Part I
AMERICAN THEORY:
DEMOCRACY, LIBERALISM, AND RIGHTS
CHAPTER 1
Liberal Democracy and the Costs of Consent
IN ITS ERRATIC, often glorious, political history since 1688, liberalism has forged many alliances: with rationalism and with empiricism, with revolution and with bureaucracy, with enlightenment and with romanticism, and with laissez-faire economics and with nationalism. But no alliance has served it better than the one it established with democracy. For, by itself, liberalism was a struggle for emancipation from religious and political absolutism that exacted costs liberal principles could not contend with. In establishing the solitary individual as the model citizen, liberalism shortchanged ideas of citizenship and community, and contrived a fictional self so unencumbered by situation and context as to be useful only in challenging the very idea of the political.1 In emphasizing freedom as the absence of all governmental restraints, it impeded the march of popular sovereignty. In combating higher ecclesiastic and secular authority, it attenuated the capacity of religion and tradition to sustain and integrate.
As Tocqueville noticed, societies organized around the anarchic blessings of freedom are more rather than less in need of the unifying blessings of religion.2 Yet liberalismâs virtuesâthe wall between church and state, the toleration of conflicting confessions, the acknowledgment of uncertainty, even skepticism, in public thinkingâcould only further undermine the religious principles whose consolation it needed. Liberalism created a safe haven for individuals and their property, but a poor environment for collective self-government. As liberals were quick to remonstrate, if traditional authoritarian governments endangered the rights and freedoms of individuals, the tyranny of âlegitimateâ majorities founded on popular sovereignty could be still more onerous. Equality obviously might be an entailment of the idea of the common liberty of individuals, but in its political form (rectification, redistribution, government intervention, social justice) it endangered liberty understood as being left alone. Even friends of democracy such as William Connolly worry that democracy âcontains dangerâ and that it is a danger that âresides within the ideal itself.â3
The pure liberal state was in fact an oxymoronic conundrum. Anarchyâthe absence of all governmentâwas liberalismâs purest expression, to be found in principles like the ones inhering in Robert Nozickâs minimalist Protective Association, or in the Watchdog State (the state as arbitrator, umpire, regulator or free market rule-keeper).4 In this pure sense, Hobbesâwho is sometimes construed as a liberal by virtue of the instrumentalism with which he makes absolute authority prudentially serve absolute libertyâis no liberal at all.5
Of course there has never been an actual state constituted by pure liberal principles. From the start, liberalism forged (at times, was thrown into) a working relationship with democracy, which seemed to share so many of its goals (the welfare and freedom, differently understood, of the individual), even as it created problems for their realization.
Western liberal states are in fact all liberal democracies, combining principles of individual liberty with principles of collective self-government and egalitarianism. And, as a matter of practice, such states have done comparatively well, both by liberty, property, and individualism, on the one hand, and by equality, justice, and self-government, on the other. Many observers would attribute their success precisely to their hybrid form.
Yet in England and North America, the mix has been less than judicious, the balance less then dialectical. Although liberalism has benefited from democracy, it has rarely acknowledged the benefits and has generally treated democratic practices (if not also democratic ideas) as perilous. Rather then permitting democracy to complement liberty, liberty has been given lexical priority over all other principles. Even the manner in which the central problem of politics in the West is formulated is liberal (this is Rousseauâs version of that formulation): how to find a form of association that defends and protects the person and goods of each individual, by means of which each one, uniting with all, nonetheless obeys himself alone and remains as free as before.6 This assumes the priority of the individual and his freedom over the community and its rights, and makes the accommodation of the individual, regarded as an a priori, the task of the community, regarded as an artificial contrivance.7
The priority of the âliberalâ in liberal democracy has rendered democracy vulnerable to modernityâs most devastating political pathology: deracination. The impact of the Enlightenment on religion and the impact of epistemological skepticism and post-Enlightenment science on nature and natural law have left modern women and men to live in an era after virture, after God, after nature, an era offering neither comfort nor certainty. Freedom has been won by a ruthless severing of ties (âall that is solid melts into air,â wrote Marx) and an uprooting of human nature from its foundations in the natural, the historical, and the divine.8
The specific pathologies that have been occasioned by deracination need little comment, for they are by now a very old story. Yet they still are frequently overlooked by those who champion liberalismâs defensive properties as a protector of individuals against communities gone awry and states run amok.9 Indeed, it is arguable that the forces that created the greatest pressures on the liberty of individuals in the twentieth century are, at least in part, the consequences of deracination, social anarchy, and rampant individualismâthe consequence not of too much democracy and too little liberalism but of too little democracy and too much liberalism. Fascism in Germany was preceded by the Weimar Republicâs wan liberalism; and the authoritarian personality would seem to be at least in part the product of deracination.10
I believe that liberal democracy has been given an insufficiently dialectical reading in modern political theory, as a result in large part of the theoristsâ reliance on the notion of consent as the crucial bridge between the individual and the community (between liberty and justice and between right and utility). The doctrine of consent was originally intended to give obedience a justification rooted in the interests of individuals rather than in the authority of states (in the rights of the ruled rather than the rights of rulers) and did not necessarily entail democratic arrangements. But it also created principled grounds for democracy by making all political legitimacy a function of popular will. The consent device skewed the relationship toward liberal individualism from the outset, however. It deprived liberals of the comforts of democracy as they tried to accommodate the communities produced by individuals (whom they recognized as such) with the individuals produced by communities (which they refused to recognize).
Unlike pure liberalism of the Nozickean variety, in which the individual stands as the sole measure of right, liberal democracy claims both to unite individuals with the community and to preserve individual liberty in the face of communityâleaving men âas free as they were beforeâ (Rousseauâs formulation). In Michael Sandelâs language, it aspires to mediate the extremes of the âradically situated selfâ (presumably the collectivist conception) and the âradically disembodied subjectâ (the libertarian conception).11 Moreover, it seeks a bridge that does not depend on some foundationalist conception either of right or good. Liberal democrats are not unmitigated voluntarists, but per force they eschew traditional foundationalism of the kind that makes politics depend entirely upon ideas derived from grounds independent of and anterior to the political. The liberal democrat prizes justice but believes justice without consent is a form of heteronomy incompatible with the moral responsibility of the individual. Consent becomes the crucial link: for Locke, for example, what men will consent to in the state of nature binds them henceforward; for Rawls, what men will consent to in a hypothetical original position, before they know the actual identities they will assume in society, binds them to the rules they will live by in society.12
By consenting to the substantive rules to which he will subordinate his will, the liberal individual obeys without compromising his freedom. The conception of democracy that emerges from contractâthat is to say, from consent theoryâdoes provide some security for liberty and rights, by rooting them in a voluntarism that is immune from the immediacy of popular will. The arbitrary whimsy (the subjectivism) of pure voluntarism is avoided without embracing discredited forms of metaphysical foundationalism.
Consent plays a central role in all liberal theory, but it is differently construed in Hobbes, in Locke, in Nozick, and in Rawls. As consent changes the forms it takes, liberal democracy changes its colors. Yet in every form it permits liberal ideas to take precedence over democratic ideas. Moving from the weakest to the strongest, three primary forms of consent can be discerned: we may understand them as original consent, periodic consent, and perpetual consent. The first, in which individuals offer consent once in the form of a covenant that obliges them henceforward to obey whatever rules the civil society they have thus created may promulgate, is original consent, or the doctrine of the social contract. Original consent embraces both the form where individuals agree to procedures by which rules are made (social contract constitutionalism), without consenting to the actual rules, as well as the form where individuals agree in advance to the actual rules, as with Rawls. The second major form taken by consent theory, calling for a kind of ongoing commitment to the contract, engages individuals in periodic rehearsals of consent, most often through the election of representatives. This form is periodic consent, or the doctrine of representative government. It employs elections not merely to assure the accountability of representative governors but also to elicit periodic fidelity from citizens whose commitments might otherwise weaken. The third, and strongest, form requires consent to each and every collective act (each law, contract, bargain, encroachment, and so on). It approaches the spirit of pure liberalism, where government exists and acts exclusively at the pleasure of each individual with whom it interacts. This is perpetual consent, or the market doctrine of libertarianism (a stoneâs throw from what I earlier called âpure liberalismâ).13
In terms of the hypothetical politics they produce, the three regimes that emerge from these three forms of consent look very different. Socialcontract theorists may be satisfied with highly authoritarian and illiberal regimes that are still legitimate by liberal standards because they are authorized by an original contract to which all subjects initially give their consent (if only tacitly). One thinks of Hobbes or Hamilton. Advocates of representative government, such as Locke, require that citizens reaffirm their government and thus their civic commitment from time to time by periodically reauthorizing the governors (who are only trustees of their electors). Libertarians are fierce and constant consenters who demand perpetual vigilance by individuals for whom every new social act is a potential encroachment.
Social-contract theorists take a tacit and relatively passive view of the role of consentâonce suffices for all timeâwhich raises issues of compliance (covenants without the sword, free riders, and so on); advocates of representation take the middle ground, enhancing the autonomous activity of citizens as individuals while limiting their common power to the act of selecting rulers, but otherwise discouraging ongoing self-rule; and libertarians make consent a cudgel with which they beat the very idea of collective governmental activity into senselessness.
However different they are in theory, all three versions of consent theory merge in the practice of Western governments, almost all of which are âmixedâ regimes with respect to original, periodic, and perpetual consent. Indeed the pluralism of such governments arises in part out of jurisdictional quarrels between these conflicting forms of consentâas when the Supreme Court intervenes in the name of original consent (the integrity of the Constitution, representing the original voice of the people) to overrule elected officials operating in the name of periodic consent (they represent the citizens who have elected them to office) in order to uphold the complaint of a private citizen who has challenged the government in the name of his own liberty (embodying the principle of perpetual consent). These mixed liberal democratic regimes share certain fundamental weaknesses that take us to the heart of the problem with consent as the liberal linchpin.
Perhaps most disconcerting among the defects of liberalism that arise out of its dependence on consent is the reactivityâand thus the negativity-consent imparts to liberal politics. Politics becomes purely defensive; the model political act is resistance to encroachment on a private sphere defined by the autonomous and solitary person. And while the radically isolated individual may originate a purely logical priority, the ideal individualâs sphere of activity in the real world seems always to be expanding, as the domain of the person is enlarged by outward pushing liberties and rights, and then enlarged still more by that extension of the person and its liberties liberals call propertyâownership of things as an entailment of self-ownership.14 The ultimate battle cry of the liberal is âDonât cross this line!â The political slogan always reads âDonât walk on my turf!â Liberalism is a politics of negativity, which enthrones not simply the individual but the individual defined by his perimeters, his parapets, and his entrenched solitude. Politics is at best a matter of âLetâs make a deal,â where the stakes are exclusively private (âWhat will it take to get you to honor my liberty?â).
Politics understood as reactive negativity and the denial of every commonality other than that of aggregated individuality reduces the role of will to one of obstinate resistance. Hence it obstructs common willingâwhat Rousseau called general willingâwhere communities essay to disclose common purposes or discover common ground through the political interaction of active wills. The very idea of sovereignty, construed as the paramountcy of a common will, cannot exist in a setting defined by the primacy of the right of the individual to unlimited resistance (that resistance being seen as a property of essentialâand hence rightfulâhuman nature). Politics becomes a matter of ânot doingâ rather than of âdoing,â and the individual becomes sovereign, always trumping the community.
Historically, the focus on resistance had powerful political uses in emancipating individuals from feudal authority. The priority of the individual was an artificial device, which (although everywhere contradicted by the real life dependency of individuals on hierarchical social structures) helped to free men from bondage. The fiction preceded the reality: in fact, the fiction created the reality, for it was meant not as a defense of preexisting individuals against encroaching authority, but as a justification for the forging of individuals from socially constructed subjects. The point was not to legitimize natural individuals, but to legitimize individuation in the face of ânaturalâ (historical and traditional) collectivism. The ânaturalâ man was merely a hypothetical contrivance whose wholly rhetorical significance was not to be mistaken for the kind of anthropological conjectures that would in time be favored by the roma...