The Moderate Hegemony of Liberal Realism
The Moderate Hegemony of Liberal Realism
Abstract and Keywords
How can liberal realism justifies its claim to being a legitimate form of political authority once it has abandoned the consensus vision of the political± What distinguishes liberal realism as a form of political rule rather than mere domination± This question is particularly pertinent and problematic for a theory of liberal realism because it both accepts that it will need to coerce those that reject liberal values and principles yet is committed to respecting the freedom of all persons’ by constraining political power. So on what grounds is it legitimate for the state to coerce its non-liberal internal enemies± This chapter answers this question by developing Stephen Macedo's notion of liberalism as a ‘moderate hegemony’. While in a liberal state liberals will necessarily be masters, they will be ‘restrained masters’ and this chapter sets out some of the normative and institutional restraints that liberals place on themselves. Crucially it is through this restraint that liberal realism not only respects the freedom of non-liberals but does so in such a way that distinguishes liberalism as a form of political rule, even though it does necessarily dominate or have mastery over those persons.
Legitimacy is a central concept in realist thought. Though the popular caricature of realism, especially in international relations theory, encourages the view that might is synonymous with right, that the ability to rule is the same as the right to do so, realists have often stressed that this is not the case. Rather, there is an important difference between rule as mere domination and rule as authoritative that the concept of legitimacy allows us to determine. This begs the obvious question of how liberal realism justifies its claim to be a legitimate form of political authority. What distinguishes liberal realism as a form of political rule rather than mere domination? This question is particularly pertinent and problematic, specifically from the liberal perspective of the theory, when we accept both that liberal regimes will necessarily need to rule over those that reject their right to do so and that any successful answer will in itself depend on the use of coercive power, in the sense of making people act in ways they otherwise would not. This stands in need of justification. In what sense, if any, can these truths about the political world be squared with liberalism's normative commitment to a morally constrained politics?
Building upon Stephen Macedo's notion of liberalism as a ‘moderate hegemony’, what I want to suggest is that the answer to this question lies in the manner in which liberalism rules, especially in relation to its non-liberal internal enemies. While in a liberal state liberals will necessarily be masters, they will be what I want to call ‘restrained masters’. And it is through this restraint that they not only respect the freedom of non-liberals but do so in such a way that distinguishes liberalism as a form of political rule, even though it does necessarily dominate or have mastery over those persons. There are numerous elements to this or ways in which this self-restraint is realised in theory and practice, and this chapter will set out what I take to be the most important of these. But any regime, including a liberal one, will need two (p.153) related but distinct legitimation stories, one directed towards those who reject the political framework, its enemies, and another towards the friends and adversaries who will broadly accept that framework though still might have substantial disagreements about it. The second story is no doubt an easier one to tell and in the next section I shall discuss the form that this takes in liberal realism and address one concern that liberals might have with it. In the following section, I want to set out the notion of a ‘moderate hegemony’ that is central to liberal realism's legitimation story as directed towards its enemies, and show how it can simultaneously accept yet interpret in a more liberal fashion the necessity of domination and coercion that the move to a realist account of the political requires. The third section then fleshes this out a little more by introducing the notion of liberal rulers as ‘restrained masters’ and the normative and institutional self-constraints that they place on their own use of power so as to ensure that even our enemies are respected and treated as free and equal. And then, finally, I want to incorporate the recently developed realist idea of political constitutionalism into liberal realism as another key way in which this respect is demonstrated.
Legitimacy Amongst Friends and Adversaries
Though legitimacy is a multi-faceted concept that features differently in a myriad of aspects of our social world, the notion of legitimacy I have been employing is the right of one person or group of persons to rule over others, usually determined by their being located within a certain geographical territory, including the right to use coercive force in order to ensure compliance with their demands and laws when obedience is not, or is likely not to be, forthcoming. While the demand for legitimation arises whenever one group claims that it has the right to rule over any other, it only stands in need of a sufficient response when such rule is actually taking place. The focus on legitimacy as the right to rule means that it cannot be the case that those subject to the power of a legitimate state conform to its rules and demands solely on the grounds of its overwhelming force. For a state to be legitimate there must be some sense in which people obey its rules and demands, and recognise the right of the state to expect such obedience, because they take it to be a political entity that has authority (not just power) over them, one whose commands should be taken as having normative force in guiding their actions in virtue of the fact that they were issued by an authoritative political source and regardless of their own independent judgements about those commands. (p.154) Realists tend to be more ecumenical than liberals, especially those following Kant, in terms of what reasons are appropriate in relation to the question of legitimating the state vis-à-vis the individual. Coercive force, and the fear of coercive force, does have a role to play in the matrix of reasons that bind the individual to the state. But it cannot be the whole story, for then politics would be indistinguishable from mere domination. This is why it is important that at least a significant proportion of the citizenry at large endorse the political framework, ideally by sharing its fundamental normative commitments, values, ends, and principles. For those that do, the state will necessarily represent a political authority through which the values and ends they hold are realised, and indeed maybe without which their realisation would be impossible. This need not be understood in a strongly individualist sense in which the subordinates have (in some appropriate sense) freely consented to the state. Political legitimation does require, however, a certain level of ‘binding in’ through which the legitimacy of the rulers is established and reinforced. That their rule can be justified with reference to values, ends, and goals that are shared, at least amongst the most significant members and groups within society, is therefore essential to demonstrating and maintaining legitimacy.
This condition of legitimacy has great explanatory value insofar as it can help illuminate the sources of illegitimacy when the state cannot be justified in terms of shared beliefs, because no basis of commonly held beliefs exists, because changes in widely held beliefs have deprived the rulers of their justificatory common ground, or because changing circumstances have rendered implausible the original justificatory reasons employed (despite those shared beliefs remaining constant).1 That said, exactly who needs to share the common ends is a political question that will depend on the political circumstances. How many constitutes a ‘substantial number’ will depend on the circumstances, as will which groups of persons this must include (e.g. powerful religious, ethnic, or tribal groups, the young, influential critics, etc.).2 It certainly will not include, and cannot realistically be expected to include, all citizens within the state. And while widespread rejection of those ends could have important consequences in relation to the degree of co-operation and quality of performance that the rulers can secure from the ruled, especially when the latter are asked to make significant personal sacrifices in order to achieve that state's ends, this need not in and of itself determine the state's illegitimacy. At most one can say that it sets states on a vicious spiral of having to employ more and more coercive power so as to motivate citizens to engage in co-operative activity that is likely only to further demonstrate the lack of a common normative basis between the rulers and the ruled. But ineffectiveness is not, in and of itself, illegitimacy.
(p.155) The liberal state is a political association whose fundamental political framework is both grounded in and directed towards realising or protecting liberal ends, ones which, like the normative foundations of any political order, not all its citizens endorse. These ends are in no sense assumed to be endorsed or affirmed by all but represent substantial and controversial moral and political commitments that will inevitably be partisan in their appeal. If we connect this account of the normative foundations of liberal politics with this realist condition of legitimacy then clearly it is a necessary condition of legitimacy that the liberal state promotes liberal ends, in particular respecting the freedom and moral equality of all individuals, where liberal ends are shared by a significant proportion of the citizenry of that state. Importantly, it is not the case that citizens must accept that these represent the best, right, or true interpretation of liberal values. The liberal state will, if successful, largely consist of adversaries, those who broadly endorse the liberal framework though disagree on how the fundamental liberal normative commitments are to be interpreted or demanded in practice. But, as long as the liberal political framework is widely recognised as a plausible interpretation of liberal values, then this will suffice for the purposes of morally justifying it to adversaries, even though they may still work to alter that framework so as to be more in line with their own liberal ideal.
There is something obviously tautological about this condition of realist legitimacy: the liberal state is legitimate because it pursues liberal ends, values, and moral commitments. The same condition provides a partial basis for justifying the legitimacy of other forms of political order also (socialist orders are legitimate because they are directed towards achieving socialist ends, fascist orders because of fascist ends, and so on). This is inevitable, according to the realist view I am expounding here, insofar as competing claims to legitimacy, and different accounts of the goods or values in which a legitimate state would be grounded, are necessarily part of the struggle and conflict between different visions of the political ideal that characterises politics. Different people believe that different goods are required to legitimate the political association. It would be a mistake to think that legitimacy somehow stands above political contestation, that it is a neutral arbiter in the struggle between different political positions that can determine which are permissible and which are not.3 Insofar as there are different goods, values, and ends according to which claims of legitimacy can be justified, the question of what is and is not legitimate will be as contestable and contested an issue as questions over what justice demands, the limits of freedom, the content of rights, or the appropriate subject of human equality. Indeed legitimacy, and its many contested meanings and demands, is often at the very forefront of the struggle between competing visions of the (p.156) political ideal. Claims to the legitimacy of any political regime, including liberal regimes, cannot therefore appeal to the consensus that surrounds any value or set of values but must appeal directly to those substantive values themselves. These values will inevitably be contested by some, even if, as will often be the case in the most stable of political orders, only by a minority. But in this the grounds of liberal legitimacy are no different from, and certainly no more or less self-referentially partisan than, those of other forms of political life.
Many liberals worry that a position such as this leads to a disquieting relativism in which the legitimacy of any political regime is simply relative vis-à-vis the values held by those who wield power and/or the majority of the citizenry. Realists are more comfortable with this notion. On the one hand they take it to reflect, as Geuss puts it, the fact that ‘The legitimatory mechanisms available in a given society change from one historical period to another, as do the total set of beliefs held by agents … and the widely distributed, socially rooted, moral conceptions’.4 Williams' Basic Legitimation Demand contained the same sort of historical sensitivity. But the differences that they both highlight apply across space as well as time. Just as we, to use Geuss' example, no longer accept the idea that the Pope can dispense political legitimation as he did with Charlemagne in the year 800, so many of the beliefs that we take to be central to any successful legitimatory story, the primacy of individuals and their rights, religious toleration, equal freedom for all, etc., are not shared by all peoples today.5 A realistic theory of legitimacy needs to be aware that the beliefs that lie at the base of forms of legitimation are part of, rather than independent from, the wider social world in which they exist. As such, there is an important sense in which the historical and cultural sensitivity of the grounds of legitimacy make some form of relativism unavoidable.
On the other hand, this relativism is an inevitable consequence of the conflictual nature of political life. A realist account of liberal legitimacy needs to come to terms with the partisan appeal of its foundational normative values and accept that liberal regimes are not uniquely or superiorly legitimate on the grounds that their normative frameworks are affirmed by all their citizens. An upshot of this is that liberal political orders will inevitably be experienced as an imposition by those that reject liberalism or several of its key tenets. But this will inescapably be true of all forms of political order in relation to those that reject its fundamental normative framework. As we have seen, the requirement that the fundamental principles of the political order are, or could be, affirmed by all those subject to it responds to liberalism's normative concern with respecting the freedom and equality of all individuals. In part, this is what distinguishes liberalism from many other forms of political order. (p.157) Liberals are people who insist that the state must respect the equal moral status of its citizens, including those who reject the liberal values on which its claims to legitimacy are based. They worry about the fate, in terms of freedom and equality, of political minorities. It would be a liberal regime of dubious legitimacy that did not show equal respect to its political minorities. In effect, therefore, it is not simply the epistemological consequences of relativism that are of concern but also the fact that the vision of politics as the conflict and struggle between competing conceptions of the political good renders implausible the standard theoretical mechanism for safeguarding the freedom and equality of all persons, in particular those that reject liberalism. As such, a realist account of liberal legitimacy must still have something to say to and about the legitimacy of the liberal state in relation to those that reject liberalism beyond a mere and brute affirmation of the values and ends that it pursues.
Liberal Realism as ‘Moderate Hegemony’
How do liberal regimes treat those members that reject liberalism as free and equal when they are clearly being forced to obey laws and principles, pursue ends and normative goals, that they do not share? Answering this question is, as we have seen, going to be a necessary condition of any realistic yet recognisably liberal theory of politics. What I want to suggest is that Macedo's notion of the ‘moderate hegemony of liberalism’ gives us a plausible and promising way of understanding liberalism that retains the commitment to treating others, including enemies, as free and equal while recognising the fact of political pluralism and the role that coercion plays in enabling and maintaining politics in those conditions.
Liberalism is hegemonic, Macedo states, in the sense that it is honest about the ‘pervasive effects and influences of liberal political practices. “Moderate”, because transformative constitutionalism confines itself to political virtues, seeks to respect freedom, and takes advantage, where possible, of indirect and nonoppressive means’.6 On one prominent view of the role of constitutionalism in liberal theory, the role of a constitution is to provide the framework of rules and regulations that allows individuals an equal sphere of freedom to pursue whatever ends they choose. Such a view insists that it is not the role of the constitution to interfere with the private choices that persons make (as long as they do not impinge on the ability of others to determine their own ends), nor does it seek to dictate which ends they should pursue. Yet this, as Macedo puts it, ‘misses the radically transformative dimension of liberal constitutionalism and is (p.158) liable to obscure the extent to which a liberal constitutional order is a pervasively educative one’.7 Crucially, the pervasive liberal view assumes that citizens' endorsement of liberalism is in some sense natural, with interests that pre-exist the constitutive effects of social and political institutions. It overlooks the extent to which a liberal regime needs to engage in the formation of liberal citizens:
Liberal constitutional institutions have a more deeply constitutive role, which is to work at shaping all forms of diversity over the course of time, so the people are satisfied leading lives of bounded individual freedom. Successful constitutional institutions must do more than help order the freedom of individuals prefabricated for life in a liberal political order: they must shape the way that people use their freedom and shape people to help ensure that freedom is what they want. If a constitutional regime is to succeed and thrive, it must constitute the private realm in its image, and it must form citizens willing to observe its limits and able to pursue its aspirations.8
There are of course many ways in which a constitution can exert political influence over the formation of its citizens. As a case study Macedo focuses specifically on how public or common schools in the US throughout the mid-nineteenth century, which sought to educate all children within a certain geographical area, was a direct attempt to exercise political leverage over the intellectual development and moral character of future citizens. Schooling is a particularly important aspect in the formation of citizens insofar as it reinforces the basic beliefs and commitments that it is believed should be held by all citizens, and to reshape and supplant more cultural and religious identities that denied such beliefs (of which there were many at the time). What was happening, Macedo plausibly claims, was that political power was purposefully being exerted in order to foster and create the willingness of individuals from particular religious groups to live in peace with those they believed to be damned. But there can be more indirect methods of liberal citizen formation also, and here Macedo explores the manner in which the separation of the religious from the political sphere, effectively being prepared to regard religious views as politically irrelevant, was a price of assimilation into the American way of life that religious believers had to accept. Furthermore, the rituals that are demanded in order to be a judge or be a candidate for president also demanded that religious believers, and Catholics in particular, proclaimed the practical meaninglessness of their religious convictions as a condition of being allowed to serve.9
Not all liberal regimes will pursue the same means to create liberal citizens. But the point is that the use of the many mechanisms, practices, and (p.159) expectations of transformative constitutionalism that have the effect of shaping and affecting our commitments and habits is not something that ‘calls for regret, apologies, or adjustment’.10 Rather it is a proper political aim to try to generate such convergence since liberalism, as any form of political order, needs the support of private beliefs and practices that are at least congruent with liberal politics. The mistake that liberal theory often makes, Macedo believes, is to think that liberal citizens – committed to self-restraint, moderation, and reasonableness – ‘spring full-blown from the soil of private freedom’, as if simply securing a rigid public/private divide through law is sufficient to ensure their commitment to the liberal constitution. This overlooks the fact that such allegiance is a political achievement.11
Macedo accepts that this view of the transformative dimension of liberal constitutionalism is one that will attract the charge of being illiberal in the sense that it explicitly aims at reducing diversity, especially of groups that reject liberalism. Macedo is characteristically unapologetic about this, insisting that what matters is not diversity per se, but ‘healthy forms of diversity’, i.e. a diversity of different groups that all support the basic values of liberalism.12 ‘The point of liberal constitutionalism at the deepest level is not to avoid this deep partisanship – for we could only do that by abandoning the liberal public morality itself – our aim should rather be to take care to promote the right sort of liberal partisanship in all spheres of life’.13 And he accepts that ‘high costs are born by all those whose religious or philosophical convictions are in tension with liberal democratic public values, including those whose religious or moral beliefs tend towards the totalistic’.14 But he takes solace in the fact that the methods of transformation that liberal states employ are ‘gentle rather than oppressive, influencing the deeply held beliefs of vast numbers of people without coercion or force’.15 Nevertheless, he accepts that some will see the transformative role of liberal constitutions as ‘oppressive’ but insists that this does not detract from the fact that it is necessary political work. ‘Diversity’, as he puts it, ‘does not harmonise automatically’.16
There are many points of overlap between Macedo's liberalism-as-moderate-hegemony and liberal realism. In particular it accepts that politics takes place in conditions of ongoing political disagreement and partisanship in which not everyone will hold liberal visions of the political ideal, and that therefore the transformation of people's beliefs so as to be supportive of the political regime is taken to be an appropriate use of political power. Liberal realism places the first point in the wider context of the fact of reasonable political disagreement and the partisan nature of liberalism's normative foundations that was discussed in the previous chapter. Likewise, the notion of transformative constitutionalism (p.160) needs to be linked to liberal realism's account of legitimacy. It is not only that we need to transform people's beliefs so that the liberal state can ‘succeed or thrive’, or so that people can lead ‘satisfied’ lives in it (though this might be a consideration), but because the legitimacy of the political regime depends on such a convergence of beliefs. But other than these small amendments, the notion of the moderate hegemony of liberalism provides us with the basis of our response to how liberalism can be conceived as a legitimate response to the political question, a form of political authority rather than mere domination. The answer is because it is a form of openly partisan hegemonic order that nevertheless seeks to ensure unity and stability through the gentler rather than more violent means available to it. It is through being honest about its partisan nature yet restrained in the manner in which it seeks to secure its ends that liberalism respects the freedom and equality of its enemies. If liberals are masters, they are, to coin a phrase, restrained masters.
Liberals as Restrained Masters
‘Masters’, Jean Hampton wrote, ‘are dangerous to oneself and to others. They need respect no limits – neither the limits of good sense nor the limits of morality’.17 In an important sense, the liberal state is the master to its internal enemies: it sets the rules and principles by which the enemies must live and punishes them if they deviate from those. These principles will necessarily be rejected by liberalism's enemies and will represent a restriction on their ability to live as they would wish. Masters can, of course, treat their subjects in a variety of different ways, many of them, as Hampton notes, both dangerous and disregarding of any moral limits. The costs of living in an association the fundamental terms of which you reject can vary and, at the extreme, though this is not to say infrequently, can include death, exile, persecution, the denial of equal rights, and so on. It is this that leads many, liberals and realists alike, to think that mastery cannot be a solution to the political question insofar as it may lead to consequences that are worse than the problems that politics is intended to overcome. While I accept that this might be true, that a world in which one is mastered can be worse than a world in which the political question remains unanswered, the conclusion that I have not wanted to share is that mastery cannot therefore represent a form of political relationship. Indeed, part of what I have argued throughout is that radical political disagreement is permanent and that hence domination, or mastery, is a necessary and inevitable feature of all forms of politics. This only goes to further emphasise the explanatory (p.161) truth that all political regimes are mixtures, to various degrees, of mastery and non-mastery forms of relationships.18
According to the liberal principle of legitimacy, mastery or domination is a morally unjustified and illegitimate coercive relationship. It violates the freedom and equality of those being coerced by forcing them to live according to principles that they reject. The question for us is therefore how a realist account of liberal legitimacy can substantiate this commitment to respecting the freedom and equality of all persons, even in relation to those that reject liberalism. What I want to suggest in this section is that the answer to why liberals can still be thought of as respecting the freedom and equality of their internal enemies is because of the sort of masters they are. Crucially, while they recognise that there are costs involved in living under a political authority one rejects, the liberal state respects the freedom and equality of enemies by ensuring that these costs are kept as low as is reasonably possible, within certain constraints. It is through this attempt to minimise these costs as far as is consistent with the demands of the liberal state's own normative framework and the requirements of providing an ongoing answer to the political question that liberals respect the freedom of their internal enemies. Essentially the liberal master places on him or herself a series of normative and institutional constraints that ensure (as far as is possible) that coercive power is not used in a manner that violates the freedom or moral equality of any person, including any internal enemies. Liberals are masters, but they are self-restrained masters and it is this self-restraint that respects the freedom and equality of enemies.
I want to separate out the two ways in which liberals attempt to minimise the costs for non-liberals:
a) The liberal state only applies additional costs to enemies when they actively seek to undermine the political framework (a subset of enemies that I shall call ‘active enemies’).
b) In the case of ‘active enemies’, the liberal state refrains from using the more extreme costs that would violate their status as free and morally equal citizens.
The first condition tries to balance several aspects of what we have discussed so far. That the political framework be stable, in the sense that at least a significant proportion of persons endorse it and obey its laws, is a necessary condition of it being a sufficient response to the political question and hence legitimate. Protecting the stability of its political framework is therefore a legitimate aim of any (legitimate) political association and can be pursued via a number of (p.162) different means, part of which can often include imposing additional costs, psychological and physical, on its enemies. While a liberal state will also need to maintain its own stability in order to continue to provide an answer to the political question, it will restrict its use of additional costs only to a particular subset of its internal enemies, those who are actively seeking to undermine it, rather than simply any person who rejects liberalism. Up until the point when enemies become threats, they will be treated no differently, no less as a free and equal citizen, from the liberal state's friends. Yet, even in the case of ‘active’ enemies, whom the liberal state must certainly treat differently in order to protect the stability of its political framework, liberals place on themselves a series of normative and institutional restrictions that ensure that the enemies are given the rights and protections that they are due as equal citizens to ensure that they are treated fairly and justly. Both of these conditions require emphasising and strengthening the universal and legalistic notion of liberal citizenship, in which being a citizen means being protected against the state by the law, and a distancing of liberal realism from the notion of citizenship as requiring participation in the legislative activity of the state.
It has long been a recognised normative objective of liberal theory and politics that people should be given the largest sphere of freedom to pursue their conception of the good life consistent with others having the same degree of liberty. Such a commitment is at the heart of J. S. Mill's harm principle and Kant's universal principle of right, two of the most famous statements of this key liberal tenet.19 It is only if and when citizens act so as to infringe the liberty of others to pursue their ideas of the good that the state can legitimately interfere with their actions. This is further entrenched by the thought that politics should be concerned with the outward actions of people insofar as they affect other people, and not with internal matters such the fate of others' souls or the content of their beliefs. In Kant's words, politics should deal ‘only with the external and indeed practical relation of one person to another, insofar as their actions, as deeds, can have (direct or indirect) influence on each other’.20 Persons' thoughts are essentially their own; the state has no right to coerce or compel someone solely on the grounds of their beliefs. The importance of this position for our purposes is that for liberals the rejection of the normative framework of the liberal order can only be a necessary but not a sufficient condition for imposing costs upon individuals. Persons need to be actively attempting to undermine the normative and institutional framework of the (p.163) liberal order for this to be permissible, hence they need to be ‘active enemies’. Or, put differently, liberals show respect towards their enemies by not seeking to impose additional costs on them merely for their holding beliefs contrary to liberalism. In this sense all citizens are treated as free and equal citizens regardless of their moral and political views.
There are two ways in which one could attempt to destabilise a liberal state from within: by trying to obtain political power, or influence over how political power is distributed, by force or via engaging in the familiar processes and procedures of democratic politics. How the liberal state should respond to those who are pursuing the democratic route is going to be a heavily contextual matter which will equally rely upon a huge degree of political judgement. That far right groups are banned in Germany and Austria, for example, is obviously and explicitly due to their historical legacy while no such similar reasons exist that could reasonably justify banning the British National Party (BNP) in the UK, for instance. This is an example where the costs of politics differ in different political associations. Yet no British government, liberal or otherwise, could ever rule out banning the BNP, or any other radical party, in the future as a possible way of preventing them taking power. All things being equal, however, it is unlikely that a liberal state will seek to ban a particular political party that doesn't stand any meaningful chance of actually obtaining or even challenging for power. So it is an open political question whether those who seek to undermine or destabilise the liberal state via democratic means should be subject to additional costs or not.
But nevertheless the basic point for our purposes is that liberals do not seek to impose additional costs of politics on their enemies simply because they reject liberalism, by denying them equal rights, representation, toleration, liberty, etc. but only in those cases where they are actively seeking to destabilise or undermine the liberal framework. A political order could do differently; many political regimes have persecuted – and continue to persecute – persons on the grounds of their simply holding certain beliefs (religious, moral, or political). Liberals do not impose additional costs on anyone unless their actions (rather than beliefs) threaten the stability of the political order and, in this sense, respect enemies as free and equal as far as is consistent with liberalism continuing to provide a stable answer to the political question. Liberals wait as long as is possible within the contingent constraints of providing such an answer before they treat their enemies differently from their friends.
If we look at this through the notion of citizenship, the liberal state will include all its members, including its enemies, as full citizens entitled to equal civil, political, and social rights. They are all free to act according to the law and (p.164) have the right to claim the law's protection from other citizens but also from the state itself. The fact that they hold rival non-liberal conceptions of the political good does not affect either their membership of the political association or their status as a full and equal citizen. As is the case with liberal citizenship, this means that the state must practise a high degree of toleration and forbearance towards its enemies, refraining from interfering in an individual's actions unless they infringe upon the freedom of others, regardless of how morally repugnant or erroneous those in political power might find their beliefs to be, or, importantly, how contradictory they might be to liberal norms and values. The practice of liberal citizenship therefore grants individuals a large degree of freedom when it comes to conscience, speech, religious practice, and association (along with a whole host of further areas as well) all of which will be defended and protected by law if the individual believes that they have either been denied these freedoms or had their right to them violated. In effect, what liberals are saying is that they will agree to disagree with their political opponents, and let them carry on their lives as normal with all the rights and freedoms enjoyed by others, up until the point they threaten the liberal political order.
Liberal Constitutionalism and the Rule of Law
As was remarked earlier, a fairly familiar liberal vision of constitutionalism is to see a legal system as providing the impartial framework through which persons and groups can pursue their freely chosen and different ends. On this account, the law is itself ‘purposeless’ insofar as it seeks to impose neither ends nor purposes on those subject to it. The role of constitutional law is not to act as a coercive mechanism for imposing one particular conception of the good but to restrict the use of political power towards those ends on which persons agree (or can reasonably be expected to agree) while protecting the freedom of individuals to pursue whatever way of life they choose. Law is neutral towards substantive ends.21 As such, the liberal state is often conceived as being ruled by law rather than persons insofar as the power employed by the state is restrained and limited by a framework of laws and regulations that protect individual freedom, though they do not promote or protect any particular way of life, and which no ruler is able to legitimately transgress (and often these constitutional laws can be enforced by judicial review).
The realist view of constitutionalism is quite different. To quote Carr, the law ‘is an expression of the will of the state, and is used by those who control the state as an instrument of coercion against those who oppose their power. The law is therefore the weapon of the stronger … Law is regarded as binding (p.165) because it is enforced by the strong arm of authority: it can be, and often is, oppressive’.22 In this sense, constitutional law is not neutral toward substantive ends but is likely to be consciously directed towards enforcing and realising the purposes of the rulers over the ruled. That law is a normative system that serves particular ends and represses others is not, in and of itself, that revelatory a claim. But it is a different claim from saying that the law is not neutral to saying that it is not fair, just, impartial, etc., which is often what it is really being accused of when critics decry the neutrality of any legal system. Indeed, one might think that the law could only achieve any of these ideals if it is not neutral in either its aims or its effects. It is not the neutrality of law that realists emphasise but its effectively politicised nature, the idea that law is political in the sense that it is used as a tool in the struggle for power between those who reasonably hold different notions of the political good and, effectively, as a means for the rulers to maintain and preserve their rule over those that reject it. Law is both the weapon of the stronger and ‘cannot be understood independently of the political foundation on which it rests and of the political interests which it serves’.23 On the realist view, a constitution, even a liberal constitution, represents the ‘rule of men’ not the rule of law.
Of course, it is precisely because law can be used in the sort of oppressive manner that realism envisages that liberal constitutional theory takes the shape it does, using law to restrict political power to the defence of publicly justified ends and leaving individuals free to pursue their own ways of life. This, as we have seen throughout, is a way of respecting the freedom and moral equality of all persons despite their substantive disagreements about the good. But I want to suggest that the realist view of constitutionalism is key to understanding how a more realistic account of liberalism can respect its enemies despite their rejection of the liberal constitution. This begs the obvious question of how we can square the notion of law as necessarily oppressive with the liberal ideal that all persons be treated as free and equal.
This is not that difficult. A liberal realist account of constitutionalism must accept that the law does not represent the will of all persons, rather only the will of the rulers and (if all is going well) a significant majority of its citizens. But part of the will of the liberal governors includes placing restrictions on how political power is employed, including allowing all citizens, adversaries and enemies, the freedom to pursue their way of life as far as is consistent with other citizens having an equal degree of freedom. The role of the law in the creation and maintenance of the self-restraints that liberal states place on their own use of power is of particular importance in understanding how liberal realists respect the freedom and equality of enemies, active and not. In other words, (p.166) we can completely accept the realist vision of constitutionalism while making a further claim that, even in liberal political orders where the law is intended to defend a status quo that not all accept, the law can nevertheless be designed to function in a way that protects and respects the freedom and equality of all individuals. The liberal rule of law is, as realism contends, a political decision that represents the oppressive will of one group over all others, and hence really the rule of men. But it is a rule of men that is purposefully restricted in order to respect the freedom and moral equality of all persons.
It therefore makes sense to continue to speak of the rule of law in liberal realist theory. Indeed the rule of law is central to the way the freedom and equality of enemies are respected despite their rejecting the liberal constitution. Judith Shklar presented us with two different versions of the rule of law, the first Aristotelian and the second, the one she supported and I want to make a limited appeal to, being linked primarily to the work of Montesquieu. In this version, the rule of law is ‘those institutional restraints that prevent governmental agents from oppressing the rest of society’.24 It is specifically intended to be of benefit to and apply to each and every member of society and, in doing so, provide the spirit of a criminal law that precludes the possibility of a ‘dual state’:
Such a state may have a perfectly fair and principled law system, and also a harsh, erratic criminal control system, but it is a ‘dual state’ because some of its population is simply declared to be subhuman, and a public danger, and as such excluded from the legal order entirely. They are part of a second state, run usually by different agents of the government, but with the full approval of those who staff the ‘first’ of the two states.25
Examples of such a ‘dual state’ include the obvious candidates such as Nazi Germany, though also many states that purport to be liberal, such as the United States until the success of the civil rights movement. The rule of law, on this account, is intended to stand in contrast not merely with despotism but with this possibility of a dual state.26
The overriding objective of the rule of law (one that Shklar believed has been largely forgotten) is to protect the ruled from the rulers, in particular and, in a manner that clearly links to her work on the liberalism of fear, to provide the ruled with the freedom from fear. Shklar believed that there were certain types of human activity that simply could not be made liable to public control and regulation without physical cruelty, arbitrariness, or the creation of fear, such as religious belief and practice, consensual sex, or expressions of public opinion.27 As such, the rule of law includes taking these areas of human life (p.167) out of the legitimate remit of political control. This is a substantive account of the rule of law. Though she argued that the rule of law was not primarily about rights, nevertheless today such a view is often expressed in terms like the law must afford adequate protection of all people's fundamental human rights, such as to life, the prohibition of torture, slavery and forced labour, the right to liberty and security, to a fair trial, to marry, to education, and so on. But there is a proceduralist element to the rule of law also insofar as it demands that the relations of rule be calibrated in such a manner that power is checked by power. Once the proper remit of the political is determined, ‘the only task of the judiciary was to condemn the guilty of legally known crimes defined as acts threatening the security of others, and to protect the innocent accused of such acts. Procedure in criminal cases is what the Rule of Law is about’.28 In this sense, the rule of law ensures that there is no ‘dual state’ where some are denied equality before the law.
Liberal realism cannot easily endorse the substantive element of the rule of law. Not only does it accept the basic realist point that any issue can find itself part of the circumstances of politics and hence be in need of a public decision, it also needs to recognise that liberalism has, and should have, a transformative effect on persons' private beliefs. Such matters as religious belief cannot so easily be taken off the table. Moreover, and to reiterate the line of argument made in chapter 4, the fact of reasonable political disagreement makes it hard to see just how we would decide what these non-political issues, judged on their prospect of causing fear, should be. Yet somehow, being a theory of liberalism, it does need to have some sense in which substantive individual rights are protected, especially as this is central to understanding how liberalism's enemies are respected as free and equal. This is a problem for liberal realism that I want to address in the following section.
But the proceduralist aspect of the rule of law, that which says ‘all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of law publicly made, taking effect (generally) in the future and publicly administered in the courts’, is far from insubstantial in its own right.29 Rather it is also a key way in which liberalism respects its enemies, even when it recognises that it is imposing an alien will upon them. So, for instance, the rule of law guarantees that the laws of the land should apply equally to all, regardless of whether one is a political ally or political opponent. Everyone is treated equally with regard to the law irrespective of their political views. The rule of law implies at least that the law must be prospective (not retrospective), accessible, and as far as is possible intelligible, clear, and predictable. This ensures that enemies know when their actions (p.168) violate the law and when, therefore, they should expect the coercive agencies of the state to take effect against them. The rule of law requires that questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion on the part of individual judges or leaders.30 Adjudicative procedures provided by the state must be fair even in cases pertaining to enemies, maybe especially in such cases. All in all, the rule of law helps make impermissible many of the most excessive potential costs of disagreeing with the political regime, including the midnight knock at the door, the sudden disappearance, the show trial, the confession extracted by torture, the gulag and the concentration camp, the gas chamber, the practice of genocide or ethnic cleansing, and the waging of aggressive internal wars.31 This aspect of the rule of law helps ensure that no additional costs are imposed upon enemies until the point at which their actions make them ‘active’. So the rule of law has a crucial role to play in demonstrating how the liberal state respects the freedom and equality of its enemies. It ensures that all persons are respected as free and equal, treated as full citizens due the same rights and liberties before the law, regardless of whether one endorses the liberal regime or not. Enemies are not to be treated any differently at any stage of the legal process, before they have been charged with a crime, once they have been charged, and once they have been found guilty, from liberalism's friends or adversaries.
While it may be true that masters are dangerous to oneself and to others insofar as they need not respect any moral limits to their power, liberal masters are those who put great store on the freedom and equality of those over whom they rule, indeed judge the legitimacy of the use of their power according to how far they respect such freedom and equality. Non-liberals do not need to agree that they are being treated as free and equal through these means, and I expect that they will continue to insist that they are being oppressed by the liberal state. But this account does offer an explanation to liberals as to how non-liberals are being treated as such and thus can provide the second necessary part of a realistic account of liberal legitimacy. This does not, of course, mean that all liberal states will be ideally restrained masters all the time. Masters can only be subject to self-restraints and hence even the most elaborate institutional designs for ensuring that such limitations to the use of power are respected can be overcome if they so desire. What is required is above all an ongoing willingness on the part of the masters to respect and abide by those self-restraints. This is undoubtedly a big ask. After all, the allures of power are such that rulers will always feel the temptation to do away with those restraints that they might see as obstacles to achieving their goals. This is why we must care about the moral character of our rulers. It also means that the citizenry (p.169) at large has an important role to play in ensuring that the rulers maintain their commitment to these self-restraints by holding them to account if they transgress them. But the uncomfortable truth is that respecting the freedom and equality of liberalism's internal enemies depends more than anything else on the will of the masters themselves. It depends on them being willing to recognise, despite their hegemony, the distinction between active and inactive enemies and to respect the rule of law even when other considerations might make it easier or possibly more desirable for them to do otherwise.
Liberal Realism and Political Constitutionalism
The final piece of liberal realism's moderate hegemony that I want to discuss is its commitment to a form of political and democratic constitutionalism. Liberal political theory, at least as exemplified in recent years by the work of those such as John Rawls, Ronald Dworkin and Bruce Ackerman, has tended towards what Richard Bellamy has called ‘legal constitutionalism’. ‘This approach’, he writes, ‘defines a constitution as a written document, superior to ordinary legislation and entrenched against legislative change, justiciable and constitutive of the legal and political system’.32 John Gray has likewise noted that the model employed by Rawls and his followers ‘draws heavily on an idealised version of US jurisprudence, [in which] basic questions about liberty and the restraint of liberty are decided by legal and not by political reasonings; by judicial review, not by legislation’.33 One of the central assumptions behind legal constitutionalism is that we can come to a consensus as to the specific ends, principles, and goods that the constitution should embody, protect, or pursue. In the case of a liberal regime, this would include determining specific interpretations of the ideals of freedom and moral equality and what they demand in practice, often expressed in terms of rights that should form the fundamental constitutional law of that society.
The difficulty with legal constitutionalism from a realist perspective is that it overlooks that even liberals reasonably disagree as to how the ideals of freedom and equality are to be substantiated and hence as to the content and limits of our most fundamental rights. No such consensus, even amongst liberals, exists that could inform what the fundamental constitutional principles should be. In this sense, while a liberal political framework is an answer to the political question, and hopefully also the legitimacy question, it is never one that escapes being part of the circumstances of politics. For liberals reasonably continue to disagree about both the good and the right; the framework (p.170) never stops being the subject of contestation though the question of what that framework should be is one on which a collective answer is needed. The political framework, though it determines the means through which future collective decisions are made, will always itself remain the subject of political debate. But furthermore, as I have been stressing, even liberal societies are made up not just of adversaries, those who advocate different forms of liberal politics, but of those who endorse non-liberal political ideals also, enemies. Though these might only represent a minority in a successful liberal state, their presence further undermines the sort of substantive consensus that legislative constitutionalism demands.
John Gray has gone so far as to claim that the constitutional entrenchment of fundamental rights leads to what he calls ‘a sort of low-intensity civil war, in which the capture of legal institutions is only an episode’.34 This is because ‘In conflicts about basic constitutional rights, there can be no compromise solutions, only judgements which yield unconditional victory for one side and complete defeat for the other. It is plain that this is not a recipe for civil peace but rather for the loss of civility’.35 In a sense, insofar as this is true, we might think that it is more problematic in relation to adversaries rather than enemies. We want adversaries to feel committed to the political framework even if it does not represent their own liberal ideal, that they are full members of the political community, not engaged in a civil war of any intensity. But liberals should feel less concerned about declaring unconditional victory against anti-liberal political ideals. After all, politics is a struggle for power, and the maintenance of that power, in the name of a particular set of values, ends, and goods. Liberals must lament neither their victory, where it has occurred, nor their continued preservation of power at the expense of non-liberal alternatives.
But this leaves the status of the political framework in liberal realism caught uncomfortably between two alternatives: on the one hand, the fact that liberals themselves disagree about how to interpret their core normative commitments means that there is no consensus on what principles should be constitutionally entrenched. In other words, liberal realism cannot have recourse to legal constitutionalism. Yet on the other hand, liberal realism does not want to fall into the sort of agonism advocated by Mouffe in which liberalism is but one of the competing families of political order without any privileged constitutional status at all.
The standard realist response to this problem, best exemplified by Bellamy and Waldron, has been to advocate a form of political constitutionalism that essentially understands the constitution as the democratic process through which collective and authoritative decisions are made. As Bellamy puts it,
(p.171) A system of ‘one person, one vote’ provides citizens with roughly equal political resources; deciding by majority rule treats their views fairly and impartially; and party competition in elections and parliament institutionalises the balance of power that encourages the various sides to hear and harken to each other, promoting mutual recognition through the construction of compromises. According to this political conception, the democratic process is the constitution. It is both constitutional, offering a due process, and constitutive, able to reform itself.36
On such a view, the constitution is the democratic framework through which we can resolve our disagreements – though one that is itself the subject of ongoing disagreement. It does not entrench any particular interpretation of key liberal commitments in terms of fundamental rights but sees such fundamental political questions (e.g. the limits of freedom, the nature of citizens' rights, etc.) as temporarily settled via legislation. Such settlements are always open to being revisited and renegotiated in the future but they do provide a provisional yet still authoritative decision that all persons must accept, even if they disagree with it.
A commitment to political constitutionalism is the only way in which a theory of liberal realism can square the circle of providing a specifically liberal response to the political question while at the same time accepting that persons will disagree as to how liberal values or normative commitments are to be interpreted and substantiated in policy terms. Fundamental questions regarding what rights persons have, their relative priority if and when they clash, their content and limits, will be determined through the legislative process. Political constitutionalism, therefore, takes rights to be best conceived of as political rather than moral. While we seek to give all persons rights, and to protect them all equally, because of a pre-political moral commitment to all persons as free and equal moral beings, the rights themselves are thoroughly political constructs. Hence the nature, content and limits of these rights can and will change through the legislative process also. No one understanding, liberal or otherwise, of rights will become permanent. Liberal adversaries will continue to compete on such matters. But while the political framework of liberal realism must therefore be fundamentally democratic in nature, this is tempered with the moderate hegemony of liberalism which indirectly ensures people's commitments to liberal values and hence to policy positions that support liberal interpretations of, for instance, the question of rights. This will go as far as is possible, and consistent with liberal values themselves, to ensuring that the fundamental political questions, such as the sphere of individual freedom, the limits of toleration, and so on, are answered in a manner that represents a plausible interpretation of liberal commitments.
(p.172) Political constitutionalism is also crucial for further understanding the manner in which liberal realism respects the freedom and equality of internal enemies in three ways. Firstly, and to echo what was said in the previous section, enemies have exactly the same democratic rights as every other citizen. This means that not only are they treated as a free and equal citizen, and confront each other as such when they engage in debates about public issues, but that their views are treated equally too. The democratic procedures allow for all views, interests, and perspectives to be expressed and to be shown equal concern. Secondly, the principle of majoritarianism does not deny the continuing existence of enemies' beliefs:
Majority-decision does not require anyone's view to be played down or hushed up because of the fancied importance of consensus. In commanding our support and respect as a decision-procedure, majority-decision requires each of us not to pretend that there is a consensus where there is none, merely because we think that there ought to be – whether because any consensus is better than none, or because the view that strikes some of us as right seems so self-evidently so that we cannot imagine how anyone would hold to the contrary.37
In other words, political constitutionalism respects the reasonableness of enemies' disagreements with liberalism. Finally, the fact that the constitution is constitutive in the sense that it can reform itself does mean that enemies will always have an avenue to pursue their political ideals, if they so wish. Initially this means that enemies (as with adversaries) will always have the right to challenge those decisions that they reject, including decisions regarding the procedures for reaching collective decisions. But it also allows them the chance to secure the assent and collaboration of a majority of their fellow citizens so as to change that decision in the future. Of course, it will be very difficult indeed for liberalism's enemies to make the sort of wholesale changes that would be required to bring the political association in line with their anti-liberal ideals. Thoroughgoing fundamental political reform of this sort is a very difficult thing to complete without revolution, by bypassing the existing decision-making procedures. But liberal realism need not regret this fact (at least in relation to those political associations in which liberalism is well entrenched; it may in those circumstances where liberalism is struggling to get a permanent foothold). Nor need it celebrate it. But it does mean that, unlike many other forms of political order, liberalism's enemies have the opportunity to pursue their political ideals with at least some chance of realising them. So again, while the liberal state does stand in a relationship of (p.173) mastery or domination to its internal enemies, this is not a relationship that needs to be seen as permanent.
Of course, such avenues of change and challenge that are open to liberalism's enemies exist against the backdrop of the moderate hegemony that I spoke of earlier. While they are trying to construct a majority in favour of their views they will be competing against the political association's ongoing attempt to transform or reinforce citizens' beliefs so as to be at least congruent with liberal values. They are effectively struggling against the state, a struggle that is clearly in no way equal. This inequality can undoubtedly lead to despair, resentment, anger, bitterness, and even hatred. A task of the liberal state will always be to manage those persons who feel this way. But because providing a stable framework is a necessary condition of an answer to the political question, no association, not even a liberal one, can afford not to engage in the sort of transformative activities described above. This will, if successful, ensure that the vast majority of legislative decisions are consistent with at least one interpretation of liberal values. Again, the point is that liberal realism protects and demonstrates its treatment of enemies as free and equal by granting them equal right to partake in the democratic process and to at least attempt to challenge and overturn liberal legislative decisions. As Hampton put it, ‘In this kind of state, disgruntled residents are confronted not with tools of mastery but with procedures laid down by the governing convention for changing their rulers or the offices they hold or these procedures themselves’.38 The hope is that the fact that enemies appreciate that all decisions are reversible will encourage them to remain broadly supportive of the political association, at least in the sense that they do not seek to change those decisions via means other than the established procedures.
It is more than likely that all of these attempts to accommodate and respect the freedom and equality of enemies are unlikely to be either appreciated or experienced as such by those that reject liberalism. Indeed, the willingness to allow religious fundamentalists to believe what they will or engage in the practices they regard as essential to their religion might be seen not as an attempt to minimise the extent of liberalism's mastery or domination over them, but as weakness or even as the imposition of the values of tolerance and freedom that they so abhor. Taking seriously the fact of political disagreement, and the reasonableness of political disagreement also, means that such different perspectives on the moral qualities of the political framework and fundamental political decisions will always and inevitably occur. There is no way beyond this. As such, it cannot be a condition of a realist account of liberal legitimacy that enemies themselves accept that they are being treated as free and equal. (p.174) In an important sense, what it is to be treated as free and equal, alongside the issue of whether such demands are being met in practice, are some of the most fundamental questions of politics over which we will therefore disagree. But the moral and practical constraints on the use of their power that I have outlined here, in an attempt to keep liberalism's hegemony moderate and minimise the extent to which domination and mastery is exercised, are important in explaining to liberals why it is that they have the moral and political right to claim legitimacy over their internal enemies. This is something that, as I have stressed throughout, should deeply worry liberals given their commitment to respecting each and every person's freedom and moral equality. And it is for this reason that they place extensive constraints on the use of their own power and endorse democratic procedures that accommodate enemies' views and give them the possibility of pursuing and enacting change (albeit one that is countered by their own use of state power). It is through these constraints that they respect enemies' freedom and equality.
But, and finally, we might think this account of legitimacy addresses the wrong audience: surely we want any account of legitimacy to justify coercion to those being coerced, not to justify it to those doing the coercing. In an important sense what I have argued for here is a series of justifications to enemies regarding their treatment as free and equal despite being forced to live according to principles they reject. They might not, indeed likely will not, be accepted as successful justifications by the internal enemies; but they are still justifications nonetheless. In conditions of radical yet reasonable political disagreement, universal consent is no longer a realistic or plausible avenue to pursue. Furthermore, because I have adopted a realist account of ‘politics cannot be merely successful domination’ rather than ‘politics as distinct from successful domination’, that such persons reject the justifications does not detract from the fact that the regime is an authoritative political order (even though the nature of the rule over them is properly speaking a form of domination). Political rule, even liberal rule, requires ruling over a group of people some of whom will disagree with you, your decisions, or even your right to rule in the first place.
(1) See Beetham, The Legitimation of Power, pp. 17–18
(2) Here I adapt Williams' thoughts about the similar question of who has to be satisfied that the Basic Legitimation Demand has been met (In the Beginning was the Deed, pp. 135–6)
(3) See Sleat, ‘Legitimacy in a non-ideal key’
(4) Geuss, Philosophy and Real Politics, p. 35
(6) S. Macedo, ‘Transformative constitutionalism and the case of religion: Defending the moderate hegemony of liberalism’, Political Theory, 26:1 (1998), 56–80, p. 76
(17) Hampton, Political Philosophy, p. 91
(19) J. S. Mill, ‘On Liberty’, in ed. S. Collini, On Liberty and Other Writings (Cambridge: Cambridge University Press, 1989): 1–115; Kant, The Metaphysics of Morals
(20) Kant, The Metaphysics of Morals, pp. 23–4
(21) See, for example, L. Fuller, The Morality of Law (Virginia: Yale University Press, 1969)
(22) Carr, The Twenty Years' Crisis, pp. 163–4
(24) Shklar, ‘Political theory and the rule of law’ in ed. Hoffman, Judith N. Shklar – Political Thought and Political Thinkers, p. 22
(29) T. Bingham, The Rule of Law (London: Penguin Books, 2011), p. 8
(30) It is this aspect of the rule of law as protection against discretionary and arbitrary rule that is most prominent in Hayek's discussion of this issue (F. A. Hayek, The Road to Serfdom (Oxon: Routledge, 2001), ch. 6)
(31) Bingham, The Rule of Law, p. 9
(32) Bellamy, Political Constitutionalism, p. 1
(33) Gray, Enlightenment's Wake, p. 74
(36) Bellamy, Political Constitutionalism, pp. 4–5
(37) Waldron, Law and Disagreement, p. 111
(38) Hampton, Political Philosophy, p. 108