ryszard Legutko‘s or any number of other self-described anti-liberals).

Let’s start with the history of the word itself. “Liberalism” on its face celebrates liberty. Every political party that has ever had the term “liberal” in its name, from Gladstone’s to Nick Clegg’s, has been committed to important constraints on government that protect the liberty of individuals and institutions from the homogenizing political and social forces. It is still the case in Europe that “liberal” parties like the FDP stand for more limits on the power of the state than Socialist or Christian Democratic parties.

If one wants more evidence from common usage, consider how Chinese intellectuals like Beida law prof He Weifang use the term “western liberalism” (西自由主义): They understand “liberalism” not to be a modernizing force that forces all private organizations to adopt progressive norms but rather to be those rules that protect private organizations from all homogenizing norms. (Incidentally, these self-described Chinese “liberals” are not fans of secular materialism: They are disproportionately Christians).

Of course, some of the people who call themselves “liberals” have pressed for some pretty illiberal regulations in the name of Progress. But “progressivism” is not “liberalism.” Taking intrusive regulation of private institutions to be the defining character of “liberalism” just because some self-described liberals have sometimes — not always — pushed for some sorts of intrusive regulation is like taking the defining characteristic of “Nazism” to be promotion of fast transportation because Hitler happened to be a champion of the autobahn.

3. Isn’t your version of “liberalism” just Classical Liberalism,” aka “libertarianism”?

Nope. Liberalism as Institutional Separation is neutral on the question of how property entitlements ought to be divided up or whether contracts ought always to be enforced. Different stripes of “liberals” can debate over whether and to what extent transactions ought to be blocked or property, periodically redistributed. Liberals simply insist that, however property and contract be defined, the definition should not give some single sovereign the power to re-make society in any particular image. Instead, contract, property, and other legal rules ought to preserve the independent jurisdictions of socially differentiated institutions (family, church, newspaper, business, government, trade union, etc).

4. So what is Liberalism as Institutional Separation Against?

The arch enemy of the liberal is the “absolute monarch” — that is, the single ruler who claims unlimited power to govern every other institution, free from constraints that keep each institution, including the government, in its own lane. It follows that, far from being the progenitor of liberalism, Thomas Hobbes was the 17th century’s most famous anti-liberal. Likewise, Robespierre was not the founder but the destroyer of “liberal” institutions. (I would take these propositions, by the way, to be worthy of publication in the Social Theory Journal of Duh, except that people like Deneen and Vermeule repeatedly conflate secular materialism with “liberalism” without much explanation beyond the cliche that Locke is somehow Hobbes’ “intellectual heir”).

5. Why should Catholics be especially supportive of liberalism as institutional separation?

Catholics might have invented the concept of institutional separation back in the 10th century, and Catholics, as members of a cosmopolitan organization with universalist principles, are among those with the most to gain from maintaining the “institutional separation” ideal.

First, consider the idea that liberalism as institutional separation has a Catholic pedigree. Gregory VII championed the principle that the church should enjoy autonomy from secular monarchs, introducing the germ of the idea of liberalism as institutional separation into 10th century Europe. Harold Berman has famously laid out the revolutionary implications of this idea. I met Berman back in 1988, but I only appreciated his insight that western civilization is defined by the co-existence of different legal regimes within a single state after having spent sixteen months living in the People’s Republic of China. Neither the Qing Empire nor the Communist Party ever accepted the idea that a single regime could tolerate legally autonomous institutions.

Second, consider how early modern monarchs aspiring to absolute power made the Catholic Church their special target, precisely because the Church defended its status as a legally autonomous trans-national institution. Even ostensibly Catholic monarchs like Louis XIV had no tolerance for a genuinely independent Church, because Louis sought absolute and undivided sovereginty over everything in France. That’s arguably why Pope Innocent XI, as described by Steven Pincus, was Louis XIV’s bitter enemy, supporting the Glorious Revolution against Louis’s ally, James II: The Pope realized that an all-powerful even if ostensibly Catholic monarch would never tolerate an independent church.

The heirs of Louis XIV are not liberals but populist nationalists who similarly aspire to absolute sovereignty within their nations. Do not get too cosy with guys like Hungary’s Victor Orban or Poland’s Jaroslaw Kaczynski. Yes, they champion some causes favored by Catholics, but, as champions of undivided popular sovereignty, they are no more likely than Louis XIV to protect an international, cosmopolitan institution like the Catholic Church.

Posted by Rick Hills on May 13, 2018 at 11:30 AM | Permalink

Comments

Kyriarchy, just to clarify: My "theory of Catholicism and separation of powers" does not, I think, ask that Catholics become protestant about the Catholic Church. I ask only that Catholics (and everyone else) resist monarchy, elective or otherwise, in the State. Maybe that’s asking Catholics to have a “protestant” attitude towards the State, but I think that many Catholics actually already have such an attitude. (Deneen seems to have that attitude. Vermeule is an outlier).

Absolute Monarchy within the Church has its good points and bad points, but I can see the appeal. (Presbyterians have endless committee meetings and tend to placate stubborn people too much: Sometimes I wish for a pastor with an iron and an Infallible mandate). But, from a Catholic point of view, Absolute Monarchy in the civil government is a disaster, because the Civil Government, led by a single charismatic leader — Louis XIV, for instance — swallows the Church. Such a monarchy is a recipe for an Erastian establishment.

Here’s the simple take-away: Liberalism as Separation would never impose the organizational norms of the State on religious organizations. For instance, LAS does not require that families separate the adjudicator from the executive or that business corporations have bicameral boards of directors or provide jury trials for internal employment disputes. Those safeguards are put in place to limit the power of civil government, because civil government almost uniquely tends to exceed its proper jurisdiction. (I can imagine other and different safeguards required by LAS for certain types of private organizations: Non-profit status might be encouraged in educational institutions and — much more controversially — a plural executive might be encouraged for organizations devoted to raising kids). The “state action” limits on constitutional rights and structure is at the heart of LAS.

Posted by: Rick Hills | May 15, 2018 7:13:19 PM

Rick, thanks for the interesting and thoughtful posts and responses. I will just note that your proposed "liberal" society makes a lot of sense, seems concordant with the motivating principles of the American founding and sounds...very protestant. It's helpful to see why liberalism is grounded in a protestant approach to truth (i.e. refusal to accept truth claims based on authority). Your appeal to Catholics, and your "theory of Catholicism and separation of powers" ultimately asks that Catholics become...protestant. So if your angle is to get Catholics to act more protestant (which I take your aim to be) more power to you. But it also seems like you're unwilling to accept the dogma of the First Vatican Council, which means your "Catholic" theory of Integralism can't actually be Catholic.

I understand that your argument could hold that the Pope may be infallible in matters of faith and morals and still also want to split up temporal powers. But it seems there's a deeper epistemic claim that I haven't really dug into where you probably think the Pope-Bishop-Pastor structure of the Catholic Church would be better as Council-Senate-Plebiscite. I think the Bishops v Pope battle has already been fought in the Catholic Church and the First Vatican Council ended it.

Perhaps this is a root criticism for Deneen and Vermeule: Deneen can diagnose but not prescribe and Vermeule is a theorist of the imagination. I'm not sure. If you're willing to allow for each subunit to be ordered toward the proper telos, that seems a substantial step forward from liberalism as we know it. I'm not entirely sure what happens next.

Posted by: Kyriarchy | May 15, 2018 2:19:47 PM

Kyriarchy, the only reason that I have not bought an electronic version of Jones’ book is that a search on Google Books revealed that Jones ignored the Berman Thesis. Perhaps unfairly, I thought, “if this guy ignores the Berman Thesis on the Gregorian Revolution, then his book is a waste of my time.”

Here’s a proposal for another Integralist title: Someone should write a book entitled “Integralism and Distrust: A Theory of Catholicism and Separation of Powers.” This book would be John Hart Ely for Integralists: and its simple message would be that a unified “telos” does not prevent tyranny. Just because a society is ostensibly “integrated” by a single system of religion does not mean that persons within that society, sincerely believing that they are carrying out that system, will not subvert the system that they claim to advance. Liberal rules are needed to enforce boundaries that the most “integral” of monarchs are inclined to disobey.

Remember: Louis XIV styled himself an ultra-Catholic king. He had the backing of the Jesuits, and he expelled the Huguenots in 1685 precisely because he wanted to make France a purely Catholic nation. Yet...he also defied the pope in 1682 by pressing French bishops to declare “the Gallican liberties,” giving the king supremacy over the French Church in spiritual matters.

In the abstract sense that society has to be governed by an objective good, I am an Integralist — but so what? I am a Presbyterian Integralist, which means that I am a skeptic of monarchy. From the seventeenth through the nineteenth centuries, all good New England Saints (i.e., “Puritans” — a term that the Saints regarded as an epithet, much as Catholics would regard “Papist”) were “integralists”: They believed that the liberty protected by constitutional rights was “ordered liberty” — the liberty to avoid sin and accept grace. Yet they also distrusted monarchy in religion (they believed in presbyteries and congregations) and politics (their chief lawyer, John Adams, wrote the 1780 Massachusetts Constitution, a document obsessed with separation of powers).

Vermeule would reject my brand of integralism, because I am a power-skeptical Presbyterian who supports separation of powers to protect separation of virtues and functions. Vermeule, for reasons that have always mystified me, goes in for plebiscitary Caesarism, because he does not (“Executive Unbound” is a panegyric on Caesarism, but I suspect that Eric Posner has jumped ship since Trump’s election).

So a unified telos and all of that stuff is, for me and similar conservatives, entirely beside the point: Buying that integrated telos idea, we do not think that an Unbound Executive, constrained only by his craving for Twitter acclamation, will somehow respect all of those teleological boundaries that Catholicism (or Christianity or fill-in-your-favorite telos) requires.

Posted by: Rick Hills | May 14, 2018 6:16:21 PM

I'm not sure this proposal is responsive to Deneen and Vermeule. I don't think either would take an issue with a system of "liberalism" as you propose, provided that each subsection of the society was ordered towards a good telos. Indeed, subsidiarity is a bedrock principle of Catholic social teaching. Of course, at the top of the pyramid, the secular authority still needs to recognize the spiritual authority, and at the top of the spiritual period on earth is the Pope. So if you're willing to let the Pope be at the top, and let the lower spheres be guided by Catholic principles, then I think you could have an Integralist Hills-Liberal society.

Some slippery points in your post. What is the overriding telos of your Liberalism? Obviously, most liberals would say "Liberty!" But I'm not sure if you would. If you can allow liberty to mean "the freedom of a Christian to be free from sin, to be free in the truth of God" (and I think there's a colorable case this was a prominent view at the American founding, although that's a hotly contested point) then all's well and good. If your conception of liberty is negative liberty, then your proposal is not concordant to a Catholic government, which must be ordered to the common good. And if it's ordered to something else, I don't think you're clear what that telos is.

I'm not familiar with the Berman thesis. If you haven't read it yet, "Before Church and State", review here: https://www.kirkcenter.org/bookman/article/everything-we-knew-was-wrong is getting a lot of buzz in integralist circles, and its central thesis is that the distinction between Church and State did not exist in the 13th century mind. And while I note my ignorance of Berman again, it doesn't seem inconsistent with Vermeule's "Christian Strategy" thesis that, where the Pope can't reign over the King, the Pope advocates separation, but where the Pope can reign over the King, he doesn't. If a King insists on appointing the bishops, that King is being insufficient Integralist, in that he doesn't subordinate the temporal power to the spiritual power.

To put things differently, Catholics can accept that different virtues and different teloi apply to different roles and institutions (think After Virtue). And it can be very difficult to mesh the virtues of a mother with the virtues of a lawyer, or the virtues of a husband with the virtues of a ship's captain. But it can't be the case that the best "institutional virtues" could ever be contrary to Catholic morality. A Christian ruler would never adhere to Machivellian virtu, if acting that way would imperil her immortal soul. AND I think a robust Thomist would probably argue, it couldn't be the case that the "better choice" for the state would be the virtu choice (although the consequences wouldn't change the analysis). So either your liberalism is seeped through with Catholicism, in which case it's integralism, or it puts some end that isn't Catholicism's telos as THE telos, and then (Integralist) Catholics aren't going to accept it.

Posted by: Kyriarchy | May 14, 2018 1:49:58 PM

Biff, the “government” (really, to be more specific, we should say something like “the municipal police”) is an institution. Like every other institution in a socially differentiated society, “the government” is limited to the pursuit of particular ends appropriate to its social roe. Beating up protestors is not one of those ends.

By contrast, there are other institutions that CAN use their influence to deter individual protests. For instance, the congregation as a church might ostracize a member who demonstrated in favor of abortion rights (say, by boycotting that protestor’s business and kicking him or her out of the church building).

The institutional theory of rights is just Hohfeld’s theory: It focuses our attention away from the person whose rights are being violated and on to the entity that is doing the violating. It asks: “Is this allegedly rights-violating actor within or outside its proper social role?” The institutional theory, therefore, can explain ideas like the “state action” requirement that Deneen’s idea of liberal rights as protections for atomized individualism cannot.

Posted by: Rick Hills | May 13, 2018 5:53:19 PM

According to you, "liberalism" has nothing to do with individual liberties, such as free speech and freedom to marry whom you please? It is only concerned with institutions?
I'm having a hard time understanding how Poland is illiberal according to your definition. Where, in your conception of "liberalism," does freedom to protest the government fit in? Does it depend on whether an institution, such as a newspaper, is doing the protest, as opposed to just individuals?
Did you really mean to write that "liberalism" is not concerned with individual's property rights?

Posted by: Biff | May 13, 2018 5:04:00 PM

Just negligible illustration, to that idea , that even if self governed institutions , know apparently , what is best for them , that wouldn't prevent serious abuses, but the contrary, due to it :

Here one may read about sex abuses of child in churches in Australia ( especially the "Australian Catholic Church " ). Really terrifying. One can't avoid the connection between the nature of such institutions ( sort of self governed) and the abuses. here bearing the title :

" Child sex abuse royal commission: Data reveals extent of Catholic allegations"

Here :

https://www.abc.net.au/news/2017-02-06/child-sex-abuse-royal-commission:-data-reveals-catholic-abuse/8243890

Thanks

Posted by: El roam | May 13, 2018 2:16:52 PM

It is just , from verse 10 and on in that chapter .

Posted by: El roam | May 13, 2018 1:27:35 PM

Just a link to that chapter in Samuel mentioned :

https://bibleing.com/versions/kjv/kjv_1samuel08.htm

Posted by: El roam | May 13, 2018 1:23:52 PM

Interesting post . But it seems, with all due respect , that the author of the post , is stuck too much with the history of Christianity, over the eternal conflict , between social structures and imposition of power on one hand , and on the other , the oppressed individual and societies or groups.
Let me take you far back , to the Israelite people , demanding a monarch from Samuel the prophet ( around 1000 before Christ ) and here is his reply ( Old testament , Samuel 1 book , chapter 8 ) here :

And Samuel told all the words of the LORD unto the people that asked of him a king And he said, This will be the manner of the king that shall reign over you: He will take your sons, and appoint them for himself, for his chariots, and to be his horsemen; and some shall run before his chariots. And he will appoint him captains over thousands, and captains over fifties; and will set them to ear his ground, and to reap his harvest, and to make his instruments of war, and instruments of his chariots. And he will take your daughters to be confectionaries, and to be cooks, and to be bakers .And he will take your fields, and your vineyards, and your olive yards, even the best of them, and give them to his servants .And he will take the tenth of your seed, and of your vineyards, and give to his officers, and to his servants .And he will take your menservants, and your maidservants, and your goodliest young men, and your asses, and put them to his work. He will take the tenth of your sheep: and ye shall be his servants. And ye shall cry out in that day because of your king which ye shall have chosen you; and the LORD will not hear you in that day. Nevertheless the people refused to obey the voice of Samuel; and they said, Nay; but we will have a king over us;

End of quotation :

The human being , has always been in conflict . On one hand , he is by nature a social creature , must obey as such , to social hierarchy . On the other , he is born free , and strive to self fulfillment .And further Most important ( concerning that post ) :

When and where ever , there is social structure , power is imposed and exercised . By nature , when power is exercised , it is also constantly abused . That is why , the idea that every section of society , knows what is best for it , is very limited , simply because power is abused. Individual, must always seek a relief and refuge , outside of current social frames. So, even if every section of society is free or best knows what is good for it, this can't prevent necessarily wrongdoings or horrific crimes . That is the simple truth . This is the nature of human beings .

So , " Liberalism " is simply , one kind of terminology or solution , to that everlasting conflict .

Thanks

Posted by: El roam | May 13, 2018 12:50:21 PM

Post a comment