The Baby and the Bathwater

Ryan T. Anderson & Robert P. George

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Among the most prominent lines of argument in political theory in the past several years has been a sharp critique of "liberalism" as essentially incompatible with pre-liberal ideals of human flourishing. Scholars advancing this critique object to the notion commonly asserted by progressives, usually in the name of "liberalism," that liberal ideals require laws that are "neutral" — by which they mean laws that do not embody and are not predicated upon any substantive view of what is humanly and morally valuable or what is right and wrong — and that only laws that elevate unlimited personal choice in matters like abortion and sexuality can pass that test. Any political arrangement that insists on such neutrality is misbegotten and harmful, the critics argue.  

Such arguments are right about what many influential progressives have made of "liberal" political and social theory. But could it be that an order that might be called "liberal" — namely, the sort of thing sometimes described as "liberal democracy" — is morally defensible? We believe so, while agreeing that "neutralist" liberalism is misguided. Indeed we think that the contemporary critique of neutralist liberalism itself points toward a defense of a certain (very different) sort of liberalism, or at least to a defensible social and political order in which certain "liberal" principles and institutions are key parts of the picture. The supposed neutrality or (to use John Rawls's term) "anti-perfectionism" of contemporary progressive liberalism is indeed illusory. Appeals to moral neutrality, however sincerely offered, have functioned in practice as smoke screens to disguise the smuggling in of a certain controversial conception of the good — one that progressives hold and just about everyone else rejects.

Rejecting anti-perfectionist liberalism need not commit one to rejecting all forms or aspects of what might legitimately be called "liberalism," even if one judges — as we do — much of Enlightenment liberal philosophy, including its most influential contemporary forms (e.g., Rawlsianism), to be misguided. As two scholars who have deployed and sought to contribute to the development of the Aristotelian-Thomistic moral tradition, we see no reason to view Lockean liberalism — or Kantian or Rawlsian liberalism — as philosophical advances (whatever might be learned from them). Indeed, we have good reasons to judge them unsound in fundamental ways. And yet we are prepared to defend, for our own reasons, what are sometimes labeled "liberal" political institutions. (Of course, there is no magic in the word "liberalism," and it need not be used if one regards it as so bound in common social usage to neutralism that its use risks misleading people.)

Many "liberal" political ideals and institutions predate liberal philosophy and, more to the point, have proven effective at promoting the common good. Some such ideals and institutions have much stronger (in the sense of more credible) justifications in the Aristotelian-Thomistic tradition than in Lockean or Rawlsian liberal theory. None of them rests upon or presupposes the necessity, desirability, or even possibility of neutrality about the human good. Representative government, separation of powers, constitutionalism, limited government and respect for the autonomy and integrity of institutions of civil society (beginning with the marriage-based family), jury trial, freedom of speech, freedom of religion, and other basic civil liberties all pre-date John Locke. They are more than defensible (and are indeed better defended) without invoking Lockean philosophical ideas.

We should not do away with any of them, for they are the political ideals and institutions that, compared to the alternatives, best promote and protect the common good — even when we conceive of the common good in a manner quite alien to some central principles of Enlightenment or contemporary progressive liberalism.

THE SHAPE OF THE DEBATE

Debates about political ideals and institutions are now too often framed as presenting two extreme and unappealing options. On the one hand is a radical commitment to foundational, philosophical liberalism of a Lockean-Rawlsian sort, with all that that presupposes and entails for philosophical anthropology, official "neutrality" about the good, the sidelining of religion, and the exclusion of religious arguments from public debate. On the other hand is illiberalism, where liberty itself is devalued even as an instrumental good or a condition for the realization of human goods by free choice and action. According to this view, civil liberties such as freedoms of speech and religion ought to be extensively pared back on the ground that "error has no rights," and political authority should be subordinated in a more or less comprehensive way to spiritual authority.

This description oversimplifies the shape of our public disputes, but only a little. The problem with framing the debate in these terms is that the two rival positions expect far too much from philosophy and theology, and they assume that this is an either/or proposition, rather than a matter of gradations and variations. They assume that there is more rational determinacy about these matters than is really available. While some ways of organizing civic life are per se rationally excluded as contrary to the integral human good at all times and in all places, a lot in political theory (let alone political practice) depends on circumstances, experience, prudence, and technical expertise. To say so isn't relativism; no less an anti-relativist than Thomas Aquinas says that lawmakers must often choose between or among reasonable options, none of which is excluded by absolute moral principles. These are choices between morally good, or at least acceptable, but mutually incompatible options.

This truth reveals a flaw in much of today's political discourse. Because the philosophical Lockean-Rawlsian liberalism versus full-bore illiberalism set of alternatives presents a false pair of options (or, perhaps better, a pair of false options), the debate is suffering from a deep structural flaw — namely, people are assuming that an argument against any single component of one view counts as a good argument against all the elements of that view, and a sufficient argument for all the elements of the alternative. So, for example, some critics of moral neutrality automatically count their (sound) criticisms of that idea as a good argument against "liberal" institutions or principles such as freedom of speech or religion. This is plainly a non sequitur. We need to disambiguate the elements and appreciate the spectrum of options between the extremes, which might mix and match the elements in a rationally coherent and unified way.

One such mix is particularly appealing. Like many critics of liberalism, we're perfectionists (in the political-theory sense), and deny that freedom is the ultimate good or that government can or should be neutral about what makes for or detracts from a valuable and morally worthy way of life. Like many liberals, we think liberty is good (if generally instrumentally and conditionally so), and that basic civil liberties like freedom of speech and religion are worthwhile for their contributions to human well-being. Moreover, we support certain "liberal" institutions (representative democracy, due process, private property, freedoms of religion and speech, and the like) precisely for perfectionist reasons. But those perfectionist reasons mean that, like many critics of liberalism, we think there are legitimate limits on liberty that go beyond what can be accounted for by simply invoking the need to protect the liberty or rights of others.

What's more, in rejecting Lockean-Rawlsian liberalism and in recognizing the substantive value of religion, we more than welcome religion in the public square and public life, and believe that political society should promote the free exercise of religion and the flourishing of religious life. At the same time, we think that much about the way to order public life is rationally underdetermined — including on church-state issues. So, while we hold that the coercion of religion as such and a public stance of hostility to religion are both wrong per se, we also believe that some forms of religious establishment can be permissible — though not required.

All of that said, we certainly do not favor the establishment of religion in the United States, where the historical and sociological circumstances and national self-understanding would make any religious establishment a hindrance to the common good rather than a help to it. In other words, just as there can be moral reasons not to legislate a particular moral principle, there can be pro-religion reasons not to adopt this or that particular formally pro-religion political-institutional arrangement. Prudence is key. And prudence can be very much at home in a certain sort of "liberal" regime.

POLITICS IS PRACTICAL

Political philosophy is a practical science. It is concerned with identifying what concrete choices will best promote — or at least promote acceptably well — the flourishing of people and the communities they form. Devising sound political institutions and crafting good public policy isn't simply a matter of direct derivation from first principles of philosophy (or theology). Rather, it requires what Aquinas referred to as a determinatio: an application of true moral principles to the particularities of one's time and place; a choice not only between morally good and bad options, but also between (or among) several morally acceptable, but incompatible, possibilities. This requires both sound philosophy and the wisdom acquired from historical experience, sober reflection, and, in some cases, a measure of technical expertise.

It also requires the evaluation and comparison of (and hence an ability to identify) live options — along with an appreciation of the fact that every one of the options will have some downsides or costs. There is no single best political regime. Thus, to conclude that a particular regime or institution has unacceptably high costs, one needs to know: compared to what? Final judgments in practical disciplines such as political philosophy are always conducted in terms of practical possibilities. Abstract (general and universally applicable) ideals may be starting points, but they can't be conclusions, for political deliberation needs to render a judgment about how we should govern our lives together here and now, where particular human beings with a particular history and profile of faults and strengths will exercise political power.

As we think through these questions, we must always be mindful that fallen human beings will be the ones who wield governmental power. The difficulty is not simply that various political communities have their own histories and cultures and thus politics needs to be adaptive; it's also that every political community will be governed by fallen creatures — fallible men and women. And so it is essential, in every time and place, to think about how to organize and structure government power to minimize the abuse of legitimate authority. Recognizing the limits of government — even when it wants to promote a sound conception of the common good — is as important as recognizing the goals of government to promote that good.

Thomas Aquinas famously taught that the law should not command every virtue or prohibit every vice. Attempts — in the name of the human good — to penalize every form or instance of immorality would actually undermine the human good (by, for example, giving power to governments that is too easily abused, or intruding improperly into the lives of families and other institutions of civil society, or imposing a legal burden that is too heavy for most to bear). And so, he taught, the state should limit itself to punishing the graver forms of immorality, those that do the most harm, and those against which the force of law can be effective. Thus, we see in Aquinas one "pre-liberal" limit on government power: Government should not attempt to promote the common good in ways that are likely to undermine or harm it. Indeed, sometimes restricting the liberty to do wrong — a liberty to which no one has a moral right — rather than promoting the common good can actually harm it. It was in light of this insight and others like it, not Lockean or other forms of modern liberal philosophy, that our tradition of civil liberty emerged and was crucially shaped. With the benefit of experience, political communities learned how best to structure political power to effectually promote the common good.

Civil liberties such as freedom of speech and private property rights are not abstract absolutes that spring forth directly from human nature. They are political rights that are justified by — and thus inherently limited by — the demands of human well-being and the common good. Political communities have structured speech rights and property rights in various ways precisely with an eye to structuring and limiting political power to best — or at least adequately — promote human well-being and the common good. To see the ways in which speech and property can both contribute to and hinder the flourishing of people requires an understanding of human nature and human flourishing. It also requires an understanding of human fallibility — to see the ways in which fallen human beings can use and abuse governmental authority to promote or undermine the common good.

And so, from the natural-law perspective, there is no single uniquely correct political arrangement — no "ideal regime." There is simply no one best legal system of regulating speech or property. These can take a variety of morally appropriate forms given the particularities of culture, of a people's circumstances, history, traditions, needs, and challenges. Of course, certain options are strictly ruled out as in principle contrary to the overall human good: for example, strict philosophical libertarianism (in which the only legitimate actions of government are those to prevent harm to non-consenting persons or to protect negative liberties) and genuine socialism (in which private property is abolished or severely limited and government or "society" owns or controls the means of production, with all major economic decisions made by "central planners"). But apart from these extreme positions, there is a certain amount of room for prudence and techne regarding which institutional arrangements and which specific policies would best promote the common good of this or that political community.

SPEECH AND PROPERTY

Still, the natural-law tradition does not embrace moral or political relativism. The "pluralistic perfectionist" theory of civil liberties toward which it points relies on what Aristotelians call eudaimonistic (or human flourishing) grounds for the limitation of certain governmental powers — and, not unrelatedly, the protection of certain civil liberties. The judgment is that these limitations tend, overall and in the long run, to best protect integral human well-being. They do this in large part by preserving the autonomy and integrity of basic institutions of civil society, which have the primary obligation and authority to provide for people's health, education, and welfare, and to transmit to rising generations the virtues needed to lead successful lives and be decent citizens. It is precisely out of concern for human flourishing that constitutions, be they written or unwritten, should limit the scope of governmental power (and the authority of governments to usurp the just authority of institutions of civil society, beginning with the family) and protect certain fundamental liberties and political rights.

We can illustrate this by looking at two examples of liberal institutions that are frequently criticized by "post-liberal" voices and that are frequently absolutized by philosophical liberals. Both the criticism and absolutism turn out to be mistakes.

First, consider government regulation of speech. Limiting the authority of the state to regulate speech based on the government's judgment about the truth or falsity of the speech seems to be the approach that best allows for the pursuit, attainment, and appropriation of truth in the context of robust debate. Perhaps paradoxically, it is precisely out of concern for real human flourishing — not out of a belief in or commitment to moral neutrality — that the state limits its own judgments about truth in the context of speech regulation, and protects within broad limits a "neutral" space for communication (in an overused metaphor, "the marketplace of ideas").

This isn't to embrace — or back into — relativism, moral or otherwise. And it is not to pretend that respecting freedom of speech cannot impose real costs. There are indeed universal and objective moral principles, but people are more likely (though by no means guaranteed) to grasp them, embrace them, and integrate them into their lives (especially when it comes to beliefs that do not enjoy the favor of the governing class or the majority) when the government isn't empowered to police speech based on its own judgments about truth or falsity. Nor is there any reason to assume that government agents, or majority vote, will always track with "truth." On the other hand, because the value of freedom of speech is instrumental and conditional, certain limits may be justified. These will include not only so-called "time, place, and manner" restrictions, but regulations of slander, libel, conspiracy, false advertising, and incitement to violence, to cite a few important examples. And, of course, pornography shouldn't be viewed as speech at all, and regulations on smut are entirely consistent with a commitment to the free pursuit of truth.

Then again, liberals seem to have the support of historical experience when they suggest that restricting speech about important moral, political, religious, scientific, and related matters on the ground that it is erroneous tends to entrench orthodoxy, encourage conformism and groupthink, discourage inquiry into legitimately disputed questions, and incentivize inauthenticity — thus impeding the pursuit and appropriation of the very truths it aims to vindicate. And so a regime of free speech should be crafted based on all of these considerations about human flourishing and human fragility and fallibility. (It is an irony worth noting that today it is often progressive "liberals" who are stifling speech on campuses and elsewhere, thus entrenching orthodoxies and encouraging conformism and groupthink.)

Second, something similar is true with respect to property rights and duties and government regulation of economic activity. From the natural-law perspective, there is no single uniquely correct economic system. Those systems that are strictly ruled out — such as radically individualist or social Darwinist philosophical libertarianism and radically collectivist socialism — are ruled out because they are in principle incompatible with the flourishing of human beings and their communities. But between these extremes lie many plausible regimes of property and market relations. Decent governments create and structure various systems of ownership rights and contract law with an eye to what will best serve the common good of their particular societies, taking moral principles of solidarity and subsidiarity seriously. Solidarity teaches that we should actively promote the well-being of our neighbors and our communities. And subsidiarity teaches that people should bring about their own flourishing through participation in activities and organizations, while "higher" organizations assist — but do not replace — the proper activities of "lower" organizations (again, beginning with families and religious associations) and of individual persons.

Government regulation of the market isn't inherently wrong, though it can be misguided or counterproductive, or even violate basic moral principles and for that reason undermine the common good. The only way to conclude that a particular regulation or set of regulations is indeed wrong is to engage the question on the merits. Sound philosophy tells us to be attentive to the ways in which property ownership can advance — and, in certain cases, undermine — human flourishing, and to be attentive to the ways in which government regulations can advance — or, again, undermine — human flourishing. The wisdom acquired through experience and reflection leads many, including ourselves, to support robust property rights and relatively free markets, but neither property nor free markets, desirable though indeed they are for the sake of the common good, should be deified or treated as absolutes.

And so appeals to economic rights can't be used as trumps to justify market activity that actually undermines the common good. (An example that most people agree would undermine the common good would be allowing a free market in which children available for adoption would be sold to the highest bidders — something Richard Posner once suggested.) Nevertheless, certain general legal principles can be embraced precisely because limiting government action in certain spheres tends to protect and promote human well-being.

None of these conclusions — about a regime of free speech or a regime of property rights — is derived simply by sitting in an armchair and thinking philosophically. They require true practical wisdom — insight into the human good coupled with sound judgments about the likely long-term consequences of various institutions.

RELIGION AND THE LIBERAL SOCIETY

Something similar is true when it comes to church-state relations. There isn't a single uniquely correct way of structuring the relationship between church and state. The right answer for any particular society depends on the conditions of the people, as shaped by their history and circumstances, in light of which practical judgments must be made as to what effectively promotes and what would hinder the common good, including the flourishing of religion (and, of course, the traditions and institutions of faith in which that good is, in part, concretely embodied). The answers vary from time to time and from place to place, and are rather obviously dependent on the religious beliefs of the citizenry.

As a result, anyone who says that theology requires a specific political arrangement or proposes an "ideal" arrangement is claiming too much. What sound philosophy and theology require is for the state to effectively promote the common good, taking fully and ungrudgingly into account the fact that the integral good of human beings includes their religious good and spiritual well-being, just as it includes their physical, intellectual, emotional, and social well-being.

And so, Pope Francis today and Pope Leo XIII more than a century ago were both articulating necessarily contingent judgments when they made claims about confessional states. Ecclesial favor of laws and patronage could end badly, as Francis suggests, or could produce the beneficial results Leo hoped for. It's a contingent, prudential judgment — not a timeless truth of philosophy or theology.

That said, certain political arrangements or acts are excluded. Possessing legitimate authority over a religious community shouldn't alone be taken as a sign or criterion of legitimate authority over temporal, secular affairs. Meanwhile, political authority shouldn't undertake managerial direction of religious institutions, and it shouldn't coerce religious acts (though it may and should coercively forbid certain acts that may happen to be religious, such as the slaughter of children). This is because the political common good does not directly concern personal holiness or heavenly beatitude.

The Second Vatican Council teaches that the political common good is not the highest good, but rather is about earthly and temporal affairs. Political authority is directed to — and limited by reference to — the temporal common good:

The religious acts whereby people, by their personal judgments, privately or publicly direct their lives to God transcend by their very nature the order of earthly and temporal affairs. The civil power therefore, whose proper responsibility is to attend to the temporal common good, ought indeed to recognize and favor the religious life of the citizenry, but must be said to exceed its limits if it presume to direct or inhibit religious acts (emphasis added).

While the political community should foster the religious lives of its citizens (provided their way of life does not violate the rights of persons, public morality, or public peace), it must not "direct or inhibit" religious acts because its jurisdiction is limited, as the council fathers teach, to the "temporal common good." The key point from the council — one that Thomas Aquinas developed many centuries before — is that the common good that the Church is charged with promoting is distinct from (though not, of course, entirely detached from) the common good that the state has authority over. And that is entirely consistent with holding that the political order should "recognize and favor the religious life of the citizenry" and, indeed, create conditions in which they can and most likely will, acting in freedom, pursue the highest good.

There's really no single and unitary common good within the reach of politics, for each community has its own common good, even if all are ultimately facets of the common good that embraces all others. Seeing the distinction between the particular and higher common goods is vitally important for politics. As legal philosopher John Finnis explains in a penetrating analysis,

Taking common good in its widest extension, it is for the common good of the members of a political community that they find the truth about divine creation and redemption, live in accordance with that truth, and so enter and remain forever in the altogether fulfilling fellowship of the divine family extending from this world into eternity. But the state is responsible only for temporal common good, and correspondingly the coercive jurisdiction of state government and law has as its defining objective not the widest common good which might include salvation itself, but what the Council calls a (or the) "basic component of the common good," namely public order.

The political common good is a component of the larger, more comprehensive common good. The state is not directly responsible for directing man to that more comprehensive common good, though the state should act in ways that are compatible with human good in its fullest sense, the common good most comprehensively understood. This does indeed include favoring and fostering the religious life of the people.

And so, where does this leave us in thinking about the state's relation to religion? Finnis suggests six conclusions. First, "the state's government and law cannot justly teach that no religion is true. For such a teaching would be false, and false on a matter closely affecting a basic aspect of human wellbeing." Second, "there is certainly an obligation not to hold out as true any religion that is not essentially the true one." Third, "there is a duty not to make subscription to a particular religion, or to one of the many religions, a prerequisite for public offices or benefits." Fourth, "there is a duty not to seek to direct the true religion by claiming a power to appoint its functionaries (say, bishops) or to give or withhold ratification of its doctrinal pronouncements or ecclesiastical arrangements." Fifth, "voters and legislators can rightly and should take into account the firm moral teachings of a religion if it is the true religion, so far as its teachings are relevant to issues of law and government." And finally,

with the third duty firmly acknowledged as excluding positive religious tests for voting or other public office, and with the negative duties to abstain from coercion all firmly in place, it does not seem to be contrary either to what experience shows are the exigencies of authenticity in religious inquiry, or to what seem likely to be the conclusions of revelation as well as philosophy about limits to the state's coercive jurisdiction and temporal authority, to hold that in establishing their constitutional arrangements a people might without injustice or political impropriety record their solemn belief about the identity and name of the true religious faith and community.

Note well that each step depends on whether or not government action would indeed promote the common good. Certain things are ruled out — a strict wall of separation at one extreme, and throne-and-altar unity at the other — but what in-between position is to be chosen needs to be decided not by abstract philosophical reasoning but through wisdom concerning what, in the circumstances and conditions of the society, best fosters and favors the religious life of the citizens.

And note well that nothing in this argument supports or encourages progressive liberalism's strictures against religious believers acting in the public square to advocate for just and humane public policy. It does require equal liberty for religious communities as a political matter in circumstances of pluralism like ours. But it does not require a naked public square where religious believers must leave behind their substantive beliefs about the human good.

Indeed, religious traditions are sources of wisdom, and citizens owe it to one another to draw deeply from these wells of wisdom when deliberating about essential aspects of justice and the common good. This is not, contrary to certain fears, to embrace theocracy — the authority of church and state are distinct. As Richard John Neuhaus never tired of saying, the alternative to the naked public square isn't the sacred public square but the civil public square in which citizens of all religious persuasions (or "comprehensive views") can deliberate together about how we should order the life of the community we constitute.

LIBERALISM, PROPERLY UNDERSTOOD

It is good for conservatives to once again think about which institutions and policies truly and effectively promote the political common good. We should be aware of the demons in democracy, as philosopher Ryszard Legutko points out, and be sensitive to negative trajectories built into the logic of Lockean and other forms of Enlightenment liberalism, as Patrick Deneen argues.

But to suggest, as Rod Dreher's summary statement of Deneen's thesis does, that "classical liberalism strikes out" goes too far. While classical liberalism (or important elements of it) may not have hit a home run, it certainly hasn't struck out. Politics is a practical discipline aimed at effectively promoting the common good. Noting the philosophical defects of liberalism (as we ourselves have done) and recognizing the limitations of even morally defensible and desirable "liberal" institutions is important. But by itself, it does not tell us what in effect will best promote the common good of any particular community.

That judgment requires practical wisdom as well as a steady grip on foundational philosophical truths. Our "liberal" institutions deserve better than to be dismissed a priori based on abstractions. They deserve to be admired when they enable the common good, and improved (or in some cases replaced) when they don't.

Ryan T. Anderson is the William E. Simon senior research fellow at the Heritage Foundation, and the founder and editor-in-chief of Public Discourse.

Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University.


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