liberal and conservative

[jtlevy at uchicago.edu]

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 
Rawls."

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.