Welcome to the second episode of our new podcast season about Liberalism and the Arts.
This episode features our guest Cass Sunstein, the leading legal scholar, bestselling author, and one of the most influential thinkers on liberalism, law, and public policy. He joins Rebecca Lowe to explore the relationship between the arts and liberalism. They discuss what makes a work of art “liberal,” the representation and role of choice in music and popular culture, the moral and aesthetic limits of political messaging in art, how liberal societies shape and are shaped by the culture they produce, and much more.
New episodes of this podcast season come out every two weeks.
TRANSCRIPT
REBECCA LOWE: I’m delighted to be joined by Cass Sunstein, today. Legal theorist, prolific writer, chronicler of the “nudge,” and writer of a recent book on liberalism. Thanks for being here, Cass.
CASS SUNSTEIN: Pleasure to be here.
LOWE: We’ve been thinking a bit in this season of our podcast on arts and liberalism about particular artists, or other kinds of—writers, producers of art objects—thinking of them as liberals. This question can obviously mean lots of different things. I think it can lead us on to some questions I’m keen for us to discuss about the relation more generally between liberalism and culture. But I know you are there, in writing, having stated that Bob Dylan is a liberal. I’m just wondering, what do you mean by this? In what way is Bob Dylan a liberal?
Liberalism in Dylan’s Music
SUNSTEIN: Well, have a listen to “Maggie’s Farm,” which is a song about freedom, and not working on Maggie’s farm anymore. Some of the energy of the song comes from the embrace of freedom that the song instantiates. “Like a Rolling Stone” is an anthem. It’s an American anthem. And it turns the situation of rootlessness, and no direction home, into a situation of liberty. That’s why it’s an anthem. And it’s a liberal song in its celebration of people’s ability to make choices.
Now, that’s not all liberalism is, by any means. The liberal tradition is pretty subtle on this point. But the enthusiasm for agency and autonomy is at the center of Dylan’s work. And my favorite moment really for that was when he sang “Like a Rolling Stone” in the UK, and he got booed, and he turned to his people, and he said, “Play it f-ing loud,” which was a liberal moment.
LOWE: That’s good. I should say, I love classical music; it’s only really in the last two years, I’d say, I’ve started listening to non-classical music. So I’m not the best person to ask you about Bob Dylan. Although I have recently, I think, had a change of view about Bob Dylan. I think I used to be one of those silly people who thought, “I don‘t know, it sounds quite good, but why would you give him the Nobel Prize for literature?”
But recently, I have been listening to some—partly in preparation for this. And it did strike me, I mean, some of these ones you’ve mentioned, they seem quite obviously liberal songs. Some of the civil rights songs seem to be these anti-establishment songs. It seems to me that “Maggie’s Farm” is an anti-establishment song. It seems to me—what is the one where he lifts up the little cards? “Subterranean Homesick Blues”, that seems anti-establishment. There are some anti-war songs, obviously. There’s “Hard Rain.” And then there are the more explicit civil rights ones. These seem liberal because they are engaging in a political sense.
SUNSTEIN: I think we want to be very careful about this. So, Dylan talked about protest songs with revulsion rather than identification. He described protest songs as basically the songs of dead people. He described political posturing in songs as a way of losing your spirit and just spouting cliches. So the “Hard Rain” song, I don’t think it’s a political song in the narrow sense. I think if it’s a liberal song—and I think it is—it’s about freedom and about obstruction of same.
If you hear other early songs that have a political dimension, notice their longevity is that the spirit of the song much outruns the moment for which the song maybe was written. Think of “Blowin’ in the Wind,” which is often described as the anthem of the early ‘60s. But “Blowin’ in the Wind” should be seen as a song about mystery, and about the human spirit, not a song about any particular movement. Anti-war, I think, would not be—I think Dylan would cringe to—
LOWE: I mean, “Blowin’ in the Wind” has some quite explicit lines which seem anti-war, no?
SUNSTEIN: Yes. I think that’s fair. He was under the influence of his girlfriend, Suze Rotolo, who was a very political figure. And sure, that’s true, but Dylan’s greatness and liberalism do not consist of left-of-center-ness from that time. It’s something about the human spirit.
And when Dylan went electric, which was—I think, everyone should go electric, and he went electric about six times. [laughter] He went electric even when he stopped being electric and switched back to some form of country music with a great, underrated set of songs, including “All Along the Watchtower.” This is someone I greatly admire, obviously. But I would put his liberalism in songs like “Buckets of Rain” and “Shelter from the Storm” as much or more than in the early protest songs.
LOWE: This is interesting. I think the first of his songs I liked was the Medgar Evers song. And I did see—I was listening to a few of these last night—there are these early ’60s songs, which are songs about injustice, about particular instances of injustice. There’s the Emmett Till song. There’s also the “Hurricane” song. I mean, these are songs about specific instances.
SUNSTEIN: He called these songs of his “finger-pointing songs”. He describes his own finger-pointing songs with a little touch of self-loathing. So they’re great songs. Absolutely, the guy’s super talented.
LOWE: The “Hurricane” song alone—this also has more musical interest maybe than the others. The others feel like they are purposely pared down.
SUNSTEIN: Yeah, these are good songs. Okay, so there’s the liberal tradition, which I’m keenly interested in. It has to do with freedom. It has to do with pluralism. It has to do with the rule of law. It has to do with self-government in the large sense. And autonomy and agency are central to the liberal tradition. Christianity helped birth the liberal tradition. And there’s that. And that is very different from the liberalism of the ’60s. So the liberalism of the ’60s, you might love it, you might not love it at all. That’s a different thing. Some of the liberalism, so-called, of the ’60s had illiberal elements.
And so when we identify Dylan as a liberal figure, as we should, it’s that he’s saying sometimes even the president of the United States has to stand naked. Which is not a song about nudity, but it’s a song connected with the sources of the American Revolution, which was about monarchy and how we don’t have one.
LOWE: I think that makes a lot of sense to me. I think you can separate out, though, particular liberal movements, from some concerns that liberals share. So again, you might want to separate out the claim that ‘‘Blowin’ in the Wind’ is not a protest song from a particular movement in the 60s’, from ‘Dylan seems interested in instances of injustice where court cases haven’t followed procedural rules, or something like this’.
SUNSTEIN: So, criticized in the post-folk time for not doing protest songs, he said, “Everything I write is a protest song.” Which was very true, and a little bit playing with the questioner.
LOWE: It is. I mean, that’s like the classic thing where you say, oh if everything is everything, then nothing is anything.
SUNSTEIN: What I think he meant was that “Like a Rolling Stone” is a protest song, and “Positively 4th Street,” which is a song about a friendship, really wasn’t. It’s a protest song. It’s about something. His beautiful—and the word beautiful’ isn’t a Dylan word, but it’s actually true—his great love songs, let’s call them. “Isis” is, I think, one of the all-time great love songs. It’s super-powerful on the record, not in recording. “You’re Gonna Make Me Lonesome When You Go” is an incredible love song. They’re protest songs. What do they protest against? Lifelessness.
He said when he did “The Times They Are a-Changin’,” people think it’s a generational song about the young generation. He said, “No, that’s not it. That was the only way I had of describing the difference between people who were alive and people who were dead.”
And so I think seizing life and its instability is what Dylan cherishes, and not saying that, you know, in this city something terrible happened, and isn’t it a shame.
Art and Politics
LOWE: Where do you stand generally on the insertion of politics into some kind of artistic experience? I’m thinking of instances—I went to see, one of the few pop music—and “pop music” is probably not the correct qualifier—concerts I’ve been to. I went to see Eric Clapton in Newcastle. I grew up close to Newcastle. I went to see him, and the music was incredible. It was wonderful, but—this was a couple of years ago, and he used a lot of Palestinian iconography. So his guitar was in green, white, and red.
And I think one response to that could be, “Hey, you’ve got a captive audience, and you’re imposing something political, and they might not have been expecting it.” Another response might be, “Hey, art is political!” And this is coming back to your point about Bob Dylan saying “art is protest”, or “all songs are protest songs”. Do you have a personal view on this kind of behavior?
SUNSTEIN: I think I do. So Woody Guthrie, one of Bob Dylan’s inspirations, had on his guitar the words “This machine kills fascists.” It was a political statement. But it was mischievous and not literally true, and it had a kind of generality to it about fascists.
LOWE: That’s a nice distinction—signaling toward some general position, rather than taking a position on some particular ongoing political matter.
SUNSTEIN: Everyone has freedom of speech, and so I hope everyone should be allowed. So if Eric Clapton wants to take a stand on various issues, he certainly has that right. The person who sang—didn’t write—“Cocaine,” the best version of “Cocaine” ever, which was Clapton’s, and Clapton’s “Layla,” which was about George Harrison’s wife—that person is really amazing.
And the person who has protests of one sort or another is probably not particularly amazing, but they’re entitled to it. To permeate their—If Clapton decided to do an album on some current events, I think it would show less size of artistry than the person who did “Layla” and the searing, unforgettable version of “Cocaine.”
Pluralism and Artistic Expression in Liberal Societies
LOWE: That’s very interesting, because we do want to separate saying that producing art of this kind is morally permissible, from saying there are some aesthetic costs, for instance, to—
SUNSTEIN: Yes, I think so. It can be a smaller slice of the human spirit than what art reflects. But notice in talking about Dylan or his predecessor, John Milton, about whom William Blake said—William Blake was devout, as was Milton. And Blake said about the greatest religious poem in the English language, Paradise Lost, the reason Milton wrote at liberty when speaking of Satan and devils, and in chains, in fetters, when talking about God, was that he was a true poet, and of the devil’s party without knowing it. That’s interesting. It’s not really true [laughter], but there’s truth in it. Satan steals the show, which makes Paradise Lost great, because it captures something about the complexity of human life.
LOWE: We have, now, these extra-interesting questions, I think, about the role of what we might want to think of as ‘moral matters’—right and wrong, good and bad—within art.
I have a couple of questions for you on this. One is, can you think of an instance of a kind of art which couldn’t be classed as liberal, maybe, for some of these kinds of reasons? Maybe a depiction of something horrible? Or maybe an art object which had some effect on people to do something bad? Would that kind of art automatically be discounted as being liberal? Or could you still say, “Oh, but maybe it represents freedom in some sense”. Are there some lines here? Is there some substantive element a piece of art might have, to do with some kind of moral claim, which you think would prevent it from counting as liberal?
SUNSTEIN: I think we’d say Riefenstahl’s Triumph of the Will isn’t a tribute to pluralism and the rule of law and freedom. So that would be a defining non-liberal work of art. Communist propaganda which has an artistic feature, or fascist propaganda, wouldn’t be liberal works.
I think it’s important to distinguish between a political conception of liberalism—which I would associate with pluralism, freedom, the rule of law, also democracy, and separation of powers—which many works of art we might call liberal, or not, would really not take a particular stand on.
LOWE: This seems to me like then we might be limiting the claims about whether a piece of art is liberal or illiberal to something which has some quite explicit depiction. It has to have text saying things, or it needs to depict something. If something’s more abstract, it’s going to be hard to apply this analysis.
SUNSTEIN: This might be a not-useless distinction. There are liberal principles which are defining of liberalism as a political tradition. Hayek and Mill, and Rawls and Friedman, and Susan Okin all liked certain things. They shared these things. And then if art takes a stand on at least some of these things, it’s not going to be very interesting or very artistic. So there’s that.
Then I think what you’re getting at is a different conception of liberalism that puts autonomy and agency, maybe, in the center. I was going there and pointing to Milton, Blake, and Bob Dylan as liberal artists. And I think that’s fair that a conception of individual autonomy and agency is at the heart of what liberalism cares about. And I’m thinking that most art doesn’t particularly take a stand even on that. It might be a love story. It might be a romance which you can work up an account of it being liberal or illiberal. I think One Battle After Another, which won the Oscar, is a terrific movie, and a deeply liberal movie in about 17 different ways. [laughter] And that’s because individual agency and freedom of choice are completely central to it.
The Star Wars movies, the George Lucas ones, are really liberal movies. So the theme is that each of us has a choice on the spot. And the worst person in the history of the galaxy—that is Darth Vader, the worst or the second worst, depending on how you rank him compared to the emperor—he in the end chooses to save his son and thus to repudiate his life’s work. And the idea that the movies drive home is that all of us have a choice. That’s Yoda’s thing. That’s Obi-Wan’s thing. And while these aren’t the most elevated works, I admire them greatly. And their beating heart is liberal.
LOWE: So I should admit, at this point, I’ve also only ever seen one Star Wars film! I’m not massively well placed—
SUNSTEIN: The day is young. So tonight you can go to the theater. And some theater is playing both Bob Dylan, concert from ’64, and followed by Star Wars: A New Hope.
LOWE: Okay, so I think we’ve got somewhere in saying art objects have to have some kind of substantive element which engages, in some sense, with some value or principle of liberalism, to count as a liberal art object.
SUNSTEIN: Sounds fair enough. But because the liberal commitment to agency is so central, if you have a story, which is a completely apolitical story, in which—
LOWE: Choosing plays some big role—
SUNSTEIN: There’s a movie called Begin Again, a very underrated movie, where the woman star at the end doesn’t get together with the guy. I’m spoiling it. That’s great. She goes off riding—
LOWE: I’ve got all of those Star Wars films to watch first!
SUNSTEIN: She rides off on her bicycle—I’m giving away the ending—and that’s an exercise of freedom. It’s a little disappointing to the audience, who wanted them to get together, but it’s an exercise of freedom, which is perfect in context. And I don’t think it’s unfair to call that a movie that would be made in a liberal society. The exhilaration the audience feels as she drives away all by herself, not with a guy, is similar to the exhilaration of, “How does it feel / To be on your own / Like a rolling stone / No direction home / Complete unknown?”
LOWE: Yeah, that’s a nice point. I mean, there might be just some trivial annoying philosopher’s sense in which, as long as the characters in the film are supposedly—within the life of the film—making choices, then on some level, I guess it might meet this condition. But I think you’re saying something more than that. You’re saying something where, implicitly or explicitly, having freedom of choice in some sense is celebrated or plays some big role.
SUNSTEIN: It’s a theme. This is philosophically interesting, that some people who don’t like the liberal tradition emphasize the risks and horrors that making freedom of choice central can introduce. And there’s a debate there.
LOWE: People can make bad choices. Liberal societies enable people, allow people, to make bad choices.
SUNSTEIN: There’s one idea that might be associated with virtue, and non-self-degradation, that some anti-liberals on the left and right focus on. And there are other ideas about tradition and devotion and connection which would precede and outrun choice. And these are anti-liberal claims, that Tocqueville worried about. Liberal society depending on pre-liberal or not-really-liberal foundations, which liberalism itself corrodes. Many people worry about that now. Some people on the left worry that the choice is under conditions of deep injustice, and its glorification is not what America needs now.
Marty Supreme as a Liberal Nightmare
LOWE: It sounds right to me. It also seems to me, however, that I think—I mean, liberalism, at least on my view, isn’t a—I don’t want to say “a philosophy” because I don’t like using “philosophy” in that sense—it’s not to do with “anything goes”, right? Liberalism has some prerequisites. It has some limits. You can’t get liberalism off the ground unless you have respect for certain things. Similarly, pluralism doesn’t mean anything goes. It means there’s—well, in the value pluralist sense, it means there’s more than one value. It’s not just a monist account. But it also says there are multiple ways to live a good life. That doesn’t mean, however, that every way is living the good life. So, liberalism does have limits baked into it.
SUNSTEIN: Let’s talk about culture a little bit, and then talk about those points. So, Marty Supreme —
LOWE: Which I haven’t seen yet, but it sounds great. This is the table tennis movie, right?
SUNSTEIN: Oh don’t see it. It is completely horrible. Nonetheless, it’s a liberal movie.
LOWE: I like table tennis. It’s fun.
SUNSTEIN: I do too. But the movie—
LOWE: The movie’s bad? Oh, man.
SUNSTEIN: In my view, it’s a terrible movie.
LOWE: This has the Chalamet guy in it, who was also in the Bob Dylan movie, wasn’t he? Did you think he was good in that?
SUNSTEIN: Spectacular.
LOWE: Yeah, I liked that film.
SUNSTEIN: And he does a good job as Marty Supreme, but the movie can be seen as a liberal nightmare. It can be seen as a product of an anti-liberal sensibility trying to show the terribleness that liberalism yields. Because there’s a lot of choices being made, and everyone in the story is miserable, including the people who get together romantically. They’re all basically miserable. So there’s that.
Now, with respect to the limits of choice, of course, liberals have worried a lot over this. There’s one set of liberals who emphasize harm to others. And that’s, of course, Mill’s conception in On Liberty, which is a defining liberal book.
A work of art that would try to embed Mill’s On Liberty—there’s a risk of being too didactic, but you could imagine something that would have—I’m thinking of Malick’s Days of Heaven, which in a way is Millian in that sense, and fantastic. Though, I think, Malick now is not such a liberal in Mill’s sense. But you could imagine a liberal—and you’re talking to one—who doesn’t accept the harm principle. Who would authorize restrictions on people’s choice-making, in order to protect them against their own egregious errors. Like compulsory seat belt laws, compulsory motorcycle helmet laws, mandatory Social Security savings. You have to get a prescription before you get certain drugs. This liberal is, at least, very welcoming to those things.
LOWE: You could justify even those kinds of things in terms of negative externalities. But, you’re not.
SUNSTEIN: You could, but you would doing it—It would be a little bit desperate, because whether you could cash it out in terms of externalities—
LOWE: I mean, you know, if you don’t have seat belt laws, you have higher costs on the healthcare system, because more people die unnecessarily.
SUNSTEIN: And then they die young, and it might be that the healthcare system on balance is a winner, so the young deaths might be externality-reducing. So the motivation for these laws is that people suffer from what I would call behavioral biases. And you could make a movie about that. It would be a didactic movie again.
But there are certainly cultural products that are—there’s an old movie about addiction that I think won an Academy Award. I’m seeing the actor, and the actress, but I’m not remembering the name. And that’s a cautionary tale about addiction. Now, the point was about humanity and what it’s vulnerable to, not about drug laws.
LOWE: Yeah, that’s right. I mean, there’s a distinction between telling your friend that they should stop smoking and pointing out the bad stuff, and the state imposing some law which means it’s much harder for you to smoke, or you can’t—you’re going to face a serious penalty if you smoke in a certain place.
SUNSTEIN: I think it’s important to say, with respect to politics, but probably also culture, that liberalism’s a big tent. So there are liberals who are on Mill’s train, and there are liberals who are sharply critical of Mill, and they all share the foundational liberal commitments. Then, there are left-wing anti-liberals who think that the liberal focus on individual autonomy is missing everything about capitalism. And then, there are the anti-liberals on the right who think that there’s a conception of a good life, which liberals just miss, and the result is a lot of terrible things in liberal societies, which liberalism has produced.
LOWE: I think I’m broadly with you in terms of what liberalism is. I see it as a family of theoretical frameworks aimed at addressing politico-philosophical questions, with certain commitments around freedom. So, committed to freedom as a value. Some views around how freedom relates to other values—therefore, it’s not monist. I think pluralism is key. I think some kind of moral realism is key. I don’t think it really makes sense to protect and promote freedom as a liberal, unless you think that there are some truths about the world. Not just scientific truths, but moral truths. But that makes it also a very broad church, I think. Because there are many different positions you can hold, and fit within that set of constraints I just discussed.
SUNSTEIN: I agree it’s a broad church. I might phrase it a little differently. That there are commitments that liberals share, and we can list them. Their foundations might be diverse. So Jacques Maritain said about the Universal Declaration of Human Rights, “All the countries support them, so long as no one asks them why.” So sometimes we can agree on a practice, which is, let’s say, respect for the rule of law, amidst disagreement about whether we’re utilitarians or deontologists. And you could be a monist à la Bentham, and think that utility is the thing, and be a liberal.
LOWE: I don’t think he’s a value monist, in the sense of thinking that—Well, I mean, I have these quite strong views about consequentialism, generally, in that I don’t really think consequentialists value anything. I think they instrumentalize things. So I think he instrumentalized utility. But inasmuch as he valued something, I suppose utility is the thing he valued. He also might have valued other things for other reasons, not just in terms of his theory of determining moral rectitude and evaluating actions.
SUNSTEIN: Maybe. You could be, let’s say, parallel-world Bentham [laughter] who is a monist in the sense of thinking everything is logimetric, which is utility, and that’s the only thing that matters. And you could be a liberal who thinks those things.
LOWE: I think that’s right. My general view on this—I don’t like consequentialism, I think it’s bad and wrong. I have many friends who are consequentialists. Many of my best friends are. But I don’t really think it makes much sense for me to say that someone like Bentham, or someone like Mill, is not a liberal. Broadly because liberalism seems to me to have a lot of use as a historical descriptor, to be able to track certain types of views over time.
SUNSTEIN: Well, I would say that if someone is committed to pluralism—meaning respect for diverse ways of living, not necessarily value pluralism—and respect for freedom of speech, freedom of religion, and markets. If you don’t like markets at all, you’re highly unlikely to be a liberal. You can like markets in the way that the New Dealers do [laughter]—which is plenty, but not only—and still be a liberal. I’m a New Deal enthusiast. Or you could be, and you’d better be, committed to the rule of law—that’s defining.
So those things are commitments. They don’t say anything really about historical origins or periods. They’re commitments. And Hayek is enthusiastic about those. So is Rawls. Susan Okin, a feminist, is very much in the liberal tradition, and so are people who aren’t particularly feminist, or aren’t feminist at all.
The Relations Between Liberalism, Culture, and Democracy
LOWE: So let’s talk a little about, then, if we’re going to talk about the relation between liberalism and culture, we should also talk about what culture is. It seems to me there’s some general sense in which you might say culture is x in relation to any society. It’s something to do with norms or institutions. There’s a second related sense in which you might say, “This particular place has this particular culture,” and then you’re making some descriptive claim about how x on the first understanding is cashed out in that place. And then there are some even narrower senses where it’s to do with something like particular kinds of social norms around, maybe, how you spend your time, leisure, art objects, these kinds of things.
I think probably if we want to talk about the relation between liberalism and culture, we maybe want to talk about the third of those things, but maybe that’s wrong. When I say to you, “What do you think is the relation between liberalism and culture?”, where do you think the valuable conversation lies? [laughter]
SUNSTEIN: Well, I thought the direction you were going was to talk about music and literature and art. But it’s also instructive to talk about how people relate to one another, what the norms are. Are people considerate? Do they follow norms of reciprocity? Do we see violence? Do we see drinking? Do we see smoking? Is there drug abuse? So all of these are productive.
In terms of the relationship between liberalism and culture in the second sense, like norms and how people are relating to one another, one of the most vivid sets of objections to liberalism—which David Brooks is keenly interested in, and Patrick Deneen is more than interested in—is that liberalism chews up culture that liberal societies need. Because liberalism values choice and autonomy, and if you’re constantly exercising your autonomy and making choices, things aren’t going to go great, in their view. There has to be a feeling of boundedness to family, to God, to nation, that liberalism on this view is pressing hard against. No, I don’t agree with this view, but it’s an interesting and sincere concern.
LOWE: There are all kinds of responses to their position, one of which is: there’s still going to be somebody making the choices about what those things are that you should value in the society—I think on their view, it’s probably them—in which somebody comes along and chooses for the society that family is something you value. There’s another response which says something like: within those kinds of broad limits that we talked about—like the rule of law, maybe respect for some certain rights, maybe respect for a certain meeting of urgent need, these kinds of baseline matters—it might just be the case that when you hash that stuff out, it ends up valuing certain kinds of institutions over any other things, anyway.
So, for instance, there’s a big debate about the relation between liberalism and democracy. And one thing you might just say is, “Look, if you want liberalism to actually obtain within a society, it’s very hard to see what other kind of political mechanisms you could have.” So it’s not like saying democracy is part of liberalism. It’s just saying liberalism doesn’t really get off the ground unless you use this particular… You could probably make similar arguments around, “Does this religion work? Does this not? Does this family structure work, does this not?” There might just be some, kind of, logical conclusion, is my guess.
SUNSTEIN: There’s a lot in what you just said. There are some people who think that liberalism entails certain spheres of right, and that democracy is a different thing, which can be protective of liberalism or dangerous to liberalism. Some people think that democracy has priority, and illiberal democracy is the way of the future. Orbán in Hungary has spoken of illiberal democracy, and, “Liberalism’s bad, democracy’s good.” And there are many people in the United States who are interested in that point of view.
I think Lincoln had it right when he attacked slavery. He said that slavery annihilates the personhood—I’m modernizing his terms—of the slave, and that violates the principle that each one gets to own ourselves. We need to give our consent to be made to do things. And when Lincoln talked about why slavery is wrong, he said it “violates the sheet anchor of American republicanism,” which is about self-government.
So what Lincoln did was to link the commitment to self-government to a liberal account of rights, which slavery would be a defining violation of. And I agree with that. I think Lincoln had the theory right. So that democracy rests on principles that also give rise to rights that constrain democracy. So to say that freedom of speech and the right to vote are robust, whatever majorities want, isn’t a contradiction; it’s a respect for democracy’s internal morality.
LOWE: You could still say something, though, like, liberalism and democracy are separate things, but for a place to be liberal, it requires some kind of democratic system.
SUNSTEIN: Well, we need to know what’s the definition of liberalism such that they’re separate things. So if we define liberalism to mean freedom of speech and freedom of religion, period, or the rule of law, period, then democracy and liberalism are separate things. And if we define liberalism to have, as one of its five defining characteristics—
LOWE: Sure, then, of course—
SUNSTEIN: A definition of liberalism wouldn’t be like a definition of “stone”, where there’s a fact of the matter. A stone is this, and a cup is not a stone. It has an evaluative component, and I favor the evaluative component that follows Lincoln. But if someone disagrees, they’re not wrong as a matter of logic.
LOWE: Right, particularly if we want to have this notion of liberalism as being quite broad. But we also don’t want to, therefore, have all of the good things within liberalism. There might be some other good things that you find in a good society. I mean, it’s just going to be conceptually messy to suggest—we come back to the “Every song’s a protest song,” or “Art is politics.” We want to be able to distinguish between the concepts.
SUNSTEIN: I mean, to say that liberalism requires, let’s say, a robust social safety net is persuasive definition, and the liberal tradition hasn’t always called for—
LOWE: Yes, exactly, so some of the liberals are just getting it wrong, we can say.
Were both Rawls and Nozick liberals?
SUNSTEIN: We can say there’s an internal disagreement among liberals, and there are. So Robert Nozick, libertarian type, and John Rawls, non-libertarian type, disagreed fiercely, but they were both liberals. Now, what makes them both liberals? We have to identify the principles that they share, and we’ve spoken of some of them. They emphatically share principles with Mill, and with numerous participants in the liberal tradition. And this is something that is under severe pressure today. And the fact that it’s under pressure is, on my view, regrettable, because liberalism, understood as this big tent, is a precious human achievement.
LOWE: I want to get back to culture in a second. But somebody might say, though, that Nozick doesn’t count as a liberal. Again, this just comes back to what our counts of liberalism are. But I think a strong objection to Nozick being a liberal would be something like, “He’s actively talking about the most limited kind of organized society that we can have. We back into this thing. And it explicitly doesn’t have, for instance, political institutions”. Somebody taking a more Rawlsian account, on which the way of doing politics is central to whether you count as a liberal, might just say, “Look, Nozick’s kind of libertarianism, or whatever you want to call it, is something different. Therefore, Nozick is not a liberal”.
SUNSTEIN: I’m wondering now whether there’s name-calling in this, or whether there’s something other than that. So what would be the criteria by which we would assess the truth of the statement that “Nozick is not a liberal, but Rawls is,” or “Rawls is not a liberal, but Nozick is”? And, one way of doing that—I think the only way of doing that, something Ronald Dworkin, also a liberal, was keen on. He said, “Interpretation is making best constructive sense of a thing where you have to fit the thing, but also justify it.”
And I’m drawn to the view that Stalin can’t be deemed a liberal, nor could Hitler, nor can Putin. And that’s because the minimal liberal commitments, they reject. That if we have a big tent that comprehends Nozick and Rawls, then we have a thing of great wonder that is accommodating both of them. And to see that thing of great wonder is a step forward for all of us.
The alternative view, by which Nozick is not a liberal, but Rawls is, or Rawls is not a liberal, but Nozick is, what’s the point of that? It has a narrower conception of liberalism, and what good does that do? It would be maybe analytically purer to say that Nozick is a liberal of an extremely libertarian kind, and Rawls is a liberal of a trending-hard-toward-social-democratic kind, and they disagree a lot. And the disagreement is not trivial. Just like among socialists, there’s extremely severe disagreements. I mean, people got killed over whether they were the right kind of socialist.
LOWE: Yeah, I don’t disagree with any of that. And I think Nozick would fit many of your conditions for being a liberal—
SUNSTEIN: All of them.
LOWE: I mean, I’m not sure where he would—I’m just not sure, at least in Anarchy, State, and Utopia, where rule of law comes in, per se. Broadly, because he’s just not conceiving of such a—
SUNSTEIN: It’s not his topic, but it would be astonishing if he were not committed to the rule of law.
LOWE: Except he doesn’t really believe in political society of the kind where normally you’d be—
SUNSTEIN: Well, you’d need to prevent murder. I think his state would prevent murder.
Diversity of Art in Liberal and Illiberal Societies
LOWE: Yeah, although it would depend on how it would prevent murder. Whether that would be a matter for centralized law, or whether that would be a matter—
But anyway, let’s just go back a second to the relation between liberalism and culture. So it seems to me a couple of claims which people often make, which seem like very reasonable claims, are things like, “Liberal societies tend to produce more diverse art,” something like that. Or “A society in which there is a great diversity of art might tend to be more liberal,” something like that.
The kind of pluralism you described, where people feel free to experiment, feel free to go and learn from other people. You have, maybe, a wider set of outside influences. I mean, somebody might say, “We can think of instances of great art in non-liberal societies”, but my bet is if you want to get some causal relation between the two, maybe going for something like the diversity of art might be a good way in. Do you think that’s fair?
SUNSTEIN: My intuition is with you, but I’m very cautious about my own intuitions. [laughter] I have on my door in my office the words, “It’s not a matter of thinking. It’s an empirical question, and I don’t have the data.” [laughter] That’s from Danny Kahneman.
And as you were talking, I was thinking, “Could we run a randomized controlled trial with a liberal society, call it Italy. And then an illiberal society, call it Italy, and see which produces more diverse art?” Intuition strongly suggests that the liberal one would. We’d need to specify in what ways the illiberal Italy is illiberal. If it’s illiberal in the sense that it doesn’t allow freedom of speech—
LOWE: Sure, the conditions obtain in a certain way, which seems just to fundamentally limit the production of certain kinds of art, or something like that?
SUNSTEIN: Then by definition, it would, unless you drive underground, a kind of ferment that produces a lot of amazingness. That could happen.
LOWE: That’s right. That’s a very good point.
SUNSTEIN: So my intuition is strongly with you. But the ingredients of diverse and amazing art production are so numerous that it may be that this is not where the action is. But maybe it’s important. If you had an illiberal society that said there’s only one kind of art, and it has paintings of the führer, that’s not going to have much diversity of art.
LOWE: That’s right.
SUNSTEIN: If you have an illiberal society that says that, private property, we’re not really going to respect that much. It’s possible you’d have a tremendous flowering of art. Maybe not, because the incentives would be reduced because people couldn’t keep the proceeds of their work. I’m being fussy here. I tend—
LOWE: [laughs] No, I like the fussiness. I’m a philosopher. It’s good.
SUNSTEIN: I tend to be supportive of the view. I’d like to think, given that we don’t have randomized controlled trials [laughter] what do we know about times when culture has flourished, and has this been under liberal circumstances? So my unconscious might have chosen Italy because I’m thinking of the amazing cultural products. And I believe that Da Vinci was not at risk when he was producing the various things. But there’s a lot of constraint in some periods, where you have to obey certain rules, and that can be liberating for great artists. So this is a little messy.
State Subsidization of the Arts
LOWE: Yeah, I like that. An interesting normative question that arises, I think, is to do with the extent to which the state is involved in art production. So there’s this big question—Ronald Dworkin has this nice, I think, quite underrated paper—it’s called, “Can a Liberal State Support Art?”. I don’t know if you’ve read this.
SUNSTEIN: Yes, a long time ago.
LOWE: I think it’s a good paper. I don’t really agree with where he lands, or at least I think he gets a bit fuzzy. But the really useful bit, I think, is he has these two approaches he sets out at the beginning. One is, he calls “the economic approach”, on which the people should get the art that they want. So demand, basically, is used to determine what art people want. Now, of course, he addresses objections to this, about indeterminacy, maybe the market doesn’t show what the public wants.
And then he has the alternative approach, which he calls “the lofty approach”. This is, the public should get the art that the public needs or that the public should have. And this entails some people getting involved and saying, “Hey, there’s no opera any more because people won’t pay for the tickets. Therefore, we need to subsidize opera.” What he’s really saying, I think, rather than how much should the state get involved, he’s saying, “Here are some methods for thinking about how we would determine how the state should get involved.”
These are both very interesting, but they both hinge on this idea of what do people value. Whether it’s the public through the market mechanism, or whether it’s these people imposing what they think the public should value. I think a third approach is something like, “The public have the right to know certain kinds of art objects.” This maybe gives us another route in.
Where would you start if you were thinking about this thorny question of, particularly within the liberal state, interference within the production of art, such that the public benefits?
SUNSTEIN: The market, I think should be our foundation. Restriction on art should be very limited.
LOWE: What kind of restrictions do you think are permissible?
SUNSTEIN: There’s libelous art. If there’s art that is part of a criminal conspiracy where they’re signaling. If there’s art—this would be a little subtle—but there’s art that’s an effort to fix prices. If there’s art that is an effort to bribe. So if anything falls within the standard domains of prohibition. If there’s art that involves child pornography. These are all regulable under US law. But they’re narrow categories. And it might be—
LOWE: They’re tracking other things, aren’t they? They’re not saying it’s art, per se. It’s that the art is being used in this way, or the art represents—
SUNSTEIN: Or it might be the art is understood by those who see it as an effort to produce a conspiracy to fix prices. It’d be pretty adventurous, and maybe not the best way to fix prices [laughter] It’s probably doomed and futile. All I mean is the restriction on art would be presumptively disfavored, and the presumption would be very strong.
Subsidies are a different thing. I think as you describe the Dworkin article, it might be the opposition isn’t quite right—though he was amazing, so he probably did get it right. If you have subsidies, it wouldn’t be that only—or it would be inadequate to say that, some people have decided this is the art we should have. It would be through a process that is ultimately subject to democratic control.
LOWE: So he doesn’t really clarify who it is who determines the way in which art is, in this particular society. He’s wanting to make this distinction between these two general approaches to determining—
SUNSTEIN: So if you have a National Endowment for the Arts, which is democratically authorized and ultimately subject to the people, which supplements a market with various things, no liberal should think that’s terrible.
Richard Thaler, my coauthor and a very good behavioral economist, has a famous paper on planner–doer models, where each of us is a doer, who might say, “I’m going to go to Star Wars today, and I’m not going to go to the opera”. But the planner might say—not this planner—but some planners might say, “You know, I kind of enjoy Star Wars, but the opera elevated my spirit a little bit more, even than Star Wars, so I’m going to make a commitment. I’m going to go to the opera next week.”
So it might be that cultural supplements—like, let’s call it, through subsidies—reflect planners, and markets reflect doers. This is too simple and too stark, but there’s something in it. Where, like we have a Social Security system, which is, maybe, national judgment that all of us benefit, or most of us, or many of us benefit from saving for retirement. We don’t leave it just to the market.
LOWE: But it’s easier to say what we require to benefit from when we talk about Social Security. We have these shared needs as human beings. Unless you’re quite a hardcore objectivist about aesthetics, you might find it hard to say what does the public need in terms of their art consumption.
SUNSTEIN: You wouldn’t be just experts talking, you know, among themselves. They’d be subject ultimately to public will.
LOWE: Part of the problem, though, there would be—you could well imagine an entirely democratically-run process which determines these subsidies, on which no opera is produced, because the public have just decided, nobody in the particular state likes opera anymore. Or they have their other reasons for not voting for opera. So you’re going to come down to this point where you’re still asking the question, is it bad that the public aren’t getting the opportunity to consume opera?
SUNSTEIN: Well, plausibly, it is, but there’s nothing to be done.
LOWE: There’s nothing to be done? Because the other people might say, “Well, no, we should ensure! The kids need to know about opera! If they don’t get a chance to experience opera when they’re kids, they’re missing out on this astonishing facet of human life. You might even say they have some kind of cultural right to it. Maybe to the art objects that have been produced by their own culture. You can’t be a full democratic citizen of this nation—” I’m not saying I believe in this, but this would be, I think, the objection to this position.
SUNSTEIN: Okay, let’s have two positions in conflict where it’s not hard to get traction. One position says this art should be an entirely market thing, and then there’s another position says, no, it’s legitimate to supplement what comes from markets with cultural products that produce various goods for people who get to enjoy them.
And this is a little like the argument for public parks also. Where it might be that they produce common experiences, or experiences of nature, that people in their market capacity wouldn’t generate sufficiently. So subsidies that try to promote artistic whatever—a liberal is very open to that. Now, if it’s the case that the supplements to markets don’t help opera, and so opera falls by the wayside, it’s not clear what’s to be done.
Now, ought we to say that there should be something like a supreme court, that’s not democratically accountable, which is like the cultural safeguard institution that can rescue or perpetuate, and it isn’t subject to democratic accountability? I’d like to say that if we say that, it’s we who are saying that. So it’s a little like the Federal Reserve Board, where we are creating a democratically insulated—And I’m not sure whether that’s a solution or a cheat.
LOWE: Again, coming back to this point on limits on liberalism, sometimes people say things like, “Oh, but what if the public voted away democracy? Wouldn’t that be a democratic decision?” And, of course, one easy answer to that is, “Well, maybe it’s a democratic decision, but democracy no longer obtains.” Another response is to say that there are certain things that you have to respect in order for your society to count as liberal. So when, again, we’re talking about something like a law being passed, around—you can just think of an easy example—go back to murder, for instance. We just say that’s just required, in society. The interesting question, now, is about art.
Are there any things that meet that “requirement standard”? Such that it’s not up for deliberation. It’s like, “It would be bad and wrong if every kid in this country didn’t get the opportunity to hear, I don’t know, Aaron Copland, or to see Rothko”. Or is that just incoherent?
SUNSTEIN: I’m puzzled. I think with murder, I mean, you might be a Kantian who finds murder a core violation of individual dignity to be prohibited for that reason. Or you might be a utilitarian who thinks that either for act-utilitarian or rule-utilitarian reasons, the prohibition on murder is well justified. In either case, you wouldn’t just be saying it’s just wrong. You’d have an account of why.
And then there’s the different question whether some preservation of artistic things would be a little like a constitutional value. It’s a great question.
It might be a little like historic sites. So the Smithsonian—or, I live in Concord, Massachusetts, and the place where the American Revolution started is actually pretty close to where I live. And I don’t think it’s very expensive to maintain, but it is maintained with public funding. It’s history, but it’s in the same universe, I think, as art.
LOWE: We also get, then—we’re making this nice distinction here, I think, that tracks between particular bits of art, and art generally. So that particular place where that happened, as opposed to more generally historic places. Similarly, the Rothko. As opposed to painting, abstract art.
SUNSTEIN: The North Bridge in Concord is preserved. Now, would the market preserve it? I mean, there’s a collective action problem, among other things. The social judgment is that it’s very important to preserve the place where our country started, so we’re not having any tension between liberal principles of democracy and liberty. And I think that’s how it generally will work.
You’re rightly pressing on what if the democratic process doesn’t protect those things? Then, it’s profoundly to be hoped that participants in the democratic process cry out, “This is part of our heritage, or this is something from which we would collectively benefit.” I’m thinking, a little bit, the art question has a planner–doer [aspect] where, on reflection, you might think, “I want to preserve this even though today this isn’t how I want to spend either my money or my time.” And often when things are working well, the democratic process embeds widely shared collective judgment. It might just be interest group stuff, of course.
If we don’t have that, then I think the only practical thing to do is either to create an institution, which is the art preservation institution, which would be democratically created and therefore we don’t have any problems [laughter] or have something like a constitutional solution. And some nations have things like this. We haven’t needed one—yet.
The Rights of Non-human Animals
LOWE: So you’re saving that option down the line! I have one last question for you. It’s off down a slightly different track. I recently read your very nice paper, I think from 2003, called “Can Animals Sue?”
So, from memory, the large part of this article, you make these three nice arguments about human standing to support animals, effectively, through the legal process. But then at the end, you make this nice claim. I wrote it down, because I didn’t know if I’d remember your exact wording. You said—and bear in mind this is now 20 years ago—you said, “It seems possible, however, that before long, Congress will grant standing to animals to protect their own rights and interests.”
So, after you’ve made these nice arguments about the standing of human beings to bring suit in relation to animal welfare concerns, you make this very interesting claim. And I was very convinced by the way you argued for it, actually. But, you know, we’re 20 years on, and this has not happened. Are we any closer? Do you still predict this is—possible?
SUNSTEIN: Yes, the word possible is nicely cautious.
LOWE: I did say possible. [laughter] I’m a metaphysician. I’m leaving you some space.
SUNSTEIN: That’s why I said in 2003, it’s possible. I’m writing a book right now called Animals Matter, which is on exactly this general topic.
And there’s a chapter on use of law to protect animals from egregious violations of their rights. I think we’re heading in that direction. So compared to 20 years ago, the widespread agreement that at least some core of rights are rightly enjoyed by non-human animals, that’s emerging. Now, what the core looks like is debated. But the idea that animals can be beaten or abused or tortured or deprived of food and water by people who have them in their care—people aren’t very enthusiastic about that.
And this is something I’ve seen close up in various places. We’re seeing an upsurge in human focus on at least minimal decency toward non-human animals. Because technologies of various sorts are emerging that allow people to get what they want, like good-tasting hamburger-ish stuff. Or scientific experiments, maybe with the help of AI, that don’t involve torturing dogs. I think 40,000 dogs are subjected to really horrible, unspeakably horrible things. That shouldn’t happen. We don’t need that to have the knowledge which human beings rightly want to help human health and animal health. But we don’t need to torture dogs to do that. And increasingly, there’s a recognition of this.
I think we’re on the cusp of something that will elevate the human spirit and the lives of our fellow creatures.
LOWE: It’s exciting. I have some concerns. I thought for a long time that lab-grown meat would be the solution to my moral problems. I love eating meat. I love cooking meat. But I’ve come to the conclusion it’s bad and wrong. And what’s more, I don’t think it’s just a welfare thing.
I think the welfare thing is entirely—it’s a problem in itself. It’s a sufficient problem in itself. It’s a reason in itself not to eat pretty much any bit of meat you get served. But even if every animal had the best possible life and death, I still think there’s a failure of respect that happens when we eat the animal’s dead body. And I’m not sure that lab-grown meat is going to solve that problem. Nonetheless, it’d be much better—a much better situation.
SUNSTEIN: There was an interview recently on Joe Rogan with Miranda Lambert, the country singer. And there was an exchange where Joe Rogan said, “You’re a hunter, right?” She said, “Yes, my daddy told me to hunt.” And she said, “Oh, that’s great. White-tailed?” And she said, “White-tailed.” Then she paused and she said, “I adopted a baby deer. And he’s like a dog. He’s in my heart.” Then Rogan said, “You’re done, right?” And she said, “I’m done. I’m not hunting anymore.” Then he said, “What’s your dad think? Your dad taught you.” And she said, she’s clearly not a political person, and she’s been a hunter all her life, she said, “My daddy came to the house and saw the deer and said, “Darlin’, it’s over, isn’t it?’” She said, “Daddy, it’s over.”
It was an extremely beautiful exchange. A little like what you were describing about yourself, where even if it was a painless killing, you just [gunshot sound].
LOWE: The problem is I still eat meat…
SUNSTEIN: She was saying, “I’m done, I’m not going to hunt anymore.” And we’re seeing things like that at a remarkable pace.
LOWE: So I’m excited about your book, partly because I think liberals haven’t taken non-human animals seriously enough. I’ve been waiting for a long time for a really good animal-rights book by someone who believes in rights. I mean, Peter Singer—I disagree with his consequentialism—I think he’s done a lot of good for the world in terms of pointing up the evils of factory farming—I hate many of his other views. But I think it would be exciting for a liberal who believes in rights to write about animal rights.
SUNSTEIN: I tried. Book’s coming out in about nine months.
LOWE: Well, thank you so much, Cass. Thank you for being here with us. It’s been a great conversation. I hope you’ll come back and join us another time.
SUNSTEIN: Thanks. I greatly enjoyed it. Thank you.
