As I reflect on this further, I realize that a big part of why I opposed Brexit is because I largely discounted the democratic accountability argument… because a century of libertarian argument equating democracy with socialism had conditioned me to do so. Suppressing democratic politics in order to liberalize trade must be good, right? Isn’t democratic politics all about two people agreeing to steal from a third?
Interestingly, the most compelling arguments for Brexit (as I review them after the fact–I didn’t review them before the fact for the same reason that I haven’t read a biography of Donald Trump to evaluate his desirability as president because the prospect bordered on the unthinkable) are about democratic accountability, and, interestingly, these are the arguments that American Brexit supporters are fastening upon now… and over the past few years I myself have become friendlier to democratic institutions as a vehicle for peaceful conflict resolution (in essence all political institutions are vehicles for peaceful conflict resolution). Naturally I find this a bit ironic, but I will not rail against the hypocrisy, because I don’t believe that all legitimate political and moral goods can be realized without tradeoffs, even if everyone else seems to think so.
So: internal tariff union: good. External tariffs for the union: bad. Price transparency: good. Central banking yoked to social science judgments: bad. Helping spread democracy and capitalism to former totalitarian countries: good. Helping an unaccountable and arrogant technocratic bureaucracy impose a regulatory structure in the name of a false rationality but for the purpose of promoting rent-seeking by the privileged and well-connected few: bad. [bottom line] Preventing nations from doing stupid things: good. Preventing nations from doing seemingly stupid things when they aren’t actually stupid: bad. Of course, one of the virtues of democracy is that it allows a group of people to learn from its mistakes and correct them. Paternalism does not.
It’s all rather complicated, isn’t it? Interesting that others seem not to find it so, but just like me, the drive for coherence among our sacred symbols is powerful. Reality, however, is always far messier.
This blog is in part dedicated to something I’ve called “liberalism, classical and pragmatic.” The phrase “classical liberalism” is code in certain circles for “libertarian.” The question of what pragmatism requires shall engage us shortly. The more immediate question is, shouldn’t a libertarian rail against Brussels and cheer without restraint at the comeuppance its bureaucrats just received by the British referendum which demands that the United Kingdom leave the European Union altogether? As it happens, I’m quite opposed to “Brexit” which has given me some rather strange bedfellows today, and all this demands some explanation.
The easiest question to answer is, if the EU redistributive schemes and the Commission regulations are bad, but free trade is good, then why not see exiting and replacing membership with a free trade deal between the UK and the EU as an unalloyed good? And the short answer is, I don’t believe that will happen. Part of the problem here is because the EU serves a multiplicity of functions, and its members have lots of reasons for not wanting to see it unravelled. If it is perceived as easy to leave and just re-negotiate trade agreements, it will unravel. Since the other member states don’t want that, they have a pretty good incentive to punish the UK as much as possible for leaving to disincentivize others who might want to leave. The fact that there is a long long history of little love lost between the UK and the Germans and French will make this an easy step to take. You might think that the other 27 countries would be as concerned about losing the British market to export to as the British should be concerned to lose access to their markets… but they’ll be far more concerned about the prospect of losing access to the other 26 markets. Better to cut off the gangrenous limb than to let the infection spread.
The broader historical question is, how do you understand what the EU is fundamentally. Well, here’s a question for you. Suppose I gave you this choice: you could have the United States exactly as it is, with all its shortcomings, or you could have 50 independent nations run by populist demagogues: which would you prefer? A lot of conservative antistatist rhetoric resembles anti-abortion rhetoric: it’s safe because you’re pushing back against something so powerful (the federal judiciary) that you don’t have to worry about any possible downside to pushing back too hard and actually destroying it. But suppose you could? Suppose that the next time you turned on Fox News, the United States simply ceased to exist? Hurray! No more onerous regulations! No more abortion rights! No more same sex marriage! Yes, but at the same time, 50 foreign policies, 50 currencies, 50 borders with barriers to immigration, and (if Etel Solingen is to be believed, and I do believe her) eventually endless war. What, after all, characterized Europe for 1500 years before the EU? If you’re a Nietzschean a return to endless war would have its upside I suppose.
When discussing domestic politics I almost invariably favor keeping things at the state level–for example I supported same sex marriage but believed that it should be created on a state-by-state basis. This emphasis of mine should not deceive you: I think our system of federalist dual sovereignty is awesome, even if the federal level has gotten too big for its britches. If you agree, it is worth noting that the burdens imposed by the EU are far less onerous than those imposed by the US federal government. If we had a constitutional convention tomorrow and replaced the US constitution with an “American Union” treaty, and 50 co-signatories, we’d have more local control, not less. The downside is that Congress would have less power. But you hate Congress anyway, right?
The EU emerged out of Europe’s encounter with totalitarianism. One of its crucial functions was to facilitate the transition of former communist countries in Eastern Europe to becoming “normal” European nations. If you look at the accession criteria, they are organized around a broad consensus of what it means not to be a totalitarian country: free markets, multi-party democratic elections, rule of law, civil liberties. It is not just about peace and immigration: it’s about everything that we are. And holding out the carrot of access to markets as an incentive to adopting these core Western political values actually spread these values more effectively than anything short of Allied troops physically occupying a former totalitarian country ever had. Some might say more so.
The people of the Ukraine had a revolution just for the privilege of being able to have a relationship with the EU. Vladimir Putin hated that. Today Vladimir Putin is a little happier than before.
But the deeper philosophical question is: why can’t you simply be 100% pro freedom and direct limitless hatred at the slightest deviation from it? The short answer is pragmatism, but why is that? Why can’t we just all agree to be 100% pro freedom? And what possible harm can come from being uncompromising? Simply this: it is a Hobbesian, or if you prefer, a Nietzschean world. The appetite for power is ineradicable. The tendency of states to concentrate power is ineradicable. The tendency of states to compete with each other for power is ineradicable. The only way you can carve out a space for individual freedom in the world is through institutions and the institutions themselves must possess a minimum requisite amount of power themselves, or else those who would be free become easy prey for those who care nothing for freedom.
In a way, Europe’s conundrum is analogous to our own. There was a time when the burden of federal power on the states was lighter, and that meant that people power could prevail on the state level. One of the things the people did with their people power was support slavery. Emancipation came not from the slaveholders being persuaded that slavery was wrong, or even that it was not in their very long term best interests–it came in the form of Union troops. It came from a MORE POWERFUL GOVERNMENT. Because if the Union government had been less powerful, it would not have come… oh perhaps someday, but cold comfort to those who would still die in chains in the meantime. Whether all this was a good thing or a bad thing is easy… if you think slavery was awesome, or if you think one legacy of Lincoln’s achievement, a government powerful enough to enact FDR’s and LBJ’s social policies and a federal judiciary powerful enough to impose its values against people’s will, is awesome. That is, if you don’t care about freedom much at all, but about other things. If you do care about freedom, the question becomes FAR MORE DIFFICULT, but on balance, I’m glad the Union won the Civil War, I’m glad that we won WW2, I’m glad that we won the Cold War… and that, as a result, the EU exists.
The solution to the problem that the EU represents is not its destruction, but its improvement, its all-too-slow movement towards greater democratic accountability: a stronger European Parliament to balance the Commission and the Council. And I think that will probably be one of the results of Brexit, because while the previously arrogant elites running it will be keen to punish the UK, or even help tear it into its component bits, it will also see the warning for what it is and move to accelerate democratic accountability out of fear. That’s all to the good.
American conservatives today are cheering Brexit for the same reason that they blithely talk as if the absolute abolition of the United States government would be a good thing, as if all the things that happen because it is there would continue to happen if it weren’t there… because there is no prospect that calling for such a thing will have any real consequences for them.
In postscript let me say a few words about alternative responses to everything I’ve said. If you are a real Marxist, then you will presumably agree with me that the EU is ultimately both an effect of and an instrument of capitalism and American power, and as a result anything that weakens it would be a good thing. I respect you, noble adversary! Not only are you honest, but you see certain things more clearly than your kumbaya-singing brothers and sisters who think that the EU is an effect of, and an instrument of niceness. Conversely, if you are a Christian pacifist, and you think that pragmatic compromise with power to enhance freedom is the the Devil’s way, and that the only right thing to do in the face of power is to surrender completely… and hope that at the end of history God will set it all to rights, I also respect you. But if you are a Brexit cheering conservative today, whether in England or the United States, and you aren’t a Christian pacifist, I fear you may be mistaken. We in the United States will not pay much of a cost: we’re going to enter into a trade pact with the EU, not the UK, and so like many conservative reactions, this will be a matter of expressive values, while the hated elites get on with the job of managing capitalism (I almost said “thankless” job but of course there are goodies to be doled out–it’s still “crony capitalism” we’re talking about, yes indeed). But for the people of Britain, I fear that their tantrum will prove to be the absurd conclusion of a century of decline: once, the sun never set on the British Empire. Soon, I fear, the sun will set on Great Britain itself. I pray that it will not set any time soon on the architecture of freedom that a century of struggle, American struggle notably but not exclusively, helped to create, and which still represents the best hope for a decent life for hundreds of millions.
I’m beginning to think that the fundamental difference between a progressive and a conservative (in America) is that the former says “that has absolutely nothing to do with me” about the suffering caused by communism, and the latter says “that has absolutely nothing to do with me” about the suffering caused by slavery. And each will insist that the sympathies which come easily to them are natural and appropriate, and the ones they resist are merely a ploy by their enemies to weaken them.
Thus are we all creatures of the specific form our defensiveness and lack of imagination takes.
I haven’t slept. I want try to write up some sort of account that can explain why some people are reacting this way to the people who are not reacting this way. I will say that there is this line that comes to mind, from Ossie Davis’ eulogy for Malcolm X (paraphrasing): “he was our shining prince.” It was not primarily about liking the music and the other things he did, though of course we were fanatics for them. He was one of the great personalities “fit to stand the gaze of millions” (as Stanley Cavell said of Cary Grant) but rather than being a man who “carries the holiday in his eye,” Bowie’s magnetism was born of a confidence that braved an inner brokenness, a confidence that anything, no matter how dreadful or undermining, could be transformed into something meaningful and pleasurable, because this particular center of consciousness in the world thought itself supremely worthy of existing regardless of what it was conscious of. That confidence underlay a tremendous artistic fertility and ambition, a tremendous restlessness, the achievement of which was to take Modernism in the arts and make it popular, expressive, and accessible, thus giving the lie to the thesis that Modernism has to be elitist or fraudulent. For many of us, Bowie’s restlessness was educational, and we learned about all sorts of developments in art and music and literature just because he had become enormously excited by them and mentioned them, whether it was ambient music, or German Expressionism, or William S. Burroughs, or something else. He is the only pop star to have two of his albums transformed into successful classical symphonies by one of our leading composers, and the only pop star who had a museum show retrospective, not about his paintings, but about his very existence. From the beginning he conveyed a sense of vulnerability and alienation that on some level we all possess just by virtue of being human, and transformed it into a sense of dignity and importance deriving from our awareness of that vulnerability. For someone who seldom acted, he had a handful of the most iconic moments in cinema of our time, whether it was as the stranded extraterrestrial who quietly explains that he misses his children, the army major who triumphs over the madness of war and its ethos with a kiss, or the weary Roman governor condemning “just another Jewish politician” to death on a cross. Though the press always characterized him as endlessly mutable, appropriative, and false, he always seemed to me to be essentially the same, always hiding in plain sight, always himself… and his existence seemed a kind of continual triumph over an underlying and imperishable sadness that is perhaps the only truly rational response to a world such as this. There will never be another like him.
David Bowie, 1947-2016
There may be a problem with our tolerationist stance towards Islam. It is rooted in our intellectual strategy for dealing with Al Qaeda, who claimed authority on the basis of interpretation of scripture–it was a “rabbinical” authority. But one man’s fatwa is another man’s intemperate, misguided bullshit. Since many Muslims simply ignore the claims of religious accuracy offered by such groups (which can be either Shia or Sunni), our stance, which was that this is an interpretation of Islam, not Islam itself, was a powerful one.
But ISIS does change the equation in a way that Western liberals have not quite caught up with. ISIS does not claim to be interpreting scripture and tradition more accurately than other, more temperate interpreters; ISIS claims to be the Caliphate. That is, they claim their leadership has immediate religious authority, and that it is simply all Muslims’ duty to obey it directly, whatever it demands. There’s no room for interpretive controversy here. You either accept that they are the Caliphate or not.
The problem that this poses is that we can’t contest the claim by saying that they don’t represent the real ethos of Islam because whether they do or not is actually religiously irrelevant. You can only contest it by saying that (Sunni) Islam is false, and no one is ever the Caliph, or by saying that Abu Bakr al-Baghdadi is not himself the Caliph, though perhaps someone else someday could be; in other words, by asserting a contrary religious claim. You see, subsuming a group under tolerationist separation of church and state is made awkward when the group itself does not accept the very idea of separation of church and state. As soon as ISIS goes away, we can return to the liberal narrative, because no Muslim owes any special loyalty to any particular group or individual, absent a Caliph, and can in the meantime give their political loyalty to secular Western states as needed. But ISIS has not yet gone away. (And to say that this whole topic is unimportant because so few people accept that al-Baghdadi is the Caliph is to misunderstand the nature of the problem; “33% of young British Muslims expressed a desire to see the resurrection of a world-wide caliphate.”)
Although a lot of Westerners are not aware of this, this problem does not arise with Shia Islam, which does not accept the idea of a Caliphate at all; as a result, all Shia religious authority is “rabbinical.” This would seem to suggest that if we are going to undertake the fool’s errand of playing the Great Game in the Middle East, we might want to rethink our attitude towards Iran, which is Shia, and thus in principle more open to reform via interpretation. Since in effect what is going on in the Middle East today is a grand Sunni versus Shia war, we might at least consider rethinking our strategy, which appears to be to be on everyone’s side, so that we are guaranteed to win… and lose, come what may.
Welcome to the clash of civilizations. The problem with trying to reconcile our own preferred liberal attitudes with framing Islamophobia as xenophobia is that it is conceptually dependent upon a religious dialogue with Islam itself which secular liberals are loathe to take seriously, being secular, and incompetent to pursue in any case. But the time has already come when saying “reasonable people can differ about what Islam requires” is inadequate. That claim itself presupposes that we are still in a world in which there is no Caliph. The claim to be the Caliphate is an ideological claim of an entirely different order, and Western liberals are forced into the awkward position of rejecting it in order to restore the status quo ante in which our tolerationist rhetoric still made sense. The ultimate source of our tolerationist ideals, John Locke, understood the problem well himself, when he said: “It is ridiculous for any one to profess himself to be a Mahometan only in his religion, but in everything else a faithful subject to a Christian magistrate, whilst at the same time he acknowledges himself bound to yield blind obedience to the Mufti of Constantinople, who himself is entirely obedient to the Ottoman Emperor and frames the feigned oracles of that religion according to his pleasure.”
For an alternate view, see my old friend Juan Cole on the same subject.
This either represents great progress… or it doesn’t. One thing that the Left and the Right seem to agree on is that the rule of law, the political community and its institutions, are basically nothing, and that all that matters is the individual and how other individuals treat them morally. (I could cite countless pieces of evidence in favor of this, but one of them is the blitheness with which Republicans are dismissive about the constitutional right to citizenship through birth, and the blitheness with which Democrats are dismissive of lack of citizenship through naturalization… but today I’m thinking of course about Kim Davis). Of course no one can agree on what morality requires, which is a slight inconvenience… but for the time being it seems sufficient to seize control of the State and impose one’s moral beliefs on those around one. Show me which major political party is not committed to that in principle and in fact, while at the same time being utterly dismissive of the very idea of the rule of law.
The idea of the rule of law obviously means nothing to people; the idea of citizenship obviously means nothing to people. Well, no worries. All we have to do is make sure all of humanity (yes, all: since citizenship means nothing, there’s no reason why either rights or duties stop at the border–“we” [whoever has the power to do so] must “care” for all of humanity, and at the same time demand that all of humanity behaves properly by “our” lights, and obeys the correct morality, as discovered by… well, we’re working on that.
The fundamental truth on which our style of political community is based on is not that there is no objectively correct morality, but that there is no prospect of everyone in a community agreeing on what its content is… and that in the name of peaceful relationship, we impose on ourselves peaceful means of conflict resolution which do not require this agreement. Unfortunately, not only do we not agree on even that, but most people seem to be unaware of the very idea–it’s something our ancestors came up with from which we benefit but which we have forgotten about. Another way of putting this is, we are eating our political capital, our political seed grain, and will someday reap an awful harvest as a result. In the meantime, enjoy your dinner.
I have a mishmash of topics I’d like to discuss in connection with Obergefell, but first I’d like to remind readers that I have discussed the legal issues relating to same-sex marriage quite extensively in earlier posts, albeit posts that pertained to earlier cases.
The first topic is fundamental rights, equal protection, and levels of scrutiny. The recurring issues in connection with laws burdening gays include: is the problem with the law that it violates a fundamental right, or that it violates equal protection? If it violates a fundamental right, then we are automatically at the highest level of scrutiny. If it violates equal protection, then we have to decide what level of scrutiny we are in; if classifying people as homosexual is a suspect classification, then we are in strict scrutiny. The interesting point here is that it has been very tempting for people to assume that all the laws which burden gays, including the marriage laws that preclude same-sex marriage are problematic because they violate equal protection, a claim which then invites the inquiry as to what level of scrutiny we are in. But if we look at the past Supreme Court cases, it appears that the only one which exclusively relies on equal protection is Romer (the case in which Colorado amended its constitution to forbid antidiscrimination statutes that protected gays), and in that case, no heightened level of scrutiny was involved: the Court in essence held that no legitimate end (for example, conserving antidiscrimination resources for higher priority forms of discrimination) could be credited as rationally related to the means adopted, and thus the only end must be to facilitate discrimination against gays as such, an illegitimate end. The other signature cases, Lawrence (sodomy laws), Windsor (the Defense of Marriage Act), and Obergefell (marriage laws which do not permit same-sex marriage) all depend either primarily or exclusively on Substantive Due Process.
The reason why this is important is that it does shift the discussion in ways that make the case for the majority in Obergefell much stronger. While conservatives have always been troubled by all substantive Due Process case law, none of them with the exception of Justice Thomas, who is perhaps the purest originalist on the Court, has unequivocally rejected the notion. But the Court has an old line of cases invoking substantive Due Process which say “you can’t prevent so-and-so from getting married.” Of course, the specific descriptions of who is and is not covered by this argument is not written in the constitution at all: it’s a non-textual right implicit in the constitution’s guarantee of liberty. My point is simple: who’s to say that gays are not covered by this fundamental right? That is, the “plucked from nowhere” quality of this right seems no better or worse than any of the other marriage cases which were decided against states. The much stronger position here for the opponent would be to say that all such decisions have been ludicrous because they pluck marriage rights from nowhere. Once you concede that any of the marriage rights cases are legitimate, it’s very difficult to see what justifies objecting here.
Some have complained, quite cogently, that states regulate marriage in all sorts of ways, prohibiting incestuous marriages, for example, and that if those laws presumably are constitutional, how could laws limiting marriage to opposite sex couples not be? But I think this cuts the other way: I think we will find, in the very long run, that laws prohibiting incestuous marriages are unconstitutional because, marriage. Such laws surely would not survive strict scrutiny in a world in which genetic testing is an option, and the prospects for standing in the way of the marriage juggernaut by relying on moral notions looks bleak indeed.
Another question is: why is it that conservatives make the kinds of arguments they do? Here I must assume some degree of familiarity with the arguments made in various cases. My first hypothesis is that conservative jurisprudence is a species of legal positivism of the John Austin variety. This should be contrasted with views that hold that law is the expression of the concept of natural justice, or an evolving social consensus about the nature of justice, say. For Austin, laws are essentially commands by a sovereign. In order to know whether something is lawful or not, you must know who the sovereign is and what they commanded. The emphasis on sovereignty suffices to explain the conservative jurist’s preoccupation with democracy, for in a republic, a non-monarchy, the sovereign would have to be the People Themselves. Now in these kinds of cases, we’ve really got two different sovereigns sharing power: the People of [state] and the People of the United States. The emphasis on commands helps to explain the resistance to contextual (by which I mean non-explicitly textual) constitutional provisions. Marriage is not mentioned in the Fourteenth Amendment. Nothing is said except that one cannot deprive someone of life, liberty or property without due process of law. A very natural way to construe this following either an understanding of English as used at the time of ratification or an understanding of what kinds of laws the ratifiers of the Fourteenth Amendment were troubled by (the notorious Black Codes after the Civil War) would be to say that there could be no executions, prison sentences or fines without some sort of trial (and perhaps no takings by eminent domain without some government process for same). There is no obvious way from that to “therefore gays can marry” if we imagine the words as a command issuing from a sentient being. If that sentient being was concerned about same-sex marriage and uttered these words, its communication skills are sorely lacking.
There are many philosophical reasons for being enamored with legal positivism, the largest being its austerity both metaphysical and epistemological. Originally, legal positivist views were especially attractive to progressives because of the propensity of the Court, roughly from after the Civil War to before the Great Depression, to find non-textual libertarian principles lurking behind the text, and to use them to invalidate laws which burdened business. (This is, to this day, perhaps the easiest way to tell if someone is conservative or a libertarian: ask them what they think of Lochner). Naturally, conservatives were enamored with the legal positivism earlier championed by progressives because it served to shelter not only progressive economic legislation from judicial attack, but conservative moral legislation as well (especially abortion laws).
Setting aside the idea that people adopt the jurisprudential theory that gives them the political results they want (which probably should be set aside here, because I don’t think that you can get a consistent partisan result by adopting a particular jurisprudential theory and applying it consistently across the board) I can think of one reason why conservatives might find legal positivism attractive. Scott Alexander has argued that the best way to understand the difference between progressives and conservatives is in terms of a “Thrive or Survive” hypothesis. The easiest way to express this idea is: imagine that the Zombie Apocalypse had come. What would you need? “First and most important, guns. Lots and lots of guns.” But it doesn’t end there. Will you need to limit the extent of your support for the unproductive? You betcha! Will you need strong leadership and strong defensive capabilities? Indeed. Will you want to indulge women’s reluctance to reproduce? No way: the survival of the species is at stake. Should you welcome total strangers from who knows what other tribe with open arms? Are you nuts? They might kill you! Scott Alexander quickly shows that almost every political position you can think of looks more conservative if viewed in light of the Zombie Apocalypse (or, put differently, from the perspective of an assumption of maximum risk and maximum scarcity).
By contrast, progressives operate on the assumption of maximum abundance and maximum security. Should you cruelly cut off the less-well-off? Why would you! Should you waste money on defense? Of course not! Will taxing the rich, which might diminish the efficiency of the economy, do enough harm to worry you? No way: the economy is a goose that not only lays golden eggs, but has amazing superpowers–it’s essentially indestructible. Should you replace strong and fast leadership with rule by consensus after exhaustive discussion? It’s only fair that everyone have a say. What could go wrong? Of course the real world cannot be characterized crudely in terms of whether it is a basically risky, resource-scarce place, or if it is a basically benign, abundant place–this is emotional processing we’re talking about, not an (impossible in any case) overall assessment of “what the world is like.” (By the way, my use of the phrase “resource-scarce” as a conservative, not progressive, assumption may strike you as puzzling insofar as environmentalism resides on the Left. But actually, it makes sense that [mainstream] environmentalism resides on the Left: it presupposes that there will still be plenty if we make some sacrifices for the sake of the environment; it’s the conservative who thinks that if we restrict greenhouse gases, the economy will collapse and we’ll all starve in the dark. For a glimpse of the fundamental optimism of mainstream environmentalism, see the last few minutes of Watchmen. Radical environmentalism is another matter, but then again, I don’t think Scott Alexander’s model explains radicalism of the Left or the Right anyway.)
What on earth does any of this have to do with legal positivism? Simply this: conservatives who embrace legal positivism seem to be drawn to slippery slope arguments. “If we commit ourselves to this principle, look what can happen if we rigorously apply it ever after?” For example, the principle “the judiciary can invalidate laws.” Does that open the door to a fascist world in which we are ruthlessly governed by nine (five, actually) wise elders, who will act against our interests and grind us into the dust? It does indeed. Will anyone actually walk through that door? That’s another question entirely. The power of slippery slope arguments depends, implicitly, on a causal assumption: that people act on the principles they adopt, and that people will continue to act on them even when the consequences of doing so are manifestly bad. This deeper assumption seems intuitively plausible to conservatives; to progressives, it seems manifestly ridiculous. Put it this way: if my principle is P, and it is already true that if P, then Q, and Q is bad, well adopting P is a terrible mistake if the prospect of actually drawing the inference to bad Q can be seen on the distant horizon. But why worry? the progressive says. We don’t have to infer to Q today, and at the moment P looks like a useful temporary expedient. What happens when it begins to look like we will have to infer to Q? Simple: just modify the original principle which reads “P” to a new principle “P but not Q.” Crisis averted. This is why slippery slope arguments mean nothing to progressives; their force depends on the causal assumption that inferences drawn will lead to action, and that principles once committed to can never be revised.
Since that’s not obviously always the case, why would the conservative tend to think otherwise? Here’s the Scott Alexander hypothesis: cognitive and deliberative resources are superscarce too. “Look, we’ll cross that bridge when we get to it.” “No! We won’t have time to do anything but follow the implications of the rule now because we can’t spend all our time thinking and deliberating about our rules… after all, the zombies are coming!” “Huh? What zombies? We’ve got all the time in the world. Doesn’t everyone spend all their days engaged in political debate, legal reasoning and philosophical reflection? I know I do! Hand me another grape from the Horn of Plenty over there and lets talk about this.”
(If you haven’t noticed, Scott Alexander’s hypothesis has implications for class analysis too: the lower on the class hierarchy you are the less revolutionary you are likely to be. Which explains why the Republican Party so often adverts to populist rhetoric and accuses Democrats with remarkable success of being elitists.)
There are other reasons for thinking that legal positivism is plausible, but its attractions for conservatives in particular are a bit puzzling, given that, in other settings, one would think a conservative would be more attracted to natural law notions of justice, while progressives would be skeptical of them, along with anything else that clashes with an overall commitment to Enlightenment Anticlericalism. The virtue of the hypothesis is that it traces the attraction of an austere and elegant theory to a style of thinking informed by a need for simplicity and fast, infrequent decision-making. Progressives like to think that the real reasons for conservative styles of thinking are either to conceal their service to nefarious interests, or else stupidity (c’mon, don’t you basically think exactly that, Gentle Reader?). But perhaps the truth is that for conservatives, the world is simply a darker and scarier place than it is for progressives. As you shop at your Whole Foods for arugula while reading the New York Times on your iPhone, in the nation with the largest GDP on earth, not wondering about whether you will become unemployable and poor, and not risking your life to protect people who speak Arabic, you might think that such a vision calls for therapy.
Then again, it may be that your perspective is conditioned by circumstances exceptional in the extreme, exceptional even within your own country.