If Eliminating Fear of the State Is a Liberal Country's First Job, America Is in Trouble

The rise of Trump would have spooked philosopher Judith Shklar who fled European fascism and communism

Different theories of liberalism imply different metrics for judging the health of a liberal polity depending on what each considers the polity’s central goal. For followers of John Locke, the 17th century English philosopher born at the height of Europe’s religious wars, the barometer would be peace and prosperity. For adherents of Kantianism, the system devised by German philosopher Immanuel Kant, a Lutheran by birth, the yardstick might be the voluntary commitment to morality among individuals left alone by the state to exercise their free will. And for fans of John Stuart Mill, the British philosopher who was born two years after Kant died in 1804, the test perhaps might be a society in which individuals follow their bliss given that Mill regarded self-actualization as the ultimate good.

But for Judith Shklar, peaceful prosperity, morality and self-actualization were all important but secondary concerns. A Jewish émigré who fled Latvia during World War II and became one of the most prominent political theorists of the 20th century, her central goal was much more modest. The health of a liberal society, she argued, could be measured by the steps it was—or wasn’t—taking to eliminate cruelty— both of the state against the people and the people against each other.

And by her metric, liberalism is in serious trouble in the U.S. given the rising acceptance of cruelty as a tool of governance—definitely since the Trump years, but even before.

In 1989, three years before her death, Shklar wrote “The Liberalism of Fear,” a relatively short but bold essay that caused an instant stir in academia, thanks to its trenchant criticism of many vaunted liberal philosophers—both contemporary (John Rawls, Isaiah Berlin, a fellow Latvian) and past (Locke, Kant, Mill, Thomas Jefferson). In it, Shklar accepts that liberalism’s “overriding aim” is  “to secure the political conditions that are necessary for the exercise of personal freedom.” “Every adult should be able to make as many effective decisions without fear or favor about as many aspects of his or her life as is compatible with the like freedom of every other adult,” she agreed.

But freedom was not an end in itself for her. It was a means for creating a cruelty-free private sphere that was out of the reach of public authorities. She was a staunch defender of property rights, but not on the Lockean labor theory of value grounds (you own your body and therefore everything you mix your labor in is yours). Rather these rights were a way to “divide social power” and ensure that there is a realm of independence for individuals that is largely off-limits to the “long hand of government.”

Her political project was the elimination of the “systematic fear…aroused by the expectation of institutionalized cruelty.” If liberalism were to mean anything, she believed, it had to ban “political practices and prescriptions” that invoke fear as a method of control. Indeed, to the extent liberal polities are liberal, they would put the “the agents of coercion”—i.e. the state—“on the defensive when punishing individuals” and ensure that any punishment was both “proportionate” and “necessary.” “What is to be feared is every extra-legal, secret, and unauthorized act by public agents or their deputies,” she insisted. Constraining the hard power of the state by fixed rules and institutions so that they could never get away with arbitrary cruelty was the essence of the rule of law for her.

She understood that the fear of organized cruelty isn’t evenly distributed in society. It grows in direct proportion to one’s distance from the halls of power. Still, it is so basic, so instinctive, and so universal, she believed that it —and it alone—offered the moral glue to unite everyone, something other liberal theories of rights failed to do. Yet, that was not the most distinctive aspect of her theory, in her mind. Rather, her theory’s uniqueness lay in its utter non-utopianism, its rejection of a liberalism based on any hope for any particular happy outcome—any notion of intellectual, moral or philosophical progress. “No form of liberalism has any business telling the citizenry to pursue happiness or even define the wholly elusive condition,” she insisted.

It’s not that she considered such progress undesirable—or doubted that liberalism facilitated it. She merely insisted that the case for liberalism should not be grounded in these particular consequentialist concerns. That’s because there can be periods when such progress can co-exist with massive injustice and cruelty and focusing on it can blind one to eliminating these evils while focusing on them can equip one with an early warning system to detect when liberalism starts going off the rails. Instead of national economic freedom indexes (or even happiness indexes as in Bhutan), she would have preferred cruelty indexes.

As a refugee from a place sitting at the fault line between German fascism and Russian communism, she wanted to ground her liberalism in the concrete memory of history’s horrors. Society should aim not at some glorious “summum bonum” but simply at the avoidance of “summum malum”: “the deliberate infliction of physical, and secondarily emotional, pain upon a weaker person or group by stronger ones in order to achieve some end, tangible or intangible, of the latter.” So the measure of liberal progress for her was very simply the systematic elimination of such pain. Given this limited goal, she didn’t particularly care for JFK’s use of the technocratic state for social progress.

Under her scheme, slavery and Jim Crow—two institutions that depended on state-sanctioned cruelty to sustain themselves—were obviously a huge blot on American liberalism that cast doubt on its commitment to liberal principles. But no doubt she would have celebrated America’s success in rolling back oppressive practices that kept women in the kitchen, gays in the closet and minority religions on the defensive.

She knew, however, that the elimination of cruelty wouldn’t follow a straight, unbroken line. Old forms of cruelty could return and new ones arise. In her essay, she expressed dismay that World War I had seen the return of torture on a “colossal scale” as a tool of the “national warfare state” after experiencing a significant decline in the years prior. And had she lived through 9/11, she would have been distressed at the Bush administration’s thumbing of its nose at international protocols banning torture and, instead, making torture and “rendition” a standard terrorism-fighting tool. Shklar wasn’t a naïve thinker and did not rule out the need for occasional state cruelty to prevent even “greater cruelties”—for example, in a ticking time-bomb scenario. But the state needed to deploy cruel methods only occasionally, apologetically, cautiously, defensively, and with proper justification in accordance with the rule of law and a great deal of public oversight. She would have been horrified by the practice of rendition under which the Bush administration handed over suspected foreign terrorists to other countries for interrogation because their laws against torture were laxer and permitted cruelties America didn’t. John Yoo’s 2002 torture memos all but abandoning America’s commitment to the Geneva Convention banning torture against enemy soldiers and green lighting “enhanced interrogation techniques” such as waterboarding and confining suspects in coffins with insects for hours would have appalled her. And she would have been besides herself that after campaigning against the Iraq war, President Barack Obama didn’t fully dismantle the torture state and instead developed a secret kill list that gave him unilateral and virtually unchecked power to kill any enemy combatant on foreign soil, including American citizens.

But of course none of this could have prepared her for the cruelty of the Trump era. A few months into Donald Trump’s first campaign, he declared he would require the military to kill entire families of terror suspects—in effect, commit war crimes—putting America’s torture program on steroids. His refusal to even soft-peddle his methods wasn’t a sign of honesty but a lack of conscience. Quite often his cruelty was gratuitous and unprovoked. He didn’t merely criticize his opponents, observed Peter Wehner in The Atlantic, he took “a depraved delight in inflicting pain on others.” One of the standout awful moments of his campaign was his mockery on stage of a disabled New York Times reporter by imitating his spastic mannerisms to the raucous laughter of the MAGA throngs. Even so, no one would have anticipated that Trump would go so far as to turn a murderous mob on a loyal vice president just because he insisted on doing his constitutional duty and refused to go along with Trump’s demands to overturn the election.

But no account of the Trump administration’s cruelty can be complete without a mention of its border and immigration policies. Trump made his most cruel aide, Steve Miller, his de facto immigration czar. Although partly Jewish and the great grandson of refugees fleeing persecution in Antopol, Belarus, Miller nevertheless gleefully declared that he’d be “happy if not a single refugee foot ever touched American soil again.” He single-handedly gutted America’s refugee program and that too during the height of the Syrian refugee crisis when it needed to be expanded. He was also the brains behind Trump’s zero tolerance border policies under which border authorities snatched children from asylum seeking moms, often throwing them in detention centers in totally different cities. The best estimates suggest that over 4,000 kids were separated from their parents, some of them infants and toddlers. As of last November, some 1,703 had yet to be reunited with their families.  

That Trump’s cruel personality and crueler policies are not an impediment—and in fact might be an asset—for a 2024 presidential run suggests that American liberalism is failing Shklar’s litmus test. A polity in which liberalism has become truly entrenched would recoil at a man with so little humanity—not entrust him with the highest office in the country, not just once but perhaps twice.

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