TCS Daily

Liberals, Conservatives, and Tradition

By Keith Burgess-Jackson - March 22, 2004 12:00 AM

Whenever I say that conservatism respects and values tradition, I hear the reply -- it's inevitable -- that slavery (or some other odious institution) is traditional. The implication is that conservatives, as such, respect and value slavery and other odious institutions -- or would, if they were consistent.

This is a slander akin to saying that liberals, as such, respect and value totalitarian purges. It also deeply misunderstands conservatism. Conservatism is not committed to the proposition that every tradition is respectable and valuable, and therefore worth conserving. It is committed to a presumption in favor of tradition. Presumptions by their nature are rebuttable. Law is filled with presumptions. There is a legal presumption that the husband of a woman is the father of her children. There is a legal presumption that a person who has been missing for seven years is dead. There is a legal presumption that people accused of crimes are innocent.

To a conservative, traditions are innocent until proved guilty. Liberals should be able to understand this concept. Why do we presume innocence? Imagine how things would be without such a presumption. The burden of proof (production, persuasion) would not be on the prosecutor, as it is now. It would be borne equally by the prosecution and the defense. Think of a presumption as putting something on one side of a scale. Unless something as weighty (or weightier) is put on the other side, the presumption prevails.

Joel Feinberg, a philosopher at The University of Arizona, has defended what he calls a presumption in favor of liberty. Liberty (understood as the absence of constraint) is the default position. Unless there are good reasons to limit individual liberty, such as prevention of harm to others or prevention of serious, unavoidable offense to others, individuals should be free of coercion by the state. Not all reasons are good reasons. Feinberg argues that it is never a good reason to limit liberty that the act being constrained is intrinsically immoral or that it threatens harm to the agent. In other words, Feinberg rejects legal moralism and legal paternalism.

Feinberg is a liberal, not an anarchist. He believes that the presumption in favor of liberty can be -- and sometimes is -- rebutted. (Lawyers prefer "rebutted"; philosophers often say "overridden.") But if liberals can endorse a presumption in favor of liberty, why can't a conservative endorse a presumption in favor of tradition? The logic is the same. And just as it's no criticism of Feinberg's liberalism to say that sometimes the presumption in favor of liberty is rebutted, it's no criticism of conservatism to say that sometimes the presumption in favor of tradition is rebutted. In the case of human chattel slavery, the presumption is clearly overridden.

Feinberg and other liberals have been hard at work elaborating and defending what Feinberg calls "liberty-limiting principles." This is impressive work. See, for example, Feinberg's The Moral Limits of the Criminal Law, 4 vols. (New York: Oxford University Press, 1984-1988). What conservatives need to do is elaborate and defend tradition-disregarding or tradition-discounting principles. That is to say, they need to distinguish those traditions that are worth conserving (such as the monogamous heterosexual family) from those that are not (such as slavery).

Another dimension of presumptions is that they have weight. The presumption of innocence, most of us agree, is weighty. It is said that it's better for ten guilty persons to go free than for one innocent person to be convicted and punished. Suppose it were five rather than ten. This would suggest that individual liberty is half as valuable as in the first formulation. The prosecutor must prove guilt not by a preponderance of the evidence (as in civil trials), or even by clear and convincing evidence (as in certain civil trials), but beyond a reasonable doubt. It always makes sense to ask, of a presumption, how strong it is. Some are strong; some are weak. It's a matter of degree.

Feinberg never tells us how strong (weighty) his presumption in favor of liberty is. This is not because he thinks presumptions lack weight, but because he's more interested in the kinds of reason that rebut his presumption. Conservatives can take the same tack. They can ask what kinds of reason rebut the presumption in favor of tradition. If an institution or practice degrades human personality, for example, it might be disregarded or discounted. This would handle slavery, lynching, sexual objectification of women, and other noxious practices.

As readers of my TCS columns and AnalPhilosopher blog know, I was for many years a liberal but am now a conservative. I like to think that I know both of these political philosophies inside and out -- unlike those individuals who have been liberal but not conservative or conservative but not liberal. (John Stuart Mill said that the only proper judges of the quality of two pleasures are those who have experienced both.) The best way to understand the difference between these philosophies, in my view, is in terms of their attitudes toward tradition.

Liberals assign little or no weight to tradition. That X is traditional is, to a liberal, little or no reason for X to be conserved (depending on whether there is a weak presumption or no presumption at all). Liberals insist on evaluating every institution, practice, policy, principle, and action on its merits, without attending to how it came about or how entrenched it is. Liberals view the past with suspicion. It is, they believe, a record of injustice and indifference to misfortune. To endorse a presumption in favor of tradition is, therefore, to endorse a presumption in favor of injustice and indifference. Better to think things through from scratch, they say.

Conservatives, as I said at the outset, respect and value tradition. They believe that traditions incorporate and express important values. Traditions reflect compromises, trade-offs, understandings, expectations, and agreements. They arise over a long period of time by trial and error. Tradition, to a conservative, is reason made immanent. (Think of the common law. It's no accident that while conservatives are drawn to the common law and analogical reasoning, liberals are attracted to statutory law.) The idea that individuals or groups at a given time can improve upon tradition is both presumptuous and dangerous. They are likely to make things worse, not better.

It's often said that conservatives are obstructionists. They are, of course, but they don't obstruct for the sake of obstructionism any more than liberals endorse change for the sake of change. Conservatives obstruct because they're trying to keep liberals from making things worse. Conservatives are inherently pessimistic. Liberals are optimistic. Conservatives believe that the most we can hope to do in this vale of tears is channel human greed, vanity, ignorance, and willfulness into socially productive activities. Liberals believe that individuals are fundamentally good but are corrupted by society. Conservatives believe that we are born bad and made good. Liberals believe that we are born good and made bad. Conservatives and liberals have different theories of human nature.

Ultimately, I think, the difference between liberalism and conservatism is one of attitude. Liberals have a dismissive attitude toward what came before. They are confident that they can do better. That something has always been done a certain way is, in their view, no reason whatsoever to continue doing it that way. Conservatives, by contrast, have a respectful attitude toward what came before. They view the present as a link between past and future and society itself as a contract between the dead and the unborn. (I get this latter idea from Roger Scruton, from whom I have learned much.) That something has always been done a certain way is, in their view, a reason to continue to do it that way.

Liberals look forward, believing that peace, justice, and happiness are just around the corner, if only we let reason be our guide. Conservatives look backward, believing that if we tinker with tradition, even with the best of intentions, we are as likely to get war, injustice, and misery as their opposites.

Keith Burgess-Jackson, J.D., Ph.D., is Associate Professor of Philosophy at The University of Texas at Arlington, where he teaches courses on logic, ethics, philosophy of religion, biomedical ethics, and philosophy of law. This fall he will be teaching a course on the virtues and vices of Lewis and Clark. He has two blogs: AnalPhilosopher and Animal Ethics.


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