by Jason Kuznicki
Consider the complaint, “The law treats A differently from B, though both are similarly situated in all of the relevant ways. The law should treat A and B alike.”
That’s a common type of complaint. It denies, in at least one case, that the society where it was made has been properly isonomic. The complainer asks for their society to do justice on that very society’s own terms. It’s therefore what continental social theorists would call an immanent critique.
Is that a Marxist term? It’s associated with Marxism, but Marx didn’t find immanent critiques fully adequate; ultimately, he opted for radical critiques instead. Radical critiques purport to judge a society by a value system external to that society as it has so far existed. In the typology we’re using, there are really only three possible stances—defenses of the status quo, immanent critiques, and radical ones. A commenter who considers that society might possibly improve itself, as indeed we should, must pick between the latter two.
Immanent critique takes a value that a society already holds and asks it to extend or intensify the scope of that value’s operation. Marx thought that doing so often enough in capitalist societies would cause capitalism to reveal its own inner contradictions, and that those contradictions, once made plain, would bring about capitalism’s fall. It would also prompt a new kind of social consciousness that would prepare us to build a communist society. But that need not be the case; that a critique is immanent does not make it Marxist. Immanent critiques might simply help a society live up to its stated values, or to those that it already acts on and recognizes. The result would not be a society closer to collapse, but rather a society that was closer in a sense to what it had been trying to be all along.
Immanent critiques in the liberal tradition are a bet: We’re betting against the Marxists’ prediction of collapse. We’re betting that we can get meaningfully better without first getting very much worse. Would we, at least in theory, universalize our ethical maxims? Then let’s see how that works in practice. Isonomia is the liberal’s bet that Kant is right, and Marx is wrong.
And at least so far, we’re winning. Pursuing isonomia in liberal property-holding societies has yielded a culturally rich and interconnected world, one that is egalitarian and socially mobile like never before. We are wealthy beyond Marx’s imagining. Far from social collapse, pursuing isonomia has produced social dynamism. Marx hated that too, and he mistook the extraordinary dynamism of nineteenth-century Britain for the first signs of impending revolution. Dynamism can indeed be terrifying. But liberals are allowed to welcome it, not just in light of the alternatives, but as a positive good. Britain was better at the end of the nineteenth century than it was at the beginning. Better economically, for living standards had risen as never before. Better morally, for slavery had been abolished, and progress had been made toward the removal of many forms of unearned privilege. Flawed beyond a doubt, but better.
More and more, we can say with confidence that the liberal view has won this bet, not just in Britain, but everywhere. Where, after all, is the collapse that would reveal the failure of industrial capitalism? It would have to be something titanic: Not merely a dramatic worsening of social conditions in one time and one place, which certainly we have had. These are no failure of liberal capitalism, not if they can be traced to the failure of one government, one public policy, one resource, or one industry. Marxists have made fools of themselves over and over by making way too much of the real but limited failures of this or that situation or strategy.
To truly convince, and to thereby work a change in world-historical consciousness, the failure has to come directly from the system itself: Where is the failure of the social strategy of stable yet alienable property rights, of wage labor for mobile workers in a competitive labor market, and of fully alienable shares in corporate profit and corporate governance? That—and not whatever you see outside your window—is what I take capitalism to be. And it has patiently supplied the way out of all the smaller failures that have come along the way. It has also proven itself warmly amenable to immanent critique.
To be obnoxious for a brief moment, capitalism has always been relatively woke. It cares whether you make a profit, but it doesn’t care too much about your skin color, your genitals, or your speculations about metaphysics. Those things can be set aside in the pursuit of profit, or in pursuit of consumer satisfaction, although there I mostly repeat myself. Who are the consumers? They probably have a different skin color, different genitals, and different religious views from your own; they’ll maybe use your products differently than you would. That’s just the beauty of the system. It lets us meet in public and diverge in private.
Capitalism as I have defined it is the enemy of privilege. As Hayek put it:
Ever since a court had laid down in the famous Case of Monopolies that the grant of exclusive rights to produce any article was ‘against the common law and the liberty of the subject,’ the demand for equal laws for all citizens became the main weapon of Parliament in its opposition to the king’s aims. Englishmen then understood better than they do today that the control of production always means the creation of privilege: that Peter is given permission to do what Paul is not allowed to do.
Setting aside our differences, or wearing them lightly in the marketplace, scares the traditionalists, and rightly so. Traditionalists also make a kind of immanent critique. Faced with a society that has both isonomic and anisonomic features, the traditionalist generally asks that the latter be extended or intensified. Societies of the distant past were generally much more anisonomic than our own—above all those traditional societies that American traditionalists tend to value: Let there be more social gradations, say traditionalists; let there be more differences of station and rank. Let those differences matter more rather than less; let them be harder to remove, harder to ignore, and harder to attenuate. Let the boundaries of race, class, and gender be, not merely real—but well-armed and ironclad.
There are two serious objections that should be raised to the traditionalists’ proposals. The first objection is similar to the liberal’s answer to the Marxist: our piecemeal efforts at isonomia have produced a society that is manifestly worth defending. Traditional, pre-capitalist societies, such as they were, offered little more than subsistence in misery for the vast majority of the population. Traditional societies kept only a razor-thin elite at the top, one whose opulence came only from extraction, and whose maintenance depended utterly on constant warfare. We have done a bit better, whatever our faults, and we should not be ashamed to say it.
The second difficulty with traditionalist defenses of anisonomia is that today’s traditionalists are seldom properly traditional. The immanent critique that begins with the inequalities we still see around us, asking only to extend and intensify them, will not land us in the French Old Regime, or the England of James II, or the Roman Republic, or in whatever former society the traditionalist might valorize. History is a one-way trip, and an emphasis on certain of our present values won’t circle us back to another time.
The weight of tradition may suggest that a difference should still be considered relevant, or that this or that particular objection to an extant law should not be pursued after all. But it can’t justify anisonomia all by itself or in a systematic way: If it could, that maxim would freeze the law in its present place forever. A proper conservative would find that a brittle and untenable social strategy, one that in the long run conserves almost nothing.
There have been many successful immanent critiques in American history, where equal treatment before the law was due, and where it fell short until someone or some group pointed out the problem. Pointing out a problem does not show that the whole thing is rotten. Nor does the fact that problems have been pointed out prove that everything is fine. We’re in the middle, and human societies have seldom been anywhere else.
And Americans are pretty good at making immanent critiques. We’ve been making them since the days when Benjamin Franklin founded the Pennsylvania Society for the Abolition of Slavery (1774), and since the famous letter of Abigail Adams to her husband in March of 1776:
[I]n the new Code of Laws which I suppose it will be necessary for you to make I desire you would Remember the Ladies, and be more generous and favourable to them than your ancestors. Do not put such unlimited power into the hands of the Husbands. Remember all Men would be tyrants if they could… That your Sex are Naturally Tyrannical is a Truth so thoroughly established as to admit of no dispute, but such of you as wish to be happy willingly give up the harsh title of Master for the more tender and endearing one of Friend.
That’s clearly an immanent critique; it’s based on the stated values of the American Revolution itself. It’s also a plea for isonomia—by definition, there can be no legal equality between a master and a “vassal.” Each of those social roles can only exist in a legally unequal regime. By contrast, a friendship is classically a relationship of equality and mutual respect. The law conditions our social relations; at least in some ways, it’s upstream from culture.
The United States is a first draft of a better nation, or at least I find it helpful—and consoling—to believe it. We should welcome the complaint of anisonomia when it arrives. Let us patiently improve our laws, again and again, and let us consider wearing our social distinctions more lightly. Is the complainer right? It always remains to be seen. But maybe.
Yet a complaint with the same abstract form could also be specious. Someone who aimed at anisonomia—someone who sought special advantages for his class, his race, or just his family—could also complain that the law treats A differently from B, and that the two should be made more equal. “The laws should be made more equal—and here are the relevant ways.”
There are devils in that detail. What counts as relevant? How do we decide? The law itself can’t settle this question, for to proceed in that way would be circular. Law improves itself by way of conscious moral reflection, and not by its own bootstraps. Pursuing isonomia means having difficult conversations about the values that matter, and exactly how they matter, and how best to pursue them in harmony.
A highly isonomic society would be one that allowed great differences in private life, even as the laws grew simpler and more equal in their treatment of persons and stations. Yet even in a highly isonomic society, one might still often hear complaints of legal privilege and discrimination. Indeed, the true Isonomians might be more likely to hear such complaints than we are: An isonomic society will by definition recognize isonomia as a cardinal value, and pursuing that value would have to mean being open to the complaints. Isonomia’s enemies might notice this openness, and they might strategize accordingly, framing their arguments in terms amenable to the society where they lived. In a society that was truly isonomic—a society that was isonomic in the eyes of God, or the impartial observer—the claim of anisonomia could end up as the last refuge of the scoundrel. And of course that claim should be tolerated anyway.
Isonomia therefore presents a paradox: The fully isonomic society is full of its own denunciations, while the fully anisonomic society says, with the only voice that is privileged to speak, that all is in perpetual order, and that each is given precisely their due, however meager their portion may be. We may be able to choose either the reality of isonomia or its semblance—but never both at once. Rather obviously, we should skip the semblance and embrace the reality.
Jason Kuznicki is the editor-in-chief of TechFreedom. He writes from Hawaii. Send him mail.
Isonomia Quarterly 