The rule of law and American government traditions depend on the surrounding civil culture, and that culture is a culture of capacitive liberalism – liberalism in the philosophical, not the partisan sense. It includes a structure based on individual rights (as opposed to group interests), personal responsibility, and freedom of speech.
So what are the social movements that threaten this culture today? They have different names. Wokeism and “the ideology of succession” are two. At a high level of the general public, their dogma is as follows: Some groups have been systematically oppressed not only by the government, but by society as a whole. And this oppression is the only cause of their various plight. Anti-racism is an example of the structure of this thinking. As its leading publicist and best-selling author, Ibram X. Kendi, stated, “Racial discrimination is the only cause of racial disparity in this country and around the world.” Everything that has gone before is tainted, and society should be completely redesigned to reflect this essential truth.
The individualistic basis of the rule of law
This type of ideology poses a serious threat to the rule of law. Let’s start with the legal status of the individual. The declaration of independence depends on the moral assertion that all are created equal and thus that individuals are equal before the law. People should not enjoy legal privileges because they are members of a class such as the nobility and clergy enjoyed before the rise of liberalism. In addition, individual identification under the law makes it difficult for groups to use politics to suppress other groups. This barrier helps to uphold the equality of persons under the law.
But a social justice movement that focuses on the group rather than the individual inevitably subjugates the rights of the individual. Appendix A contains the rules for on-campus sexual assault tribunals, in which the Obama Education Department encouraged universities to strip defendants of core protection, including access to a neutral tribunal and the right to cross-examine. The impulse to prevent sexual abuse is commendable. But the dogmatic structure of a movement to defend women against patriarchy turned reform into a threat to individual rights.
If one begins with the irreversible truth that systemic discrimination is the cause of all differences, the exchange of ideas is undesirable, since the give and take that accompanies such an exchange can lead to an appreciation of complexity rather than simple slogan ringing.
In addition to undermining legal norms, such movements also lead to distortions in the neutral investigation of facts. For example, when Michael Brown was killed in Ferguson, it was said that he was a victim of police racism, which was shot with his hands in the air, which inspired the ubiquitous slogan “hands up, don’t shoot”. The Obama Justice Department report showed that this story was not true and legally exonerated the officer, though it was never resolved in the eyes of the Social Justice Movement. For example, at my law school, the administration continues to show a framed photo taken by people with their hands in the air during a school demonstration about the incident. It is imperative for the rule of law and legal education that facts are not subordinated to an overarching and totalizing social narrative.
Of course, the rule of law must be vigilant against state violence against all people, including minorities. However, it is the careful observation of the facts in individual cases that promotes this vigilance and at the same time maintains criminal prosecution that protects against private violence.
Personal responsibility and rule of law
Personal responsibility is also linked to the rule of law. This is partly because people can only take responsibility for themselves if they can plan, and they can only plan if they know the rules of the game. This is also because a government big enough to free people from individual responsibility is so powerful that the rule of law cannot restrict it.
The claim that some form of systematic oppression is the cause of all identity group differences undermines this premise. The theory of anti-racism formulated by Kendi is an example. It uses racial identity and allegations of systemic oppression to deprive individuals of agency: it releases individuals – both the alleged victims and the perpetrators – from responsibility. Furthermore, Kendi and others have come nowhere near the extraordinary evidence to support the extraordinary claim that all kinds of complex phenomena in a free society are the only cause of systemic discrimination against one group or another.
There is nothing wrong with arguing that certain social practices created by some people’s collective choices are responsible for poor outcomes. This is a program of potentially useful reforms to eradicate such practices. But if this empirical work is not done, this new utopian movement foils and does not promote social reforms.
A culture of free exchange and the rule of law
A culture of free exchange and tolerance of dissenting views is also required for the rule of law and justice, in order to allow criticism of both current law and future reforms. But some of the social movements we see today have no interest in exchanging ideas because they are dogmatically certain of their own truth. It is hardly a coincidence that, for example, Google engineer James Damore was fired for pointing out plausible reasons other than discrimination that may be responsible for the lower proportion of women in computer science. If one begins with the irreversible truth that systemic discrimination is the cause of all differences, the exchange of ideas is undesirable, since the give and take that accompanies such an exchange can lead to an appreciation of complexity rather than simple slogan ringing.
If elites are trained to view society through dogma rather than openness to sometimes inconvenient facts, they will make America worse, especially for non-elites, including those who are minorities.
A culture of free exchange is of course different from the stricter constitutional requirements for freedom of expression that only apply to the government. However, this legal requirement is supported by a culture that tolerates dissent and does not use employment and social exclusion to contain the debate about factual and plausible normative claims.
The failure of the universities
Universities have historically passed the culture of capacitive liberalism on from one generation to the next. Your core form of liberalism is epistemy – an openness to ideas and arguments, even against consensus, so that the truth about the world can be discovered. Here, too, facts must not be subordinated to any official narrative. The universities were previously exposed to the dangers of an epistemic closure, as the professors today mostly belong to one ideology – the left-liberal one. But it is only recently that university administrations themselves have increased this risk through institutional positions. For example, many schools, like my own law school, have now labeled themselves anti-racist. But anti-racism is a comprehensive ideology that is not just an obligation not to discriminate. In fact, in many versions it requires discrimination and becomes an Orwellian slogan – another way the truth is subordinated to the claims of a broad social narrative.
Other universities have urged those looking to be hired or promoted to show their commitment to diversity and inclusion as social ideals. This includes the University of California, which, according to the First Amendment, cannot be discriminated against based on political views. Where are the bourgeois-libertarian law professors – formerly foot soldiers of great liberalism – who are protesting against this political test?
When an educational institution adopts an ideology that is certainly as broad as anti-racism, it terrifies dissenting views and makes the search for the truth secondary to the desire for ideas to correspond to what is considered virtuous. A university that signals virtues, however, undermines a large part of its core business – and makes informed inferences about the causes and effects of the world. If elites are trained to view society through dogma rather than openness to sometimes inconvenient facts, they will make America worse, especially for non-elites, including those who are minorities. Capacitive liberalism is the prerequisite for successful, empirically based social reform – something that is also necessary for the rule of law to flourish further.
A shorter version of these remarks was made at the National Convention of the Federal Society