Notre Dame Law Review

View PDF

Andrew Koppelman*

When men and women identify what are in fact their partial and particular causes too easily and too completely with the cause of some universal principle, they usually behave worse than they would otherwise do.

—Alasdair MacIntyre¹

I love coming to Notre Dame.  Its mores and assumptions about the world feel weird to me, and yet I find them admirable.  I love its strangeness, and I particularly love talking about the issues that most divide us.  It offers an opportunity to close the “gulf that separates class from class and soul from soul,”² as Shaw’s Henry Higgins put it.

I’m an agnostic, secular Jew.  I believe that Jesus of Nazareth was just a guy, and I don’t believe in God (although, as will become clear, I’m willing to entertain the hypothesis for the sake of argument and draw inferences from it).  But I have noticed that many Christians understand aspects of the human condition that secularists tend to overlook.  I contemplate your traditions with enormous respect.  I once developed a book on religious liberty out of an insight that I got from John Finnis, although I took it in directions that he may not have found congenial.³

One reason I like living in a liberal society is that it lets me meet and even befriend people who are so different from myself.  I like doing the work of trying to understand them.

That work has a moral dimension.  Iris Murdoch observes that it is ethically important to perceive people fairly and accurately, separate from how one behaves toward them.  Such perception is “something which we approve of, something which is somehow worth doing in itself.”⁴  It is a moral activity, and perhaps the necessary substrate of any further moral activity.⁵  “The more the separateness and differentness of other people is realized, and the fact seen that another man has needs and wishes as demanding as one’s own, the harder it becomes to treat a person as a thing.”⁶

On the other hand, Murdoch writes, the chief enemy of morality is “personal fantasy: the tissue of self-aggrandizing and consoling wishes and dreams which prevents one from seeing what is there outside one.”⁷  The best art, Murdoch argues, is that which “shows us the world, our world and not another one, with a clarity which startles and delights us simply because we are not used to looking at the real world at all.”⁸  Such startling experiences are more likely in a liberal society.  That is part of the moral case for liberalism.  The encounters that freedom forces on us make us better, less solipsistic people.

I worry that some recent Christian criticisms of liberalism are the kind of fantasy that Murdoch warned about, caricaturing what they purport to oppose.  They are also ominously vague about what would replace it.  Both writers echo earlier Christian flirtations with Marxism: philosophical errors lead idealists to gullibly embrace authoritarian kleptocrats who do not give a damn about the people the idealists are trying to help.

I will focus on the work of Patrick Deneen, with some reference to the more abbreviated but similar critiques of liberalism by Adrian Vermeule.  Both claim that liberalism’s relentless logic tends to destroy communities and traditions.  The alleged mechanism is underspecified.  Deneen offers more detail, emphasizing the harm that neoliberal economics has done to working class incomes, and the harm that the sexual revolution has done to working class family structure.  In both cases, he is unfamiliar with the pertinent social science and so misdescribes the mechanisms at work.  These ills certainly exist, but abandoning liberalism is a quack remedy.

I’m one of the liberals they oppose.  I have defended aspects of liberal practice that they find especially odious: abortion,⁹ gay rights,¹⁰ drug use,¹¹ and pornography.¹²  I have also argued, however, precisely as an inference from liberalism, that religious people like them who reject all these things ought to be able to live out their ideals unmolested by the majority, for example when they decline to facilitate same-sex weddings.¹³  I don’t recognize myself in their claims that liberals aim to bully religious conservatives to the margins of society.¹⁴  Some on the left concededly do.  They aren’t liberals.  The insouciant enthusiasm, in factions on the left and the right, for dismantling American political institutions calls to mind Roger Scruton’s observation that genuine conservatism “tells us that we have collectively inherited good things that we must strive to keep,” and that it understands “that good things are easily destroyed, but not easily created.”¹⁵  

I have worked very hard to understand the views that oppose mine.  Reading them, I find little evidence that they have given liberals like me the same courtesy.

Continue reading in the print edition . . .

---

©2023 Andrew Koppelman.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*John Paul Stevens Professor of Law and Professor (by courtesy) of Political Science, Department of Philosophy Affiliated Faculty, Northwestern University.  Thanks to Mary Anne Case, Nathan Chapman, Rick Garnett, Laura K. Field, Jide Nzelibe, Rich Schragger, Micah Schwartzman, Steven D. Smith, Kevin Vallier, and Paul Weithman for comments, and to Tom Gaylord for research assistance.  Please send comments, correction of errors, and grievances to akoppelman@northwestern.edu.

1Alasdair MacIntyre, After Virtue: A Study in Moral Theory 221 (2d ed. 1984).

21 Bernard Shaw, Pygmalion, in Complete Plays with Prefaces 189, 248 (1963).

3Andrew Koppelman, Defending American Religious Neutrality 231–32 (2013) (acknowledging my intellectual debt to Finnis).

4Iris Murdoch, The Sovereignty of Good 19 (Routledge 2014) (1970).

5Murdoch’s conception of morality as dependent on accurate perception is persuasively elaborated in Christopher Cordner, Ethical Encounter: The Depth of Moral Meaning (2002).

6Murdoch, supra note 4, at 64.

7Id. at 57.

8Id. at 63.

9See, e.g., Andrew Koppelman, Originalism, Abortion, and the Thirteenth Amendment, 112 Colum. L. Rev. 1917 (2012).

10See, e.g., Andrew Koppelman, Essay, Bostock, LGBT Discrimination, and the Subtractive Moves, 105 Minn. L. Rev. Headnotes 1 (2020); Andrew Koppelman, Judging the Case Against Same-Sex Marriage, 2014 U. Ill. L. Rev. 431; Andrew Koppelman, Note, The Miscegenation Analogy: Sodomy Law as Sex Discrimination, 98 Yale L.J. 145 (1988).

11See, e.g., Andrew Koppelman, Drug Policy and the Liberal Self, 100 Nw. U. L. Rev. 279 (2006).

12See, e.g., Andrew Koppelman, Is Pornography “Speech”?, 14 Legal Theory 71 (2008); Andrew Koppelman, Eros, Civilization, and Harry Clor, 31 N.Y.U. Rev. L. & Soc. Change 855 (2007); Andrew Koppelman, Essay, Does Obscenity Cause Moral Harm?, 105 Colum. L. Rev. 1635 (2005).

13Andrew Koppelman, Gay Rights vs. Religious Liberty? The Unnecessary Conflict 140 (2020); Andrew Koppelman, Why Rawls Can’t Support Liberal Neutrality: The Case of Special Treatment for Religion, 79 Rev. Politics 287 (2017); see Andrew Koppelman, How Could Religious Liberty Be a Human Right?, 16 Int’l J. Const. L. 985 (2018).

14I have written:

If the aim of antidiscrimination law is to guarantee full citizenship to everyone, then it is relevant that because of the uncompromising interpretation of that law that is now prevalent, conservative Christians may not be able to be wedding vendors, counselors, social workers, or psychologists, they may not be able to control the content or staffing of their educational institutions, and various other agencies face the denial of funding.  Citizenship is at stake on both sides.  The more general purport of this strict interpretation of the law is to feed the demonization of conservative Christians, officially assimilating them with racists as people who have intolerable views.  If the law aims to end institutionalized humiliation, then this move is counterproductive.

Koppelman, supra note 13, at 64.

15Roger Scruton, How To Be a Conservative, at viii (2014).