Levy for Dummies Lawyers

This online symposium on Jacob T. Levy’s wonderful new book, Rationalism, Pluralism, and Freedom, has already featured contributions from writers more expert in the history and theory that is the subject of Levy’s book. I write, as it were, on behalf of an admittedly less expert and exalted, but more common, readership. One might describe these readers as a group of parasitic bottom-feeders; for the sake of economy in a short blog post, however, I will simply refer to them as “lawyers.” 

Rationalism, Pluralism, and Freedom manages the neat and difficult trick of being timely by shooting for timelessness. It seeks both to describe and to intervene in a long-term—centuries-long—conversation about the relationship between individuals, groups, and the state, not to serve as an instruction manual for the solution of current social and political problems. Indeed, although Levy occasionally signals his own sympathies, the book doesn’t attempt to “solve” those problems at all, so much as it tries to identify and trace two major lines of thought about what constitutes a “problem” in need of solving in the first place and about general approaches to solving it. The kinds of issues and conflicts that the book addresses, however—the status of groups and group rights, the nature of religious liberty, the question whether intermediary institutions can or should be subjected to state regulation in the interest of making their values “congruent” with the liberal values of the state itself—are as fresh as the morning papers. The book is extremely timely. But even here, its discussion of current events is more in the way of providing general examples and illustrations rather than immediate fixes (if any are even possible). Even in its timeliness, it aims for something more timeless.

Lawyers operate on a different time-frame, however, and with a different function. Judges, in particular, must decide cases, and in a hurry. They can, of course, decide by concluding that the case lacks jurisdiction in their court, or that the conflict is subject to a contract between the parties, or that the plaintiffs have not met their burden of supplying sufficient evidence to create a triable issue, and so on. But they cannot simply sit on the case until political philosophy or public consensus have supplied an answer. And, in any event, as the poet once wrote, if they choose not to decide, they still have made a choice, one that affects the distribution of rights and duties between the parties. Their job is to resolve conflicts at the behest of proper parties, and they perforce must do so whether the resolution is ideal, or properly and fully reasoned, or not. Advocates, too, have a duty to find the best available argument, legal but not only legal: where moral, political, or emotional sentiment will help get them the outcome they want, they will use that too. Even legal academics generally see their role as proposing concrete and relatively quick solutions to current problems, a tendency that is compounded by their frequent tendency to see themselves as writers of half-disguised legal briefs. For those and other reasons, as readers they are always looking for resources that will help them advance a cause or decide a dispute. Routinely, they cherry-pick, distort, split atoms as well as hairs, ignore or misuse genealogies, adopt and discard heroes and villains, all in the service of short-term goals. If that’s a criticism—and it certainly is, especially of academic lawyers, myself included—it’s tempered by the recognition that they are acting more or less (and more or less wisely) in line with their function as problem-solvers.

All this is to say that this legal audience ought to read Rationalism, Pluralism, and Freedom. They will find in it, both despite and because of its timelessness, an invaluable resource—a store of ideas that will provide useful tools for the kinds of cases, conflicts, and debates that have recently reappeared and sprung to the top of the legal and political problem-solving agenda. Although this judgment seems banal or obvious, it is not, quite. Not every good book is a resource, not every good book of this kind is a useful resource, and not every relevant resource is needed or helpful to a given debate. In this case, however, Levy has supplied arguments, a history, and most of all a usable vocabulary that is missing from current debates over law and religion.

The vocabulary, obviously, is that of pluralist liberalism: a liberalism that is “skeptical of the central state and friendly toward local, customary, voluntary, or intermediate bodies, communities, and associations.” Pluralist liberalism need not oppose the state dogmatically. But it recognizes its jealousy of competing sources of power and loyalty and its centralizing tendencies. And it recognizes the importance of intermediate bodies, both to their members and to the larger society. To members they represent, among other things, a set of thick loyalties, practices, and beliefs that the thinner, centralized liberal state cannot provide. To society, first and foremost in Levy’s conception, they provide what he calls, quoting Benjamin Constant, “the ‘germ of resistance’ to state overreach.” They supply new and different ideas and orientations, and guard against the state’s tendency not only to extend its reach but to try to reproduce its own norms and values everywhere. Thus, he writes, “group pluralism, to be politically stable, must to some degree be oppositional.”

We might add that it is not always oppositional. In a federal system, states and provinces compete with the central state for resources and affections, but they also cooperate, taking advantage of local knowledge and resources and, often, policy experimentation, to provide ground-level solutions to national problems. So it is with intermediate associations, which often provide social services, watch out for individual members who might otherwise fall through the cracks, and serve as a kind of social glue that would fail if spread too thin among too many. In many cases, this cooperative or supplemental function is baked in to the social structure. As Levy notes, many key intermediate institutions pre-existed and grew alongside the central liberal state. Even when the state takes over some of these functions, it often operates through intermediate associations that are more closely tied to their private counterparts than to the state itself: a public university resembles a private university far more than it does the state Department of Motor Vehicles. Opposition is unquestionably an important value of pluralism, but it is not its only contribution.

All this is valuable and especially important today. Society is experiencing another in its periodic rises in public conflict between liberty and equality. The conflict may be eternal, but it is also punctuated by moments in which it comes vividly to the foreground. Debates within law and politics over issues like the contraception mandate, same-sex marriage, and campus speech policy signal such a moment. One’s view on how individual issues and conflicts should be resolved can vary, of course. But one general feature of the debate I find dispiriting is the absence of pluralism—not as a danger to be managed, but as a value to be recognized and preserved, even encouraged—from the discussion. In Levy’s terms, the debate—certainly on the “equality” side, but frequently on the “liberty” side as well—has been conducted almost entirely in terms of “rationalist” liberalism. Levy’s book reminds us that other values and other vocabularies exist.

It is especially valuable that Levy’s account of pluralism is a specifically liberal account—that it retrieves a long historical tradition within liberalism that worries about the state’s centralizing, atomizing tendencies and values intermediate groups as an important element in a healthy liberal society. Levy is not the first or only writer in recent years to attempt to balance the rationalist liberal worldview with a reminder of the value and importance of intermediate groups, like churches and universities. But those of us who have written in this vein have often treated this view as arising from a critique of liberalism generally, thus placing us outside the usual terms of debate—especially within the courts, which generally speak in the language of rationalist liberalism—and imposing on ourselves a much greater burden of persuasion. One of the signal virtues of Levy’s book is that it places us within the conversation more directly, in a way that is capable of reaching and persuading a wider audience that would tremble at the thought of any set of ideas labeled as non-liberal, and with forbears—Constant, Montesquieu, Tocqueville, and others—whose ideas are less likely to be dismissed out of hand as irrelevant to our history and traditions.

Like Levy, I think the pluralist tradition has been too much ignored. Our current debate would be much enriched if room was made within it for a more robust pluralism that recognizes the value and importance of intermediate groups. We should treat pluralism as a good in itself, not necessarily as an intrinsic or “natural” matter but because of its value in actually existing liberal societies. We ought to resist the view that however the conflict between liberty and equality plays out, it should ultimately be resolved by uniform and universal laws imposed by the centralized state, as if nothing else is there, or as if whatever is left is a mere residue to be managed and rationalized.

But to this I would add one last important contribution made by Levy’s book. He reminds us that the conflict between rationalist and pluralist liberalism is not a matter of right versus wrong, of a true versus a false vision of social ordering. Rather, both forms of liberalism recognize the potential threat posed by different power centers: for pluralists, the centralized state, and for rationalists the welter of intermediate, often illiberal, groups. Each of them is susceptible to abuse, to capture, to inequalities and power dynamics that threaten the rights or well-being of the individuals within them. Each approach, as Levy writes, “brings with it both insights and blind spots. Just to the degree that each one illuminates some genuine threats to freedom, it obscures others.” Levy retrieves pluralism as a positive value and a vocabulary. But he does not suggest that it lacks dangers and problems of its own—that its insights about the dangers of centralized power are not accompanied by blind spots about the use or misuse of authority within intermediate groups.

For rationalist liberals, this means that current proposals to order society for the benefit of its individual members must not lose sight of the dangers posed by even a well-intentioned liberal state. For pluralists—especially those of us who think the state should not be empowered to insist on “congruence,” on the imposition of liberal norms across all groups in all places; that, in a world of actual and legal pluralism, the state represents only one source of law and should not have an absolute reach—it means that our advocacy of pluralism must be married to a sense of responsibility. Just as rationalist liberalism requires its citizens to be active civic participants, monitoring the state and criticizing it for its excesses, so pluralist liberals must be active monitors and critics of intermediate groups, calling those groups to account for those excesses and inequalities that damage their members or do harm to others. “Freedom of the church” means not just that the state may be unable to regulate certain internal relations within religious groups, but that others—both members and non-members—must take on the responsibility of holding those groups to account for their actions.

That job is no less important, and no easier, than the job of monitoring and criticizing the state. But, again, one value of Levy’s book is that it recognizes those groups’ value even as it describes their dangers, and does not assume that the best solution to the problems these groups present is simply to level them. And another is that it provides us with a vocabulary—still liberal, but in a very different liberal voice than the rationalist strand we are accustomed to—with which to do so. Rationalist liberalism, speaking to these groups de haut en bas and treating them as existing on sufferance, provided they do not depart from congruence with the liberal norms and procedures that apply to the state, is unlikely to reach or persuade those groups—likely, if anything, only to create more illiberal groups and greater polarization. Pluralist liberalism offers a chance, albeit only a chance, of speaking productively to and within the many intermediate groups that dot, and benefit, our society.

Paul Horwitz is Gorden Rosen Professor at the University of Alabama School of Law and Visiting Professor at Harvard Law School. He is the author of First Amendment Institutions (Harvard University Press, 2013).