Free-Floating Liberty?

In a previous post, I asked what may strike some readers as an obtuse question. If our society is no longer grounded in Christianity, as it once was, or in the biblical tradition, and if the normative passion of our time– namely, equality– is a not an affirmative ideal or vision so much as a negative and parasitic one, then what sort of society do we live in now? How should we describe the affirmative convictions or commitments (if any) that give meaning and shape to our society?

One possible answer– one that may seem compelling to readers of this blog– would assert that our society is constituted by a central commitment to liberty. We have come to understand, perhaps, that in a pluralistic nation inhabited by people with diverse conceptions of what a good life consists of, the proper course is to allow everyone to pursue the life that he or she chooses–so long, of course, as that life does not inflict “harm” on others. So if we return to T. S. Eliot’s contention that notwithstanding the frailty of Christianity in his time (and ours), “a society has not ceased to be Christian until it has become positively something else,” we might explain to Eliot that our society has become “positively something else”– namely, a “liberal” society (in the classical sense in which “liberal” referred to liberty).

This is an old and familiar self-interpretation. For myself, I find the account plausible up to a point, and not unattractive. Indeed, I wish this description of our society were more accurate than (I fear) it is. But the “liberty” interpretation of our society seems to me subject to at least two smaller objections and then to one more fundamental one.

I will state the smaller objections summarily. In fact, our society’s commitment to liberty does not seem especially robust of late. Tocqueville observed the propensity of equality to stifle liberty; his observation seems wholly cogent today. Second, as I argued in chapter three of The Disenchantment of Secular Discourse (2010), upon examination the “harm principle” which seems essential to keep liberty from dissolving into anarchy is, if not utterly vacuous, at least exquisitely malleable. The principle can be crafted to condemn pretty much any restriction on liberty an advocate may oppose, and to justify basically any restriction that an advocate may favor. The recent solemn invocation by lawyers and scholars of “dignitary harm”– as a justification, for example, for allowing same-sex couples to sue people (such as Christian counselors or photographers) whose services the plaintiffs do not actually want and can readily obtain elsewhere—illustrates the point.

The larger objection is this: I doubt that an attachment to liberty can stand and flourish as an ungrounded, free-standing commitment. Let us stipulate that we live in a world of people with divergent ideas about truth and the good life. As Hobbes and Holmes well understood and in their different ways articulated, it simply doesn’t follow, as some sort of normative principle, that these people should be permitted to believe and live as they choose. If you want to get to that conclusion, rather than to a more Hobbesian one, say, you need some additional normative premise. (Such as Christianity, in some of its versions.)

To be sure, as a purely practical or prudential matter, a policy of liberty may be the most feasible or effective way to domesticate pluralism. It depends. Under some circumstances, that will be true. Under other circumstances it probably won’t be. Either way, we haven’t yet reached any “principled” basis (as they say) for favoring liberty.

In short, a society that says, “Our central and defining commitment is to liberty– nothing more fundamental than that” is, I think, on very shaky ground. Its self-interpretation seems incomplete, perhaps self-deceptive; its commitment to liberty seems fragile. As our current situation may illustrate.

Steven D. Smith is the Warren Distinguished Professor of Law, University of San Diego and Co-Executive Director of the USD Institute for Law and Religion.

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Comments

  1. Linda Smith says

    I suspect that those qualified to offer substantive comments are on vacation.

    The passage in the last paragraph of this piece: “Our central and defining commitment is to liberty – nothing more fundamental than that is, I think, on very shaky ground. … As our current situation may illustrate.” is descriptive of our situation. I would make one change, and that is from “may illustrate” to “does illustrate”.

    If we were to explain to T. S. Eliot that our society has become “positively something else” – namely a “liberal” society, we would risk using a term that is no longer understood in its original sense (as the article does point out). I cannot see that Progressivism, now the position of many former modern liberals, is liberal
    in any sense. It does, for one thing, intend, as Prof. KennethL. Grasso writes, “a dramatic break with our historic commitment to the freedom of the church from political control in favor of its subordination to the state (“American Kulturkampf: The HHS Mandate and the Crisis of American Religious Pluralism”) as was made clear by the “opening salvo” of imposing the HHS mandate.

  2. says

    Linda, I agree w/your reference to K.Grasso’s remark, “a dramatic break with our historic commitment to the freedom of the church from political control in favor of its subordination to the state…” I would substitute “state” for “the federal government”.
    Great(continuous) blog by Professor Smith.
    Respectfully, John
    (Facebook, author of The Tribute)

  3. nobody.really says

    A society has not ceased to be Christian until it has become positively something else.

    To some extent, this blog post is a quest for a label to attach to whatever it is that our society now positively is. We implicitly presume that the absence of a label demonstrates that we have not positively become something distinct from Christian yet; I’m not sold on this premise. But we also implicitly presume that the existence of the label Christian signified that calling us a “Christian society” actually had some distinct meaning; I’m not entirely clear on that, either. I sense that there have always been factions within Christian societies that have clashed in their interpretations of Christianity. (Heck, visit Vatican City….)

    I say all this not to be pedantic (that’s just a side benefit), but to provide a critique of Smith’s two small concerns about saying that today’s society is positively liberal: Yes, society could be even more liberal than it is, and yes, the concept of “liberal” is not an absolute standard, but is contradictory interpretations. If those are grounds to refrain from saying that society is positively liberal, than by the same token we never had grounds to say that society was Christian.

    (For what it’s worth, I’m not wild about government vindicating “dignity harms” arising from private conduct. But this is not a unique concern of homosexuals; it previously arose with respect to black people’s civil rights. I’ve suggested we start applying antitrust principles to Commerce Clause analysis: Yes, the state has an interest in facilitating interstate commerce, and when people in suspect categories cannot secure public accommodations it impairs interstate commerce. But the fact that a hotel manager refuses to serve black people doesn’t really impede interstate commerce – provided the guy next door DOES provide black people with comparable services at comparable prices. Thus, I’d grant people an affirmative defense to allegations of wrongful discrimination: “Hey, I told him where he could find a viable substitute accommodation.” No, this would not remedy the dignity harm – but that’s not really what the civil rights laws are designed to do, at least as they are justified by the Interstate Commerce Clause.)

    Smith’s larger concern seems somewhat related to the second smaller concern: Is liberty a sufficient basis for organizing society? I’d guess not. Nor is Christianity. We had a huge amount of secular business law, combined with laws about deferring to authorities in emergencies, embedded in society.

    (Ok, doubtless you could find SOME Biblical support for these matters – just as you doubtless could find contrary assertions within the Bible. It’s a big book.)

    [A] society that says, “Our central and defining commitment is to liberty– nothing more fundamental than that” is, I think, on very shaky ground. Its self-interpretation seems incomplete, perhaps self-deceptive; its commitment to liberty seems fragile. As our current situation may illustrate.

    As it may indeed. When has our commitment to liberty been less fragile than today?

    The question provokes the prior question, how do we define liberty? From what constraints and fears do we strive to be free?

    And this answer strikes me as indeterminate, because different people will have different concerns. Magna Charta was a great blow for liberty – on the part of nobles against the king. What did it do for the rights of serfs vis a vis their feudal lords? Not so much. The Declaration of Independence was a great blow from liberty – of white landowners against the king. What did it do for their slaves? Not so much. (Indeed, if the US revolution had failed, presumably US slaves would have been freed at the same time as British slaves in 1833. Thus is remains a troubling question whether the Revolutionary War was a net gain for freedom or not.)

    White, educated, able-bodied, heterosexual men may well feel threatened by civil rights laws – because, as a class, they’ve largely subdued the other threats to their autonomy. People who are not in that circumstance may experience different fears, and thus draw different conclusions about how best to achieve “liberty.”

    Yup, it’s indeterminate. But is that any different than saying that Christianity is indeterminate? Reflect upon the long history of Christian-on-Christian violence – up to and including The Troubles in Ireland – before you respond.

  4. gabe says

    Nobody:

    Nice!!!

    “We had a huge amount of secular business law, combined with laws about deferring to authorities in emergencies, embedded in society. ”

    Yep, we did. Here is a little essay on precisely that topic and how the pre-Christian Irish managed it.

    http://nomocracyinpolitics.com/2014/07/03/private-law-in-the-emerald-isle-by-finbar-feehan-fitzgerald/

    ” Thus is remains a troubling question whether the Revolutionary War was a net gain for freedom or not”.

    Umm! Not so much on this one. On the whole it can be easily argued that 1776 did result in a net gain for freedom / liberty while not being sufficient to provide “full” liberty for all. If, as I do, you accept Lincoln’s notion of the Declaration as an “aspirational” statement of American intent and purpose, then you must understand it to represent a forward leap (shades of Mao?) in man’s quest for liberty.
    While, it may be true that if 1776 did not occur, slaves in the US would have gained their freedom some years sooner, one must never forget that it WAS the British and other European powers that infected this continent with human slavery (put aside some practices of Native Americans, for a moment) and set one section of the continent upon a course from which it was rather difficult to extricate itself. No, this is not an excuse for that abysmal practice, just a recognition of the reality confronting the early US. Recall that it was British ships, capital and “traders”, such as they were, that created and supported this practice, and in so doing developed an economic nexus (powerhouse) that could not easily be dismantled.
    Yet, Lincoln and others, including Taney in an 1817 Maryland case referred specifically to the Declaration as the source for the equality principle. So, perhaps, we can be a little more appreciative of its value.

    ” Reflect upon the long history of Christian-on-Christian violence – up to and including The Troubles in Ireland – before you respond.”

    Ireland is an interesting case and as demonstrated in the linked essay it had a long history of secular based law. Yet, the fact that a substantial portion of the populace does not always live up to its expressed creed does not in an of itself disprove that creed or the hold it has over the people. We, in the US, can also be pretty unlawful, at times; does it then follow that we are lawless (Ooops, given the current administration, perhaps it does).
    Sometimes, economic interests overcome our higher creed; yet, we may still be said to have, and yes, in some sense, practice that creed. I suspect that this may be said both for the American south and Ireland.

  5. Valjean says

    What sort of society do we live in now?

    An ungrounded one.

    We were definitely grounded in Christianity (which doesn’t imply monolithic conformity, but does imply a definite foundation–exceptions to which only serve to prove the rule).

    The pivotal echo of the reality in thought apparent in our Founding Documents is, “…endowed by their Creator…” If your rights come from government, you don’t have any. God is the only possible bestower of rights, and legitmate responsibilities–it is up to government, a priori, to observe those inherent limits upon itself–even when the details of what concrete and practical form the limits must rightly take is difficult to discern. That is a Christian Nation–we retain the letter, but have placed in serious doubt our possession of the spirit.

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