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Published online by Cambridge University Press: 17 December 2018
Jeremy Waldron claims that Isaiah Berlin wrongly neglects, and is hostile to, constitutional and democratic institutions. I argue that although Berlin offers no extended discussion of constitutionalism or democracy, he is not hostile to them. Moreover, the logic of Berlin's value pluralism is strongly supportive of these ideas—for example, it fits well with constitutionalist notions such as the separation of powers and checks and balances. On the other hand, Waldron's rejection of judicial review on the ground of democracy is questionable in these same pluralist terms. Here I argue that Berlinian pluralism supports democracy as long as this is inclusive in its outcomes. But contemporary democracy cannot be relied upon to be sufficiently inclusive, in part because of the effects of the war on terror and the rise of populism. Under these conditions it is unwise for pluralists to dispense with judicial review.
The author would like to thank the following for their helpful comments: Sharyn Roach Anleu, Kim Economides, Elizabeth Handsley, Henry Hardy, Rob Manwaring, Lionel Orchard, Miguel Vatter, the editor, and three anonymous referees.
1 Waldron, Jeremy, Political Political Theory: Essays on Institutions (Cambridge, MA: Harvard University Press, 2016)CrossRefGoogle Scholar. Parenthetical references in the text are to this work.
2 Quoting Berlin in an interview published in Berlin, Isaiah and Jahanbegloo, Ramin, Conversations with Isaiah Berlin (New York: Scribner's, 1991), 46Google Scholar. Waldron describes Berlin as speaking in “a 1997 interview a few months before his death” (Political Political Theory, 4), but Jahanbegloo makes it clear that his interviews with Berlin took place in 1988 (Conversations with Isaiah Berlin, xiii–xiv).
3 To consider only those influenced by Berlin's value pluralism (rather than by his conceptions of negative and positive liberty etc.), these include several authors who have written about constitutional structure: Bellamy, Richard, Liberalism and Pluralism: Towards a Politics of Compromise (London: Routledge, 1999)Google Scholar; Bellamy, Richard, “Liberalism and the Challenge of Pluralism,” in Rethinking Liberalism, ed. Bellamy, Richard (London: Pinter, 2000)Google Scholar; Galston, William, Liberal Pluralism: The Implications of Value Pluralism for Political Theory and Practice (Cambridge: Cambridge University Press, 2002)CrossRefGoogle Scholar; Galston, William, “Pluralist Constitutionalism,” Social Philosophy and Policy 28, no. 1 (2011): 228–41Google Scholar; Porat, Iddo, “The Plural Implications of Value Pluralism: A Comment on Maimon Schwarzschild's ‘On This Side of the Law and On That Side of the Law,’” San Diego Law Review 46, no. 4 (2009): 909–24Google Scholar; Schwarzschild, Maimon, “On This Side of the Law and On That Side of the Law,” San Diego Law Review 46, no. 4 (2009): 755–72Google Scholar. Berlinian pluralism has also been applied to issues in public administration: Wagenaar, Hendrik, “Value Pluralism in Public Administration,” Administrative Theory and Praxis 21, no. 4 (1999): 441–49CrossRefGoogle Scholar; Spicer, Michael, “Value Pluralism and Its Implications for American Public Administration,” Administrative Theory and Praxis 23, no. 4 (2001): 507–28CrossRefGoogle Scholar; Spicer, Michael, In Defense of Politics in Public Administration: A Value Pluralist Perspective (Tuscaloosa: University of Alabama Press, 2010)Google Scholar; Thacher, David and Rein, Martin, “Managing Value Conflict in Public Policy,” Governance 17, no. 4 (2004): 457–86CrossRefGoogle Scholar. Another topic for Berlinian pluralism is transitional justice: Allen, Jonathan, “A Liberal-Pluralist Case for Truth Commissions: Lessons from Isaiah Berlin,” in The One and the Many: Reading Isaiah Berlin, ed. Crowder, George and Hardy, Henry (Amherst, NY: Prometheus, 2007)Google Scholar.
4 Lilla, Mark, “Wolves and Lambs,” in The Legacy of Isaiah Berlin, ed. Dworkin, Ronald, Lilla, Mark, and Silvers, Robert B. (New York: New York Review Books, 2001)Google Scholar.
5 Berlin and Jahanbegloo, Conversations with Isaiah Berlin, 70–71.
6 Ibid., 70. For various aspects of Berlin's relation to the Enlightenment and Counter-Enlightenment, see Mali, Joseph and Wokler, Robert, eds., Isaiah Berlin's Counter-Enlightenment (Philadelphia: American Philosophical Society, 2003)Google Scholar.
7 See, e.g., Isaiah Berlin, introduction to The Age of Enlightenment: The Eighteenth-Century Philosophers, ed. Berlin, Isaiah (New York: Brazilier, 1957)Google Scholar; Berlin, Isaiah, “The Concept of Scientific History,” in Concepts and Categories: Philosophical Essays, ed. Hardy, Henry, 2nd ed. (Princeton: Princeton University Press, 2013)Google Scholar; Berlin, Isaiah, Three Critics of the Enlightenment: Vico, Hamann, Herder, ed. Hardy, Henry, 2nd ed. (Princeton: Princeton University Press, 2013)Google Scholar.
8 Berlin, Isaiah, “Two Concepts of Liberty,” in Liberty, ed. Hardy, Henry (Oxford: Oxford University Press, 2002), 208–12CrossRefGoogle Scholar.
9 Ibid., 172–73.
10 Ibid., 200–208.
11 References to value pluralism occur throughout Berlin's work, but see in particular “Two Concepts of Liberty”; “Alleged Relativism in Eighteenth-Century European Thought,” in The Crooked Timber of Humanity: Chapters in the History of Ideas, ed. Hardy, Henry, 2nd ed. (Princeton: Princeton University Press, 2013)Google Scholar; “The Pursuit of the Ideal,” in Crooked Timber of Humanity; “My Intellectual Path,” in The Power of Ideas, ed. Hardy, Henry, 2nd ed. (Princeton: Princeton University Press, 2013)Google Scholar; Three Critics of the Enlightenment; Isaiah Berlin and Bernard Williams, “Pluralism and Liberalism,” in Concepts and Categories. For interpretations of Berlin emphasizing his value pluralism see Crowder, George, Liberalism and Value Pluralism (London: Continuum, 2002)Google Scholar; Crowder, George, Isaiah Berlin: Liberty and Pluralism (Cambridge: Polity, 2004)Google Scholar; Galston, Liberal Pluralism; Gray, John, Isaiah Berlin: An Interpretation of His Thought, rev. ed. (Princeton: Princeton University Press, 2013)Google Scholar.
12 Berlin, “Two Concepts of Liberty,” 213–14.
13 See, e.g., Berlin, “Pursuit of the Ideal,” 17–20.
14 Berlin and Williams, “Pluralism and Liberalism,” 326.
15 Berlin, introduction to Liberty, 47; see also ibid., 42, and “Pursuit of the Ideal,” 18.
16 Williams, Bernard, In the Beginning Was the Deed: Realism and Moralism in Political Argument, ed. Hawthorn, Geoffrey (Princeton: Princeton University Press, 2005)Google Scholar; Williams, Bernard, Philosophy as a Humanistic Discipline, ed. Moore, A. W. (Princeton: Princeton University Press, 2006)Google Scholar. For other responses to the problem of value pluralism see Kekes, John, The Morality of Pluralism (Princeton: Princeton University Press, 1993)Google Scholar; Chang, Ruth, ed., Incommensurability, Incomparability, and Practical Reason (Cambridge, MA: Harvard University Press, 1997)Google Scholar; Gray, John, Two Faces of Liberalism (Cambridge: Polity, 2000)Google Scholar; Galston, Liberal Pluralism; Parekh, Bhikhu, Rethinking Multiculturalism: Cultural Diversity and Political Theory, 2nd ed. (Basingstoke: Palgrave Macmillan, 2006)CrossRefGoogle Scholar; Riley, Jonathan, “Isaiah Berlin's ‘Minimum of Common Moral Ground,’” Political Theory 41, no. 1 (2013): 61–89CrossRefGoogle Scholar.
17 It has been objected that value pluralism is purely a position of metaethical description from which no norms follow: Talisse, Robert, Pluralism and Liberal Politics (New York: Routledge, 2012)Google Scholar, chap. 4. However, I follow John Kekes's account of pluralism as also “an evaluative theory, because it is not an uncommitted analysis of the relations among various types of values involved in good lives but a theory motivated by concern for human beings actually living good lives. Consequently, pluralism is at once descriptive and evaluative” (Kekes, The Morality of Pluralism, 10). Pluralists are interested not just in the fact of plural values but also in the content of those values.
18 Bernard Williams, introduction to Concepts and Categories, xxxvii.
19 The pluralist norm of value diversity involves considerations not only of multiplicity but also of coordination, since some goods will conflict. The link between diversity thus understood and pluralism is a controversial position that I have defended in several places: see, e.g., Crowder, Liberalism and Value Pluralism, chap. 6; Crowder, Isaiah Berlin, 156–59. For a critical response see Neal, Patrick, “The Path between Value Pluralism and Liberal Political Order,” San Diego Law Review 46, no. 4 (2009): 859–82Google Scholar, to which I reply in Crowder, George, “Value Pluralism, Diversity and Liberalism,” Ethical Theory and Moral Practice 18, no. 3 (2015): 549–64CrossRefGoogle Scholar.
20 Galston, “Pluralist Constitutionalism,” 236.
21 Ibid.
22 Ibid., 238.
23 Ibid., 229–30.
24 Ibid., 238.
25 Galston, Liberal Pluralism, 88.
26 Williams, introduction to Concepts and Categories, xxxvii–xxxviii. For other, more detailed attempts to link pluralism with liberalism see Crowder, Liberalism and Value Pluralism; Crowder, Isaiah Berlin; Galston, Liberal Pluralism.
27 Bellamy, “Liberalism and the Challenge of Pluralism,” 194.
28 Berlin and Jahanbegloo, Conversations with Isaiah Berlin, 144.
29 Elsewhere Waldron finds Montesquieu more helpful and chides Berlin for not appreciating this: ibid., 276–78.
30 Spicer, “Value Pluralism and Its Implications for American Public Administration,” 522.
31 See also Waldron, , Law and Disagreement (Oxford: Oxford University Press, 1999)CrossRefGoogle Scholar. For a range of other views on the merits of judicial review in relation to democracy, see Tushnet, Mark, Taking the Constitution Away from the Courts (Princeton: Princeton University Press, 2000)CrossRefGoogle Scholar; Kramer, Larry D., The People Themselves: Popular Constitutionalism and Judicial Review (Oxford: Oxford University Press, 2004)Google Scholar; Brettschneider, Corey, “Popular Constitutionalism and the Case for Judicial Review,” Political Theory 34, no. 4 (2006): 516–21CrossRefGoogle Scholar; Den Otter, Ronald C., Judicial Review in an Age of Moral Pluralism (Cambridge: Cambridge University Press, 2009)CrossRefGoogle Scholar.
32 See Richard Bellamy, who rejects judicial review in favor of democratic negotiation and deliberation: Bellamy, Liberalism and Pluralism; Bellamy, “Liberalism and the Challenge of Pluralism.”
33 On this point Waldron cites the authority of Rawls, Political Liberalism (New York: Columbia University Press, 1993)Google Scholar, but extends Rawls's insight from disagreement about conceptions of the good to include conceptions of the right as well.
34 See also Waldron's sympathy for Richard Posner's rejection of “moralist” approaches to legal studies in favor of “pragmatic arguments that would accumulate empirical evidence”: Waldron, Jeremy, “Ego-Bloated Hovel,” Northwestern Law Review 94, no. 2 (2000): 611Google Scholar.
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36 Cole, David and Dempsey, James X., Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security, 2nd ed. (New York: New Press, 2002)Google Scholar; Whitehead, John W. and Aden, Steven H., “Forfeiting ‘Enduring Freedom’ for ‘Homeland Security’: A Constitutional Analysis of the USA Patriot Act and the Justice Department's Anti-terrorism Initiatives,” American University Law Review 51 (2001–2002): 1081–1133Google Scholar.
37 See Ramraj, Victor V., Hor, Michael, Roach, Kent, and Williams, George, eds., Global Anti-terrorism Law and Policy, 2nd ed. (Cambridge: Cambridge University Press, 2012)Google Scholar; Davis, Fergal, McGarrity, Nicola, and Williams, George, eds, Surveillance, Counter-Terrorism and Comparative Constitutionalism (London: Routledge, 2014)Google Scholar.
38 See Ionescu, Ghita and Gellner, Ernest, eds., Populism: Its Meaning and National Characteristics (New York: Macmillan, 1969)Google Scholar; Taggart, Paul, Populism (Buckingham, UK: Open University Press, 2000)Google Scholar; Mudde, Cas and Kaltwasser, C. R., “Populism,” in Oxford Handbook of Political Ideologies, ed. Feeden, Michael et al. (Oxford: Oxford University Press, 2013)Google Scholar; Mudde, Cas and Kaltwasser, C. R., eds., Populism in Europe and the Americas: Threat or Corrective for Democracy? (Cambridge: Cambridge University Press, 2013)Google Scholar; de la Torre, Carlos, ed., The Promise and Perils of Populism: Global Perspectives (Lexington: University of Kentucky Press, 2015)Google Scholar.
39 See, e.g., Zaslove, Andrej, “Closing the Door? The Ideology and Impact of Radical Right Populism on Immigration Policy in Austria and Italy,” Journal of Political Ideologies 9, no. 1 (2004): 99–118CrossRefGoogle Scholar.
40 Rupnik, Jacques, “How Things Went Wrong,” Journal of Democracy 23, no. 3 (2012): 132–37CrossRefGoogle Scholar; Bankuti, Miklos, Gabor, Halmai, and Scheppele, Kim Lane, “Disabling the Constitution,” Journal of Democracy 23, no. 3 (2012): 138–46CrossRefGoogle Scholar; Mueller, Jan-Werner, “Eastern Europe Goes South: Disappearing Democracy in the EU's Newest Members,” Foreign Affairs 93 (2014): 14–19Google Scholar.
41 Kalkan, Kerem Ozan, Layman, Geoffrey C., and Uslaner, Eric M., “Bands of Others? Attitudes toward Muslims in Contemporary American Society,” Journal of Politics 71, no. 3 (2009): 847–62CrossRefGoogle Scholar.
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43 For an entertaining survey in the UK context see Pannick, David, Judges (Oxford: Oxford University Press, 1988)Google Scholar, chap. 2.
44 See, e.g., Malleson, Kate, The New Judiciary: The Effects of Expansion and Activism (Aldershot: Ashgate, 1999), 103–5Google Scholar.
45 Gibson uses survey evidence to argue that, although some campaign activities are viewed more positively than others, “the predominant essence of judicial elections is not foul”: Gibson, James L., Electing Judges: The Surprising Effects of Campaigning on Judicial Legitimacy (Chicago: University of Chicago Press, 2012), 141CrossRefGoogle Scholar.
46 Ibid., 88–89.
47 Griffith, J. A. G., The Politics of the Judiciary, 3rd ed. (London: Fontana, 1985)Google Scholar.
48 Peretti, Terri Jennings, “Does Judicial Independence Exist? The Lessons of Social Science Research,” in Judicial Independence at the Crossroads: An Interdisciplinary Approach, ed. Burbank, Stephen B. and Friedman, Barry (Thousand Oaks, CA: Sage, 2002), 103Google Scholar.
49 Porat, “The Plural Implications of Value Pluralism,” 919.
50 Ibid., 920.
51 Ibid., 920–21.
52 Ibid., 921.
53 Ibid., 923.
54 Schwarzschild, “On This Side of the Law and On That Side of the Law,” 756.
55 Ibid., 759.
56 Ibid.
57 Green, Leslie, “Internal Minorities and Their Rights,” in The Rights of Minority Cultures, ed. Kymlicka, Will (Oxford: Oxford University Press, 1995), 270Google Scholar.
58 Schwarzschild, “On This Side of the Law and On That Side of the Law,” 761.
59 Ibid., 770.
60 Berlin's pluralism is alleged to be relativistic by Arnaldo Momigliano, “On the Pioneer Trail,” New York Review of Books, November 11, 1976, 33–38; Sandel, Michael, introduction to Liberalism and Its Critics, ed. Sandel, Michael (Oxford: Oxford University Press, 1984), 8Google Scholar; Strauss, Leo, “Relativism,” in The Rebirth of Classical Political Rationalism: An Introduction to the Thought of Leo Strauss, ed. Pangle, Thomas (Chicago: University of Chicago Press, 1989), 13–18Google Scholar. This is denied by Berlin, “Alleged Relativism in Eighteenth-Century European Thought”; Lukes, Steven, “Must Pluralists Be Relativists?,” in Liberals and Cannibals: The Implications of Diversity (London: Verso, 2003)Google Scholar; Ferrell, Jason, “The Alleged Relativism of Isaiah Berlin,” Critical Review of International Social and Political Philosophy 11, no. 1 (2008): 41–56CrossRefGoogle Scholar.
61 I develop this distinction between value pluralism and cultural pluralism in Crowder, George, Theories of Multiculturalism: An Introduction (Cambridge: Polity, 2013), 157–58Google Scholar, and Crowder, George, “Pluralism, Relativism, and Liberalism,” in The Cambridge Companion to Isaiah Berlin, ed. Smith, Steven B. and Cherniss, Joshua L. (Cambridge: Cambridge University Press, 2018), 236Google Scholar, 241–43.
62 Schwarzschild, “On This Side of the Law and On That Side of the Law,” 761–62.