Modus Vivendi: Liberalism for the Coming Middle Ages

John Gray is professor of European Thought at the London School of Economics. His latest book is “Two Faces of Liberalism” (The New Press, London, 2000). He spoke with NPQ in 2001.

NPQ | It has been said that Marxism failed because it had no theory of politics. Assuming the universality of one class, Marxism had no means to negotiate different interests and values.

Francis Fukuyama and others have thus heralded “the end of history” and the triumph of liberalism. Yet, your argument is precisely that liberalism also falsely assumes its own universality by assuming there can be consensus around one conception of “the good.”

If this were ever true, it certainly cannot accommodate today’s clash of civilizations—the collage of incommensurate values that we see today on a global scale—nor the rise within societies of populations with hybrid identities that are far from any organic ethnic or religious unity.

Does the end of liberalism come now after the end of history?

JOHN GRAY | I don’t see how liberalism as it has been mainly practiced in the last two decades in the United States and Great Britain can come to grips with the fluid, hybrid culture you describe. It is an irony, as you have observed, that Marxism’s defective understanding of the sources of politics both in theory and practice should be replaced by a form of liberalism that has an equally defective understanding of the sources of politics. And, indeed, in its most dominant variety as practiced over the past two decades in the US and Britain, liberalism has aimed at abolishing politics or removing from the political domain most of the controversial issues having to do with justice, the regulation of personal liberty and the clash of values, and placing them in the sphere of rights and the judiciary. It is this last disability of mainstream liberal theory—by which I mean that nearly hegemonic trend within liberal political philosophy best characterized by the work of John Rawls—that seeks to derive something like an ideal constitution from a theory acceptable to all “reasonable” persons. Within this “ideal constitution” major issues of the regulation of liberty and of clashing ideas of the good life are either resolved or privatized. This kind of liberalism is as utopian and perverse in its actual consequences as was Marxism.

Legalist liberalism has two disabling flaws.

The first flaw is that the rule of law is taken as an accomplished fact, which is not the case anywhere in the world, not even the US as we saw when a politicized Supreme Court ruled Bush the winner over Gore in the presidential election.

But in many parts of the world there is no modern state, still less the rule of law. So the rule of law is not the precondition of politics, but is itself a political achievement. Unless you have a political settlement underpinning the rule of law, the rule of law will be insecure or contested. In some minor way, this is the case even in the US, the greatest modern experiment in the rule of law.

The second flaw is the expectation that issues which are politically intractable can become tractable by removing them from the political arena and enshrining a solution to them in terms of judgments about fundamental rights.

For example, attempting to remove highly controversial issues like abortion from the political domain and placing them in the sphere of rights only ends up politicizing the judiciary. Further, this legalist approach casts in stone the resolution of conflicts that might best be resolved by legislative compromise, by a mixture of public discourse and political bargaining that yields a “modus vivendi” that is renegotiable over time and which needn’t be the same in all jurisdictions or in all countries where changes in values—and even technology—can make a difference. Think of the abortion pill, ru486, which has changed that debate in many European countries.

The murkiness and partial rationality of shifting, renegotiable settlements are the vices of politics that legalist liberals seek to preclude. To me, these are the most indispensable features of politics in that they enable us to live together over time.

Removing issues from politics and putting them into this sphere of law and fundamental rights makes them more, not less, intractable. In some cases—I think of the bombing of abortion clinics in the US—the unconditionality of legal solutions even prompts danger to civil peace because they exclude regard for the interests and ideals of all protagonists. It is either complete defeat or complete victory. No venue is left to seek amelioration once the issue has been taken out of politics.

How can that be reasonable? It is a fundamental error for late modern plural societies that contain so many different ways of life to attempt a transplantation of prototypically political issues into the realm of fundamental rights.

How in such a context, then, do we live together and resolve the issues which have become intractable among us in ways that don’t make them bottom-line fundamental rights issues? The way is to reach a “modus vivendi” through political negotiation that always has both an element of intelligent public discourse as well as an element of bargaining over interests.

Beyond all this, there is a deeper reason in philosophy itself that argues against the legalistic, rights approach to liberalism. The deeper reason is that there is no plausible or defensible theory of rights which doesn’t invoke a theory of human well-being and of human interests—and all such accounts are in some degree rationally disputable. Accounts of human wellbeing and of human interests are contestable in two ways. One way is that different readings of the human good, different ideals of the good and different beliefs about human beings—their fate and destiny and the conditions under which they thrive—will map human interests differently.

Thus, different conceptions of human wellbeing will generate different accounts of human rights. Another is that even an agreed conception of human well-being will encompass a variety of interests that won’t always be harmonious. They won’t always make the same demands in practice. They won’t always dovetail. Quite commonly, they will make competing demands.

A practical example: Think of the recent disputes about freedom as privacy versus the freedom of investigative journalism and freedom of information—­not only in respect to government agencies and activities, but in respect to anybody or anything. Which right is greater: the right of the public to know an American president is having an affair or a British minister is gay; or his right to privacy?

Here we have a conflict of rights between the different interests of the person who wishes to maintain a private realm—in having a sphere of one’s life in which one can develop personal relationships outside public scrutiny—and the public’s right to information about individuals who run our public or corporate institutions or in some other way might affect our lives.

The underlying reality disguised by legalistic liberalism is that important liberties are endemically in conflict. The freedom of gays not to be discriminated against, not to have their sexuality disparaged, may conflict with the freedom of private or public schools—Orthodox Jewish schools, Muslim schools, Catholic schools and state schools—to hire whom they wish. That is a real conflict, a genuine deep conflict.

To re-describe the liberties so that they cohere in a harmonious set eliminates or deletes some liberties from the equation. This is a mistake because if you delete some liberties you are disregarding underlying interests which actually are the justification for the liberties and which give them meaning and content. Rights have content only to the extent they embody definite human interests. But to the extent they have that content, they trigger conflicts among themselves.

Liberalism for the future must recognize that judgments about human rights and conceptions of human rights themselves embody conceptions of the good that are contested between different ways of life and even within them. Even when you have an agreed conception of the good, it will itself harbor conflicts of human interests. Any well-developed conception of the good must recognize not just one human interest, but a whole variety. And that means a negotiation between conflicting interests in the name of civil peace. A “modus vivendi” is the liberalism now in order.

NPQ | Although such conflicts have always lurked beneath the surface of rights-based liberalism, they are likely to grow as societies become more a mix of migrants, as other ways of life are conveyed across civilizational boundaries by global media and as the genome and medical revolutions unfold.

For some Japanese, organ transplants based on brain death are a violation of the Shinto religious intuition because life is in all things. For some Muslims, in vitro fertilization is prostitution and cloning is an abuse of God’s trust. To some in the West, stem cell research on embryos is morally justifiable because no spinal cord has yet formed that can give rise to consciousness; to others ensoulment occurs at the moment of conception.

Therefore, “modus vivendi” rather than a liberal conception of absolute human rights?

GRAY | The key thing to grasp is that the diversity of ways of life is not a political option we can take up or reject. Nor is it a consequence of some theory.

It is an historical fate for all late modern societies that we should welcome and make the best of. It is an historical fate in the sense that it arises from deep-seated features of the late modern world which include large migrations of peoples, high degrees of immigration, the permeability or fragility of boundaries, the fact that some peoples extend across several states (like the Kurds).

Many of us have become less territorially rooted as a result of political or military conflicts in native lands. And also modern technologies permit geographically dissipated, territorially scattered peoples to renew their cultural identities and personal allegiances more easily than before. So the new technologies do two interesting things that pull in different directions. They actually relax the pressures to assimilate. At the same time, as you mention, the new technologies give everybody greater access to the cultural traditions and values of each other.

In this historical circumstance we must be careful to avoid the error of Johann Gottfried Herder, the German romantic thinker, who saw societies as organic singularities, each different from the other, each identified with an ethnic group or with a particular place, each with its own “volksgeist.”

If cultures were ever like that, they are not like that now. European cultures have all been patchwork quilts from the start, involving different Greek and Roman, Jewish, Christian and Islamic influences.

They are all not completely individuated; they are all interpenetrated with each other to differing degrees. There are obviously many degrees of cultural self-assertion, cultural defensiveness, cultural porousness and cultural boundaries. They vary a lot. But nowhere in today’s world do we really find cultures that exhibit this organic wholeness or organic unity.

Self-determination is one deeply destructive practical consequence of this Herderian error. The ideal of national self-determination is associated with the notion that each nation embodies singular national cultures.

What it also neglects is the fact that some of the most stable and long-lasting states have always been multi-national.

Britain is not a nation state, but an entity that encompasses four Nations—the Scots, the Welsh, the English and the Irish—while hosting a multitude of immigrants from its former colonies who have retained their plural identities. In short, it is a community of communities.

One of the reasons I lament recent communitarian theories posed as a counterpoint to rights-based liberalism is that they invoke the idea, as if it were the normal or healthy condition, that each individual is deeply imbedded in a single moral community. That rides roughshod over the reality of the plural identities—gay, American, Catholic, Muslim, woman, Hindu—each of us today possesses. Having plural identities means we speak a variety of moral tongues. That has always been so. It was only toward the end of the 19th century and at the start of the 20th century that the project of embodying a single national culture and a single self-governing political unit really became central in the life of Europe and other parts of the world. The consequences have been terrible.

Nationalism has been an unmitigated disaster in human terms. Yet, it remains the most powerful political tendency in the 20th century and at the start of the 21st century. It is true that the largest and most important trigger of the collapse of the Soviet Union and the Warsaw Pact bloc was the persistent re-assertion of national identities in the Baltic states, in the Ukraine, in Poland and elsewhere.

In this respect, of course, this disastrous doctrine had a beneficial effect because the Soviet Union was one of the worst regimes ever. So even a very bad doctrine, a false doctrine, and even a very dangerous movement can have good consequences. Good is often contained in the bad, just as rights often contain wrongs.

But the Balkans are the prime horror of the communitarian theory. Bosnia once had the highest levels of intermarriage between Muslims and Christians in the world 30 percent. That was ripped up by terrible wars.

So the same set of aspirations can have beneficial results at one moment, and yet at a later stage can have cataclysmic and disastrous ones.

In our present circumstance it is much more important to plan politically for the coexistence of plural identities than engage in the perversely nostalgic communitarian project of re-envisioning a deep, strong common life that embraces us all. If you try to recapture these largely imaginary organic unities, you end up with sealed trains and ethnic cleansing.

NPQ | You have called for “common institutions within which conflicts can be negotiated.” What does that look like? If it is not the Supreme Court of the US that rules in favor of choice, or the French Conseil d’Etat that bans Muslim girls from covering their heads in public schools, how will these issues be dealt with?

GRAY | I am seeking to revive some older understandings of devolution and decentralization, including federalist ones. After all, the original notion of the Federalist project was political, but its consequence was that different jurisdictions could have different settlements on various issues. Federalism is not the whole answer to the problem but it is a partial answer. The important point is to have mechanisms where the same problem can have different solutions depending on the plural interest involved. If a girl in Illinois couldn’t get an abortion, she would go somewhere else where it was legal. Such old fashioned federalist solutions demand reconsideration.

One of my philosophical targets is the notion that there can be an ideal, liberal regime in which all deeply valuable human freedoms are melded or fused in a way which everyone can accept. That is sheer illusion.

There is no such thing as one system of liberties perfect for every person or society. It is not even conceptually conceivable that in heaven these liberties would dovetail. That is why each jurisdiction or each sub-unit within a federalist system must be able to negotiate and revise settlements.

NPQ | Surely, though, there must be some minimum universal rights despite all the diversity in today’s world?

GRAY | That is true. The point I’m making is that the burden placed on the legal adjudication of rights has been much too heavy. And saddling it with deeply controversial, difficult issues actually weakens the framework of rights itself because it sets up problems it can’t resolve.

So there does need to be a minimal framework. But even that minimal framework can, to some extent, vary. And the reason for that is that even with respect to the basic demands of a worthwhile human life—the most minimal demands—there can be tragic conflicts.

One of the basic requirements of a worthwhile human life is the freedom and security each of us has from being subject to criminal violence, ethnic cleansing or religious pogroms—what Hobbes called “commodious living” or civil peace.

That is absolutely vital. Unfortunately, that requirement isn’t fully reconcilable with other vital interests. Let me use the example of freedom of religion.

In Singapore there is full freedom of religious practice, but not of religious proselytism. That arrangement corresponds to what some early modern advocates of tolerance believed. Spinoza said, yes, there should be freedom of religious belief and practice to the extent that it doesn’t infringe on the civil or public peace. But when it does infringe on that peace, there isn’t an unabridged right to religious freedom.

If you live in an historical circumstance of latent ethnic conflict or, in Singapore’s case, recent memories of very bitter ethnic conflict having important religious dimensions, then the requirement of civil peace may not be fully reconcilable with protection of religious freedom.

Like any rights, religious freedom isn’t a single, categorical, unconditional, clearly defined right. It is a bundle of rights. They may or may not include full proselytization where the public and the private boundaries may shift. And there are a whole variety of legal regimes that have been developed throughout human history to cope with this difficulty. This is what law is mostly about—the family and religion.

The Ottomans had one system. It was a system which wasn’t liberal, wasn’t egalitarian, didn’t include all religions but only the religions of the Book and it gave preference to Islam. But, like the Moors in Spain, it was a regime of toleration compared with what was then going on in Christendom.

Theirs was not a liberal solution because it treated collective entities as having the rights and it therefore made it difficult for people to switch communities. So from the standpoint of someone who values personal autonomy, the Ottoman “milliyet” system had many defects.

Nevertheless, it was one way of resolving very difficult, intractable and recurrent conflicts that, despite what Marx, Mill or Condorcet might have thought, will not fade away. They go with the territory of being human.

This tolerant approach of the Moors and Ottomans is instructive for today’s world. It is a totally different approach from that of much liberal philosophy that believes the way to deal with religious differences is to sweep them under the rug, so to speak, by privatizing them fully, to make them as politically insensitive and marginal as preferences for ethnic cuisines.

Part of me would love that to be possible. I admire the pluralism of postmodern cities that arises from the personal autonomy that comes with privatized beliefs—but that is not possible and will not be possible for most of the world.

My personal ideal, a kind of postmodern shifting collage, is only one solution to this set of dilemmas. There are other solutions like the milliyet system of the Ottoman Empire, or perhaps a Hapsburg solution or a Roman solution. Or even, sometimes and in some places where it fits, a liberal solution. In a given circumstance, liberalism may be the legitimate solution. But it is not the solution in terms of which every other one is to be judged.

NPQ | So your neo-Hobbesian view is that “commodious living” is the minimum, universal right that undergirds a “modus vivendi” tolerance?

GRAY | Yes, commodious living—the condition of civil peace.

NPQ | Along with the age of globalization comes the notion of universal human rights which many Asian regimes view as a culturally imperialist impulse. You are basically saying such a notion of universality is an illusion of globalization.

GRAY | It needn’t be. Let me put it like this. The project of enforceable human rights—human rights across frontiers, even globally—isn’t incoherent. And when it concerns the most basic defenses against losing the possibility of a worthwhile life—when it concerns issues like genocide and torture—it seems to me to be an inherently defensible project and actually one compatible with value-pluralism.

Value-pluralism is not relativism; it is not the view that all values are weighted or equally valid or all human interests are equally important. It recognizes that protecting and meeting some human interests are the preconditions of any kind of worthwhile life. But even at this fundamental level, there are a number of risks attached. One rather obvious risk is that protecting these rights across frontiers sometimes involves military action, as it did in Kosovo.

Then complicated prudential reasonings come into play. We have to consider, not only the moral and legal justifications before it may be done but also whether it has a reasonable chance of success. We also have to consider the costs and hazards in terms of collateral damage to third-party communities or international relations generally.

The illusion of “rule of law” liberalism is that we can wholly put aside these murky, uncertain, Realpolitik considerations and just deal in moral demands.

There is another consideration as well. The judgments of justice that are embodied in these interventions may not be globally shared. They will leave some elements of the international community, perhaps the majority, outside of the discourse.

So I do not flatly condemn the project of enforceable human rights for the very simple reason that I am not a nationalist. I don’t accept national jurisdictions as being final or absolute.

Just as in the Middle Ages, there are plural jurisdictions—the UN, the EU, a Spanish magistrate seeking Pinochet for torture and so on.

For that reason I don’t accept the unconditional authority of states to treat their citizens as they please. I accept and endorse, in this respect, the outcome of the Nuremburg Trials, which is that states have duties to their citizens and citizens have rights against states. But what must be insisted upon is the extension of that vital recognition of the importance of a minimum framework to the actual consequences of what one is doing, the likely benefits, the likely costs, the collateral damage—all those frequently difficult and sometimes tragic dilemmas that persist and cannot be avoided. And the pretense that they can be avoided in a universal regime of rights does harm.

NPQ | A “modus vivendi” view, however, is not necessarily just. It depends on the respective political weight of the negotiating partners.

GRAY | Yes. Some people might say my view is too unprincipled; it really amounts to “anything goes.”

After all you can have long-standing regimes in which large parts of the population, even a majority, are excluded from negotiation. But what I want to make clear is a precondition of my view: Insofar as a regime’s arrangement affects vital human interests of its subjects, those subjects are entitled to take part in the negotiation and renegotiation of settlements on issues that affect them.

Let’s look at China. There can be no question that the Chinese regime systematically violates many of the rights of its citizens, particularly atrociously in Tibet and with respect to free association and free speech in society at large.

Yet, thinking back to the Tiananmen crackdown, it is not self-evident today that fully meeting the demands of the pro-democracy protestors at that time would have yielded an outcome that was stable and would have avoided anarchy. In other words, the basic Hobbesian pre-condition of human wellbeing might not have been met.

Instead of civil order and economic advance, China might well have collapsed like the former Soviet Union into criminality, chaos, horrible bloody wars like in Chechnya and a declining mortality rate.

So, the consequences of attempting fully to recognize “human rights” would not have all been in the positive column. To recognize the right to free association might have meant to deprive hundreds of millions of the right of civil peace.

NPQ | So to put it in the starkest terms, Deng Xiaoping is the ultimate neo-Hobbesian, “modus vivendi,” political figure. And Mikhail Gorbachev, the hero of the West whose visit to Beijing in 1989 sparked the Tiananmen protests, ended up destroying the basic condition of human well-being, civil peace and order, in his own society?

GRAY | Perhaps. Gorbachev was a noble and tragic figure. I am not saying that it was possible or desirable to prop up the old system. Yet, if Gorbachev and the rest of us who supported him had more fully recognized the cost democratic freedoms and economic shock therapy would exact on Hobbesian protection of life and liberty in post-Communist Russia, we might have been better able to cope with these tragic consequences. An inherently difficult circumstance could then have been less deeply tragic than it has proven to be.

NPQ | Let’s take another example of how “modus vivendi” might work. In France, the state has ruled that Muslim girls cannot wear head scarves in public schools. How might that be handled differently? In the US now, too, now there is a church-state controversy over the funding of “faith-based” groups that provide social services.

GRAY | A “modus vivendi” approach would not seek to erect everywhere an impermeable wall between the church and state. It is not always wrong to do so, everywhere in every case. It might be the right thing to do in Turkey where there is a contest for state power between political Islamists and the very idea of a secular state. There might be arguments for having that wall if the consequences of knocking holes in it would be destabilization of the whole regime.

But it is implausible that this might be the case in France or the US. This is exactly the kind of issue where compromise ought to be sought because there is no rights-based solution, even at the level of theory. Jurisprudence cannot come up with a universal solution that all reasonable people find acceptable. To insist on this rights-based approach is not a challenge to fundamentalism, only a rival form of it.

Making it a legal issue does not make it go away. Prohibition causes latent resentment and conflict, now or later. And not wearing a head scarf doesn’t turn a schoolgirl into a secular person.

In the real world of history, no dress is neutral. Each form of dress carries with it historical associations of domination, colonialism, oppression, pogrom, resistance. That is the reality. There is no way of expunging these issues from political life. There is no way of ghettoizing them in the private realm. They are there. And the claims of liberal legalists that they can somehow be sterilized by the application of theory of rights are simply spurious and morally unserious.

NPQ | Robert Kaplan uses the Middle Ages analogy to describe his dark foreboding of collapsed states and anarchy ahead. But you have spoken more positively of the Middle Ages as similar to the world of plural jurisdictions now emerging as a new order supplanting the nation state. The late Isaiah Berlin went even further, wondering if we might have been better off in the Middle Ages than in the modern age:

“In the grand scale of things, perhaps, one has to consider, that despite royal and clerical monopolies of power and authority, the Middle Ages were in some ways more civilized than the deeply disturbing 19th century, and worse still our own terrible century with its widespread violence, chauvinism, and in the end mass destruction in racial holocausts and Stalin’s purges.

“Of course, there were ethnic frictions in the Middle Ages and persecution of Jews and heretics, but nationalism, as such, didn’t exist. The wars were dynastic. What existed was the universal Church and a common Latin language.”

Instead of looking at the Middle Ages as a dark period, perhaps it exemplified a form of “modus vivendi” that we may very well see in the future and ought to welcome, not fear.

GRAY | Robert Kaplan has pointed to a very real set of dangers connected with state weakness and state collapse.

But I think the circumstance we are moving into is more like the late Middle Ages than it is like the early modern period. That has some bad sides, but also some promising dimensions.

As you point out, the Middle Ages were a time of plural jurisdictions, a time in which the absolutist claims of the modern state hadn’t been accepted—before the Treaty of Westphalia. And despite the systematic inequalities of power and privilege, and systematic discrimination against minority religions and traditions, I tend to share Isaiah Berlin’s judgment that in some respects the Middle Ages were more civilized and more peaceable than our time. And that is precisely because all those plural jurisdictions had to negotiate with each other over their powers and interests, none powerful enough to simply dominate the other.

There are respects in which the Middle Ages don’t provide a model for us. First of all, there won’t be a single universal lingua franca—not even English. English is at the moment the most universal language, but with the next generation of translation technology and speech recognition computers, that will change. Already, it is said that the biggest language on the Internet by 2007 will be Chinese.

And certainly what is not applicable is the notion of a single universal church or religion. But still the idea of multiple overlapping jurisdictions that are continually renegotiated has a deep application. Even the Kosovo intervention was conducted on behalf of a large coalition that involved an ensemble of players—the US, the UN, NATO and the EU. One sovereign state was not just asserting itself.

These sometimes competing, but often overlapping, jurisdictions and identities have a kind of early, flawed, often equivocal echo—nonetheless an echo—in the Middle Ages rather than in the modern age.

The Middle Ages reminds us that there are many other ways in which human beings have arranged life other than under the nation state and found “modus vivendi.” They found it in the Ottoman Empire, in the Moorish kingdoms, in the Hapsburg Empire and now even in liberal regimes—in the European Union with all of its flaws and in the federalist project in the US. There isn’t only one way of achieving “modus vivendi”; there are many ways.

NPQ | Well, there is not a univers­al church today, but there is globalization.

GRAY | Part of what we call globalization today is the continuing deepening of our technological communication links with others, but that is not new. It started back with the telegraph. Globalization has often been confused with the extension of the free market. Ironically, the laissez-faire model that is extended under this conception is more of a free market than exists in the US, where the market is actually intensely regulated. Of course, laissez-faire globalization is an illusion. It will not happen. In the end, as always, there will be market pluralism.

The globalization that is really meaningful to us today is that cross-pollination of influences transgressing the boundaries of cultures and civilizations. It takes place in great modern cities, in regions, the Mediterranean region or California, of deeply hybrid cultures and economies.

This isn’t a sort of shallow multiculturalism, but like what used to exist in the great cities of Alexandria or pre-World War I Vienna. This globalization embodies some of the best features of liberal regimes together with an increased recognition of diverse identities. Let me perhaps conclude with this. If one were to ask what the greatest achievement of liberal regimes has been, I don’t actually think it is the application of any theory of human rights.

The greatest achievement, it seems to me, is to have made human identities less matters of fate and more matters of choice.

But to the extent this escape from fate is made into a doctrine of abstract rights of the individual by privatizing identities it becomes dangerous. It stops working. That is where it breaks down. And that huge historical achievement is turned into a narrow and rather callow dogma. That is where a different way of thinking, less doctrinally liberal, less fundamentalist and more pluralist, is required.

The solution to the tragic conflicts of fated identities is not the universal protection of a single liberal identity of citizenship. That may work in some countries for some times. It may even be a tremendous achievement in some place. For Ataturk in Turkey it was a great advance.

But it is not universally realizable, nor even universally desirable. It seems to me that a better approach, one which is more workable in more circumstances, more deeply responsive to the conflicts which occur even within human subjects, as well as between them, is one that seeks to openly work out conflicts.

Such a “modus vivendi” would be different in different historical settings. It will require different institutions in which different identities in the same community, same society and even the same person can coexist.

The deepest sense of “modus vivendi” is the co-existence of different virtues and identities in a single life.