Ever since the debate between Patrick Devlin and John Stuart Mill in the nineteenth century, conservatives and liberals have been arguing over the proper role of law in society. Devlin thought that the function of law is to uphold the moral values of society. In contrast, Mill thought that using the law to enforce the values of society stifles the development of free individuality, which is the engine of human progress. For Mill, the only function of law is to prevent harm to others. Individuals should have freedom of thought, speech, and conscience, so they may conduct their private lives as they see fit, without interference from the state. This is not to deny that there are private vices such as drunkenness, adultery, and prostitution. However, the state has a right to interfere only when these activities harm the interests of others—such as drinking and driving or luring minors into prostitution. Where consenting adults are concerned, the state has no business in the bedrooms of the nation. The debate between Devlin and Mill is still at the heart of the culture wars of our time—but something has changed. Modern liberalism is mimicking—not only conservatism—but also Christianity.
What sets Christianity apart from Judaism and Islam is that it is not satisfied with conformity of conduct with God’s law. It insists that believers conform to the law internally in their hearts. When the Christians re-conquered Spain in 1492, Jews had to convert to Christianity or leave the Iberian Peninsula where they had lived in peace for generations. Those who did not wish to leave converted, but the new Christians, or conversos, were regarded with so much suspicion that the Spanish Inquisition was established to determine if some of them were Jewish at heart. Even though they were baptized, went to Church, took Holy Communion, and did all the things good Christians are supposed to do, they were accused of Judaizing, or being secretly Jewish, and brought before the Inquisition with tragic consequences.
When Pope Benedict XVI tried to prohibit gays from entering the priesthood in 2005, he was not outlawing homosexual acts, which are outlawed along with all other sexual acts for a celibate priesthood. His edict was intended to prevent men with a homosexual “orientation” from entering the priesthood. It was directed at the homosexual disposition or state of mind.
In contrast to Christianity, Judaism and Islam are satisfied with external conformity to the laws of God, and do not pretend to judge the heart, since only God can do so. Conservatism is rooted in Judaism and Islam. Like Jews and Muslims, conservatives, such as Devlin, believe that the function of law is to enforce external conformity to the moral values of society—even in the private realm. As a result, they support laws against adultery, sodomy, homosexuality, and abortion. These are notoriously difficult laws to enforce, since the conduct in question takes place in the private realm. Nevertheless, conservatives believe, like Devlin, that keeping these laws on the books will “drive them underground.” In my view, this is not only an invitation to hypocrisy but also a boon to blackmailers and butchers (posing as abortion providers).
So, it is not surprising that liberals rejected the whole enterprise of using law to enforce private morality. Thanks to the historical triumph of liberalism in the West, a profusion of victimless crimes have been removed from the law. Unhappily, American liberals are not satisfied with their legal triumphs; they long for communion with the like-minded. For example, the Democratic Party wonders if it should admit those who do not approve of abortion and believe that it is morally wrong. If it is to have any liberal credentials, the Democratic Party should welcome pro-life people—as long as they allow others to live in accordance with their conscience and do not insist on attaching legal sanctions to a private matter.
Now that liberalism is the dominant creed, liberal society is no longer willing to tolerate illiberal ideas or sentiments. It apes Christianity by insisting that fellow citizens be liberal at heart. American campuses used to be bastions of liberal freedom. But now they are overflowing with moral outrage. Students demand “safe zones” where they will not encounter dissident opinions that will offend or scandalize them. They have replaced the liberal conception of harm with a conservative conception of harm as an affront to their liberal sensibilities. Meanwhile, social media is filled with cries of “shame, shame, shame!” This is the traditional means by which society has enforced conformity, not only of conduct but also of ideas, feelings, and attitudes.
Unhappily, modern liberalism favors the closed and clannish culture of shame, which liberalism was intended to transcend. In contrast, a genuinely liberal disposition requires indifference to the opinions of others; it demands the courage of one’s convictions and an unflappable disregard for social disapproval—not the yearning for social approbation. Henry David Thoreau and Ralph Waldo Emerson represent this liberal individualism. They aspired to be true to themselves—to live by their own lights and listen to their conscience. So understood, liberalism is not for sissies because it involves standing one’s ground against the disapproval of society.
Ironically, the transgressive instincts that have always been the bedrock of liberalism are now rekindled on behalf of the critics of the new liberalism. Instead of challenging received liberal orthodoxy, instead of pointing out liberal hypocrisy, conservatism has become a garish display of boorishness. Donald Trump represents the vehement explosion of this transgressiveness. In the face of this challenge, liberalism must resist the temptation to be sanctimonious. Instead, it should acknowledge the crudeness as its own offspring—and deal with it appropriately by distinguishing between free individuality on one hand and incivility and public mischief on the other.