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Wednesday, January 20, 2016

Symposium on Levy's Rationalism, Pluralism, and Freedom

As Monty Python would say, Jacob T. Levy's recent book, Rationalism, Pluralism, and Freedom, is "triffic. Really triffic." Here's a description:

Intermediate groups-- voluntary associations, churches, ethnocultural groups, universities, and more--can both protect threaten individual liberty. The same is true for centralized state action against such groups. This wide-ranging book argues that, both normatively and historically, liberal political thought rests on a deep tension between a rationalist suspicion of intermediate and local group power, and a pluralism favorable toward intermediate group life, and preserving the bulk of its suspicion for the centralizing state.

The book studies this tension using tools from the history of political thought, normative political philosophy, law, and social theory. . . . It discusses the real threats to freedom posed both by local group life and by state centralization, the ways in which those threats aggravate each other. Though the state and intermediate groups can check and balance each other in ways that protect freedom, they may also aggravate each other's worst tendencies. Likewise, the elements of liberal thought concerned with the threats from each cannot necessarily be combined into a single satisfactory theory of freedom. While the book frequently reconstructs and defends pluralism, it ultimately argues that the tension is irreconcilable and not susceptible of harmonization or synthesis; it must be lived with, not overcome.

Although it is a work of (somewhat stylized) history and political theory, Levy's book is also very timely, given recent conflicts over the status and (constitutional or statutory) rights of religious groups, the relationship between LGBTQ rights and religious liberty, and more generally the relative priority or balance of liberty and equality, on and off campus. The Bleeding Hearts Libertarians site has a symposium on the book; links start here. The contributors include political theorists and legal academics, including Prawfs friend Will Baude and two Prawfs members, Rick Garnett and me. Mine is titled "Levy for Dummies Lawyers." The intro is a touch snarkier than I intended, but the idea is that, given that the symposium already includes contributions from distinguished and expert political theorists, it might be useful to ask what the book offers to lawyers and legal academics, whose role (even for most law professors doing what they call "theory") tends to be closer to the immediate problem-solving end of things than the high theory end, and who thus often draw on resources like this as resources and for more short-term ends. My short verdict is that Rationalism, Pluralism, and Freedom has a lot to offer to this readership. Here are some snippets:

[The] legal audience ought to read Rationalism, Pluralism, and Freedom. They will find in it, both despite and because of its timelessness, an invaluable resource—a store of ideas that will provide useful tools for the kinds of cases, conflicts, and debates that have recently reappeared and sprung to the top of the legal and political problem-solving agenda. . . Levy has supplied arguments, a history, and most of all a usable vocabulary that is missing from current debates over law and religion. . . .

It is especially valuable that Levy’s account of pluralism is a specifically liberal account—that it retrieves a long historical tradition within liberalism that worries about the state’s centralizing, atomizing tendencies and values intermediate groups as an important element in a healthy liberal society. Levy is not the first or only writer in recent years to attempt to balance the rationalist liberal worldview with a reminder of the value and importance of intermediate groups, like churches and universities. But those of us who have written in this vein have often treated this view as arising from a critique of liberalism generally, thus placing us outside the usual terms of debate—especially within the courts, which generally speak in the language of rationalist liberalism—and imposing on ourselves a much greater burden of persuasion. One of the signal virtues of Levy’s book is that it places us within the conversation more directly, in a way that is capable of reaching and persuading a wider audience that would tremble at the thought of any set of ideas labeled as non-liberal, and with forbears—Constant, Montesquieu, Tocqueville, and others—whose ideas are less likely to be dismissed out of hand as irrelevant to our history and traditions.

Like Levy, I think the pluralist tradition has been too much ignored. Our current debate would be much enriched if room was made within it for a more robust pluralism that recognizes the value and importance of intermediate groups. We should treat pluralism as a good in itself, not necessarily as an intrinsic or “natural” matter but because of its value in actually existing liberal societies. We ought to resist the view that however the conflict between liberty and equality plays out, it should ultimately be resolved by uniform and universal laws imposed by the centralized state, as if nothing else is there, or as if whatever is left is a mere residue to be managed and rationalized.

But to this I would add one last important contribution made by Levy’s book. He reminds us that the conflict between rationalist and pluralist liberalism is not a matter of right versus wrong, of a true versus a false vision of social ordering. Rather, both forms of liberalism recognize the potential threat posed by different power centers: for pluralists, the centralized state, and for rationalists the welter of intermediate, often illiberal, groups. Each of them is susceptible to abuse, to capture, to inequalities and power dynamics that threaten the rights or well-being of the individuals within them. . . .  

[O]ne value of Levy’s book is that it recognizes those groups’ value even as it describes their dangers, and does not assume that the best solution to the problems these groups present is simply to level them. And another is that it provides us with a vocabulary—still liberal, but in a very different liberal voice than the rationalist strand we are accustomed to—with which to do so. Rationalist liberalism, speaking to these groups de haut en bas and treating them as existing on sufferance, provided they do not depart from congruence with the liberal norms and procedures that apply to the state, is unlikely to reach or persuade those groups—likely, if anything, only to create more illiberal groups and greater polarization. Pluralist liberalism offers a chance, albeit only a chance, of speaking productively to and within the many intermediate groups that dot, and benefit, our society.


Posted by Paul Horwitz on January 20, 2016 at 08:09 AM | Permalink


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