Aaron J. Rappaport (UC Law, San Francisco) has posted Liberal Democracy in the Age of Monsters (Tulane Journal of International and Comparative Law, forthcoming) on SSRN. Here is the abstract:
The United States has entered a period of disorder, a period when, to quote Antonio Gramsci, “the old is dying and the new cannot be born.” But why has the institutional order of the past half-century—liberal democracy—declined in support and legitimacy, and what can be done to reverse that erosion of support? This Article offers a diagnosis of the crisis of liberal democracy and a theory of what a remedy would require.
The diagnosis begins with a well-known source of democratic instability, the problem of factionalism. This is the tendency, identified by James Madison at the founding, for democratic societies to fracture into groups seeking to dominate one another. The Article extends Madison’s insight, demonstrating how factionalism becomes acute when new institutional rules impose lasting sacrifices on powerful entrenched interests—and how such sacrifices, once installed, remain a permanent feature of the order rather than a passing shock.
Such a transformation occurred in the United States during the second half of the twentieth century, as the nation built, for the first time, a fully realized liberal democracy. By unsettling prior racial, religious, and economic settlements, that transformation imposed standing burdens on dominant factions, triggering intense and unresolved factional conflicts. The losing factions never accepted the settlement as legitimate, and each contests it still. The result has been an enduring legitimacy crisis, and a politics characterized by partisan polarization, ideological propaganda, and the rise of demagogues and other monsters.
Drawing on Antonio Gramsci, the Article argues that no policy reform can resolve a crisis that is grounded in such deeply rooted structural forces. What is required instead is cultural transformation based on an “organic ideology” of liberal democracy, a reconstructed American Creed. The Article sketches the broad contours of that public philosophy, one grounded on a set of moral and political principles capable of both justifying the nation’s institutions and uniting citizens across the partisan divide.
Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum