Chapter 7: The Illusion of Liberalism

With the collapse of the Marxist utopia, the main resistance to recognizing our political condition today comes not from the critical Left, but from the center and center Left—from liberals. The liberal view—the liberal utopia, in essence—is the very antithesis to this vision of endless struggle.144 It is a political imaginary of neutral laws, of “rules of the game,” that supposedly allow citizens to pursue their personal interests without interfering with others. There is no battle, on this view, there is simply a regimented game with rules that allows us all to pursue our ambitions independently and autonomously. There is no imposition of values on others on this view, and no need for that.

The liberal view is, today, the most seductive alternative to critical theory, at least in the United States. It represents the greatest challenge. It is not so much the fragmentation of critical utopias, but rather the promise of a ceasefire that undermines critical theory: on the left liberal view, there is no need for an endless struggle over values, since, with the rule of law, everyone can pursue their vision of society without encroaching on others. We do not need to impose our values on others; we can keep our values personal, pursue them respectfully by following the rules of the game, and ultimately everyone will be able to achieve their ideals in their lives. All we need to do, on this view, is enforce the rules of the game.

The power of the liberal view is the result, in part, of the fragmentation of critical theory. As the Marxist foundation began to erode—as the concept of class struggle and the vision of proletarian revolution began to eclipse—traditional critical theory reoriented towards Left liberalism. Jürgen Habermas, for instance, embraced communicative ethics and deliberative processes that placed him more in conversation with John Rawls than with the critical Left. Gradually, the later generations of the Frankfurt School gravitated toward Kant and liberal theory. Today, many inheritors of the Frankfurt School are essentially liberals. Regardless, the result is that the single greatest challenge to critical theory today is Left liberalism: the idea that we should conform to the rule of law as a way to avoid political strife.

I.

The liberal view, however, rests on a profound illusion because there is simply no way to set up rules of the game that do not already have inscribed in them values and ideals. All legal frameworks—all systems of laws, all codifications, all laws, all rules of the game—necessarily instantiate a political structure that imposes a vision of the good society and the good life on the subjects of law. This occurs, first and foremost, in contemporary advanced capitalist societies, through the legal definition of property and the resulting system of private property rights. The fact is, the supposedly neutral rules of the game are founded on definitions of property that necessarily and inevitably impose a vision of the good on all subjects of law.

Now, as a historical matter, liberalism did not have to be coterminous with the heightened, almost absolute, protection of individual private property rights that effectively shapes the kind of society we live in. The rules of the game, for instance, could have been designed to cap individual possession at a certain point, prohibit inequality from going beyond a certain ratio, require universal rights to shelter, employment, or food. Or, they could and more often were designed to allow unlimited accumulation of private property and wealth, to allow unlimited inequality as between the wealthiest and the poorest in society, to require no mandatory assistance to the most destitute. These are simply different ways of writing the rules of the game, but they entail entirely different visions of the good society, and they facilitate or impede individuals’ specific vision of the good life. They tranche the question. These rules determine what is and is not possible in terms of the individual pursuit of a good life. They interfere—physically, concretely—with an individual’s pursuit of happiness. In this sense, the rules of the game shape the vision of the good society and enable or disable individuals from pursuing their vision of the good. They thus survive and function, in fact, on a deep illusion.

Today, it is that illusion of liberal legalism, more than the fragmentation of critical theory, though in part reinforced by it, that threatens critical theory and obfuscates the critical horizon. So it is that illusion we need most to unveil—especially since proponents of liberalism will deny that the rules of the game are so determinative or that they impose a particular vision of the good.

To be sure, it would be naïve to suggest that liberalism does not embrace any values, or that it does not promote any vision of the good life. Most liberal theorists will concede it does. It embraces a love of liberty, which is in its root etymology. It also incorporates, at its very core, an ideal of tolerance that is reflected in the notion that people should be free to pursue their own conception of the good so long as it does not harm others. It reflects a discomfort with state authority, and certainly a great distaste for authoritarianism. It privileges individual preferences over collective ones. It is not, and does not claim to be, entirely neutral; but liberal theory does suggest that, within those bounds, it is possible to set up rules of the game that allow individuals to pursue their own self-interest without fundamentally imposing any specific vision of the good life on others—that the rules of the game are not rigged to a particular vision of the good.

This, then, would functionally put an end to the endless political struggles we find ourselves in: a Left liberal legal rights regime, on this view, would mostly solve the political quandary we find ourselves in, halt the slippage to authoritarianism, and offer the most viable utopic vision. No need for endless political struggle, just for the implementation and enforcement of the rule of law. And many people in the advanced capitalist West believe this. Most of our contemporaries believe in the rule of law, and believe there is some neutrality to the rule of law.

Now, if we lived in an arbitrary authoritarian dictatorship, I too would argue for the advantages of rules and laws—I would clutch any straw. But insofar as we are surrounded, instead, by excessive faith in the neutrality of the rule of law, that, I take it, is what we must interrogate. Why? Because it is the illusion of liberal legalism that renders too many of us docile subjects and prevents us from seeing that we are engaged in political battle all the time. It is what encourages individuals to put politics aside, to not get involved, to let others decide their fate. It is what renders so many of us “immature” in the Kantian sense in “What Is Enlightenment?”: servile to others.

The liberal illusion alone is not what stifles political action entirely. There is also desperation, depression, a growing sense of futility, and the problems of collective action. For many, there is a feeling that nothing would change anyways. There is a sense of powerlessness. Indeed, there are many other forces dampening political engagement. But all of them are facilitated by the overarching sense that there are rules of the game that need to be followed and that can be neutral. That is an illusion.

II.

The notion of the rule of law was born in antiquity, especially during the Roman republic, but found its most solid footing during the emergence of modern political theory with Thomas Hobbes—a most illiberal progenitor of liberalism in other respects. On the question and definition of law, paradoxically, Hobbes was the most important precursor to contemporary legal liberalism. Hobbes articulated, in his famous Leviathan of 1651, a modern positivist conception of laws and justice that laid the foundation for legal liberalism.

For Hobbes, laws are what allow individuals to pursue their own interests without getting into each other’s way. Laws, Hobbes wrote, are like “hedges”: they are not intended to stop us from pursuing our ends, but rather to help us achieve those ends without going astray, without knocking into others, without harming others. They are not intended to shackle us, but rather to make us free. They are not intended to “bind the People from all Voluntary actions,” but instead “to direct and keep them in such a motion, as not to hurt themselves by their own impetuous desires, rashness, or indiscretion.”145 Hobbes then added, in what is perhaps the most important passage:

as Hedges are set, not to stop Travellers, but to keep them in the way.146

This notion of “hedges” is absolutely crucial to understanding the premise of modern liberal thought: namely, that laws are intended to facilitate individuals’ quest for their self-interest, rather than impose upon them ideals or values. That laws are what render subjects free: laws are what guarantee our liberty to pursue our private ends. They function as rules of the game, allowing each individual then to play their own game and achieve their own objectives. Hobbes, in fact, helped coin the notion of laws as rules of the game. He explicitly compared the laws of a commonwealth to the “laws of gaming,” in order to underscore the idea that whatever the subjects of a commonwealth agree to, just as whatever the players of a game agree to, will necessarily be just to all players.147

Laws are also what ensure that the sovereign achieve its raison d’être—namely, to guarantee the people their “contentments of life.” Not just security or safety in a narrow sense, but their contentment writ large “which every man by lawfull Industry, without danger, or hurt to the Common-wealth, shall acquire to himselfe.”148 What is especially important, and telling, is that the core of this contentment is that every subject be secure in his possessions. At the heart of Hobbes’ vision, justice consists in making sure that everyone remains in possession of their property—or, in Hobbes’ words, it consists “in taking from no man what is his.”149 Hobbes spelled this out, making clear that property and possession are at the very center of good laws: men must be taught, Hobbes declared, “not to deprive their Neighbours, by violence, or fraud, of any thing which by the Sovereign Authority is theirs.”150 Hobbes then added:

Of things held in propriety, those that are dearest to a man are his own life, & limbs; and in the next degree, (in most men,) those that concern conjugall affection; and after them riches and means of living. Therefore the People are to be taught, to abstain from violence to one anothers person, by private revenges; from violation of conjugall honour; and from forcible rapine, and fraudulent surreption of one anothers goods.151

The emphasis on possessions and propriety is what led a scholar like C.B. Macpherson to place Hobbes at the fountainhead of a strain of liberal thought he called—coining the term—“possessive individualism.”152 It is this idea that every subject possesses these things—life, limb, conjugal relations, riches and possessions—on their own, that they owe nothing to others, and that they have full entitlement to them as a result. As if man’s possessions are entirely the fruit of his own labor and he owes nothing to anyone else.

More important for us here: laws are what allow subjects to possess what is their own, to pursue their own possessive interests, to maintain their possessions. Law is what prevents others from interfering, through force or fraud, in another man’s possessions.

This is in effect the central thrust of laws as “hedges”—perhaps the single most important metaphor in modern political theory because it conveys perfectly the implicit assumptions undergirding the concept of “the rule of law.” The metaphor of a hedge conveys objectivity and neutrality: we agree on where we place the hedge, and it does not impose values or interests on us, we do all the work—within the limits of the agreed upon rules.

The metaphor resurfaces in John Locke’s Second Treatise of Government and becomes the central allegory for law. Laws, Locke wrote, as Hobbes had, are not confining or limiting of freedom, they are what allow us to pursue our interests, they enable us to be free. And for this reason, Locke emphasized, laws should not be called “confinement”: “that [the Law] ill deserves the Name of Confinement which hedges us in only from Bogs and Precipices.”153 Locke’s editor, Peter Laslett, notes in the margin, after observing the similarity in language with Hobbes, “Presumably a verbal coincidence or an unconscious re-echo, though see Gough, 1950, 32.”154 Concidence? Unconscious re-echo? That seems inconceivable because the notion of “hedges” is so central to Hobbes’s thought. And so central to Locke’s as well: laws are those hedges that make possible our pursuit of self-interest and our liberty. Locke spells this out as clear as day:

For Law, in its true Notion, is not so much the Limitation as the direction of a free and intelligent Agent to his proper Interest […] So that, however it may be mistaken, the end of Law is not to abolish or restrain, but to preserve and enlarge Freedom. […] For Liberty is to be free from restraint and violence from others which cannot be, where there is no Law.155

The central notion, here again, is that the legal hedges allow us to be free and to pursue our interests and our visions of the good life. They enlarge our liberty, and do not restrict it: they do not shape who we are or what we want, they make it possible for us to achieve our vision of ourselves and the good life.

As with Hobbes, for Locke this vision of legal hedges is intimately tied to a conception of the propertied self: what is foremost, after life and safety, are man’s possessions, from a private property perspective. Locke emphasized:

Freedom is not, as we are told, A Liberty for every Man to do what he lists […] But a Liberty to dispose, and order, as he lists, his Person, Actions, Possessions, and his whole Property, within the Allowance of those Laws under which he is; and therein not to be subject to the arbitrary Will of another, but freely follow his own.156

This notion of man’s independence to pursue his own will and interests, to dispose of his own possessions, to instantiate his own vision of a good life—so long as he does not do violence or fraud to another—is at the very heart of the conception of law as hedges.

And it reappears in various other guises in Locke’s analysis, as well as in that of later liberal thinkers. It appears through the image of the “Fence” in the Second Treatise. In discussing the right to use force against a robber—which, as Andrew Dilts suggests, paradoxically founds the ideal of liberty157—Locke refers to the framework of rights, specifically “the Right of my freedom,” as the safeguard of his own preservation, using the term “Fence” to describe that safeguard.158 Michael Walzer, in his essay on “Liberalism and the Arts of Separation,” added the image of the “wall,” emphasizing in his words that “Liberalism is a world of walls.”159

Hedges, fences, walls: in liberal thought, laws represent these ostensibly neutral constructs that allow us to pursue our utopias without getting in each others’ way.

III.

Many before me have critiqued this view, but not always for the right reason. More often than not, the critique challenged what it perceived as the false image of man embedded in these liberal assumptions. Man was, instead, by nature more compassionate, or empathetic, or solidaristic. In other words, the selfish possessive individual of liberalism did not reflect our true species-being—to borrow Marx’s terminology. These critiques were useful, insofar as they exposed the hidden assumptions of liberalism, but they did not go far enough. They too went off-track, enacting new illusions about the real nature of subjectivity.

Marx offered a stinging critique of liberal legalism in On the Jewish Question.160 The model of civil and political rights, Marx argued, is premised on the notion of a liberal subject that is self-interested and self-centered, and pursues only his private self-interest. On the basis of this atomistic subject, in his private space, pursuing his private interests, liberal theory envisages law as what protects one subject from the harm of another. The theory, however, assumes an atomistic subject who is not tied to a community, and does not belong to a community, who depends in no way on others.

Marx argued that the liberal construct of civil and political rights rests on a particular view of man: “the egoistic man, man as he is, as a member of civil society.”161 This conception of the subject is one of “an individual separated from the community, withdrawn into himself, wholly preoccupied with his private interest and acting in accordance with his private caprice.”162 He pursues his own individual interests, and as such needs to be protected against others who are doing the same. The conception of law is that of “hedges” in Hobbes’s terms; and liberty is conceived of as that which permits the pursuit of individual interests. “Liberty is, therefore, the right to do everything which does not harm others.”163 Law—as in civil and political rights—is what serves to protect that: “The limits within which each individual can act without harming others are determined by law, just as the boundary between two fields is marked by a stake.”164

What grounds this concept of law is that of the atomistic individual pursuing his own interests and needing to be protected from the pursuits of others, Marx emphasized. Political rights depend on the self-interested, isolated man. “The only bond between men is natural necessity, need and private interest, the preservation of their property and their egoistic persons.”165 This is detrimental to how men view men. “It leads every man to see in other men, not the realization, but rather the limitation of his own liberty.”166

Rights produce what Marx referred to as an “optical illusion”: an inversion of political or collective association and the protection of individual rights. They prevent us from seeing the true nature of man. The contrast, here, is to a vision of man as interconnected and interdependent. This is the notion of man as a “species-being” for Marx: drawing, as he does, on Rousseau, this is the notion of man as “part of something greater than himself, from which in a sense, he derives his life and his being.”167

There is, then, an embedded conception of subjectivity hidden in liberal theory: there is already, baked into liberal theory, a biased view of the subject as a highly individual, self-centered, and self-interested, egotistical agent who is primarily focused on his own possessions and private property, and feels no solidarity or no debt to others.

This critique of possessive individualism resurfaced throughout the history of political thought. Foucault, for instance leveled this critique against American neoliberalism in his discussion of Gary Becker’s writings in The Birth of Biopolitics: it was his critique that a particular conception of the subject was already baked into the cake of human capital theory.168 Similarly, Michael Sandel argued that liberalism embeds a particular self-centered conception of the individual and a specific vision of the good life. So it does not ensure the priority of the right over the good, because it assumes a propertied notion of rights; it has embedded within it a notion of the good as being linked to private property and the independence of subjects. It does not have an idea of human emancipation as the end or goal; it has already picked a vision of the good tied to private property. Here too, though, Sandel embraced a different conception of subjectivity that is more communitarian—embedded in the community.

None of these critiques go far enough, though. None of them come to terms with their own illusions. None of them recognize the pure theory of illusions. The crux of the problem is not that the liberal vision of the subject is false or inaccurate, and that another view of human nature is more exact. It is not that we are actually empathetic animals or inherently part of the collective, rather than individualistic. It is not that we are in truth social animals, or political animals. The problem is not even with the content of the presupposition—not with the substance of the vision of man as individualistic.

The problem is that all of these claims about human nature are entirely constructed and, when they become naturalized, they have political effects. They have effects of reality.

The distinction is crucial: we will never get at human nature. The concept itself is deeply problematic. Hobbes was not necessarily right about our primordial fear of conflict and death; and Rousseau was not necessarily right about our empathy for each other, though he was surely right that assumptions about the self have subconsciously driven most political thought. We do not need an alternative conception of the self, but rather, to critically understand that all these conceptions of human nature are constructed, as are the political conditions that we build on top of them. The idea of merit is constructed. So is the idea of desert, or of responsibility—of what we owe each other, etc. The level of equality and freedom in society is constructed, and we have total control over political outcomes. We can decide whether humans are generous and altruistic or not, selfish and self-centered, by setting up society in a certain way: to be generous and altruistic, or not.

This is where Sartrian existentialism remains vibrant: we are our actions. We are our political decisions. It is the type of society that we construct that tells us who we are, not the other way around. We do not have inner qualities that dictate what kind of society will emerge and develop. We have control over the kind of society we make—with as much or as little equality, equity, justice, as we see fit. We are not pre-defined, and have no human nature. We are malleable constructs, shaped for the most part by our prevailing beliefs and materials surroundings. Deeply caught in language and ways of thinking and speaking—in our forms of rationality. Yes, perhaps even blinded at times by our ways of thinking.

IV.

That is the crux of the problem: the naturalization of the liberal vision of man—the fact that this liberal vision of man is surreptitiously baked into the theory—produces a series of illusions that then justifies claims to objective truth: namely, the belief in individual responsibility and individual merit, that then justifies the ratcheting up of unequal social institutions and processes.

Now, nothing is wrong with individual striving and ambition. But the idea that politics can neutrally set up rules of the game that allow everyone equally to pursue their goals is a fiction. It is an illusion that has detrimental effects, specifically that (a) facilitate particular individuals, well situated and well endowed, to achieve their own objectives and (b) allow us to impugn those individuals who are not well situated when, because of the ways the laws are set up, they inevitably fail to achieve their goals. The rules of the game are not neutral, but distribute opportunity. Just as the height of the basketball hoop will statistically favor tall players, limitless inheritance, for instance, will statistically favor children of wealthy parents.

The point is, there is no neutral notion of merit. There is no way to objectively speak about individual responsibility. A child who grows up in the inner city, with poor educational and work opportunities, is simply not on equal footing as a child who attends the best private schools and has unpaid internships throughout their adolescent years. Those differences are the direct product of the ways in which the rules of the game are established—they are a direct consequence of unlimited rights to property, tax laws, etc. The rules of the game create these differences, and maintain them. As a statistical matter, as a question of probabilities, they reproduce the social inequalities. To be sure, there will be exceptions, and some individuals will be able to transcend their likely outcomes—for better or for worse. Some will fall, some will rise. But those are the outliers. For the most part, the rules of the game will determine the fate of most individuals.

The central problem, then, is not the embedded idea of individual ambition and self-reliance, but the way in which the accompanying notion of laws and legal structures hides the reproduction of wealth and power. How it creates a fictitious idea of individual merit and responsibility. How it advantages some and disadvantages others. And how ultimately it facilitates an increasingly unequal social condition.

To emphasize an important point: There is nothing inherently wrong with individualism. In fact, Jean-Paul Sartre may indeed be right that « l’enfer, c’est les autres »—that hell is other people. But despite that, our human condition requires forms of cohabitation that demand a modicum of equity and equality between us all. It requires that we live in solidarity one with another. Our social condition and mutual interdependence force upon us the need for solidarity. And liberalism makes this difficult because it has been, historically, built on notions of private property that have facilitated the accumulation of wealth. Of course, it need not have been that way, and there were potential limits for instance in the Lockian notion of possession based on labor, on what can be used and consumed, etc.; but that is not he way in which the liberal tradition evolved. So that today, liberalism facilitates, rather than hinders, the hoarding and grabbing of property. It masks selfish accumulation under the guise of individual merit and responsibility. And more and more—as we see with the Piketty research—it is facilitating the grabbing of the public commons. The only restraint was world war and the threat of communism—the specter of Marx—that forced liberal democracies to redistribute; but those are (for the first, at least, hopefully) things of the past. Liberalism today faces no more competition, and as a result capital accumulation is exceeding all bounds. This is facilitated by the illusion of the rule of law.

The crux of the problem today, then, is the illusion of liberal legalism. Let me emphasize here, though, the historically situated nature of my claim. This is the case for those, in the West, today, who live in liberal democratic regimes. There, it is the naturalization of liberalism that is most problematic. That is not necessarily the case in authoritarian regimes elsewhere. Moreover, liberalism is not the only political construct that produces illusions. Communism as well carries its own illusions: the very idea that state institutions could wither away, for instance, is a myth. There will always be regulatory mechanisms, whether we call them the state or not. There will always be forms of government. To speak of the withering of the state is a dangerous illusion that draws our attention away from the fact that regulatory mechanisms will always exist and will necessarily distribute wealth, power, and opportunities. But in the West today, we are not facing a political condition in which communism is shaping us, so that particular illusion is not affecting us right now. By contrast, liberalism is dominant, hegemonic, and only increasing—and for that reason, it is the illusions of liberalism that are the most damaging today in the twenty-first century.

V.

What are these “rules of the game” that tilt the playing field, you may ask. In a country like the United States, they are the protection of limitless private property, tax rates on income and capital gains, the tax rules about deductions (for instance, for mortgage interest, investment losses, etc.), the lack of an inheritance tax, the privileging of civil and political rights at the expense of social and economic rights, to name a few. These are the intricate legal rules—the rules of the game—that make possible capital accumulation and growing inequalities.

Some liberal thinkers will argue that these are not the rules of the game, but the outcomes, and that the rules are the higher order constitutional norms that determine how political decisions are made—in effect, that there are two (or perhaps even more) levels of laws, and that it is only the higher order rules that qualify as the real rules of the game: so, for instance, federalism, the separate powers of the executive, legislative, and judiciary, bicameralism, the presidential veto power, freedom of the press and religion, etc.169

But those rules too are malleable and affect the tilt of the playing field. Redistricting following the 2020 Census will have significant effects on our political condition. Voter eligibility laws and felon disenfranchisement turned presidential and congressional elections in past years.170 The Electoral College can trump the popular vote. All of these purportedly neutral institutions and rules have political consequences, and to suggest that they are neutral or objective is to mask, once again, the political struggles that underlie our political condition. To be clear: redistricting in 2020 is probably the biggest looming political battle in the United States and should be a bloody battle.

~~~

In the end, the central illusion of liberal legalism—that laws are neutral rules of the game—favors certain political outcomes (for instance, capital accumulation and increased inequality) that should be the product of political contestation. It does this, first, by naturalizing the rules of the game, by convincing us that laws are neutral devices that promote our individual liberty. But secondly and equally importantly, it also favors certain political outcomes through the way in which it conceptualizes violence, something I will return to in Part III.