Community and Natural Law

Brad Lowell Stone

[From HUMANITAS, Volume X, No. 1, 1997 © National Humanities Institute, Washington, DC USA]

The New Communitarians and the Crisis of Modern Liberalism, by Bruce Frohnen. Lawrence, Kansas: The University of Kansas Press, 1996. 271 pp. $29.

The label "communitarian" once was attached to traditional conservatives like Robert Nisbet and Russell Kirk. These men sought to foster private character and public virtue by resuscitating traditional mediating institutions (family, church and local association) now subjugated by the centralized state. No more. That label now has been claimed by a number of academics on the left who identify themselves principally in opposition to liberalism. Modern society, these new communitarians argue, is permeated by destructive selfishness and tragic alienation spawned by liberalism's mistaken emphasis on the primacy of individual voluntary choice. Only a rebirth of public life, carried out through persistent political action, on this view, can give man back his sense of belonging and his sense that his life has meaning and effect.

Michael Sandel played a major role in bringing the new communitarianism to prominence. His Liberalism and the Limits of Justice was a critical commentary on the then-Bible of contemporary liberalism, John Rawls's A Theory of Justice. Rawls was both liberal and wrong-headed, in Sandel's view, because his just society was purely procedural, and based solely on the voluntary choices of individuals shorn of all distinguishing characteristics. Rawls posited an "original position" that was just because, from it, selves stripped of all their distinguishing characteristics would choose the operating principles of their society. These principles—extensive civil rights and the rule that no benefit should accrue to the better off unless it improved the position of the worst off—established procedures by which individual conduct could be regulated, but no common good toward which the community might work.

Rawls himself has admitted that this schema rests on Western democratic values rather than, as he originally had claimed, neutral reasoning concerning the inherent nature of justice. But Sandel and his communitarian colleagues still argue that contemporary liberals (of whom there seem increasingly few) hold an impoverished, rationalistic view of human nature that makes virtue and public affection difficult if not impossible. It is to the rampant public disaffection with politics and the seeming breakdown of civility throughout our public lives that Sandel turns in his second book, Democracy's Discontent: America in Search of a Public Philosophy.

Sandel presents a stunning and at times quite powerful critique of the "theory" he sees at the root of contemporary liberalism. In his view the belief that government must protect at all costs the voluntary choices of independent selves has resulted in unwarranted hostility toward the "encumbrances" or deeply held, involuntary beliefs of many selves. It has undermined meaningful individual commitment and rendered pursuit of a common good impossible. It has torn individuals from one another, impoverishing our public life and leaving people at the mercy of forces (mostly economic) outside their individual control.

To his credit Sandel soon abandons his claim that "our practices and institutions are embodiments of theory." He provides a fairly standard review of the Supreme Court cases and economic and intellectual events that helped shape contemporary liberalism. Opposing growth of the value-positing, self-actuating individual, Sandel finds an astonishing variety of theories and movements, all of which he terms "republican." In theory republicanism, for Sandel, is the belief that true freedom resides in communal self-rule. In practice he praises as republican any theory, practice, or institutional arrangement hostile to radical individualism. The result is somewhat confusing until one considers Sandel's own view of the individual and his proper role in society. Such a study, along with consideration of Sandel's few clear policy preferences, makes it clear that Sandel is promoting, not some amorphous alternative to liberalism, but a more robust and activist form of liberalism itself.

Sandel's individual self remains a self-actuating, liberal self. Government must provide it with the opportunity to fulfill itself through voluntary action. Only now the "encumbrances" of that self—including religious beliefs drawn from one's upbringing—are to be respected along with that self's need for the economic means to achieve its own ends. But for Sandel, as for all liberals, it is development of the authentic self, with all its commitments, that is the goal, rather than any substantive common good. Sandel has merely added to liberalism the claim that even pre-voluntary commitments must be respected by government and, not surprising given the politicized nature of contemporary liberalism, that politics is the primary sphere in which self-fulfillment takes place. Thus Sandel's just society is one in which individuals join numerous political causes to carry on a persistent public debate over the nature and requirements of the common good.

Sandel's rejection of liberalism rests in large part on his claim that that ideology has insufficient concern for the social attachments each of us carries into our public lives. His review of Supreme Court decisions is intended to show how liberal jurisprudence, insisting on the primacy of the individual's voluntary choice, ends by undermining the ability of the individual to lead a full life. This has been particularly true, as Sandel points out, in the area of religion. Justice Stevens's claim that "religious beliefs worthy of respect are the product of free and voluntary choice" in Sandel's view shows insufficient respect for authentically held beliefs growing out of one's upbringing. Religious beliefs, like other involuntary attachments and disabilities, are literally "encumbrances." They impinge upon the self's ability to choose freely its modes of conduct. The state's duty is to see to it that the public square accommodates individual encumbrances as much as possible, without changing its morally neutral character (and thereby imposing a unitary vision of the good).

In true liberal fashion, Sandel would have the government accommodate these individual encumbrances by, for example, allowing the wearing of yarmulkes in the military, conscientious objection to military service, and even sectarian schooling. But each of these allowances is, for Sandel as for all liberals, a trump against state action; that is, the state may not take actions interfering with the carrying out of these private choices in the public square. But this private conduct will not be allowed to take on a public character.

Sandel ignores the existence of various state promotions of and disabilities on certain religious practices, even into this century. He also ignores any and all arguments for judicial restraint. Instead he merely asserts that the courts should allow individual religious expression in the public sphere while placing even more onerous restrictions than it already does on, for example, public nativity scenes. Respect for individual encumbrances requires the former. As to the latter, such "official" actions must be forbidden. Otherwise, a particular vision of the common good might predominate, and selves encumbered by different religious beliefs will be harmed by witnessing this public affirmation of a religion they do not share.

Sandel shares the omnipresent academic prejudice against religious belief. He repeats the time-worn concern that liberalism's moral emptiness leaves room for "narrow, intolerant moralisms" such as that supposedly put forth by the long defunct Moral Majority. He lumps fundamentalist beliefs in with Rousseau's overtly totalitarian civil religion, accusing both of seeking to enforce a single, unitary vision of the common good that will not be open to debate and thus will foster coercion. Religion must be respected in the individual; it is an encumbrance which the state must respect and for which it must make allowances. But religion must be opposed if it might limit the extent to which politics is an unending debate over the nature and requirements of the public good.

What, then, does Sandel want? He posits as the proper response to our current dilemma a return to Tocqueville's understanding of the public sphere as a collection of many associations. Individuals join with others in families, in clubs such as the Kiwanis and Little League, and in local political organizations, and thereby develop a concern for the well-being of their neighbors and community. This pattern does not promote coercion or stasis because the sites of individual concern and socialization are many and varied. But it teaches all of us to care for our brethren.

Yet this seeming call to a conservative understanding of subsidiarity is not what it seems. Sandel does not seek a return to the highly religious townships of Tocqueville's day. Nor does he wish to revive the distinction between strictly political associations like political parties and the far more important social institutions in which Tocqueville saw the bulk of public life taking place. Instead Sandel seeks to promote a variety of overtly political associations debating largely economic issues, resting on a consensus concerning the primacy of political participation as the good of life.

In seeking a renewal of public life Sandel recommends a number of structural reforms: opposition to strip malls in favor of pre-existing downtown areas, in which citizens can linger and meet with one another; replacing suburban sprawl with traditional, mixed-use neighborhoods that even out traffic flow and allow for pedestrian traffic. Most importantly, however, Sandel emphasizes the need for a rebirth of 1960s-style political activism. From politicized "community development corporations" to organizations like the Industrial Areas Foundation (IAF)—"a network of community-based organizations that teach residents of poor communities how to engage in effective political activity"—Sandel wants us to commit ourselves to overtly political organizations.

The IAF recognizes the importance of traditional mediating institutions, but sees them as "points of departure for political activity." Local affection, the little platoons of life, are facts, in Sandel's view, that cannot be ignored. But they are facts that can be overcome through political education. Beginning from traditional institutions, political organizations can liberate individual selves from their involuntary encumbrances, or at least minimize the importance of these encumbrances, by getting them involved in the exciting world of political activism. After all, who wants to do the dishes when you can demonstrate over animal rights, foreign conflict or hunger?

Sandel's liberalism recognizes the self's rootedness in community and belief. Taking these into account, even "respecting" these encumbrances through public accommodation, he hopes the government can use them to help it create activist citizens engaged in a perpetual debate over the common good. Of course not all notions of the common good deserve a hearing. Those who look to God and tradition for the norms of behavior are, on this view, both coercive and uncommunitarian because they value the permanent things more than the majority view of the moment or the ultimate liberal good—tolerance. But then, so long as ignoring the reprehensible conduct of others (or, indeed, giving up on the very notion of reprehensibility) is the highest good, there will be little basis on which we can come together as brothers to discuss, let alone work toward, our common needs and goals.

*Brad Lowell Stone is Professor of Sociology at Oglethorpe University. [Back]

Copyright © 1998 National Humanities Institute.
Last modified 9 July 1998