Common Good and Evil

Removing constitutional obstacles to power in the name of the common good is a dangerous, delusional idea

Last month, I wrote about what I termed “right-wing collectivism“, an emerging political doctrine that blends support for using the power of the state to advance traditional moral values, a hostility to free markets, and nationalism. Two texts published last week have prompted me to return to this subject: Adrian Vermeule’s instantly-notorious essay in The Atlantic urging a “robust, substantively conservative approach to constitutional law and interpretation”, and Thomas Falcone’s guest post on this blog defending right-wing collectivism against my criticisms. Between them, they show this ideology’s incipient authoritarianism and incompatibility with any genuine belief in human dignity, freedom, and the Rule of Law.

Before proceeding further, I should note that one reaction people have had to Professor Vermeule’s argument has been to wonder whether he is simply trolling everyone. Sarah Isgur made this case quite forcefully on the Advisory Opinions podcast, for instance. And certainly his “response” to criticism of his article, over at Mirror of Justice, is trollish. But, as David French argued on Advisory Opinions, Professor Vermeule’s argument reflects a real, if eccentric, current of thought on the political right. Randy Barnett, in his reply to Professor Vermeule, also worries about “a disturbance in the originalist force by a few, mostly younger, socially conservative scholars and activists … disappointed in the results they are getting from a ‘conservative’ judiciary” in the United States. I too will treat the arguments of Professor Vermeule and Mr. Falcone seriously; all the more so since the rhetoric of combating epidemics of various ills, which they both employ, is, as Anne Appelbaum points out, already being used by the Hungarian dictatorship ― much admired, as Damon Linker has observed, on among American right-wing collectivists.


Professor Vermeule’s argument is, on its face, about constitutional interpretation. But he makes it clear from the outset that constitutional doctrine is, for him, only a tool in the service of politics. Addressing conservatives, he argues that they should give up on originalism, which many have supported in recent decades, because it has become “an obstacle” to the promotion of “strong rule in the interest of attaining the common good”. Mr. Falcone too defends, if less articulately, an activist government acting, supposedly, in the service of “the highest good”.

What, then, is the “common good”, the banner under which Professor Vermeule wants to make a stand against and defeat what he says as “the relentless expansion of individualistic autonomy”? Generally speaking, it consists in

respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to “legislate morality”—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority.

In terms of substantive policies, the common good involves “cop[ing] with large-scale crises of public health and well-being—reading ‘health’ in many senses, not only literal and physical but also metaphorical and social”. It means “protect[ing] the vulnerable from the ravages of pandemics, natural disasters, and climate change, and from the underlying structures of corporate power that contribute to these events”, “from the vagaries and injustices of market forces, from employers who would exploit them as atomized individuals, and from corporate exploitation and destruction of the natural environment”. It also means and “enforcing duties of community and solidarity in the use and distribution of resources”, and empowering “[u]nions, guilds and crafts, cities and localities, … as will the traditional family”. 

Mr. Falcone too suggests that “when we evaluate public policy proposals we adjudicate their desirability against whether or not they help or harm our shared social goods, like the family”. Like Professor Vermeule, he abhors the idea that the state ought to be impartial as between competing conceptions of the good life, illustrating it with the example of a “state … ‘neutral’ as to whether people choose have [sic] jobs or sit around smoking cannabis”, which he claims “would be nonsensical to the average person on the street”.

Professor Vermeule outlines a fairly detailed agenda for constitutional law, put in the service of the common good, so understood. Its “main aim” would be “certainly not to maximize individual autonomy or to minimize the abuse of power” (an idea that Professor Vermeule declares “incoherent”). Mr. Falcone does not provide detailed prescriptions for the law, but he similarly rails against the idea, which he attributes to me (only half-correctly) “that power itself is an evil and thus there should be no power”. Professor Vermeule argues that, rather than limiting power, constitutional law must “ensure that the ruler has the power needed to rule well”. So too Mr. Falcone is adamant that “power is real and always will be”. The question is who wields it, and against whom.

Indeed, the ruler needs to be able to exercise this power

for the good of subjects, if necessary even against the subjects’ own perceptions of what is best for them—perceptions that may change over time anyway, as the law teaches, habituates, and re-forms them. Subjects will come to thank the ruler whose legal strictures, possibly experienced at first as coercive, encourage subjects to form more authentic desires for the individual and common goods, better habits, and beliefs that better track and promote communal well-being.

To achieve this, constitutional language can be repurposed and read so as to suit the new agenda. More importantly, constitutional doctrine should be built not on textual provisions, but on insights into “the general structure of the constitutional order and in the nature and purposes of government”. And so, much of the existing constitutional jurisprudence ― in areas such as “free speech, abortion, sexual liberties, and related matters”, as well as “property rights and economic rights” ― will be “vulnerable”, “have to go”, “fall under the ax”, or indeed “be not only rejected but stamped as abominable, beyond the realm of the acceptable forever after”. (This latter sentence is reserved for “[t]he claim, from the notorious joint opinion in Planned Parenthood v Casey, that each individual may ‘define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life'”.)

This will enable government “to protect the public’s health and well-being … even when doing so requires overriding the selfish claims of individuals to private ‘rights'”.  Mr. Falcone echoes Professor Vermeule, denouncing what he describes as libertarians’ ” religious devotion of individual preference maximization and” desire to “ruthlessly supress [sic] any suggestion that time, tradition, community, or common sense may occasionally contain more wisdom than the proclivities of any one person”.


As noted at the outset, Professor Vermeule and Mr. Falcone are defending authoritarianism against the claims of freedom and the Rule of Law. They think that the government can identify moral objectives that deserve to be pursued, and the citizens ― or rather the subjects ― have no moral claim against conscription into this pursuit. At best, those who disagree with the objectives or with being made to serve them will come to see the error of their ways, as Professor Vermeule hopes. But if not they will simply be silenced. After all, politics is nothing more than a power struggle; to limit power is a fool’s hope ― the wise man knows that he must put himself into a position to exercise it. These disciples of Saruman are wrong at every step in their reasoning.

How are the governments to decide on their definitions of the common good, on the morality they will legislate? Professor Vermeule is coy about this ― in his essay in The Atlantic. But, as Professor Barnett notes, from his other writings, we know that he makes “an argument for the temporal power of the state to be subordinated to the spiritual power of the [Catholic] Church” (emphasis Professor Barnett’s). Mr. Falcone’s position, as best I can tell, is that moral the appropriate moral values are already widely shared. Now, these two are obviously at odds with one another: it is quite clear that, to the extent that Americans or Canadians share values, these values are certainly not those of the Vatican. This makes Professor Vermeule’s position all the more remarkable ― his understanding of the common good is rejected by an overwhelming majority of the people whose common good it purports to be. It can only be forced on them by a ruthless dictatorship. But Mr. Falcone’s position is no more attractive. If Canadians already agree on the importance of particular values, what’s stopping them from living accordingly? Why do they need to be coerced by the government into acting in accordance with what are supposedly their beliefs? If people already prefer working to “sit[ting] around smoking cannabis” ― as I agree with Mr. Falcone most probably do ―, then why does the state need to subsidize or force them to do so?

Of course, as Jonah Goldberg points out in a recent episode of his The Remnant podcast, even when people largely agree on values stated in the abstract, as they do on the proverbial motherhood and apple pie, it does not follow that they agree on any particular policies that purport to implement them. To value work may entail the sort of wage-support policies to which Mr. Falcone refers or it may, on the contrary, suggest repealing the minimum wage to avoid pricing people out of the labour market. Similarly, valuing families may well push us towards policies of which right-wing collectivists would disapprove, be they marriage equality that helps people form families in the first place, free trade that leaves more money in families’ pockets, or school choice ― even when it is exercised in favour of schools that transmit decidedly non-conservative values.

But, beyond such policy disagreements, important though they are, understandings of both the common good and of personal morality and the nature of the good life are subject to endless debate. Again, the only way to avoid this is to simply prevent the expression of all but the officially approved views, as Professor Vermeule recognizes on at least some points. If the debate is allowed to continue but the majority is empowered to impose its views on the minority, then, as Professor Barnett explains “[i]n the legislature, might will make right”. And as the price of political defeat is nothing short of one’s annihilation as a morally autonomous individual, prospective losers are unlikely to accept this outcome. As Professor Barnett further writes: “what happens to social peace as the government starts incarcerating the dissenting minority for failing to adhere to their moral duties? Religious war, anyone?”

This is why state neutrality as between the competing conceptions of the good life is both morally right and good policy. It allows people of divergent views to remain in a political community with one another, combining their efforts for those limited common purposes on which they agree, such as self-defence and the enforcement of a limited subset of universal rights, notably life, liberty, and property through of framework of stable and general laws. This framework allows individuals and freely-formed associations ― although it should certainly not allow coercive “[u]nions [and] guilds” ― to pursue their moral aims, including charitable and benevolent ones, with minimal interference on the part of the state. A liberal society is not one of “atomized” individuals with no ties to one another; but the ties that exist in it are a web spun by individuals themselves, rather than a chain forged by the state.

But is neutrality simply a delusion, as Professor Vermeule and Mr. Falcone both contend? In a sense, of course, they have a point. Not all law is based in morality ― as Lon Fuller explained, there is a very real element of fiat in law (he spoke of the common law, but the same goes for statute), in addition to reason or morality. But, to be sure, the basic norms of criminal law, and arguably contract, tort, and property law too, have moral foundations ― notably those universal and widely agreed-upon rights. Yet there is a fundamental difference between this sort of background law and legislation enacted for “the promotion of morality”, as Professor Vermeule puts it. The former, even if it has moral underpinnings, leaves individuals almost entirely free to choose the purposes to which they want to devote their lives and largely, although not fully, free to choose the means by which they pursue their purposes. The latter doesn’t ― its whole point is to shape and limit both the ends and the means available to individuals.

A related point is that neutrality as between conceptions of the good life is not a cover for the enforcement of a progressive moral orthodoxy as Mr. Falcone, in particular, claims, with his bizarre insistence that libertarians “will ruthlessly suppress” conservative ideas. (I would have thought that, if not my outspoken advocacy for freedom of expression and conscience ― including for the benefit of conservatives whom I personally find bigoted, like the Trinity Western University ― then at least the fact that Mr. Falcone is able to publish such a claim on the blog that I founded should be proof enough that this just isn’t so.) A neutral state knows and accepts that not all individuals, families, and communities will orient their lives towards self-actualization, let alone self-indulgence. Some will devote themselves to religion or to community; some may reject the value of autonomy and extol obedience. The neutral state faces some difficult questions at the margins ― notably about the limits, if any, to the capacity of such individuals, families, and communities to shape and control the lives of their children. But there is nothing paradoxical about, at least, a very strong presumption that adults get to shape their lives in ways they choose, regardless of official approval. Libertarianism is a philosophy of politics and government, not an ethical programme ― and it’s a philosophy of politics whose point is to reject the imposition of ethical programmes by the government.

Perhaps the belief that a libertarian or classically liberal neutral state will in fact impose its own values and ideology on dissenters is due to a confusion between liberalism and a progressivism that has sometimes borrowed its name but consistently rejected its ideals. This progressivism, which would impose its beliefs ― originally technocratic with an egalitarian or at least populist flavouring, more recently egalitarian with a technocratic or at least pseudoscientific streak ― is just another version of collectivism. Indeed, the right-wing collectivism promoted by Professor Vermeule and Mr. Falcone, with its deep distrust of free markets (whether in goods, services, labour, or capital) and, apparently, a rather Marxist belief in “the primacy of production over consumption”, to use Mr. Falcone’s words, is not so different from its left-wing cousin.

But the other apparent explanation is that ― once again similarly to left-wing collectivists, at least those of the Leninist persuasion ― right-wing collectivists have come to believe that “who, whom?” is the central question of politics. That is to say, they believe that politics is a race to seize power and use it to silence or eliminate opponents. If you don’t do it, then someone else will do it to you. (This strikes me, if I may say so despite not being Christian, as a rather odd view for people who supposedly believe in turning the other cheek to embrace, but what do I know?) Hence their insistence that limiting power is an absurd or pernicious idea, an insistence whose vehemence reminds me Bulgakov’s Pilate, hysterically yelling, in response to Yeshua’s statement that all power is violence and will one day vanish, that “[t]here never has been, is not, and never will be any power in this world greater or better for people than the power of the emperor Tiberius!” Hence also their rejection of or at least desire to severely curtail constitutional rights; hence their attacks even on civility in argument.

To my mind, this is a wrong and pernicious ― indeed, as Mr. Goldberg suggested, a borderline evil ― way of looking at politics. This is partly because no one is entitled to be the “who” in Lenin’s question, and partly on the prudential grounds summarized by Professor Barnett. But this is also because, as longtime readers will recall me insisting in a series of posts, power corrupts. Power is addictive, and character can only slow down, but not prevent the poisoning of a person’s heart by its exercise; power breeds fear and, as Yeshua said, violence; it also begets lies; it encourages people to cut moral corners, not asking themselves difficult questions; and it apparently damages the very brains of those unfortunate enough to exercise it. It may be that Yeshua was wrong and Pilate right, and that “the kingdom of truth and justice” where power is not needed “will never come”. But that should not stop us from acknowledging that power is an evil, if perhaps an unavoidable and even necessary one, and from recognizing that power is to be distrusted, not celebrated.

From this recognition there should proceed, as I repeatedly insisted in my posts on the corrupting effects of power, a further acknowledgement of the importance not just of moral but also of institutional and legal constraints on power. We must continue to work on what Jeremy Waldron describes as “Enlightenment constitutionalism” ― the project of structuring government so as to separate out and limit the power of those whom Professor Vermeule calls “the rulers” and empower citizens. This project recognizes the need for power but also its temptations and evils, and the fallibility of human beings in the face of these temptations and evils. As James Madison, in particular, reminds us, we should strive to so design our institutions as to make these human weaknesses work for us ― but we can only do so if we are acutely aware of them.

This project of Enlightenment constiutionalism includes, as I have argued in my comment on Professor Waldron’s article, entrenched and judicially enforceable constitutions, with their rules on federal division of powers and on individual rights. More specifically, I would argue that it must include originalism, because originalism gives such constitutions real bite ― it creates at least the possibility, although not the certainty, that they will be enforced consistently, rather than according to the subjective and mutable views of the judges who happen to be entrusted with enforcement from time to time. The alternative, “living constitutionalist” approach, which authorizes judges to re-write the constitution does not so much limit power as transfer it to the judiciary. While this may produce results that align with a liberal theory of good outcomes, this is a failure of the power-limiting Enlightenment constitutionalism project. Thus, contrary to Professor Vermeule’s claim, originalism isn’t just a rhetorical device or a rallying banner for legal conservatives, but a legal technique which, as part of the broader toolkit of the Rule of Law, all those who rightly want power to be constrained, be they conservatives, liberals, or social-democrats, should embrace.


Right-wing collectivism ― even when it tries to make itself palatable by adopting the rhetoric of the “common good” ― is an ideology of almost unfathomable hubris. Its proponents imagine themselves to be possessed of great truths and entitled to impose these truths, at gunpoint, on those who do not agree with them. They imagine that the lessons of history ― about the bitter strife that any such attempts engender, about the misery that their quasi-socialist policies always produce ― are not applicable to them. They imagine, above all, that they are immune to the corrupting effects of power. They wrong, indeed delusional. In its embrace of unfettered power, above all, their view of the common good is a recipe for untold evil.

None of that tells us much about how we, individually and within our families and freely chosen associations and networks, should live our lives. To repeat, libertarianism or liberalism are political philosophies, not personal ethics. In a very real sense, political philosophy is of secondary importance; getting it right can do no more than leave us free to get on with the stuff that really matters. But, as Mr. Goldberg argues, it is very important not to confuse these two realms. The government cannot love us (unless, of course, it is the government of Oceania). It cannot provide us with Dworkinian “concern and respect”. Right-wing collectivists are dangerously wrong to pretend otherwise.

Refusionism

Conservatism is, once again, becoming a form of right-wing collectivism. Classical liberals and libertarians should stay away.

It’s not exactly a secret that classical liberals and libertarians are not very numerous. Indeed, in some quarters at least, it is our existence that has come as a surprise for some time now, and in the last few days it has been fashionable to claim that “There Are No Libertarians in an Epidemic“. In North America (and elsewhere) political parties that proclaim themselves libertarian tend to be minuscule and ineffective, even in comparison with the already small number of people who are at least broadly sympathetic with libertarian or classical liberal ideas. So it is unsurprising that, for decades now, the approach of many libertarians in the United States who have been interested in obtaining measurable political success has been to embrace “fusionism“: a convergence, if not quite literally a fusion, of ideology and political action with conservatives sympathetic to mostly free markets and to a considerable if insufficient measure of individual liberty and to the Rule of Law.

However, the nature of American ― and perhaps also Canadian ― conservatism has been changing in the last few years. If Donald Trump is the standard-bearer of an ideology, this ideology has little in common with that of William F. Buckley Jr., Barry Goldwater, or Ronald Reagan. Libertarians and classical liberals must ask themselves whether fusionism, assuming it was a defensible posture in the past, is still one now. Some conversations at the recent Runnymede Society Conference, in which I was fortunate to participate, and thereafter have prompted me to explain why I think that it is not.


Let me begin by describing what I take to be, in broad outline, the sort of conservatism with which I want to have no truck. This is no easy task, despite the proliferation of manifestos in the United States. For one thing, I have to admit that I do not keep track of them all. For another, they do not necessarily agree with one another ― that’s the point of having multiple manifestos. Besides, their authors and adherents are getting no less adept than social justice warriors at deploying what Scott Alexander once described as “motte-and-bailey” rhetorical tactics: switching between expansive-but-scary and banal-but-unobjectionable versions of their claims as suits the circumstances. More fundamentally, as Jonah Goldberg observed in a recent episode of The Remnant podcast, it seems to some substantial large extent to be reverse-engineered to justify the policies if not also the behaviour of Mr. Trump, and may yet be discarded once his political career ends.

That said, I am willing to believe that more than a few of the manifesto-writers are sincere, or will come to believe their own hype. Moreover, there is ― as I have come to realize ― a Canadian version of this ideology, presumably less beholden to Mr. Trump, but also less vocal and so, if anything, even more difficult to pin down. Still, I think one can identify three main themes in this incarnation of conservatism, and they are the ones I shall focus on.

First, there is a belief ― held especially by the Catholic, but perhaps more broadly by the religious, supporters of this doctrine ― in using the state to advance and enforce a conception of the greater good, or indeed “the highest good”. On this view, the relative neutrality of the state as between competing conceptions of the good life, or the state’s tolerance of people who drift along without such a conception are grievously wrong. The state must identify, and identify with, a particular understanding of how individuals, families, and communities ought to live, and incentivize, perhaps force, them to live in this way. The Catholic supporters of this view would, of course, wish to see the state embrace the teachings of the Catholic Church as to what the good life is like (a view known as Catholic integralism), but I suppose there are other possibilities in this regard.

Second, to a greater or lesser extent, this doctrine rejects free markets. Some of its supporters identify as anti-market; others may adopt an attitude that’s more reminiscent of Elizabeth Warren’s: ostensibly pro-market, but in reality deeply suspicious of any economic decisions people might make on their own, without the state’s intervention. (The motte-and-bailey tactic is likely to be deployed here, further confusing matters.) International trade is a particular object of suspicion, but not the only one. At least some large companies, deemed too disruptive or ideologically hostile, are also suspect and potential targets for severe or even destructive regulation. And beyond specific policies, there is a general sense that the state can and should intervene in the economy to ensure acceptable outcomes for favoured groups (such as manufacturing workers) or for a country’s citizens.

And third, there is nationalism and hostility to people and institutions deemed “globalist” in outlook. The interests of a nation ― considered as an aggregate, rather than as a collection of individuals with their own peculiar tastes, preferences, and needs ― must prevail over those of all others. There is also, to a greater or lesser extent, suspicion of or even hostility to immigration, in the name of, as Stephanie Slade (Mr. Goldberg’s interviewee in the podcast linked to above) writes in a recent Reason article, “preserv[ing] … cultural homogeneity (such as it exists) from the diluting influence of foreigners” and embracing “an anti-cosmopolitanism that seeks to throw up barriers to free markets and free trade”.

Having described its main features, I am left with the question of what this doctrine should be called. I initially thought of referring to it as a “new conservatism”, but in reality it is very old ― albeit not in North America. It is, indeed, more or less the same ideology that F.A. Hayek decries in “Why I am Not a Conservative“. A conservative, Hayek writes,

does not object to coercion or arbitrary power so long as it is used for what he regards as the right purposes. … [H]is main hope must be that the wise and the good will rule – not merely by example, as we all must wish, but by authority given to them and enforced by them. Like the socialist, he is less concerned with the problem of how the powers of government should be limited than with that of who wields them; and, like the socialist, he regards himself as entitled to force the value he holds on other people. (4)

Perhaps it is the fusionist conservatism that at least purported to care about limiting government power that was an aberration, and the phenomenon I have been describing is simply conservatism tout court. But another label, which for reasons that I shall presently explain strikes me as appropriate is right-wing collectivism.


Whatever we call it, however, this doctrine is not remotely compatible with a classical liberal or libertarian worldview. The disagreement is not just limited, as it might have been, on some views anyway, between classical liberals and fusionism-era conservatives, to divergent interpretations of rights to which both groups were committed or ideals to which they subscribed. It is fundamental. Indeed, while they might not yet be promising us five-year plans, and will certainly never be singing “The Internationale”, the right-wing collectivists are just the sort of people whom F.A. Hayek had in mind when he dedicated The Road to Serfdom “to socialists of all parties” ― not just of the admittedly socialist ones.

Ms. Slade ― who writes specifically about nationalism but whose argument easily extends to the other aspects of this ideology ― explains that

[t]oday’s nationalists think the … government has an obligation to actively pursue what they call the “national interest”. Any agenda that assumes the existence of such a thing must begin by making a variety of determinations, from who should be allowed to join the polity to whether to privilege the producer’s bottom line over the consumer’s. And in anything short of a monolithic society, that means overriding some individuals’ preferences—and often their right to make choices for themselves.

As with the “national interest”, so with the “highest good” and with the “anti-market” approach to the economy. These beliefs are inherently incompatible with the primacy and autonomy of the individual ― in the individual’s right and ability to arrange his or her priorities and to live in accordance with them rather than with the diktats of authority. They are particular instantiations of collectivism, as Hayek understood it. As I explained here in the first part of my summary of The Road to Serfdom, for Hayek,

[c]ollectivism is the organization of society by the state according to a single blueprint, such that persons and groups, insofar as they are not obliterated in the process, are entirely subordinated to it and made to serve its purposes instead of pursuing their own.

This is what the moralizing, anti-market, nationalist conservatism proposes to do. Just like the old socialists, its proponents think that they not only know what is right, who should trade with whom and at what profit, and which group of people is most deserving, but that they have the authority to organize the world on the basis of this supposed knowledge, or at least that a bare electoral majority would give them such an authority.

The right-wing collectivists are determined to ignore Hayek’s warning that there can be no agreement on a general scale of values ― not even on the highest good, let alone on the second highest, the third highest, etc. ― in a free society, and that any attempt to impose and implement such a hierarchy can only be accomplished by manipulation and force. It must result, ultimately, in the destruction of personal morality itself, because collectivism “does not leave the individual conscience free to apply its own rules and does not even know any general rules which the individual is required or allowed to observe in all circumstances”, (50th Anniversary ed., 161) the state’s fiat being paramount. This might be an ironic result for the more religiously-minded of the new right-wing collectivists, but I’m not sure they will in fact notice the irony.

In “Why I Am Not a Conservative”, Hayek argued that an adherent to conservative ideology “has no political principles which enable him to work with people whose moral values differ from his own for a political order in which both can obey their convictions”. (4) This applies also to the right-wing collectivists. Like their forbears, they lack “an intellectual commitment to a type of order in which, even on issues which to one are fundamental, others are allowed to pursue different ends”. (4) And, like socialists, they will come ― at least if they come anywhere near real political power ― to disparage the liberal view that “neither moral nor religious ideals are proper objects of coercion”. (4)


The philosophically and morally right position, now as ever (and yes, the present pandemic notwithstanding, as I shall argue in another post), is liberalism based on individualism, understood, as Hayek explained in The Road to Serfdom, as the “recognition of the individual as the ultimate judge of his ends, the belief that as far as possible his own views ought to govern his actions”. (66) This applies in the personal as well as the economic sphere ― the choices of one’s conception of a good life as well as to the choice of one’s trading partners.

The right-wing collectivism being firmly opposed to individualism, so understood, there can be no fusion of liberal or libertarian ideas with it ― no merger, certainly, not a long-term alliance, not even a presumption of co-operation. No doubt there will remain particular issues on which the right-wingers will oppose their fellow collectivists of the left, and classical liberals or libertarians can work with them in these cases. But we should be under no illusions. The right-wing collectivists will not tolerate us if they take power, all the more so since, as Hayek pointed out in The Road to Serfdom, it is “the worst” ― the most ruthless, the most unprincipled ― who “get on top” in any collectivist regime. A tolerant nationalist, “highest-good” conservatism is as much a delusion as democratic socialism.

Hayek’s prescription for our politics remains compelling too. He wrote ― as I put it the second part of my summary of The Road to Serfdom

we need … to accept that ends do not justify all means; that collectivist and a fortiori dictatorial instruments cannot be put in the service of the right ideals, or entrusted to the right people, without either corrupting them or being seized by the more ruthless and corrupt; that “power itself” is “the archdevil”, (159) and that power concentrated in the hands of the state “is … infinitely heightened” (159) in comparison with that wielded by private actors.

If standing on these principles leaves us politically isolated, so be it. There are worse things than political failure. Supporting those who would cheerfully trample on everything one stands for is one of them.

Profession of Power

A critique of Bob Tarantino’s celebration of the legal profession

In a new post over at his blog, bad platitude, Bob Tarantino continues his defence of the Law Society of Upper Canada’s right to exact ideological conformity from its members. His focus is on Jonathan Kay’s National Post op-ed that tied the Law Society’s demands to a belief  in the “myth that lawyers comprise a moral vanguard within society, with sacred duties that extend beyond the daily humdrum of litigating divorces and drafting contracts”. Mr. Tarantino concedes that Mr. Kay “correctly diagnoses … the profession’s seemingly inherent vainglory” ― and proceeds to defend thinking of law as a profession, not “‘just’ an occupation” in a way that demonstrates just how vainglorious this profession can be.

Before getting to the point, I pause to note Mr. Tarantino’s rather remarkable appeal to the forces of the market in an implicit attempt to justify the Law Society’s right to force lawyers to come up with, or at least copy-and-paste, “Statements of Principle” acknowledging a purported obligation to promote equality and diversity. Contra Mr. Kay, Mr. Tarantino observes that some clients ― he mentions Facebook ― want lawyers to take these things seriously. Mr. Tarantino also insists that he has “the right to decide not to spend [his] money at businesses that espouse views [he] find[s] unpalatable, and even to enthusiastically encourage others to avoid spending their money there”. Very well ― though at least some human rights statutes (including those of Quebec and New Zealand) include political opinion among the list of prohibited grounds of discrimination, which suggests that even enlightened individuals like Mr. Tarantino might disagree with some instances or applications of such legislation. But how exactly does Mr. Tarantino justify the coercion of lawyers whose clients are not as enlightened as he or Facebook, or indeed those lawyers who do not have any clients? At best, this is not a free-market argument, but a paternalistic one. The Law Society knows better.

On now to Mr. Tarantino’s main argument, which is that “it is precisely in law’s status as a profession and as a locus of power in society that the importance of collective value-setting arises”.  A profession, says Mr. Tarantino, is distinguished by involving the application of “a body of specialized knowledge and subordination of the practitioner’s interests in favour of three ‘others’: the client, the profession, and the public”. Lawyers, even more than the members of other professions, wield power over “our society and over the affairs of their clients, and if they adopted a self-interested ethic, a sort of syndicalism, they could quickly become a manifest danger to the rest of society”. For this reason, it is essential to make lawyers “virtuous” ― “so that their power is channeled in favour of others”. This is what both the Law Society’s latest demands and the oath lawyers are required to swear upon entering the profession (to which these demands bear a close resemblance, as I have noted here) are supposed to accomplish. Mr. Tarantino adds that it is very important that these exercises in “collective identity-formation” are “voluntary”; that they “do not find their origins in the government [but] arise from lawyers themselves.” He sees the legal profession as “in some ways just a big club … that gets to set its own rules about membership”, and there is nothing “illegitimate” about that, is there?

It is as if the last 250 years of history and political thought had not happened. As if it were possible to believe, after Smith and Madison ― not to mention Robespierre ― that public good is achieved by virtuous agents rather than by competition and ambition counteracting ambition. As if it were possible to claim, regardless of Constant and Berlin, that rules that a majority imposes on a minority not really an imposition and an interference with liberty. As if it were possible to maintain, despite Friedman and public choice theory, that a state-backed monopoly is not self-interested and syndicalist, working to exclude competition and raise prices for its services. Or, if Mr. Tarantino does not actually believe that such things are generally true, he must then suppose that lawyers, of all, people, are uniquely immune to the fallibility of other human beings. This is the sort of presumption, as self-serving as it is vainglorious, that Mr. Kay rightly decried.

Moreover, Mr. Tarantino’s argument involves a rhetorical sleight of hand. The lawyers’ power, of which he makes so much, is mostly not collective, as he suggests, but individual. It is not the legal profession acting as a united whole that drafts statutes, prosecutes alleged criminals, adjudicates disputes in administrative tribunals, or handles the personal and financial affairs of vulnerable clients. It is individual lawyers or, at most, firms. In any litigation, there are two sides ― normally, though admittedly not always, each with its own lawyer. When lawyers draft or apply rules that bind citizens, other lawyers are ready to challenge these rules or their application. If a lawyer mishandles a client’s case, another can be retained ― including to sue the first. (This is not to make light of the possibility and cost of mistakes or incompetence, of course. Still, the point is that a mistaken or even incompetent lawyer does not represent the profession as a whole.) The one circumstance when lawyers do act collectively is when they act through the Law Society. When the Law Society exacts compliance with its demands, that is the profession exercising power ― backed up by the armed force of the state. That is where we really ought to worry about power being exercised unethically. And in my view ― though perhaps not in Mr. Tarantino’s ― the exercise of power to impose ideological conformity on those subject to it is unethical and indeed oppressive.

Unlike many other defenders of the Law Society, Mr. Tarantino has the merit of not trying to minimize the seriousness of what is going on. His first post contained a forthright admission that the Law Society’s demands amount to a values test for membership in the legal profession. His latest doubles down on this admission, and makes clear that it the Law Society’s actions rest on a conception of public power that is paternalistic, confident both of its own moral superiority and of its ability to make others virtuous, and takes no notice of disagreement or dissent. Those who do not like how this power is exercised can simply get out and leave the legal profession ― and find some other way of making a living. Many of those who support the Law Society seem to be surprised by the force of the opposition which its latest demands have provoked. Perhaps, thanks to Mr. Tarantino’s posts, they can understand better.