From a realist (ala John Mearsheimer perspective), the primary purpose of a nation-state is to survive. This sounds ends-oriented rather than process-oriented.
From the perspective of Jewish law, a Jew may violate any Jewish law but three to survive. This sounds ends-oriented.
The more nationalist your country, the more ends-oriented it will be. The more liberal your country, the more diverse your country, the more process-oriented it will be.
In Judaism, there is a dispute about the possible existence of extra-halachic (Jewish law) morality. Is there a plane of morality above Jewish law or is right and wrong simply determined by observance of God’s law?
Is there a right – left difference with regard to means and ends? Or is this more of a mainstream vs extremist difference where the mainstreamers are more process-oriented and the extremists more ends-oriented?
The chant “No justice, no peace” is not process-oriented. It is ends-oriented. Unless you give us the ends we want, we won’t allow you peace. Black Lives Matter, Antifa, Oath Keepers and Proud Boys don’t seem terribly hamstrung by concerns about process.
Liberalism (as opposed to Leftism) seems to put process as the highest value. For example, the 2020 election was valid from a liberal perspective because it followed legal processes and all challenges were rejected by the system (including the courts). On the other hand, conservatives see a corrupt process to change voting laws by fiat (people like Mark Zuckerberg lavishly funding attempts to make voting easier for Democratic voters) carried out by liberals who control every major institution in this country (with the partial exception of the military and business) and these changes were generally not voted on by legislatures.
A philosopher tells me:
There is a thing called procedural liberalism, which was a Left thing in California, when the Left controlled the courts. But usually it is thought of differently in Michael Oakeshott, for example, the distinction is between ends-oriented and rules-oriented regimes. Same with Max Weber, where it is procedural vs substantive justice, which is associated with socialism. And Common Good people nowadays are on the Left — but not necessarily so in the past.
I think the constitution and constitutionalism in the US has generally focused on the idea that we are a rules-based order, and against the idea of a common good, which is usually used to attack constitutionalism. So, yes, to provide for ourselves vs common good provision is a rules-based model.
It is interesting that the German Basic law which is much more collectivist assigns legal status to political parties to “participate in the formation of the will of the people” (Article 21(1)). That seems pretty substantive rather than procedural.
Common good thinking is a Catholic thing. Adrian Vermuele is hot for administrative discretion.
Are conservatives more likely to argue that sometimes the ends justify the means?
Populism is not process-oriented, right? The Philosopher corrects me: “In the original forms it was process oriented and constitutionalist, but there was a difference between southern populists, who were constitutionalists, and northern ones, who were less so. The Schmittians in the US, at Harvard, ridiculed the naive faith in the constitution of conservatism in favor of discretionary power by bureaucrats.”
Trumpism is not process-focused. Michael Anton is not process-focused.
The more individualist the society, the more process-oriented it must be. The more fractured the society, the more process-focused it must be to function.
Normally in American history, the argument that the system was corrupt came from the left, and if the system is corrupt, then you have to aim for higher changes than process. Now the argument that the system is corrupt seems to come primarily from the right.
The more strongly you argue that there’s something rotten in the system, the less likely you are to place process as the highest good.
What is the purpose of the United States from a liberal perspective? To decrease oppression and ignorance and to allow for ever more human flourishing by following the processes established by our leading institutions (courts, professions, bureaucracies, education, media).
Does America have a greater purpose than just following process?
The Preamble to the United States Constitution states: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
Usually following legal processes will be the most effective way to provide for the common defense and to promote the general welfare, but not always, and I think conservatives and radicals of all types are more at ease with the need for states of exception.
I wonder if the idea that the United States is here primarily to provide for ourselves and for our posterity is more of a conservative thing? For conservatives, America is not an idea nor an experiment. It is our way of protecting ourselves and our posterity from a dangerous world. Our safety is more important than following procedures. The Constitution is not a death warrant. According to Wikipedia:
[Harvard law professor Adrian] Vermuele’s concept of common-good constitutionalism is: based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate. … This approach should take as its starting point substantive moral principles that conduce to the common good, principles that officials (including, but by no means limited to, judges) should read into the majestic generalities and ambiguities of the written Constitution. These principles include respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to “legislate morality –indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority. Such principles promote the common good and make for a just and well-ordered society.
Vermeule specified that common-good constitutionalism is “not tethered to particular written instruments of civil law or the will of the legislators who created them.” However, the determination of the common good made by the legislators is instrumental insofar as it embodies the background principles of the natural law.[14] In other words, while the legislative intent is not per se controlling, positive law always seeks to put into effect natural law principles, and the intended principles behind the positive law are controlling. In that vein, he also says that “officials (including, but by no means limited to, judges)” will need “a candid willingness to ‘legislate morality'” in order to create a “just and well-ordered society.”
The main aim of common-good constitutionalism is certainly not to maximize individual autonomy or to minimize the abuse of power (an incoherent goal in any event), but instead to ensure that the ruler has the power needed to rule well … Just authority in rulers can be exercised for the good of subjects, if necessary even against the subjects’ own perceptions of what is best for them — perceptions that may change over time anyway, as the law teaches, habituates, and re-forms them. Subjects will come to thank the ruler whose legal strictures, possibly experienced at first as coercive, encourage subjects to form more authentic desires for the individual and common goods, better habits, and beliefs that better track and promote communal well-being.
It seems like there are many things more important to Vermeule than process.
I love my family, my friends and my community. There are a lot of things more important to me than process. The Enemy is he who threatens the people I love.
In his great book Conservative Claims of Cultural Oppression: The Nature and Origins of Conservaphobia, Rony Guldmann writes:
* Conservatives are intuiting precisely this molding when they claim cultural oppression. Hence their powerful sense that there is something unnatural or inauthentic about liberalism. This conviction may not always be communicated persuasively, but it nonetheless tracks the historical process by which the modern liberal identity was actually shaped. Today’s “cultural wars,” I argue, are most profoundly viewed as a contemporary recapitulation of the struggles by which the modern first emerged out of the pre-modern, a clash between elites trying to inculcate the disciplines and repressions of the modern identity and the unwashed masses trying to resist this extirpation of their traditional, often disordered folkways—a role now filled by “traditional American values.” If conservatives can feel culturally oppressed by power-hungry, control-obsessed liberals where the latter see only right-wing rhetoric, the reason is that, having less fully internalized the modern ideal of the self, conservatives are more viscerally attuned to its cultural contingency and more averse to the particular forms of disciplined, disengaged agency into which liberals have been more successfully socialized. Contemporary liberalism represents the apex of the disciplinary impulses that spawned modernity. It is the latest and most extreme outgrowth of the secularization of religious asceticism and the democratization of courtly sociability, the now forgotten pre-Enlightenment roots of progressive sensibilities. What liberals celebrate as their superior “civility” is a modernized and politicized variant of these supposedly superseded impulses. And it is these impulses that fuel liberals’ reflexive aversion to conservativism as a kind of rude and crude animality, a sinful indiscipline and affront to the higher refinement of liberal sensibilities.
* Liberals’ position at the vanguard of the modern West’s “civilizing” process necessarily thrusts them into the role of disciplinarians, in reaction to which conservatives have cultivated their own special kind of emancipationist ethos. Conservatives could have absorbed the moral and intellectual reflexes of the Left, developing a post-modernism and multiculturalism of the Right, because they are the targets of the same “civilizing” norms which the Left protests have been imperiously foisted upon non-Western peoples by a condescending European colonialism. Hence the “very focused form of snobbery” which the National Review discerns in the Left and its kulturkampf against gun enthusiasts.
* For the “adversarial attitudes” held by most intellectuals toward the beliefs and traditions of their fellow citizens are none other than the buffered distance, none other than the “historicized self-awareness” that posits itself in opposition to the “less fortunate peoples” of a barbarian past. If public policymaking cannot be permitted to fall into the hands of the American people, this is because the American people refuse the buffered distance, because they are too mired in their unreflective folkways and too indulgent of their embodied religious feelings to accede to the civilizing process that liberals would impose upon them.
The Stanford Encyclopedia of Philosophy contains this entry on Carl Schmitt:
If all those who live together as legally recognized citizens of a constituted democratic state happen to distinguish between friend and enemy in exactly the same way, the equal participation of all citizens in the political process and the electoral appointment of officials would indeed be a requirement of democratic political justice. It would be possible, moreover, to identify the outcomes of the political process with the will of the people, and to consider them democratically legitimate, even if some citizens find themselves in a temporary minority. But the reason why it has become possible to identify the outcomes of democratic procedure with the will of the people is not to be sought in inherent virtues of democratic procedure itself. Rather, the identification is possible only in virtue of the prior identity of all citizens as members of a group constituted by a shared friend-enemy distinction (CPD 10–14; LL 27–28). If, contrary to our initial assumption, those who live together as legally recognized citizens of a constituted democratic state do not share a political identity in Schmitt’s sense, the identity of the rulers with all the ruled will no longer obtain, and the constituted democratic state will no longer be truly democratic. The rule of the majority will degenerate into an illegitimate form of indirect rule of one social faction over another (HV 73–91; LL 17–36; L 65–77). Sovereign dictatorship, then, is still necessary to create the substantive equality that grounds the legitimate operation of constituted, rule-governed democratic politics.
Stephen Turner writes in his 2015 book The Politics of Expertise:
* Science as a whole rests on a vast amount of what is called output legitimacy as distinct from process legitimacy. Science is legitimated by the fact that it allows us to produce valuable results. Democracy rests on process legitimacy; the question of legitimacy is whether the rules of the process were followed.
* …much of what we “know” we have accepted because we think there is a system that assures that what we take to be fact is vetted or filtered through some sort of institutional process that minimizes error or corrects for it.
* Just as science operates with an idea of truth that can become discrepant from the products of its institutional processes, so can political or religious communities face conflicts between their “truths” and the truths produced by their institutional processes…
Carl Schmitt’s Wikipedia entry states:
He saw the office of the president as a comparatively effective element, because of the power granted to the president to declare a state of exception (Ausnahmezustand). This power, which Schmitt discussed and implicitly praised as dictatorial,[27] was more in line with the underlying mentality of executive power than the comparatively slow and ineffective processes of legislative power reached through parliamentary discussion and compromise.
Schmitt was at pains to remove what he saw as a taboo surrounding the concept of “dictatorship” and to show that the concept is implicit whenever power is wielded by means other than the slow processes of parliamentary politics and the bureaucracy:
If the constitution of a state is democratic, then every exceptional negation of democratic principles, every exercise of state power independent of the approval of the majority, can be called dictatorship.[35]
For Schmitt, every government capable of decisive action must include a dictatorial element within its constitution.
Two famous law professors write about America’s constitutional dictatorship:
…emergency power, the ability to act decisively in a crisis, is not actually concentrated in the person of the President. Rather, it is distributed among different executive and national security agencies, and much of what the government does in emergency situations is done in secret. As a result, there is a long-term trend of disconnection between the plebiscitarian presidency, with its cult of personality and identification of value and action with a single individual, and the actual practices of constitutional dictatorship, which distribute decisionmaking among many comparatively faceless and anonymous institutions and individuals. The result of these two opposed elements of the modern American presidency is the schizophrenic nature of American constitutional dictatorship. Distributed expertise and secrecy on the inside combine with a plebiscitarian cult of personality on the outside. As a result, the outward manifestation of American power increasingly has little to do with the actual processes of government.
