Protecting liberal democracy from populist nationalism requires the commitment of its people and leaders to preserving a system of majority rule combined with individual and minority rights. In the United States, for example, law may protect the equal rights of religious minorities, such as Russ as a Jew or Emily’s father as a (non-practicing) Muslim, but if the majority of Americans who are Christian were to oppose these rights, eventually the legal protections would erode. Today, public expressions of anti-immigrant, anti-Muslim, racist, and anti-women sentiments have become more common, and often occur with little or no social sanction. These sentiments, associated with the rise of a populist nationalism, pose a threat to the continuation of liberal democratic institutions.

Strikingly, in 1996, political philosopher Michael Sandel anticipated the vulnerability of liberal democracy.[1] According to Sandel, this vulnerability derived from the weakness of the Procedural Republic, the currently dominant (but not exclusive) ideology underlying liberal democratic commitments. The Procedural Republic protected both majority rule and minority rights through a regime of neutral rights and fair procedures that excluded identity and values from the public sphere. The Procedural Republic, Sandel argued, could not sustain liberal democracy when faced with the anxieties resulting from globalization and technological change. As Sandel suggested, values and identity are essential elements of a public sphere with the capacity to sustain the civic culture necessary to renew and maintain liberal democracy.

To illustrate the benefits and risks of this approach—one which opens the public sphere to values and identities—we offer the example of what commentators have described as the religious lawyering movement, made up of lawyers of various faiths who seek to integrate their faith into their work.[2] To many who embrace the ideals of the Procedural Republic, including many lawyers, this suggestion will seem oxymoronic. In the same way that the Procedural Republic excludes identities and values from the public sphere, the legal profession’s paradigm of the neutral partisan seeks, to use Sanford Levinson‘s phrase, to “bleach out” identity and values.[3] The rationale for the neutral partisan is that all lawyers must be both neutral as to their clients’ goals and fungible in their conduct in order to provide equal justice. Neutrality and fungibility require lawyers to bleach out identity and values. In recent decades, proponents of lawyering roles grounded in morality, justice, feminism, racial justice, LGBTQ rights, civics teaching, and religion have frequently attacked this conception of legal practice and identity. Given lawyers’ central role in shaping the public understanding of liberal democratic values, the question of whether lawyers should exclude or include their identity and values in their work has implications beyond lawyers and their clients.

The Price of the Procedural Republic

As Sandel explained in 1996, in “recent decades the civic, or formative, aspect of our politics has given way to a procedural republic, concerned less with cultivating virtue than with enabling persons to choose their own values.”[4] Like the legal profession’s dogma of bleaching out, Sandel’s Procedural Republic holds that “government must be neutral as to conceptions of the good life in order to respect persons as free and independent selves, capable of choosing their own ends” and at the same time to enable people with incommensurate conceptions of the good life to live together peacefully.[5] The Procedural Republic accordingly rejected the project of seeking “to form the character or cultivate the virtue of its citizens, for to do so would be to ‘legislate morality.'”[6] In denying identity and values, the Procedural Republic offered neutral grounds for excluding “pockets of prejudice” and “outposts of intolerance.”[7] To achieve these ends, the Procedural Republic sought to bar from the public sphere deeply held values, whether grounded in religion or in identity. As a result, proponents of this model on the left and right went so far as to make the term “identity politics” a subject of disdain, even where proponents of identity sought to promote liberal values.

But, as Sandel explains, the Procedural Republic comes with a prohibitive cost. It “cannot secure the liberty it promises because it fails to inspire the sense of community and civic engagement that liberty requires.”[8] Sandel does not reject fairness and fair procedures—he is an ardent advocate of liberal democracy and its methodology. Rather, he makes the argument that people have basic human needs for reassurance and explanation, and that formation of a character of trust, mutual respect, and social solidarity are necessary to sustain the cultural norms and practices necessary to liberal democracy. Sandel argues that the Procedural Republic’s “vision of political discourse is too spare to contain the moral energies of democratic life.”[9] By limiting justifications to procedural arguments that are neutral as to identity and values it does not even seek to form virtues of trust, mutual respect, and solidarity, much less promote an understanding of why liberal democratic values resonate with deeply felt human needs.  As Sandel explains, “[a] politics that brackets morality and religion too completely soon generates its own disenchantment” and cannot “address anxiety and frustration.” Where political discourse relies solely on procedural arguments, “[i]t creates a moral void that opens the way for a public life of intolerance and other misguided moralisms,” characteristics of the populist nationalism we confront today.[10]

But even with this identification of the inherent weaknesses of the Procedural Republic, Sandel nonetheless understates its flaws. First, while Sandel focuses on character formation, economist Luigino Bruni helps us to understand the human relationships that provide the framework for character formation and civic virtue. Fraternity—the social solidarity and civic virtue necessary to the long-term flourishing of liberty and equality, requires building on what Bruni terms, in a reading of the Genesis account of Jacob struggling with the angel, the blessings of interpersonal relationships. A society that elides these relationships—rooted in joy, reciprocity, trust, and love—does “not require a dialogue, much less an interpersonal encounter, but precisely a mutual indifference.” At some point, such indifference reaches “a tipping point, a threshold beyond which [anonymous relationships] produce lawlessness, loneliness, and loss of bonds of identity with others.”[11]

Second, the Procedural Republic inevitably masks systemic injustices. In his Letter from the Birmingham Jail, Martin Luther King Jr. identifies the greatest stumbling block to justice for Black Americans as those white moderates who oppose prejudice against Blacks, but place an even higher value on obeying procedural rules. By bleaching out identity and values, the Procedural Republic permits or tolerates injustices that often result from superficially neutral procedures in a society with inequalities that exist or arise either before or after the application of those procedures. In short, the Procedural Republic provides a neutral mask for the status quo’s distribution of privilege and opportunity, even, as today, where that distribution favors or disfavors people based on race, gender, sexual orientation, class, geography, or other variables.  

 

As intermediaries between the people and the law, lawyers staff the legal system that serves as the lifeblood of liberal democracy.

 

Third, beyond mutual indifference, the Procedural Republic encourages a demonization of others that makes it difficult to maintain the civility and social solidarity necessary to liberal democracy. In the Procedural Republic, the only legitimate public arguments are policy prescriptions stripped of values and identity. When people encounter others who hold views they hate, they view those others through the prism of what they see in the public sphere: hate the idea, hate the person. Bringing identity and values into the public sphere is no guaranty of civility, but, to use Bruni’s terms, it permits the vulnerability to wounds necessary to share in the blessing of civility.

This open public sphere allows people to enter as complex human beings, and creates the possibility that people will recognize in others a neighbor with characteristics they share and admire, as well as views they oppose. In discouraging this process, the Procedural Republic facilitates a society where many view others antagonistically and seek relationships only with those with whom they agree.

***

The open pubic sphere is an alternative to the Procedural Republic. It offers many advantages in nurturing liberal democracy. First, it permits people to introduce a wide range of values derived from comprehensive moral and religious philosophies into public dialogue. Martin Luther King Jr. offers a notable example. King grounded his public political philosophy of human dignity in the creation of people in God’s image, as well as the love of God and Jesus for each person. Today, however, politcal theorists often ignore the overtly Christian foundation of King’s ideas because they transgress the Procedural Republic’s norms of excluding identity and values.

Second, a public sphere open to contesting conceptions of the public good invites people to “”deliberate with fellow citizens about the common good and help to shape the destiny of the political community.”[12] When people feel that the public sphere welcomes them, they are, in Sandel’s words, more likely to develop the attachments necessary to “social solidarity and mutual obligation” and “a sense of belonging, a concern for the whole, a moral bond for the community whose fate is at stake.”[13] Precisely these personal connections to the liberal democratic community are most necessary when individuals feel anxious and hopeless because they have lost control over their lives and their work due to globalization or technological change. It allows us in times of threat and fear to maintain the belief that we are helping “shape the destiny of [our] political community.” [14]

Third, an open public sphere invites, but does not guarantee, serious analysis of institutionalized bias. It does not normalize neutrality and privilege, and thereby permits removal of the mask formed by systemic injustice. If participants are then willing to explore and, in some cases, unearth the connection between identity and privilege, they gain understanding of the biases that play an improper role in liberal democratic society and that institutionally oppress members of minority or traditionally subordinated groups.

Sandel recognizes that the open public sphere “is risky politics, a politics without guarantees, and that the risks it entails inhere in the formative project. To accord the political community a stake in the character of its citizens is to concede the possibility that bad communities may form bad characters.”[15] Of course, the same threat exists to greater extent in the Procedural Republic. Its ideology denies the reality that character formation is always occurring, and its exclusion of identity and values from the public sphere makes it more difficult for liberal democracy to encourage the civic virtues necessary to its own continuation. The resurgence of populist nationalism, its subsequent victory in President Trump’s election, and the uncertain future of the great American experiment in liberal democracy offer powerful evidence of these dynamics.

Promoting Liberal Democracy through Religious Lawyering

In our liberal democracy, lawyers play a central role. As intermediaries between the people and the law, they staff the legal system that serves as the lifeblood of liberal democracy, and teach their clients and the public how to understand their obligations to the law and the public good. In doing so, they protect both the integrity of majoritarian democracy and the rights of minorities and individuals.

Given the intrinsic connection between liberal democracy and lawyers, the Procedural Republic’s values have shaped the dominant ideology of the modern legal profession. In doing so, the legal profession has embraced the ideology of the neutrality partisan. Under this paradigm, lawyers are to serve as extreme partisans for their clients while remaining neutral as to the implications for their own values, for others, and to the public good. The purpose of this regime, like that of the Procedural Republic, is to create a legal system of neutral and fair procedures that maximizes individual freedom. The neutral partisan ideal, in turn, requires bleaching out identity and values from lawyer’s work in order to provide equal and fungible representation to clients.

Not surprisingly, the professional project of bleaching out shares similar weaknesses to the Procedural Republic. The neutral partisan ideal includes no substantive character formation, for example, beyond an orientation toward partisanship and procedures. As a result, lawyers’ commitment to many traditional professional values, such as civility and pursuit of the public good, has diminished, causing leaders of the profession to bemoan a crisis of professionalism that has existed since the 1980s. Unlike the Procedural Republic, the neutral partisan ideology does not appear in danger of collapse, although it does face significant challenges.

Numerous commentators have offered prescriptions for a paradigm that would more robustly protect liberal democracy, drawing upon morality, justice, feminism, racial justice, LGBTQ rights, civics teaching, and religion. These approaches claim that bringing identity and values into the legal workplace will have similar benefits to those of an open public sphere.

 

Biases and injustices will undoubtedly persist, but the open public sphere discards the disguise of neutrality and normalizes the recognition that values and identities persist.

 

In this context, moreover, they provide a literature that explores the risks inherent in the open public sphere—risks that Bruni reminds us exist in all social systems. Here, we will use the religious lawyering movement and, with apologies to those excluded, the Abrahamic religions, to consider the possibilities and dangers of opening the lawyer’s role to identity and values and to offer a concrete illustration of the prospects of the open public sphere.

Those who embrace bleaching out will dismiss religious lawyering ab initio. They will fear that when lawyers bring any identity or any values into their work they will inevitably impinge upon the liberty of their clients (and in doing so of course they will ignore that allegiance to the Procedural Republic is itself an identity). They will worry that religious lawyers will seek to promote only their religious vision and will not respect their client’s aspirations or the values of liberal democracy. And they may fear religious identities over other identities, often encountering religion in the public sphere as promoting illiberal values, such as rejection of equal rights for LGBTQ persons or for people not of their faith, such as the Islamophobia of some Jews and Christians, and the bias against Jews and Christians of some Muslims.

Despite these fears, religious lawyering offers significant potential for formation of lawyers with deep commitment to professional values and liberal democracy. Two of the core principles of the Abrahamic religions are the golden rule and the belief that all people are created in God’s image. The following words of the Muslim poet Sa’adi are inscribed on the gates to the United Nations:

All human beings are members of one frame,
Since all, at first, from the same essence came.
When time afflicts a limb with pain
The other limbs at rest cannot remain.
If thou feel not for other’s misery
A human being is no name for thee.

For religious lawyers, these basic teachings demand commitment to equal justice and civility, and recognition of majority rule and protection of the rights of minorities and individuals. They command, even more strongly than the neutral partisan ideal, that lawyers treat their clients and their aspirations with respect, act civilly toward colleagues and adversaries, and promote the liberal democratic values of equal justice and equal rights.

A famous example of a lawyer whose religion shaped his understanding of his role is Justice Louis D. Brandeis. He explained that:

To America the contribution of the Jews can be peculiarly large. America’s fundamental law seeks to make real the brotherhood of man. That brotherhood became the Jews’ fundamental law more than twenty-five hundred years ago. America’s twentieth century demand is for social justice. That has been the Jews’ striving ages-long.[16]

Of course, not all religious lawyers share these values. What of religious lawyers who do seek to impose their values on their clients? Even the neutral partisan paradigm does not guarantee respect for clients. Indeed, it provides a neutral approach that may very well mask this disrespect. In contrast, religious lawyering, like all identity lawyering, makes these questions and influences more transparent and invites lawyers to become aware that all of us have biases that we need to acknowledge in order to treat clients equally and fairly.

What of those religious lawyers who in fact hold illiberal values? Here, Dean Robert Vischer of St. Thomas Law School offers two instructive illustrations. First, he considers religious lawyers whose religious beliefs reject equal rights for LGBT people. Vischer advises that such lawyers have freedom of conscience to refuse to pursue LGBT causes but must agree to represent LGBT clients. In the interest of liberal values, Vischer goes further than the ethical rules governing lawyers, which expressly permit discrimination in deciding whether to represent a client. Under the neutral partisan paradigm, therefore, bringing religion into the lawyer’s work is the norm violation, not the disregard for equality for minorities or individuals. In contrast, a religious lawyering approach would invite dialogue regarding how best to apply the Golden Rule and the creation of all people in God’s image to the lawyer’s work. Such a dialogue offers the potential for persuading, as opposed to ignoring, those with illiberal values and inviting them to enlarge their understanding of equality.

Vischer offers a second example of a lawyer who does not share even a general, though imperfect, commitment to the fundamental equality of all Americans. Matthew Hale was the leader of World Church of the Creator, a neo-Nazi religion that “has as one of its major tenets the hatred of Jews, blacks and other colored people.”[17] Hale argued that the Church was committed to nonviolent political change: “Mr. Hale stated…that if his organization would gain power by peaceable means it would call for the deportation of Jews, blacks and others whom his church refers to as ‘mud races.’ The United States would then become a country for members of the ‘white race’ only.” In applying for bar admission, Hale made an argument that drew upon the rules of the Procedural Republic—as a lawyer he would keep his personal beliefs private and would in the public sphere of his work as a lawyer treat all clients equally. The Court rejected his argument, relying primarily on a pre-neutral partisan conception of the lawyer’s role in protecting the substantive values of liberal democracy. The Court’s Inquiry Panel explained:

The Bar and our courts stand committed to these fundamental truths: All persons are possessed of individual dignity. As a result, every person is to be judged on the basis of his or her own individuality and conduct, not by reference to skin color, race, ethnicity, religion or national origin. The enforcement and application of these timeless values to specific cases have, by history and constitutional development, been entrusted to our courts and its officers—the lawyers—a trust that lies at the heart of our system of government. Therefore, the guardians of that trust—the judges and lawyers, or one or more of them—cannot have as their mission in life the incitement of racial hatred in order to destroy those values. [18]

Vischer agrees that Hale was properly denied admission to the bar. Orthodox proponents of the Procedural Republic would undoubtedly disagree.

In these ways, the discourse regarding religious lawyering offers a glimpse into the risks and rewards of the open public sphere. It does not prevent illiberal tendencies but it helps make them transparent as it facilitates the deployment of responsive resources that are far less accessible under the bleaching out paradigm.

Lessons for Liberal Democracy

Similarly, the open public sphere offers a way to bolster liberal democracy against the forces of populist nationalism. It avoids the pitfalls that undermine the Procedural Republic’s fantasy of a risk free liberal democracy. The open public sphere provides the resources of those identities and values that support liberal democracy, while acknowledging the wounds and blessings of social systems and avoiding the demonization of those with different opinions. Biases and injustices will undoubtedly persist, but the open public sphere discards the disguise of neutrality and normalizes the recognition that values and identities persist. While it does not resolve the boundaries of liberal democracy, the open sphere continues the promise of greater justice in a system with major systemic injustices. The ebb and flow of respect for human dignity is the challenge that has faced us, and continues to face us. America was born on the backs of Native American residents and black slaves, with all women disenfranchised. Yet Martin Luther King Jr. wrote almost two hundred years later:

When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, black men as well as white men, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness.

Fulfilling this promissory note is the task of all Americans, a hard task, but one the Procedural Republic restricts and the open public sphere reinvigorates.


Russell G. Pearce is the Edward & Marilyn Bellet Chair in Legal Ethics, Morality & Religion at Fordham University School of Law.

Emily Jenab is a JD candidate at Cornell Law School. She is a current SEO fellow at Debevoise & Plimpton in New York City, and recently completed an internship at the United Nations Development Programme. She earned her MA in Ethics & Society in 2016.

 

[1] Michael J. Sandel, “America’s Search for a New Public Philosophy,” The Atlantic Monthly 3 (March 1996): 277.

[2] See, e.g., Robert K. Vischer, “Heretics in the Temple of Law: The Promise and Peril of the Religious Lawyering Movement,” J. L. & Religion 19 (2003-2004).

[3] See, e.g., Russell G. Pearce, Adam B. Winer, and Emily Jenab, “A Challenge to Bleached Out Professional Identity: How Jewish was Justice Louis Brandeis?,” Touro L. Rev. 33 (2017): 335.

[4] Sandel, “Public Philosophy,” 58.

[5] Ibid,. 66.

[6] Ibid., 60.

[7] Ibid.

[8] Michael J. Sandel, “Democracy’s Discontent: The Procedural Republic” in The Essential Civil Society Reader, ed. Don E. Eberly (Lanham: Rowman & Littlefield, 2000), 276.

[9] Ibid.

[10] Ibid.

[11] Luigino Bruni, The Wound and the Blessing: Economics, Relationships, and Happiness (New City Press, 2012), 13, xxiii.

[12] Sandel, “Public philosophy,” 58.

[13] Sandel, “Democracy’s Discontent,” 3.

[14] Sandel, “Public Philosophy,” 58.

[15] Sandel, “Democracy’s Discontent,” 275.

[16] Pearce, Winer & Jenab, “Professional Identity,” 343.

[17]Vischer, “Heretics in the Temple of Law: The Promise and Peril of the Religious Lawyering Movement,” 427.

[18] In the Matter of the Application for Admission to the Bar of Matthew Hale, Decision of Inquiry Panel of the Committee on Character and Fitness of the Supreme Court of Illinois for the Third Appellate District of the Supreme Court of Illinois (Dec. 16, 1998).

Image from Flickr via Phil Roeder

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