The Perils of Neutrality
This collection of essays is billed as a defense of “constitutional democracy” or, in a more exact translation from the German, “the democratic constitutional state.” That phrase denotes a thick political system focusing on structures of government intended to protect a variety of rights, including personal liberty, economic security, and personal dignity as it is currently understood. Martin Rhonheimer, an Opus Dei priest and professor of ethics, sees himself shoring up these structures by calling for a fuller and more accurate conception of the persons they claim to serve and an understanding of neutrality that would allow for greater accommodation of beliefs and values currently seen as too religious for public consideration. Intended as a correction of liberal ideological conceptions, Rhonheimer’s book nonetheless begins from the standard, liberal premise that constitutional democratic structures themselves are morally neutral in that they need not require or rest upon any full conception of the good life, and also that they are morally good in that they foster public peace and individual rights. What we have, then, is yet another attempt to humanize contemporary liberalism, rendering it morally defensible in light of the natural human desire for community and, especially, shared pursuit of good lives.
Liberalism has had a strange career, to say the least. Sometimes ascribed to the mind of John Locke (or to the absolutist Thomas Hobbes, as disguised by Locke) it came to dominate public discourse by demanding, and promising, individual liberty. Liberalism is a fragment of the much wider tradition of constitutionalism rooted in the thought and practice of the Middle Ages and later, Puritan Congregationalists. Recognizing some of this wider tradition, Rhonheimer incorrectly states that it “disappeared” during its conflicts with early modern absolutism, to be replaced by its more thin and secularized successor, liberalism.
In its “classical” form, liberalism brought calls for free markets and minimal government, unshackled from the confines of tradition and religious institutions. Over time this liberalism, even in its more moderate form, became openly hostile toward all types of hierarchy and other cultural inefficiencies standing in the way of individual productivity. It reshaped societies through its demands for national markets and empowered the centralized state to both tear down local “barriers” and build up corporations that freed their officers from liability for their actions. Liberalism’s “creative destruction” (Schumpeter’s phrase—not a compliment) sparked opposition from those claiming to speak for the poor people it left without succor or hope and eventually produced a compromise position generally termed either social democracy or, on this side of the Atlantic, the “mixed economy.”
Moderns (in America, at least) still call their governing ideology “liberalism.” Given the shared (thin) moral anthropology of laissez-faire and social democracy, this is not inaccurate. The name does, however, tend to blur contemporary dependence on the state and overemphasize the similarities between the contemporary commitment to maximizing individual autonomy and older, more culturally rooted conceptions of rights. The culture of liberal societies has become ever thinner even as the political constructs of social democracy become thicker and more all-encompassing.
The main benefits of contemporary liberalism, as Rhonheimer notes, are its ability to preserve internal peace and its vindication of its own notion of justice, namely reciprocity or, in John Rawls’s dominant phrase, “justice as fairness.” Its central weakness, for Rhonheimer, is its tendency to devalue biological families and unborn children. Rhonheimer seeks to address this weakness without fundamentally altering the predominantly Rawlsian ideology, which he sees as intimately tied to a political construct (constitutional democracy) he seems to value as an absolute good. Unfortunately, the nature of liberalism is such that his “correction” is impossible.
Liberalism itself is simply too thin to be sustainable over the long haul. This is apparent even from its benefits. Peace may be seen as a necessary grounding for social life, but this is true only if peace brings order, namely predictable rules for behavior, whether rooted in law or custom, such that we may pursue our ends in common with our fellows. “Peace” as the mere absence of open conflict, is compatible with social chaos and anomie.
As to justice, we must consider the liberal conception thereof. Rawlsian justice as fairness—the belief that we all deserve to get as good as our fellows—is an extremely thin basis on which to maintain any political organization, let alone a functioning society. It begins with the notion that we have a duty to recognize others’ rights if they are to recognize ours, but proceeds to the demand for various forms of “just desserts” measured in terms of intrinsic human qualities about which we do not agree. Not surprisingly, then, the grounds for social cooperation within liberalism are rather limited—a modus vivendi, or rather series of agreements to disagree while cooperating for certain limited shared ends. But, as evidenced by Rhonheimer’s own repeated objections, the persistent result is a drive for ever-greater individual autonomy, protected and supported by the state even as it undermines the social, cultural, and even fiscal underpinnings that make possible such atomistic pursuits.
The thin nature of liberalism is apparent, for example, in the mechanism Rawls used to derive his principles of justice; this was the thought experiment of placing abstract selves behind a “veil of ignorance” masking their own natures as they choose the kind of society in which they will live. Liberal thinness also is apparent in the political mechanism Rawls posited for maintenance of liberal society—“overlapping consensus.” We must, on this view, explain our policy preferences in terms of “public reason,” eschewing full, thick visions of the good, in order to maintain public peace and cooperation.
Rhonheimer notes that there are two ways of interpreting the nature and implications of this overlapping consensus, depending on the “thickness” of liberal values on which it is based. The more typical and widespread view sees individual autonomy as the true purpose and goal of constitutional democracy. On this reading, all institutions must be judged according to their impact on the greatest good of autonomy. Such a vision, Rhonheimer points out, tends to undermine restrictions on individual action, including protections of marriage, family, and unborn children, on which liberal society itself necessarily rests. According to Rhonheimer, then, it is necessary for liberals themselves to recognize the necessity of a more thin conception of political liberalism/autonomy that will, paradoxically, allow for a more thick understanding of the person and of the requirements for human flourishing that the state must allow for in its legislation.
It is Rhonheimer’s stated belief that a society can be both procedurally neutral and based on a relatively thick conception of the person and of the good, provided that conception happens to be widely shared among its people. Unfortunately, like much of Rhonheimer’s argument for a more culturally rooted liberalism, this ignores the fact that liberalism itself demands a particular culture, devoted to individual choice, as supported by a state that insures against all forms of discrimination and insecurity that might impede such choices. This problem, which so many Europeans see as mitigated by the social democratic state, in actuality is made more acute thereby. For, as Jouvenel pointed out, the democratic state, unlike its predecessors, is considered to be (indeed, Rhonheimer positively demands that it be) legitimate in all its actions, provided they originate in democratic politics. As a result, the supposedly narrow and thin goals of liberal politics become pervasive, breaking down the more primary groups of family, church, and local association in the name of ever greater autonomy, fairness, and financial and other forms of security in their pursuit.
Two historical misconceptions underlie Rhonheimer’s inability to grasp the fundamental problem with liberalism. First, as a European Catholic liberal, he is focused on the events of the nineteenth century, when various religious establishments sought to ally themselves with aristocratic forces to impede democratization and buttress religious prerogatives. The often selfish and generally irrational policies of various church leaders (including, of course, within the Catholic Church) had their roots in the battles of the Reformation, fear of chaos, and fear of religious indifferentism.
Second, and more telling, Rhonheimer misunderstands the origins, development, and limitations of human rights. Rights are central to Rhonheimer’s vision of a good society. Liberal neutrality is of value to him because it guarantees that individuals’ rights will not be violated in the name of any full conception of the good. But rights are not purely, or even predominantly, vindicated by and for individuals, nor were they developed primarily as vehicles of individual choice-making. It is here that Rhonheimer’s flawed historical vision undermines his analytic project.
On Rhonheimer’s telling, democratic constitutionalism developed out of a Christian culture, after centuries of political and religious conflict made worse by religious intolerance and the Catholic Church’s refusal to make peace with modernity. Particularly destructive, on Rhonheimer’s retelling, was the “sovereign” role of the Church’s canon law, which he claims denied legitimacy to secular law and so impeded the pursuit of peace and an autonomous secular sphere. With Vatican II, and especially the papacy of John Paul II, according to Rhonheimer, the Church finally has recognized the goodness of the modern liberal state. At last, according to Rhonheimer, the Church has lowered its political sights, seeking only to have its voice heard in public discourse by translating natural law arguments into bits of “public reason” aimed at defending liberal constitutionalism, rather than any comprehensive vision of the good.
Rhonheimer’s Whig history is, of course, quite common. It also is quite wrong. Unfortunately, it is not until late in the book, after repeatedly referring to the Church’s supposed role as dominating oppressor during the Middle Ages, that Rhonheimer engages the substantial revisionist literature regarding this era. Even here, he fails to recognize the importance of Brian Tierney’s discussion of the medieval origins of modern rights and their significantly communitarian nature. Tierney’s scholarship shows quite clearly that it is simply wrong to see the development of rights as part and parcel of the development of radical, liberal individualism.
The growth of rights is best appreciated on the basis of the wider development of legal thought, explicated by Harold Berman in his Law and Revolution. Berman’s work, referenced but not properly dealt with by Rhonheimer, is a study of the development of constitutional and legal protections through the interaction of a multiplicity of authorities and jurisdictions. Indeed, as Berman shows, it was precisely the lack of any papal ability to serve as sovereign over any significant portion of Europe, in combination with the Church’s ability to perforate the sovereignty of particular princes and emperors, which spurred the growth of constitutional thought and institutionalization.
Rhonheimer rejects the argument from diversity, instead largely praising forms of secular absolutism put forth by Marsilius of Padua, Bodin, and Hobbes. Central to Rhonheimer’s argument is the view that religious authority had to be overthrown through assertions of absolute territorial sovereignty by secular forces. Such revolutionary change was needed, on this view, to establish the primacy of peace as the public goal, thereby providing the necessary atmosphere for the development of constitutional limitations on power.
But constitutionalism predates modern sovereignty and the nation state by centuries. And it was rooted in low-level conflict, a fact Rhonheimer seems unable to fathom. Differing interests and views of the good create conflict, but such conflict need not be violent, and is absolutely essential for the limitation of political power. Moreover, too fervent an attachment to peace as the social goal will habituate a people (and intellectuals) to a quietism that promotes centralized power and the injustices it may perpetrate. Surely Rhonheimer is familiar with Aquinas’s explication of the relationship between law and justice, in particular his observation that “every human law has just so much of the nature of law, as it is derived from the law of nature.” There is no substantive engagement with Aquinas, here, perhaps because Aquinas recognized both the importance of order and the moral imperative that societies promote good lives. And such recognition highlights the deep cultural problems of liberalism, problems Rhonheimer seeks to paper over rather than address head-on.
Law, being a creature of the culture from which it grows, cannot be morally neutral; even traffic laws rest on the moral judgment that one has a duty to not endanger other people. Moreover, legal regimes can, and often do, demand evil. The federal “contraception mandate,” by which the government demands that many religious employers pay for abortion-inducing drugs, is an obvious example of a law that violates a basic precept of justice by forcing citizens to choose to either violate the law or act in direct violation of their religious duty. Such instances become increasingly common when, as in the democratic constitutional state, the government takes responsibility for and power over the well being of all, shunting aside and even delegitimizing the more primary associations in which the moral voice can gain a hearing.
We are back, then—thirty-five years on—to The Cultural Contradictions of Capitalism, Daniel Bell’s formulation of liberalism’s intrinsic inconsistencies and tendency to undermine its own cultural preconditions. And, sadly, Rhonheimer provides no more successful answers to these contradictions than could Bell, or any of the intervening would-be saviors of a humane liberalism, from communitarians to civic republicans, to various other defenders of various forms of liberal goods. The essential kernel of liberalism—the view of the person as a self-ruling and self-chosen maker of choices—simply does not reflect reality and, because of its extreme thinness and extreme overvaluation of the power of human reason, necessarily undermines any social institution, belief, or practice that stands in its way. All attempts to “save” liberalism, then, consist of grafting on to it, in the end unsuccessfully, elements foreign to its nature.
Rhonheimer rightly points to constitutionalism’s dependence upon cultural assumptions and institutions, which in the West are, of course, Christian. Unfortunately, he simply cannot overcome the fact, pointed out by liberals, Catholics, conservatives, and communitarians alike, that liberalism’s demand for justice as fairness, along with its corollary insistence on individual autonomy as the primary social good, is hostile toward the moral norms and fundamental institutions of Christian culture. This comes out most clearly in his repeated attempts to argue that liberal public reason should allow one to defend the privileging of heterosexual marriage. His claim is that “heterosexism” can be justified as by nature necessary for the maintenance of society. His response to the many people who would contest his point is simply repeated assertion of the biological nature of this union and of the putative irrationality of attempts to procreate and raise children on any other basis or rule out arguments based on these biological facts.
My choice of the term “heterosexism” is intentional. Biological arguments for the maintenance of traditional marriage today are utterly incompatible with public reason—not because they are wrong, but because public reason is at war with limits, including biological limits, on individual choice. Homosexual marriage is seen by liberal elites and an increasing percentage of the public as a logical next step in liberal “progress,” and opposition to this next step is seen as inherently discriminatory, intolerant, and simply unacceptable as public reason. Why? Because any recognition of intrinsic limits to individual choice would undermine deep-seated liberal values and concomitant legal changes dating back many decades. Our liberal legal culture already has reduced marriage to something less than a contract (either party may divorce the other at will, and pay no penalty), ended many parental rights, extended many benefits to partners of various sorts, and, most important, demanded equal treatment of essentially all personal choices as the standard of justice. And this culture is impervious to Rhonheimer’s claim to be seeking its preservation because it is rooted in a different view of the good life than the one he assumes. Rhonheimer rests his arguments on the assumption that we all want to ensure the long term stability of our society for the simple reason that society is essential to pursuit of any good life. But liberalism neither has nor seeks a coherent conception of society, as such, instead seeing society as the product of individual conduct, properly governed by democratic procedures.
When combined with the specifically liberal attachment to autonomous selves, the liberal standard of justice constitutes a “thick” form of public reason that rules out natural law arguments rooted in the intrinsically social nature of the person. There are many directions in which one can go when faced with this hostility. But to simply call an essential feature of public reason irrational while demanding loyalty to the structures and laws essentially tied-in with it, is hardly a recipe for public peace, freedom, and justice—or even intellectual coherence.
The central problem Rhonheimer seems unwilling to face is that public reason is not morally neutral; it is liberal. He wants to argue that liberals are violating the overlapping consensus of democratic constitutionalism by seeking to impose democratic constitutionalism’s own, intrinsic comprehensive vision of the good as autonomy. He is right to point out that autonomy cannot serve as a coherent social good. But it remains the liberal good, and the good underlying the mechanisms he seeks to defend.
Liberal constitutionalism by its very nature precludes arguments and policies rooted in a full conception of the person. Its “overlapping consensus” responds to all genuine moral arguments by saying, in effect, “if you don’t like a given practice, don’t engage in it, but don’t seek to discourage it because that would be intolerant.” The liberal “consensus” is a vigorous attachment to a very narrow conception of justice in which fairness means equal opportunities to make individual choices without undue sacrifice or consequence. This, in turn, requires a “toleration” that precludes treating different moral choices differently—whatever their policy outcomes—unless there is direct, measurable harm caused to other individuals, if then.
Over the long term, not even constitutional democracy will survive the ideology that gave it birth. Liberalism’s view of the person as a choice-making self (the thin moral anthropology against which Rhonheimer argues) demands that all institutions be constantly reformed to provide greater and more equal autonomy. But the resulting conflicts, while perhaps ironic, are not liable to correction through translation of a thick, morally aware natural law tradition into the language of a thin politics centered on individual autonomy. The cultural contradictions of modern liberalism have been evident for decades. It is time to stop pretending they do not exist, or are amenable to cosmetic repair.
Bruce P. Frohnen is Professor of Law at Ohio Northern University’s College of Law and a Senior Fellow at the Russell Kirk Center for Cultural Renewal.
Posted: March 3, 2013