Doux Commerce?

At the Liberty Law site today, I have a review of Nate Oman’s important new book on markets and morals, The Dignity of Commerce. The book is a great contribution to contracts scholarship, thoughtful and beautifully written. Nate and I have a friendly disagreement, though, about the cause-and-effect relationship between markets and morals, so it’s no surprise that I find myself disagreeing with one of the book’s main claims:

Liberals maintain that markets create wealth, promote mutual gain, and unlock talents and resources in individuals and nations. And, they say, markets have political benefits. Since the Enlightenment, liberals have argued that markets promote civic pluralism by making people more reasonable and prudent; less given to political and, especially, religious enthusiasm; and eager to avoid divisive debates about deep commitments.

That markets have these advantages is known as the doux commerce thesis. (That’s doux as in soft, or having a softening effect.) The thesis is most closely associated with the Baron de Montesquieu and Voltaire, though David Hume and Adam Smith endorsed it, too. In a very fine new book, The Dignity of Commerce: Markets and the Moral Foundations of Contract Law, contracts scholar Nathan B. Oman advances a version of the theory, updated to take account of current contract doctrine. Oman, a law professor at William and Mary Law School, combines immense learning and sophistication with a lightness of touch that makes his book a pleasure to read.

All of that said, I remain unpersuaded about doux commerce. Edmund Burke had it right, I think. Markets don’t inevitably lead to liberalism. Rather, the liberal tradition itself creates the sort of markets liberals admire.

You can read my full review here. For more information on Nate’s book, click here.

Epstein, “The Classical Liberal Constitution”

Speaking of classical liberalism, here is a new book from the most prominent libertarian voice in the American legal academy, Richard Epstein, The Classical Liberal Constitution: the Uncertain Quest for Limited Government (Harvard). It certainly seems the case that many disputes over religious liberty today result from expanding governmental control over aspects of life the framers of the Free Exercise Clause could not have imagined — the Contraception Mandate, for example. Readers can decide whether that expansion, and the attendant conflicts over religious liberty, are the inevitable consequences of modernity or, as Epstein suggests, the result of an an unnecessary ideological project unwisely endorsed by the Supreme Court. The publisher’s description is below.

9780674975460American liberals and conservatives alike take for granted a progressive view of the Constitution that took root in the early twentieth century. Richard A. Epstein laments this complacency which, he believes, explains America’s current economic malaise and political gridlock. Steering clear of well-worn debates between defenders of originalism and proponents of a living Constitution, Epstein employs close textual reading, historical analysis, and political and economic theory to urge a return to the classical liberal theory of governance that animated the framers’ original text, and to the limited government this theory supports.

Grounded in the thought of Locke, Hume, Madison, and other Enlightenment figures, the classical liberal tradition emphasized federalism, restricted government, separation of powers, property rights, and economic liberties. The most serious challenge to this tradition, Epstein contends, has come from New Deal progressives and their intellectual defenders. Unlike Thomas Paine, who saw government as a necessary evil at best, the progressives embraced government as a force for administering social good. The Supreme Court has unwisely ratified the progressive program by sustaining an ever-lengthening list of legislative programs at odds with the classical liberal Constitution.

Epstein’s carefully considered analysis addresses both halves of the constitutional enterprise: its structural safeguards against excessive government power and its protection of individual rights. He illuminates contemporary disputes ranging from presidential prerogatives to health care legislation, while reexamining such enduring topics as the institution of judicial review, the federal government’s role in regulating economic activity, freedom of speech and religion, and equal protection.

 

Kirchik, “The End of Europe”

Well, this looks depressing. In a new release from Yale University Press, The End of Europe: Dictators, Demagogues, and the Coming Dark Age, author James Kirchik sees a dark time looming ahead for Europe, in which religious bigotry and nationalism will return to poison the good work of the post-war era. Liberalism is under a lot of stress in Europe right now, and liberalism’s inability to resolve religious tensions is one of the main reasons. Still, I don’t think it’s fair to link Brexit, which seemed more about national sovereignty than anything else, with rising anti-Semitism. Readers can judge for themselves. Here’s the description from the Yale website:

9f03ecba67f52d4bb0872ae9bfd38e40Once the world’s bastion of liberal, democratic values, Europe is now having to confront demons it thought it had laid to rest. The old pathologies of anti-Semitism, populist nationalism, and territorial aggression are threatening to tear the European postwar consensus apart. In riveting dispatches from this unfolding tragedy, James Kirchick shows us the shallow disingenuousness of the leaders who pushed for “Brexit;” examines how a vast migrant wave is exacerbating tensions between Europeans and their Muslim minorities; explores the rising anti-Semitism that causes Jewish schools and synagogues in France and Germany to resemble armed bunkers; and describes how Russian imperial ambitions are destabilizing nations from Estonia to Ukraine. With President Trump now threatening to abandon America’s traditional role as upholder of the liberal world order and guarantor of the continent’s security, Europe may be alone in dealing with these unprecedented challenges.

Based on extensive firsthand reporting, this book is a provocative, disturbing look at a continent in unexpected crisis.

“Religion and Progressive Activism” (Braunstein et al., eds.)

In June, New York University Press will release Religion and Progressive Activism: New Stories About Faith and Politics edited by Ruth Braunstein (University of Connecticut), Todd Nicholas Fuist (Arkansas State University), and Rhys H. Williams (Loyola University Chicago). The publisher’s description follows:

Progressive ActivismTo many mainstream-media saturated Americans, the terms “progressive” and “religious” may not seem to go hand-in-hand. As religion is usually tied to conservatism, an important way in which religion and politics intersect is being overlooked. Religion and Progressive Activism focuses on this significant intersection, revealing that progressive religious activists are a driving force in American public life, involved in almost every political issue or area of public concern.

This volume brings together leading experts who dissect and analyze the inner worlds and public strategies of progressive religious activists from the local to the transnational level. It provides insight into documented trends, reviews overlooked case studies, and assesses the varied ways in which progressive religion forces us to deconstruct common political binaries such as right/left and progress/tradition.

In a coherent and accessible way, this book engages and rethinks long accepted theories of religion, of social movements, and of the role of faith in democratic politics and civic life. Moreover, by challenging common perceptions of religiously motivated activism, it offers a more grounded and nuanced understanding of religion and the American political landscape.

Jacobs, “Jews and Leftist Politics”

Last month, the Cambridge University Press released “Jews and Leftist Politics: Judaism, Israel, Antisemitism, and Gender,” by Jack Jacobs (John Jay College and the Graduate Center, City University of New York).  The publisher’s description follows: 

The relationships, past and present, between Jews and the political left remain of abiding interest to both the academic community and the public. Jews and Leftist 9781107047860Politics contains new and insightful chapters from world-renowned scholars and considers such matters as the political implications of Judaism; the relationships of leftists and Jews; the histories of Jews on the left in Europe, the United States, and Israel; contemporary anti-Zionism; the associations between specific Jews and Communist parties; and the importance of gendered perspectives. It also contains fresh studies of canonical figures, including Gershom Scholem, Gustav Landauer, and Martin Buber, and examines the affiliations of Jews to prominent institutions, calling into question previous widely held assumptions. The volume is characterized by judicious appraisals made by respected authorities, and sheds considerable light on contentious themes.

“A Liberalism Safe for Catholicism?” (Philpott & Anderson, eds.)

In June, the University of Notre Dame Press will release “A Liberalism Safe for Catholicism? Perspectives from The Review of Politics,” edited by Daniel Philpott (University of Notre Dame) and Ryan T. Anderson is (Heritage Foundation).  The publisher’s description follows:

This volume is the third in the “Perspectives from The Review of Politics” series, following The Crisis of Modern Times, edited by A. James McAdams (2007), andWar, p03317Peace, and International Political Realism, edited by Keir Lieber (2009). InA Liberalism Safe for Catholicism?, editors Daniel Philpott and Ryan Anderson chronicle the relationship between the Catholic Church and American liberalism as told through twenty-seven essays selected from the history of the Review of Politics, dating back to the journal’s founding in 1939. The primary subject addressed in these essays is the development of a Catholic political liberalism in response to the democratic environment of nineteenth- and twentieth-century America. Works by Jacques Maritain, Heinrich Rommen, and Yves R. Simon forge the case for the compatibility of Catholicism and American liberal institutions, including the civic right of religious freedom. The conversation continues through recent decades, when a number of Catholic philosophers called into question the partnership between Christianity and American liberalism and were debated by others who rejoined with a strenuous defense of the partnership. The book also covers a wide range of other topics, including democracy, free market economics, the common good, human rights, international politics, and the thought of John Henry Newman, John Courtney Murray, and Alasdair MacIntyre, as well as some of the most prominent Catholic thinkers of the last century, among them John Finnis, Michael Novak, and William T. Cavanaugh. This book will be of special interest to students and scholars of political science, journalists and policymakers, church leaders, and everyday Catholics trying to make sense of Christianity in modern society.

Laor, “The Myths of Liberal Zionism”

This month, Penguin Random House released the paperback edition of The Myths of Liberal Zionism by Yitzhak Laor. The publisher’s description follows:

myths-of-liberal-zionismYitzhak Laor is one of Israel’s most prominent dissidents and poets, a latter-day Spinoza who helps keep alive the critical tradition within Jewish culture. In this work he fearlessly dissects the complex attitudes of Western European liberal Left intellectuals toward Israel, Zionism and the Israeli peace camp. He argues that through a prism of famous writers like Amos Oz, David Grossman and A.B. Yehoshua, the peace camp has now adopted the European vision of “new Zionism” promoting the fierce Israeli desire to be accepted as part of the West and taking advantage of growing Islamophobia across Europe. The backdrop to this uneasy relationship is the ever-present shadow of the Holocaust. Laor is merciless as he strips bare the hypocrisies and unarticulated fantasies that lie beneath the love-affair between liberal Zionists and their European supporters.

Fenwick, “Blasphemy, Islam and the State”

This month, Routledge releases “Blasphemy, Islam and the State: Pluralism and Liberalism in Indonesia,” by Stewart Fenwick (University of Melbourne).  The publisher’s description follows:

This book draws on the work of Rawls to explore the interaction between faith, law and the right to religious freedom in post-41-vyprpsgl-_sx331_bo1204203200_Soeharto Indonesia, the world’s largest democracy after India and the United States. It argues that enforcement of Islamic principles by the state is inconsistent with religious diversity and the country’s liberal constitution. The book thus contributes to understanding the role of religion in the development of democracy in the world’s largest Muslim nation. A key objective is to test the argument that Rawls’ thinking about public reason cannot apply to the case of Indonesia, and Muslim states more broadly. The book therefore contributes to emerging scholarship that considers Rawls in a Muslim context. In addition to examining public reason in detail and considering critiques of the concept, the work highlights the fact that the theory was created to deal with value pluralism and is therefore relevant in any religious setting, including an Islamic one. In doing so, it emphasises that Islam is multifaceted and demonstrates the difficulties, and negative consequences, of integrating faith and law in a liberal state.

The End of the Liberal Tradition?

At the First Things site today, I have an essay about a remarkable new paper from political scientists Roberto Foa and Yascha Mounk on the growing opposition to liberal democracy among American Millennials–especially wealthy Millennials. For example, the authors write, surveys reveal that 35% of wealthy young Americans think it would be a good thing for the military to take over the government!

In my essay, I argue that the surveys reveal the decline of yet another American tradition: liberalism itself:

Liberalism is often understood as propositional, as a series of abstract principles. This understanding has led scholars like Fukuyama to think that liberalism can be easily exported to other cultures; it has formed the basis for much American foreign policy, especially in recent decades. In important ways, this understanding is correct. Liberalism does justify itself largely on the basis of ideas. The Framers of the American Constitution, for example, were strongly influenced by Enlightenment concepts of reason and rational government.

In a deeper sense, though, liberalism generally, and American liberalism specifically, is a tradition, the organic working-out of precedent, over time, in a particular political culture. The American Framers were figures of the Enlightenment, true, but they also thought they were restoring the traditional rights of Englishmen, rights that could be traced back to Magna Carta and beyond. The American conception of religious liberty, for example, is deeply influenced by the historical experience of the English Civil War and the Glorious Revolution, and also by the particular understanding of religion that took hold in a colonial, frontier society. This explains why it differs so much from its cousin on the European continent, the French doctrine of laïcité.

But American culture is changing. Our traditions are not so popular nowadays, including our political traditions; and when we discard our traditions, we can fall for many things, including, apparently, authoritarianism. That, it seems to me, is the upshot of this important paper. The authors identify authoritarianism in our politics with Donald Trump, and it’s easy to recognize Trump’s authoritarian appeal (“I alone can fix it”). But there is authoritarianism on the left, as well, which the authors ignore. American college students increasingly oppose free speech, at least with respect to certain viewpoints, and insist on shutting down speakers with whom they disagree, often with the approval of administrators and faculty who should know better. Not to mention the left’s continuing assaults on religious liberty, including attempts to get nuns to cover contraceptives for their employees and threats to remove the tax-exempt status of religious schools that disapprove of same-sex marriage.

My essay is available here.

Menchik, “Islam and Democracy in Indonesia”

In November, Cambridge University Press will release “Islam and Democracy in Indonesia: Tolerance without Liberalism” by Jeremy Menchik (Boston University). The publisher’s description follows:

Indonesia’s Islamic organizations sustain the country’s thriving civil society, democracy, and reputation for tolerance amid diversity. Yet scholars poorly understand how these organizations envision the accommodation of religious difference. What does tolerance mean to the world’s largest Islamic organizations? What are the implications for democracy in Indonesia and the broader Muslim world? Jeremy Menchik argues that answering these questions requires decoupling tolerance from liberalism and investigating the historical and political conditions that engender democratic values. Drawing on archival documents, ethnographic observation, comparative political theory, and an original survey, Islam and Democracy in Indonesia demonstrates that Indonesia’s Muslim leaders favor a democracy in which individual rights and group-differentiated rights converge within a system of legal pluralism, a vision at odds with American-style secular government but common in Africa, Asia and Eastern Europe.

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