liberal and conservative
jtlevy at uchicago.edu
jtlevy at uchicago.edu
Tue Mar 1 12:37:42 PST 2005
Robert Lipkin wrote:
"So perhaps it would be better (if possible) to seek
paradigmatic examples of "liberals" and "conservatives,"
though this too is tricky. I suspect two relatively
uncontroversial examples might be John Rawls and Robert
Nozick. If these theorists are the standard, I think it
might be easier (though of course not easy) to argue that
the Supreme Court (and more importantly the federal courts
generally, and the legal academy) are closer to Nozick than
This seems wrong to me on every point. If ever the
conservative-libertarian distinction is one with bite it's
when you're talking about as radical a libertarian position
as that of Anarchy, State, and Utopia. Treating Nozick as a
paradigmatic conservative is just setting "conservative"
equal to "libertarian," and thereby reading social
conservatism, law-and-order conservatism, and for that matter
Burkean go-slow temperament out of the concept "conservative."
More to the point, conservatism is not libertarianism on
crucial U.S. constitutional issues-- abortion, sodomy, the
scope of freedom of speech or religious freedom, etc.
Third, Nozick and Rawls are addressing questions different in
kind from those addressed by most judicial actors almost all
of the time. Rawls has very little, and Nozick nothing, to
say about legal questions as such. And I suspect that every
member of the Supreme Court and almost every federal judge in
the country would agree that the Difference Principle is not
mandated by the United States Constitution but that neither
are welfare programs forbidden by it. They would all deny as
a matter of law what both Rawls and Nozick affirm as a matter
of morality, that the degree of economic redistribution in
society is a matter of mandatory justice rather than
legitimate discretionary policy and politics. What
does "closer" mean when the questions being asked are so
different? If it means something to do with personal policy
preferences, how would you know?
The idea that the legal academy is closer to Nozick than to
Rawls is probably meaningful and testable, since often law
professors *do* ask questions like those Rawls and Nozick
asked. It's also almost certainly wrong. Say that you
polled on the preferred level of rich-to-poor redistribution
in the U.S. Maybe the median in the legal academy would be
to the right of Rawls-- but isurely it would be a lot closer
to Rawls than to zero (Nozick), and the distribution would
include a significant tail to Rawls' left.
More information about the Conlawprof