The left’s propaganda offensive in the wake of the Supreme Court’s Hobby Lobby decision affirming the religious rights of business owners to not subsidize forms of birth control that violate their convictions involves arguing, as blatantly as they feel they can, that the Supreme Court (or, better: 5 men; or, even better, bleaching Clarence Thomas: 5 white men) has outlawed birth control. It’s easy to treat this as crazy, or breathtaking brazenness, a desperate bid to boost voter turnout amongst the stupidest elements of the Democratic base. The 2012 election, though, after months of assuring myself that no one, of course, could be stupid enough to believe that “War on Women” actually means something, much less that the Republicans were waging one, has taught me to take such assertions very seriously because, clearly, many others do. The assertion that “5 guys” have outlawed birth control is very similar to the insistence that, not only must “marriage equality” be immediately, universally and uniformly imposed, but that no decent person could bear to be exposed to anyone whose attitude towards it is anything other than acclamatory (dissenting opinions seem to have the status of second hand smoke in such discourses). The logic is the same in both cases: I am only allowed to do something only if everyone supports and celebrates my doing it.
And that is not, in fact, illogical at all. Only liberalism finds it outrageous. By “liberalism,” of course, I mean the traditional variety, which starts political reflection with the assumption that there is something pre-politically inviolable in the individual, that this inviolability implies a series of rights that the individual bears with him or her in entering political society, and that the main business of politics is cataloguing those rights, setting up hierarchies amongst them, figuring out how best to protect them, to prevent their exercise from leading to one colliding into another, and so on. Only a liberal in that sense can say “I may disagree with what you say but will defend to the death your right to say it,” even if very few liberals have ever gone anywhere near death defending ideas they consider obnoxious (even the ACLU tends to protect only those ideas that the middle class finds obnoxious).
But maybe liberalism is wrong. Or was right, for a limited time, in certain places, among certain sectors of the population. And maybe is no longer. The abstract freedoms advanced by liberalism suited the rising middle classes in their struggle against feudalism (and slavery and absolutism) perfectly, and then gained new life in the struggle against Communist and fascist totalitarianism. Liberalism’s victory in these struggles enabled it to be sold as a set of eternal principles (and to disguise its basic emptiness), but maybe these enemies were very contingent and time bound. I’m not sure that the “great debates” of the liberal order ever amounted to more that liberal ridicule of, and conservative prudential or sentimental defense of, some element of pre-modernity that persisted into modernity. Pre-modern elements having been thoroughly routed, liberalism no longer seems to provide a frame for the main disagreements in today’s social order. This would mean that liberalism has done its work. But the work of liberalism would, then, have been a very localized one, which was to fend off outmoded and especially dysfunctional alternatives to capitalist modernity—absolutism, slavery and the varieties of totalitarianism, which can be shamed merely by being brought into open debate among mobile, self-reliant people. Once all the pre-modern forms have been abolished and the more genocidal forms of totalitarian rule discredited, what, exactly, remains of liberalism? Does anyone close to power today propose a model of governance beyond local technocratic fixes to increasingly dysfunctional systems?
The issues that we have today don’t seem to lend themselves to the debating society model of liberalism. We don’t, for example, seem to have a vocabulary for discussing the rights and wrongs of the kind of statistical surveillance the NSA has been conducting since 9/11: on the one hand, developing algorithms for determining that certain individuals should be probed more closely (e.g., someone who has called Pakistan, Afghanistan and Saudi Arabia hundreds of times over the past few months, to numbers that dozens of other people have called hundreds of times) seems reasonable; on the other hand, it’s very hard to fit this practice into any traditional notion of a court sanctioned search and, on the other hand, accepting it requires a reservoir of trust in the government’s genuine interest in protecting us from attack and nothing more, a trust which few feel and fewer will admit—in large part because the government itself has abandoned even a show of liberal neutrality. But, of course, when there is a terrorist attack, most people will blame the government, the pendulum will swing wildly in the other direction, and objections will be vehemently dismissed, at least until the attacks become a distant memory (which seems to happen increasingly quickly). Or, maybe, we will stay steadfast in our libertarian and victimary convictions and absorb attack after attack, continuing to demonize anyone who suggests even the most general connection between Islam and terror. Either way, we have nothing resembling a traditional liberal “conversation” (and one starts to wonder to what extent we ever really did) over great questions of freedom and authority, war and peace, and so on. In the case of the NSA surveillance, it seems that either the government will do what it needs to do in order to fulfill responsibilities it claims have been delegated to it, regardless of how such actions can be squared with rights talk; or, there will be sufficient pushback, which will simply mean that “we” have rejected the government’s assertion of responsibility and have chosen to distribute it in a new way, or to just be irresponsible. In the end, more precisely, the government will find a way to operate in secrecy because bureaucrats and elected official prefer the fleeting obloquy of exposure to the delegitimation and loss of power actual attacks will bring; or, on the other hand, hackers and leakers and their friends in the media will make secrecy impossible—either way, these decisions are not being made in any recognizable liberal or democratic way. Other issues regarding privacy, innovations in health care and the biological sciences more generally, and intellectual property, for starters, seem equally immune to classically considered “debates”—these differences over the ambivalences of what is usually blandly called universal “interconnectedness” but might better be considered universal contagion or hostage-taking, seem more likely to be decided by unilateral initiatives which create irreversible facts on the ground, followed by ratcheting effects of one kind or another. For individuals and groups the choice will be stark: be inside or outside, and if you want to be inside play by the rules or find yourself outside; and you’d better not be caught outside unless you can manage to create a new inside.
That there is only approved behavior and disapproved of behavior seems much less counter-intuitive than the liberal claim that there is disapproved of behavior that we nevertheless allow, i.e., approve of. Less counter-intuitive and undoubtedly far more universal. The problem is that liberal society has upended the clear boundaries between approved and disapproved. What we are seeing now may be an attempt to restore those boundaries, which might be necessary, in the sense that human life is ultimately untenable without them. The difficulty lies in the lack of any consensus over what is to be approved. The solution is simple, if difficult—secession, partition, into smaller communities which can arrive at such a consensus. The only meaningful conversations we might be able to have in the near future will be over the terms of such a partitioning, and if there is anything to hope for it is that the last act in the liberal order will be to partition out of it into a new anti-federalism with some modicum of grace and a minimum of violence. (The problem of maintaining the viability of overlapping local communities would presumably then generate a new politics.) (I am encouraged by the news that California will be voting this year on a proposition to break the state up into 6 states. I assume it will fail, and Congress has to approve any such move even if Californians vote for it, but I believe once the idea is out there, and secession is de-stigmatized, we will see much more of it.)
Capitalist modernity! I used the term with ease a couple of paragraphs back, as a convenient other to feudalism, absolutism, slavery, communism and fascism. Capitalism has really only been tried in a few places, for brief periods, and most people seemed to have found it terrifying—what we have had mostly is corporatism. As soon as one starts to say that capitalism is the true way, we just haven’t gotten it right, one starts to hear echoes of identical arguments made in the name of socialism and communism. The free market is real, grounded in the reciprocity constitutive of the originary scene, and we can study its operations and promote its spread, but it would probably be realistic to resign ourselves to the fact that there is only sufficient popular support for the free market in carefully regulated and administered doses (and, regardless of popular imagination, it more often comes arbitrarily and crookedly regulated and administered doses), even though, fortunately, important innovations sometime sneak through before the bureaucrats have a chance to figure out what happened. Maybe what we have come to call modernity is the less grandiose fact that, for some time, there has always been some faction (and sometimes several at cross-purposes) that finds it in its interest to support the free market to some degree. The end of liberalism might also be the end of at least “Enlightenment” modernity, whose slogans were always just a battering ram to use against feudalism, and which has gradually lost its legitimacy as the self-proclaimed moderns continued to find more and more “pre-moderns” to denounce, hector and, when possible, outlaw. The only thing, though, that would prevent the upcoming partitioning from becoming a new dark age would be sufficient (define “sufficient”! I confess, I can’t, not sufficiently) recognition within and between communities of the need for free markets. But while some modernities have touted markets as vehicles of freedom and prosperity, the disciplinary order would equally stress the market as disciplinary agent, inculcating practically the realization that nothing will come from nothing. Indeed, an index of the health of any social order is the number of people who oppose restrictions on free exchange even if doing so benefits neither them nor anyone in particular as far as anyone can tell. If you want a genuine “veil of ignorance,” there you have it, and a very practical one available at any time: no one can tell who will benefit beyond the very short term by removing obstacles to free trade. Those who willingly reside behind that veil are the ballast of social order.
The way to act within the new, “disciplinary,” order, then, is as the representative of a discipline, which one advances unwaveringly and unquestioningly, at least to those outside the discipline; guarding the boundaries of the discipline, though, makes one a better participant in the market by leading one to respect all the other disciplines, which is to say to withdraw behind the veil of ignorance of the broader conditions of possibility of one’s disciplinary activity—a veil of ignorance which is also the condition of possibility of the local knowledge of surrounding disciplines constitutive of one’s own. Of course, anyone participates in several disciplines, which overlap and perhaps antagonize each other in varying degrees. This will be the source of ethical dilemmas in the disciplinary order. But it will be silly to complain of violations of rights which are not simultaneously rights of the discipline, just as it would be ridiculous for a doctor to complain that his free speech rights are violated by the fact that no hospital will allow him to carry out an unvetted form of surgery that strikes his colleagues as bizarre—the doctor proposing something new only has the right to complain that members of the profession fail to follow or reasonably revise their own protocols for approving new procedures. Disciplines are radically different from tribes, insofar as they are less exclusivist, make variable claims on the individual’s loyalty and make claims to knowledge and institute procedures for arbitrating and encouraging such claims, but they are more like tribes than they are like the polity of the liberal modernist imaginary insofar as they recognize no rights that are not constitutive of the discipline itself. And that, in fact, is the only coherent way of thinking about rights.