One of the sleights-of-hand performed by liberalism is to take credit for achievements which predate the liberal age. This arrogance comes conjoined with a tendency to promote the more genuinely modern, less well-established liberal novelties, achieved by the canonical heroes of previous centuries, as timeless, inviolable, and universally valid truths.
Nowhere in political life is this paradox a greater source of confusion than in liberalism’s cynical theft—and then corruption—of the idea of the rule of law. Liberal theorists have consistently marketed themselves as having invented the belief that law must rank above power. But this principle not only existed before the age of liberal theory, but has been radically subverted by liberal figureheads and then rebranded as an eternal treasure of their own making.
Whiggish believers in progressive history might even concede that, since there is nothing new under the sun, the rule of law is not likely to have been created by liberal theorists in the 17th or 18th century. Nevertheless, anyone with a Whig cast of mind will still be tempted to argue that, while the idea of a law-governed state has certain roots in the preliberal past, history is the inexorable process whereby those roots, despite occasional setbacks, grow organically and progressively to full bloom. The precise moment when the rule of law can be said to have blossomed is in the eye of the historical beholder. The Glorious Revolution 1688 and or the Declaration of Independence in 1776 could both be nominated as candidates. Either way, the progressive’s idealized view of history as a sure (if somewhat accident-prone) march towards an enlightened modern world, with the rule of law as its crowning achievement, remains intact.
The problem is that the historical process is far messier than this simplistic account would suggest. Indeed, it is possible for later generations to squander the fruits of their inheritance. There is no necessary relationship between living at a more advanced period in time and improving upon whatever came before. If anything, modern liberals have contaminated the inherited idea of the rule of law for which they claim exclusive credit. They have conflated Aristotle’s ancient elaboration of the rule of law (“It is more proper that the law should govern than any one of the citizens”) with their own new-fangled dogma of a supposedly ‘neutral’ legal corpus. Liberalism therefore idolizes a state that makes no demand on the public conscience. The only shared value is a concern to stop the infliction of direct harm to individuals who refuse their consent or, as in the case of children, cannot responsibly give it. Government becomes no more than an administration of utilitarian technocrats, playing referee between the citizens: ready to step in whenever one of them cries foul and to consult the hedonic rulebook.
This was the contribution of John Stuart Mill, that beakish face of 19th century liberalism, whose ‘harm principle’ declares that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” The problem with such a rule is that it is exquisitely vague. Indeed, its practical meaning is so unclear that Mill’s principle must always be subservient to whatever the prevailing moral culture—which, of course, liberalism always reduces to a fuzzy mass of random personal whims—judges to be ‘harmful’ or ‘harmless’ in any particular case. As a result, many of us now live under governments which consider it a crime for unvaccinated individuals to visit restaurants. This intrusive exercise of state power is justified on the vanishingly small chance that, by their sheer presence, a single unjabbed individual might infect and kill one of their fully vaccinated neighbours (people, in other words, who are as protected from COVID as they ever will be and can still spread the virus themselves). Meanwhile, those on the Left calling for even harsher ‘safety’ measures will celebrate, or at least condone, the murder of tens of millions of unborn babies across the world each year. This is lauded as a testament to female empowerment, despite the fact that on-demand abortion causes direct, certain, and deadly ‘harm’ to the unborn child in every case.
Still, liberal thinkers have successively fetishized their false image of the rule of law as a commitment to neutrality. The idea has become such a sacred article of the liberal faith, so etched into the minds of modern citizens, that any effort to draw upon our Judeo-Christian heritage (or even natural human reason about happiness), so that law is at least guided by some shared understanding of the good life, is condemned as a revival of theocratic, fascist, or even Nazi tyranny. In this respect, the Austrian economist and political philosopher Friedrich Hayek was more culpable than Mill, whom he greatly admired. The Road to Serfdom is a valuable work in many respects, but it does push a dubious binary between the liberal Rechsstaat (the rule of law, or ‘law-governed state’) and the Nazi or socialist ideal of the gerechte Staat (‘just state’) that sanctifies deliberate discrimination on purely ideological grounds.
“It is very significant and characteristic,” argues Hayek, “that socialists (and Nazis) have always protested against ‘merely’ formal justice, that they have always objected to a law which had no views on how well off particular people ought to be, and that they have always demanded a ‘socialisation of the law’” as part of their respective ideological missions “to realise various ideals of substantive justice and equality.” On this binary view, it becomes simpler to understand why liberals so often feel queasy about proposals to favour married families over the sexually incontinent or to give privileged status to the Bible over Critical Race Theory in primary schools. Any attempt to ‘socialise’ the law in line with a particular moral preference, to enshrine one value over and above others that individuals may want to practise, is to make unwarranted, tyrannical distinctions ‘on how well off particular people ought to be’ and to cram ‘ideals of substantive justice’ down the throat of the autonomous individual.
Hayek went further in the American edition of The Road to Serfdom, presenting his own liberalism as an improvement on the ancestral hangovers of the conservative tradition: “A conservative movement, by its very nature, is bound to be a defender of established privilege, and to lean on the power of government for the protection of privilege. The essence of the liberal position, however, is the denial of all privilege.” Of course, privilege of a particular kind—when, say, a Vice-President’s son gets rich through influence-peddling in a foreign country—corrodes trust and serves to destabilise the political order. But Hayek refers to privilege in “all” of its varieties. By his own reckoning, therefore, the dogmatically liberal purist must insist that, to abolish all “established privilege,” the government cannot bestow honour upon special forms of moral conduct. Ethics must be a level-playing field. Public morality becomes a liberal marketplace in which the free individual, reduced to an autonomous consumer, is left to decide, without any legal pressure or guidance, between raising a family on the one hand and existing in a condition of bondage to sex, drugs, and limitless consumption on the other.
By rooting out all privileges from political life, including those enjoyed by well-established, uniquely honoured norms, liberalism deprives lawmakers of a tool once used to ensure that communities benefitted from a shared understanding of virtue. Our ancestors regarded a strong public morality, partially laid down by law, as a necessary precondition for the common good. This was because it made our natural hunger for recognition and honour dependent upon the pursuit of virtue. The fact that such excellence was honoured meant that individuals had every reason to seek it and foster collective human flourishing. The moral cohesion of the community was thus reinforced, providing the young with proven guides to excellence and the happiness that follows from living as a patriotic, public-spirited member of society. But Hayek’s belief in some myth of state ‘neutrality’ as regards moral questions, combined with his sense that a government bestowing privileges upon different people leads to tyranny, stands in the way of that project and hollows out the moral character of the public square.
Of course, justice should be blind to differences of class and race—since both of these categories, contrary to Marxist and Nazi doctrine, contain no universally relevant moral character that need concern the law. Authorities should also not persecute those who, for whatever reason, wish to dissent from the values honoured by the law. Private individuals should remain free to pursue multiple sexual partners or to read Ibram. X. Kendi’s bedtime stories to their own helpless, impressionable children.
But nor are lawgivers under any obligation to reward the libertine in the same way as the married family or to yield to demands by ‘woke’ schoolteachers that Kendi be given equal representation with Shakespeare in the classroom. Hungary’s policy of granting money to families with three or more children and Florida’s bill banning sexual or transgender indoctrination in schools are perfectly compatible with the rule of law. Yet if we follow Hayek’s apparent concern to banish moral bias from law-giving, we might be tempted to believe, as many liberals do, that such legislation is the beginning of a slippery slope down from a free society to an oppressive hell, from an enlightened Rechsstaat to a dystopian gerechte Staat. By falsely equating tolerance in private life with moral neutrality in public matters, liberalism is proving an exceedingly poor defence against the menace of ‘woke’ ideology—whose activists, by the way, are themselves hardly shy about using the law to advance their own ideological cause.
Indeed, the American Left has been politicising the U.S. Supreme Court for the better part of half a century, keeping up the appearance of the rule of law while in fact transferring that privilege to radical judges. Progressives across the Western world are also increasingly supportive of measures to make ‘hate speech’ or ‘misinformation’ subject to left-wing censorship. Such activists, with their obsessive fixation on race, gender and ideological conformity, are the genuine danger to the survival of freedom under law. We conservatives seek merely to counter that threat by reinforcing the norms that keep societies cohesive, responsible, and therefore fit to be governed with minimal interference.
Liberals glorify the theoretical notion of an impartial state, but in practice that state’s administrators are not so much ‘neutral’ as the unwitting slaves of absurd, selfish, and constantly mutating cultural fashions. To misquote G.K. Chesterton, when the law stops drawing its inspiration from God, it doesn’t draw inspiration from nothing; it draws it from anything.