Publication Type: Conference Paper/Unpublished Manuscript
Abstract: This paper explores the tension within law and liberalism -- and liberal legalism -- that arises when the traditional conception of moral psychology breaks down. According to the traditional conception, within every psyche, reason vies with the passions and the appetites; a well-ordered, "virtuous" psyche is one in which the passions are subordinated to reason. This traditional reason-based and virtue-based conception of moral psychology was common to the various religious and political philosophical traditions from which our legal and political-philosophical system descend. It informed traditional religious views, including the concepts of Christian liberty, and it also informed the political tradition of civic republican thought, as has been famously explored by J.G.A. Pocock. The traditional moral psychology was challenged by a rival conception of morality and psychology, a challenge whose reverberations continue to animate and confound liberal thinking to this day. That challenge informed the Romanticist revolt against the Enlightenment, but it also was adumbrated by alternative religious conceptions of faith which rivaled the reason-based account of moral virtue (and the well-ordered psyche.) Increasingly, this anti-virtue, anti-reason conception of psychology took hold in the modern world, informing not only such revolutionary psychological theories as Freud's theory of the psyche but also becoming integrated into liberal thought. The result is an abiding tension within liberalism between the traditional reason-based conception of morality and psychology and an alternative view which places the libidinal force of desire at the forefront -- a tension which has both animated and confounded the development of liberal legal and political thought.