Putting Liberalism in Its Place

Putting Liberalism in Its Place

by Paul W. Kahn



Product Details

ISBN-13: 9780691120249
Publisher: Princeton University Press
Publication date: 12/26/2004
Pages: 336
Product dimensions: 6.00(w) x 9.25(h) x (d)

About the Author

Paul W. Kahn is the Robert W. Winner Professor of Law and Humanities at Yale Law School, where he is also Director of the Orville H. Schell, Jr. Center for International Human Rights. He is the author of The Cultural Study of Law, The Reign of Law; Legitimacy and History, Law and Love, and Out of Eden.

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Putting Liberalism in Its Place



Every age has its own point of access to ethical and political deliberation. For us, that point is the problem of cultural pluralism. Lacking a conviction in the absolute truth of our own beliefs and practices, we are uncertain how to respond to those who live by different norms. We are all too aware that such differences exist, as we interact with cultures that put different values on life and death, family and society, religion and the state, men and women. We constantly confront the question of whether some of the practices supported by these values are beyond the limits of our own commitment to a liberal moral philosophy and a political practice of tolerance. We worry about moral cowardice when we fail to respond critically, and about cultural imperialism when we do respond. The problem is both theoretical and practical: theoretical, when we struggle to find a form of reasoning that can occupy a position between a discredited claim to universal moral truth and an incapacitating moral relativism; practical, when we must decide how to respond to groups and individuals that offend our own values.


The problem of cultural pluralism has both an internal and anexternal face. Internally, we confront cultural differences within our own society. These differences arise only in part from the historical legacy of waves of immigrants who brought diverse traditions to the nation-building project. More importantly, differences arise because of contemporary critiques of traditional practice and beliefs. These critiques purport to expose the manner in which the traditions carry forward entrenched status relationships. Is the traditional family, for example, a cultural inheritance to be treasured and preserved, or does it perpetuate gendered role differentiation and patriarchal values that should be rejected? Is religion a source of values to be protected or of irrationality to be cabined? Is ethnicity a legitimate or an illegitimate source of political difference? Confronting this internal pluralism, we wonder how much normative difference can be absorbed by a single political culture and what common principles can hold together a multicultural society.

Externally, it is difficult to find any area of the world with which we do not interact, and about whose customs and practices we can express either ignorance or indifference. In fact, the larger the degree of dissonance between a foreign culture's values and our own, the more likely those practices will come to our attention. Differences between ourselves and others are not mere matters of degree or of interpretation of common standards. Rather, we have radically different understandings of the appropriate social norms and, consequently, very different expectations of politics. Europeans may be drawing together in a common political and moral order, but much of the rest of the world, from Africa to Asia, is following other patterns of order-or disorder. These cultural differences are deeply entwined with differences in material circumstances as well as political organization. Since these material and organizational differences are not likely to decrease as populations increase under conditions of material scarcity, it would be futile to try to disentangle cultural from material differences. Each inevitably shapes and is shaped by the other.

Aware that Western aspirations for a single global order are not universally accepted, we are thrown back again on the question of difference. We are forced to think critically about our own claims for universal norms. We are no longer quite so confident of the status of our own truths. We find Islamic states today-and even a Jewish state-but we do not find Christian states. The contemporary truths of the West are procedural and economic: the rule of law, democracy, and free markets. We wonder whether any of these constitutes adequate grounds for rejecting the moral truths of others. We appeal to the idea of human rights-"It is the law," we say-but beneath the legal rhetoric we find disagreement about the nature of the individual and his or her relationship to the community. Disagreement, we fear, may go all the way down.

Western states, including our own, have traditionally been quite willing to force people to comply with moral truth. The theoretical project, in the form of theological and philosophical inquiry, was to defend and elaborate that truth. Once the truth was grasped, there was no more difficulty in making it compulsory than there was in making individuals follow the rules of mathematics. As long as the good and the true were believed to be one and the same, moral science had the same status as natural science. Even as tolerant a country as our own has a past marked by little toleration for deep religious difference (consider the treatment, at various times, of Mormons, Catholics, and Muslims), for claims of racial and gender equality, or for the beliefs of non-Western immigrants and Native Americans.

Yet forcing people to follow our truths has never been our only strategy for dealing with difference. Across a broad domain, we have tolerated difference. Toleration for some religious differences is deeply embedded in American history. Free speech, too, rests on a principle of liberal tolerance for difference. Intolerance appears at the margins of a field of tolerance. Those margins have moved substantially over the course of our history.

Within our own community, we reach a rough compromise between the universal and the particular. Compromise is possible because the background values of the culture are not widely or deeply opposed. As a matter of law, we protect certain fundamental rights. Individuals and groups are free to live as they wish, as long as they respect fundamental norms protective of individual dignity. This still leaves a wide range within which ordinary political forces, as well as individuals, make choices among competing norms. At times, certain values or norms become so important that they shift from the domain of choice to that of constitutional law; that is, they are taken out of the ongoing political and moral debate and protected as a matter of fundamental law. This, for example, was the process marked by Roe v. Wade with respect to the right to choose an abortion.

The most difficult internal clashes that we confront tend to emerge from minority religious groups outside of this broad value consensus. With respect to these groups, we inevitably feel a double-pull: an instinct toward charitable toleration-it seems to cost us little to tolerate difference-and an opposite impulse toward the universalization of norms. When the Amish will not send their children to high school, or when Seventh-Dnay Adventists say they need unemployment compensation because they cannot accept jobs that require Saturday work, the Supreme Court has generally been willing to grant exemptions. Recently, however, it has inclined in the opposite direction, toward universalization. Even then, Congress has generally responded in the opposite way. Our own liberal political culture, in these cases, is uncertain where to draw the line between uniformity and toleration.

Even when it costs little, the toleration of such group difference is always precarious. A shift of perspective from the adults to the children in these groups, or from the group's relationship to the dominant culture to its relationship to dissident minorities within its own geographic reach, is likely to produce just the opposite reactions even in a broadly tolerant community. We want to protect the right of the child to choose his or her own cultural community or of minorities to their own choice of lifestyle. We reason that if we do not protect the rights of the individual against the group here, we will do so nowhere. A tolerance based on respect for choice easily becomes a reverse image of itself: intolerance for the actual choices made.

Theoretical approaches to the problems of cultural pluralism reflect a similar conceptual aporia between universalism and tolerance as competing first principles. We can articulate a set of universal values and supporting norms, against which cultural practices and belief systems are to be measured. This is the approach pursued by contemporary advocates of human-rights law. Alternatively, we can begin from the perception of difference among groups. The intuition of difference is no less fundamental than that of commonality. This is the approach of those who perceive in human rights discourse a neocolonial, Western enterprise.

Each approach, when released from the practical compromises of an ongoing enterprise, can push to an extreme. Pursuing the fundamental dignity and equality of each individual, claims of human rights can proliferate endlessly. In response to every need-food, health, work, education, and well-being more generally-some group is willing to formulate a claim of right. On the other hand, an approach that begins from the perception of difference can quickly dissolve into an extreme moral relativism. In this extreme form, there is no foundation from which one can gain sufficient purchase to make any compelling criticism of different cultures. Every criticism is thought to rest on a particular community's values; there is no way to make cross-cultural comparisons of value. To condemn another's practices is simply to produce a kind of tautological affirmation of one's own values.

Moral relativism, however, offers no more support for tolerance than for intolerance. From the fact of difference, nothing follows about whether to accept it or reject it. There may be no common ground upon which to justify condemnation, but neither is there a common ground upon which to justify acceptance. Intervention may be an imposition of one's own values, but failure to intervene may be a violation of those values. For this reason, the same classical system of international law that made state sovereignty a fundamental norm placed no legal constraint on the decisions of states to go to war. War and peace were matters of sovereign choice. The move from recognition of difference to intervention was not a large move at all. Neither the universal nor the particular seems firm ground from which theory can direct practice.

Multiculturalism would not pose a problem if the plurality of values could simply be aggregated-like adding another wing to a museum. The problem of cultural difference is not like that of difference among cuisines, in which each culture values some distinct set of flavors and tastes. Rather, different cultures affirm values that others reject. Some reject what others insist upon as a matter of right-for example, gender equality. Affirmation and rejection are not abstractions. They invoke passions and these passions run into each other, sometimes in a violent way. Societies may be defined by their hatreds as much as by their attachments.

It is often difficult for Americans to know how to react to these social hatreds. Not only our religious traditions but also our political culture pursues a practice of proselytizing. Other people never appear as permanently alien; they appear instead as the object for our efforts at conversion. Of course, we have had-and still have-our own hatreds. Nevertheless, that history of hatred tends to be understood within a narrative of progressive toleration, accepting the hated group into the political community or into that larger community of nations with which we maintain friendly relations. We try to distinguish a people, capable of redemption, from its leadership, lost to evil. Our enemies regularly become our allies-for example, the Japanese and the Germans for the last generation, and today, the Russians.

Our contemporary missionaries preach democracy, free markets, and the rule of law-all institutions founded on our belief in the equality and liberty of every person. This dogged commitment to a universal community is a product of both our Christian and Enlightenment traditions. We experience this commitment simultaneously as a kind of open-ended love and as a faith in the capacity of each individual to enter a rational debate that will result in mutual agreement. No one, we believe, is beyond conversion to our values. When we dream of a global order, we project our own values onto it. We do not imagine that the global community of the future will be led by an Islamic cleric.

Other cultures do not necessarily share this proselytizing attitude toward the alien other. They do not pursue a universal mission of either love or reason. Difference, for them, may not be understood as a problem to be overcome, but as a border establishing identity. Ours, after all, is an era marked by the simultaneous, but opposing, development of globalization and ethnic nationalism. From the latter perspective, Western universalism may appear as yet another form of cultural imperialism. For the West, the story of colonialism was one of Christian proselytizing and the progress of civilization; it was simultaneously a project of imperial destruction.

We can retreat in the face of these problems to our own traditions and the limits of our own community. That community is now defined by those who accept our truths; that is, those who accept the conditions that limit the domain of tolerable difference. But this strategy just returns us to the very practical problem from which we started: the problem of cultural pluralism. Normative systems are plural because there is no agreement about the substantive or procedural bases upon which they are constructed. Individual moral autonomy may be a bedrock first principle for us and an immoral denial of the primacy of a community of faith for others.

Are we forced to say either too much or too little? As long as we focus on difference itself, we cannot solve the problem. We will alternate between a rhetoric of the universal and a rhetoric of the particular, each of which can collapse into the other. Proving yet again that liberalism follows from a certain understanding of the autonomy of the moral subject is hardly a convincing argument to those who accept neither that view of the subject nor the primacy of reason among the possible forms of argument. But for those who find that autonomy an obvious and undeniable first principle, no claims by the other-whether the parishioner, the communitarian or the multiculturalist-will shake that faith.

If arguments from first principles will always come too late because there is no agreement on these principles, how can we make any progress? Instead of searching for resources that are not already marked by their own culturally contingent character, we must directly confront the contingent character of our own position. Our ambition must be to create a space from within which to assess our own normative beliefs and practices, which include, but are hardly exhausted by, liberalism. This is not a neutral space from which to judge others, nor a space from within which we can pursue a program of reform. Its end is neither to make others like ourselves nor to remake ourselves. Rather, it is a space of suspended commitments from which to apprehend the self. Cultural pluralism is not a problem to be solved, as if we could finally articulate the right set of universal values or the appropriate scope of the particular. It is, instead, a warning that normative inquiry can no longer take the form of proscription, but must turn to self-exploration.


Cultural difference is such a prominent problem today because it presses against some of the most basic assumptions of our own broadly liberal culture. My ambition is to expose these assumptions and show how they fail to account for central aspects of our experience of ourselves and of our relationship to the political community. The assumptions within which liberalism operates generate the familiar oppositions that have dominated modern political theory, including that between the universal and the particular, the public and the private, and reason and interest. None of these oppositions can be resolved on its own terms. Part I of my inquiry exposes the structure of these oppositions, explains why they arise, and the particular content they assume in modern American political culture. Part II investigates what the debate framed by these oppositions leaves out or fails to see.


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Table of Contents

Acknowledgments vii

Introduction: Putting Liberalism in Its Place 1


Chapter 1: The Architecture of the Liberal World 33

Chapter 2: A Brief Genealogy of American Liberalism 66

Chapter 3: The Instabilities of Liberalism 113


Chapter 4: The Faculties of the Soul: Beyond Reason and Interest 145

Chapter 5: The Erotic Body 183

Chapter 6: The Autonomy of the Political in the Modern Nation-State 228

Conclusion: The Future of the Nation-State 291

Index 315

What People are Saying About This

Patchen Markell

A striking book. Putting Liberalism in Its Place is a thoughtful, provocative work that demands, and will repay, serious engagement.
Patchen Markell, University of Chicago, author of "Bound by Recognition"

Jonathan Schell

In this lucid, powerfully reasoned, deeply original major new contribution to contemporary political thought, Paul Kahn X-rays the liberal faith, summoning it to a new honesty regarding its own purposes, unacknowledged motivations, blind spots and limitations, and challenging it to a find a new, if perhaps more modest, place in the world.
Jonathan Schell, author of "The Unconquerable World" and "The Fate of the Earth"

Annelise Riles

This important book represents the culmination of a career by one of the most original legal theorists working today. It is a work of both rigor and imagination. Building on but also transcending his earlier work, Paul Kahn presents a breathtakingly vast panorama of the conundrum of American liberalism in its theoretical, political, and daily practiced genres. Along the way, he tackles a wide variety of materials, from Supreme Court cases to Greek tragedies and leading political theory texts.
Annelise Riles, Cornell University, author of "The Network Inside Out"


"In this lucid, powerfully reasoned, deeply original major new contribution to contemporary political thought, Paul Kahn X-rays the liberal faith, summoning it to a new honesty regarding its own purposes, unacknowledged motivations, blind spots and limitations, and challenging it to a find a new, if perhaps more modest, place in the world."—Jonathan Schell, author of The Unconquerable World and The Fate of the Earth

"This important book represents the culmination of a career by one of the most original legal theorists working today. It is a work of both rigor and imagination. Building on but also transcending his earlier work, Paul Kahn presents a breathtakingly vast panorama of the conundrum of American liberalism in its theoretical, political, and daily practiced genres. Along the way, he tackles a wide variety of materials, from Supreme Court cases to Greek tragedies and leading political theory texts."—Annelise Riles, Cornell University, author of The Network Inside Out

"A striking book. Putting Liberalism in Its Place is a thoughtful, provocative work that demands, and will repay, serious engagement."—Patchen Markell, University of Chicago, author of Bound by Recognition

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