[Paleopsych] TLS: John Gray: The derelict utopia

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John Gray: The derelict utopia
The Times Literary Supplement, 1996.5.24
http://the-tls.co.uk/archive/story.aspx?story_id=2086441&window_type=print

    LIBERALISM WITHOUT ILLUSIONS. Bernard Yack, editor. Essays on liberal
    theory and the political vision of Judith N. Shklar 292pp. University
    of Chicago Press; distributed in the UK by Wiley. £33.50 (paperback,
    £13.50). 0 226 94469 7

    Recent liberal thought is littered with utopias. Among liberals of the
    Right, the utopian imagination has attached itself to the vision of a
    minimal state presiding over an unfettered market, while liberals of
    the Left have envisaged an egalitarian state in which basic liberties
    and the claims of the worst off are respected as rights. What is
    striking about the standard varieties of liberal theory over the past
    generation is their extraordinary optimism about the institution of
    law. Liberals as different as F. A. Hayek and John Rawls share the
    common project of limiting the scope of political life. They seek to
    insulate the demands of justice - as they very differently understand
    them - from political deliberation and negotiation. This is a species
    of utopian legalism that liberals of an older school ,Tocqueville,
    Constant or John Stuart Mill, say could hardly have entertained
    seriously. Perhaps predictably, its results in practice have been
    mostly dystopian. Twentieth-century history suggests that law is a
    blunt and fragile defence against injustice. The recent history of the
    United States, in which an atavistic and irresolvable dispute about
    abortion and rights has convulsed political life, does not support the
    utopian ambition of liberal legalism of entrenching rights beyond the
    reach of political conflict. The ongoing American experiment in mass
    incarceration, which, without appreciably reducing levels of crime,
    has already left a higher proportion of the population behind bars
    than in any country apart from post-Communist Russia, should caution
    anyone who thinks deep-seated social and economic problems respond to
    the procedures and sanctions of the criminal law. History teaches
    scepticism about any "theory of justice" that claims neutrality , as
    standard liberal theorists of all political persuasions over the past
    twenty of thirty years have routinely done in conflicts between
    world-views and conceptions of the good. It should instil modesty
    about what the institution of law can hope to achieve. Yet the
    mainstream of liberal thought is still a wasteland of derelict
    legalist utopias.

    Judith Shklar was an uncompromising liberal who never subscribed to
    the orthodoxies of liberal legalism. She was not interested in
    theories of justice, because she thought injustice too protean to be
    captured in any theory. She was not hostile to the American culture of
    rights, but she believed the distinction between misfortune and
    injustice marked a political choice, not a legal judgment. She knew
    too much about ordinary human cruelty ever to allow herself or others
    to become romantic about life in strong communities. She was not
    afraid to defend a "liberalism of fear". Rightly, she understood
    liberalism to be as much a remedy against life in communities as a
    prescription for communities of a certain type. Coming from a family
    of German-speaking Jews from Riga, who had fled Latvia at the last
    moment, in 1939, her own life had immunized her against any variety of
    political romanticism. Like Isaiah Berlin's, her liberalism affirmed
    conflict and loss as ineradicable elements in even the best human
    lives and the fairest societies. For those who had known her, Shklar's
    death in 1992 was a tragic cutting off in its prime of a rare capacity
    for thought.

    Liberalism Without Illusions is a collection of sixteen essays, all of
    interest and some of considerable power, exploring and assessing
    Shklar's intellectual legacy, together with a charming and inimitable
    autobiographical essay by Shklar herself. Most of the pieces address
    Shklar's conviction that liberalism is a negative and strictly
    political doctrine, arising not from any comprehensive view of the
    human good but from the attempt to build bulwarks against the worst
    ordinary vices. For Shklar, the task of liberal institutions was the
    negative one of removing, or at least mitigating, the principal
    obstacles to a tolerable human life; but, though avowedly negative,
    this task was not circumscribed, as it has been in many forms of
    classical liberalism, by any theory of the limits of state action. In
    Shklar's view, as in Berlin's, liberal institutions must be as
    resourceful and inventive as the evils they resist. The liberalism of
    fear encompasses many strategies of positive state action. It mandates
    policies to expand opportunities as well as to protect the weak
    against oppression.

    In a penetrating essay, Amy Gutman argues convincingly that the
    implication of Shklar's liberalism of fear is not negative liberalism
    but a version of active democracy an implication she traces in the
    evolution of Shklar's thought from her article "The Liberalism of
    Fear" (1989) through her books The Faces of Injustice (1990) and
    American Citizenship (1991). A similar conclusion is reached by
    Michael Walzer in a subtle and far-reaching consideration of negative
    liberalism. Walzer suggests that what distinguishes Shklar's
    liberalism of fear is not just its stress on the positive engagements
    of the state but also its particularism. The task of liberal
    institutions is not only to erect bulwarks against the universal evils
    of arbitrary power torture, unjust imprisonment and so forth. It is to
    enable people to stand up against the insults to dignity and
    independence that go with a particular culture and its history the
    history, for example, of black chattel slavery in America. The moral
    of Walzer's argument is that liberalism can never be only the
    application of remedies against universal evils. It is always also the
    defence, and reform, of particular ways of life.

    Some of the essays are notable contributions to discussion of
    particular questions within liberalism. In a characteristically
    spirited and thoughtful piece, George Kateb argues that the right of
    free expression protects even speech that is worthless or harmful.
    This protection includes, Kateb makes clear, those forms of speech
    such as racist and sexist speech that are the targets of the speech
    codes common in American universities. Implicit in Kateb's essay is
    the belief that this conclusion applies universally, in all liberal
    societies everywhere. Now it is true that issues to do with offensive
    speech arise in all cultures, as is shown by British law which makes
    racist speech a criminal offence. Yet it is clear that the
    controversies Kateb's essay addresses derive their peculiar intensity
    from features of American society that are not found in other liberal
    cultures. Of these, the history of black slavery is perhaps only the
    most obvious; the cultural propensity to represent all serious issues
    of public policy as questions about the interpretation of fundamental
    rights is undoubtedly another. Kateb's argument against speech codes
    is highly persuasive; but its method, which is that of appealing to
    first prin-ciples the contents of which are hopelessly in-determinate,
    guarantees that speech codes will persist, as intractably contested
    practices, in American universities.

    In a useful and fair-minded contribution, Rogers M. Smith argues that
    the re-emergence in many parts of the world of ethnic enmities,
    religious fundamentalism and other illiberal developments does not
    show that the liberal project must now be relinquished along with
    other forms of the Enlightenment project. For Smith, liberal thought
    and practice may be flawed, incomplete and even in some ways
    contradictory; but they are not so defective as to warrant the large
    and dangerous step of abandoning liberalism's universal claims. Here
    we note a pervasive feature of liberal thought in our time, which is
    its apologetic character. Political philosophy today is often an
    exercise in finding bad reasons for what liberals believe by instinct.
    Nothing in the real world of history is allowed to threaten the
    certainty that liberal institutions are the best for all humankind.

    This is, in effect, another kind of liberalism of fear, one devoted to
    securing the liberal conception of progress against any possibility of
    historical falsification. What this liberalism of fear neglects is the
    wholly genuine possibility that fear may sustain allegiance to
    illiberal institutions. If, in China, it is reasonable to fear a
    collapse into anarchy, with its attendant colossal sufferings; if, in
    Singapore, a somewhat authoritarian regime can deliver not only civil
    peace but standards of healthcare and education for ordinary people
    that surpass those achieved in many liberal societies; by what leap of
    faith can it be asserted that liberal institutions ought to be adopted
    in such circumstances? A similar subversive question was put, around
    the time of the birth of the modern state, in the writings of Thomas
    Hobbes, a proto-liberal and as Quentin Skinner shows in one of the
    most interesting contributions to Bernard Yack's admirable collection
    at the same time one of liberalism's greatest critics. It remains
    unanswered by liberal theory to this day.

    In our time, human well-being is most threatened not by state power
    but by the disabling weakness of state institutions. Nearly
    everywhere, states are suffering a leakage of power to globalized
    markets and organized crime, among other forces as a result of which
    they are decreasingly able to provide their citizens with even the
    rudiments of security. In this new historical context, Shklar's
    dystopic liberalism of fear may itself prove to be utopian. Shklar's
    legacy is nevertheless an inspiring example of liberal thought at its
    arresting best, unflinchingly courageous and unmoved by the dreary and
    unmeaning harmonies conjured up by theories of justice and rights.