Professional Documents
Culture Documents
The forms
and formalities
of liberty
HARVEY
C.
MANSFIELD,
JR.
Ts
graph
but dense
to reward
attention
is more
democratic
the forms
enough
reflection.
important
To understand
the
in need
they
end
explanation,
of "forms,"
or practices
than
peoples
that
to require
Speaking
to institutions
statement
in which
achieved.
of forms?
And
and
deep
Tocqueville
the
Why,
how
enough
directs
manner
we may
do they
our
of action
ask,
are
undermine
need?
what
these
forms
first, of man-
122
THE PUBLIC
INTEREST
hers in "society"--society
not in any comprehensive
sociological
sense, but as the place where we are on our best behavior, the
parlor or drawing-room
of human life. "Society," in this sense, imposes certain forms of correct behavior on us which are neither
moral duties (though manners are obviously somehow related to
morals) nor simply cost-efficient methods of attaining our ends. Indeed, these forms seem designed to avoid raising moral questions
directly and to prevent us from using the most efficient instrument
to gain our desires; they are barriers, as Tocqueville says, between
ourselves and the objects of our desires, and also between one person and another.
That we now say "living-room," rather than "parlor" or "drawingroom," illustrates the drive toward informality which Tocqueville
says is in the nature of democracy; yet, as Tocqueville also indicates, democracy is not always well served by informality. Tocqueville's point was made recently by Miss Manners, a writer on etiquette for the Washington
Post. Miss Manners inveighs against
waiters and waitresses who have taken up the practice of introducing themselves to customers by their first names, as if to put
business relationships on the level of friendships.
Such a practice,
she says, not only perverts friendship by using it for business, suffusing the latter with false warmth, it also hurts business by robbing the working person of his dignity. "If you and I are friends, '_
Miss Manners asks, "how come I have to wait on you? But if I can
be on equal terms
matter if I perform
it doesn't
of equality
we have received
a lesson in dem-
equalize
human
123
relationships,
and preserve
such
formal demarcations surrounding each job, either jobs would not get
done-because
that would be inconsistent with democratic fraternity-or
jobs would be done perforce with no respect for democratic equality and liberty. In both eases, formality is overcome by
informality. "If you and I are freinds, how come I have to wait on
you?" In our deinoeratie
tyranny and rebellion.
age, overflowing
informality
is a source of
124
THEPUBLICINTEREST
To
in-
clination; but men can be finicky and fussy as well as lazy and
direct, and it is a difficult question whether human nature is more
democratic than aristocratic.
In our day, however, as Tocqueville
might have granted, informality comes from a second source as well. The innocent waiter
or waitress who wants to be friendly reveals not only the nature
of democracy
in general, but also reflects in small the political
"populism" of the 1970s. Actually, this populism began in the 1960s,
when the movement was angrier, rougher, and narrower-when
it
promoted "participatory democracy" and called itself the New Left.
Its progress has come by dilution and through respectability,
as
students who once dressed down to the uniform of the working
class now sport designer jeans. Respectability
came easily, despite
the electoral failures of the New Left and the oblivion of its early
leaders, for unlike previous populisms in American history, this
variety began and still thrives among the educated.
Besides making our manners more informal, it has attacked
our political institutions for serving as barriers between the people's will and its object-that
is, for being too formal. President
Carter,
a prime
beneficiary
and exponent
lZ5
stated the populist principle in his demand that we make government as good as the people. Thus the power of government is to
be exercised against, not through, its formal institutions, and whatever agency is available will be used to effect the people's will (as
discerned or presumed by the populists), regardless of the formal
character of the agency. Judicial activism was one obvious result;
though "elitist" in a superficial sense, it is in a deeper sense quite
populist. There also was the populist complaint against bureaueracy-not
that it was too precise or overbearing, but that it "stood
in the way." 1
A third target of the educated populists has been private property. Although they have asserted the right to "live as you please,"
not so much for the pleasure of it as because each must do his
own thing (thereby asserting a general right of privacy, again not
so much to have fun in the dark as to defy decorum in public),
they have also mounted an attack on private property. That their
claims to privacy do not also support claims to private property
makes sense only if one sees private property as the chief formality, after the constitution, of liberal society.
Property is a legal convention (based on a natural right, some
would say) that establishes certain formalities of acquisition, maintenanee, and transfer. When these are satisfied, in this view, the
property is yours to use as you please; thus, the form of property
is prescribed, the end is left open. Property, defined by John Locke
as that whieh cannot be taken from you without your eonsent,
thereby constitutes a barrier between people. Property epitomizes
the nature of law in liberal society; if you stay within certain
bounds, you can do as you like. One thing you may do is to set
up a corporation, a legal or formal person that creates a distance
between your moral and legal duties, and also between yourself
and others (since your duties to them are reduced to legal correctness. )
For the populists, such freedom is purely formal, that is, meaningless in itself. For them, its meaning depends on actually having
property to use. Since the meaning of the right to private property is defined in terms of its actual effect, the existence of the
I Because
of the political
defeat suffered by this populism
in 1980, one is
tempted
to speak of it in the past tense; but this would be too hasty. Some
of the victors of 1980, particularly
the New Right, have picked
up and perfected
the techniques
of populism,
and the techniques
of populism,
not its
left or right coloration,
are its essence.
126
THE
PUBLIC
INTEREST
right is also judged by its effect. Moreover, one does not have a
right unless it can be exercised; and rights are not equal unless
they are exercised equally. So government
can and should intervene to ensure rights, not as equal opportunities,
but rather as
equal in exercise. While it may not be necessary to abolish private
property, in the populists' view, its use by private individuals and
corporations must be examined from the standpoint of the public
interest. This raises the question of whether any formal statement of
private property is legitimate. In truth, the populists not only put
human rights over property rights, they hardly speak of property
rights. To hold property is, in their view, more a liability than an
opportunity:
You make yourself a natural target of litigation.
The distinction between formal right and its informal exercise
has been most obviously dissolved in programs of afllrmative action, where the change from "equality of opportunity"
to "equality
of result" was explicit and deliberate.
More important yet is reinterpretation
of voting rights in recent cases, and in the renewal
of the Voting Rights Act in 1982, which seem to establish a governmental guarantee of minority representation.
In this trend of intervention, the government no longer confines itself to guaranteeing
the right to vote, but now looks to see how that right is exercised,
in case voting by one method or another should deprive a minority of its "fair" share of representation-as
calculated without reference to elections. The most fundamental
right in liberal society,
the right to consent to government, has become open to inspection
by the very government that claims consent, in order to insure that
the right to vote is the right to an effective vote. This challenge
to elected governments
is derived from earlier reapportionment
cases concerning the "one person, one vote" principle, by which
the test of legitimacy was whether each individual's vote had the
same power as everyone else's. The right to vote, in this populist
view, is the right to a vote that is equal in effect. One wonders:
What of the right of free speech, then? Is it merely the right to
whistle in the wind, or is it not the right to be listened to, equally
with others, hence the "right of reply" and to be replied to? And
is the right to life-in the sense of "life, liberty, and the pursuit of
happiness"-not
then an equal right to an effective, fulfilling life?
127
combination
of
be remarkable
to the idea
being,"
which
of self-expression,
and
promised
common
effortless
to both
not at all fixed. Men do not have the defined self that is required
for the liberal right of self-preservation:
By nature we lack any
"'sense of identity," and so we must seek it out in our experienee
of life (or in magazines).
Lacking definition, the self must assert
itself (for assertion is the effectual truth of "expression"),
and in
its self-assertion
it has no reason to respect the self-assertion
of
others. Others would deserve respect if they had rights, but rights
attach only to selves that can be defined. If
no definition even in its potentiality, then the
it becomes by its act of assertion. Its "right"
as it can exercise; the distinction between a
is overridden.
From the lack of a fixed "self," in the liberal sense of "'self-preservation" or "self-government,"
it follows that liberal "equality of
opportunity"
is meaningless. An authentic equality of opportunity
assumes the possibility of a fresh start, regardless of one's past history. If the artificial restraints of social convention are removed,
it is supposed, a person's natural talents will be permitted to flourish, and each will progress as far as his nature and effort allow.
But if there is no fixed self, then one has no nature, no "Godgiven talent," to resort to; and the self must be what it has been
and what it might become. In effeet, the self must be what it has
been, if one's will is weak, or the self will be what it can become
if one's will is strong.
The
strength
of one's expression
or asser-
12S
THE
_UBLIC
INTEREST
and
the
THE
FORMS
AND
FORMALITIES
OF
LIBERTY
129
stitutionalism
are in agreement. Yet between these
constitutionalism-those
of Aristotle and Locke-there
two kinds of
is a critical
democracy,
and
if it
130
man-made
constitutions
are conceived
man-made
to secure natural
of the "natural"
rights. The
within
liberal
constitutionalism.
"Life,
131
Liberty
and Estate."
What
justifies this enlarged sense? Property in its ordinary sense supplies the needs of life, but in its enlarged sense it protects both
liberty and life. If your property
is secure, your liberty is secure; and if your liberty is secure, your life is secure. It is not
that property in the narrow sense is more valuable than liberty
and life. Rather, property is a convention or form enlarged out of
its matter so that it becomes an end in itself. We know then that if
anyone's property is insecure, everyone's is insecure. Property as a
whole includes all members of society as well as all the objects of
their desires. It includes them formally or conventionally,
not only
because property is defined by laws in civil society, but also because property is considered a formality without regard to whether
it is equally
from having
and life are good without regard to how they are used, all profit
equally. The equality of the property right is shown in the connection between property and consent. Since property is that which
cannot be taken from you without your consent (that is, the consent of a majority), the right to property becomes the visible, formal protection of the right to consent. This is the connection, so
often hastily dismissed
rights.
today, between
property
rights
whether
property
and human
property rights
rights are exer-