Nomocratic Pluralism: Plural Values, Negative Liberty, and the Rule of Law
by Kenneth B. McIntyre
Palgrave Macmillan, 2021; xii + 214 pp.
Kenneth McIntyre, a political theorist and historian who teaches at Sam Houston State University, addresses one of the most difficult questions in political philosophy in his excellent book. It is a question that should interest everyone who wants a free society. McIntyre sets forward his answer with an immense command of the scholarly literature and makes many acute remarks along the way. In what follows, I’ll comment on a few of the issues he discusses.
McIntyre’s basic argument is this. People have different values, and there is no procedure rationally compelling to everybody by which to show that there is one set of values that is best. It isn’t that values are just subjective preferences: some values really are objectively good and are better than others. But this fact doesn’t suffice to enable values to be arranged in a hierarchy. Many values are incommensurable. Because people are attracted to different values, they will pursue different projects; and, so long as they do not try to coerce others, they should be free to do so. McIntyre, following Isaiah Berlin, calls this the presumption of negative liberty; crudely put, “You leave me alone and I’ll leave you alone.”
By no means does this presumption imply approval of other people’s values, but unless it interferes with the freedom of others, people’s pursuit of their projects should be tolerated. As you would expect, McIntyre sees only a very limited role for the state. It should provide a framework of rules within which people can peacefully interact as they carry out these projects. Private property and a free market are essential. The state should have no goals of its own; it should be “nomocratic” rather than “teleocratic.” Here McIntyre has been influenced by Friedrich Hayek and Michael Oakeshott.
McIntyre’s basic argument has many appealing features and ends up in the right place, but I don’t think he gives a fully adequate defense of the priority of negative liberty. The problem is apparent in his discussion of the philosopher Thomas Nagel, whom he calls an “egalitarian pluralist.” According to Nagel, people must balance their personal, or “agent-centered,” values against what he calls the “impersonal standpoint.” From this standpoint, you realize that your own life is no more valuable than that of others. McIntyre says about this:
Nagel writes that “the basic insight that appears from the impersonal standpoint is that everyone’s life matters, and no one is more important than anyone else.” However, it is not at all obvious that his egalitarian conclusion necessarily follows from a recognition that others have their own beliefs, values, and commitments, and that some of these are common to all (or most) human beings. Instead, one might just as reasonably say “I recognize that others have commitments in a similar way to the way that I do, but mine are more important because they are mine; I expect other people to feel the same way; because of this I am happy to engage in reciprocal non-interference, as I expect no assistance from them and they shouldn’t expect any from me.” Nagel’s egalitarian conclusions, then, are questionable from early on in his argument.
I think that this is mistaken in that from the impersonal standpoint, everyone’s life matters equally; it isn’t only that you acknowledge that each person’s beliefs, values, and commitments matter to him more than those of others, though this is likely true (if it is, that is an objective truth about the personal point of view, not a characterization of the impersonal standpoint). If the question is why one should acknowledge the impersonal standpoint, the answer would be that it is an evident fact about morality disclosed by reflection and that if one denies its truth, it would be difficult to maintain a belief in moral objectivity, which McIntyre wants to do.
In brief, Nagel would probably respond that McIntyre is wrongly taking the impersonal standpoint to be purely descriptive rather than evaluative, and this is the central issue. McIntyre also misses that the question about the distributional consequences of the impersonal standpoint involves further reasoning. We can better defend the free market by arguing that the impersonal standpoint doesn’t mandate such redistribution rather than by rejecting the standpoint altogether, as McIntyre does. If we procced in his way, there is a danger that negative liberty may be deemed just one incommensurable value among others. If so, its protection might not be given the unconditional priority he thinks it should. To his credit, McIntyre is aware of this problem.
A better approach would be to take the “metanormative framework” of Douglas Rasmussen and Douglas Den Uyl as a proxy for Nagel’s “impersonal standpoint.” In Rasmussen and Den Uyl’s Aristotelian approach to ethics, each person ought to fulfill his own nature, but do so within a neutral structure of libertarian law. Like McIntyre, they take each person’s pursuit of the good to be agent relative, but they avoid the trap of taking the political recognition of liberty to be one incommensurable value among others. McIntyre cites their work, and it fits in well with his own use of Aristotle in his discussion of practical reason. McIntyre’s discussion of the nomocratic state, which provides a legal structure within which people can work on their individual projects, also has a striking affinity with Robert Nozick’s discussion of the minimal state as a framework for utopia in the third part of Anarchy, State, and Utopia.
In the course of defending his pluralist view, McIntyre brilliantly criticizes a competing variety of pluralism which emphasizes autonomy rather than negative liberty. Proponents of this position, such as the Oxford legal philosopher Joseph Raz, stress “autonomy,” by which they mean a person’s self-mastery (i.e., the control of his life by reason). Choices that do not meet the conditions for autonomous choice that these philosophers set forward are not protected from state regulation under autonomous pluralism. For example, people in closed religious communities who do not provide an education in which their children are made aware of other perspectives can be forced by the state to do so. As McIntyre notes, this reliance on what people “should” rationally choose rather than what they do choose is a paternalistic interference with individual freedom.
I would like to conclude with my favorite footnote in the book: “John Gray changes theoretical commitments as often as Larry King changes wives.” I urge everyone interested in political philosophy to read McIntyre’s thoughtful book.