Perry, Hayek, and Immanent Critique
I don’t have any inside gossip on Perry vs. Schwarzenegger, whose decision will be announced this afternoon. For that see bmaz, who calls it for the plaintiffs.
As I’ve said in the past, I’m a pessimist either way. I expect that whatever the outcome, Perry will ultimately deal the cause of same-sex marriage a fatal blow. Either the U.S. Supreme Court rules for the defense, settling the matter, or they rule for the plaintiffs, in which case we will immediately get a Federal Marriage Amendment, also settling the matter. Perry, or any other court case, just isn’t going to convince people. Convincing is going to take time, more contact between straight people and gays and lesbians, and more work to stop the pernicious myths that are wielded against us. Perry denies us the time that we need, which is why I look with dread on every development in the case.
At times like these, I turn to my books. You’re welcome to follow me if you like.
It’s often said that same-sex marriage represents a radical break with tradition, a turn no one who values Burkean or Hayekian social thought ought to take. But it’s not really precise to equate Burke and Hayek, however much they do resemble one another. Where Burke stood most clearly for gradualism, Hayek stood for something slightly different — immanent critique. Immanent critique is often gradual, but it need not always be so.
Here I’ll explain what immanent critique means, and why immanent critique often but doesn’t always imply adherence to tradition. Then I’ll show that the case for same-sex marriage really is one made by way of immanent critique — and thus potentially, though not necessarily, permissible to a Hayekian. At any rate, it can’t be rejected as failing to develop organically from the norms and values of the existing society. It may fail for other reasons, but not for this one.
The distinction between immanent and radical critique is I believe fundamental to understanding Hayek. Let’s begin with the latter.
Radical critiques propose to remake society according to an abstract rule or set of rules, one alien to the society itself. In practice these rules are often plucked from the brain of some continental philosopher — Marx, Hegel, and Rousseau being the usual suspects. What we know, or what we think we know, is declared to be either the product of a false consciousness or of a systematically corrupt society. Our previously built-up knowledge needs to be rejected in the name of moral regeneration, authentic consciousness, or the realization of a previously hidden universal truth.
Immanent critique works very differently. Immanent critique takes the institutions, values, and ideals of a given society and proposes to shuffle them around a bit, with the intention of making our social practice more true to what we profess to want in the first place. This can be done either by modifying an existing institution or by rearranging our scale of values, or both, while generally leaving the highest values, or the ideals to be furthered in the longest term, intact. Immanent critique tends overwhelmingly to be about means rather than ends. How do we achieve the type of society that we say we want? Which values win, when values conflict? How do we craft institutions that actually deliver what we seek? The answer is never mere traditionalism, because tradition is always imperfect. Values are always in some degree of conflict.
If a judge is committed to maintaining and improving a going order of action, and must take his standards from that order, this does not mean, however, that his aim is to preserve any status quo in the relations between particular men. It is, on the contrary, an essential attribute of the order which he serves that it can be maintained only by constant changes in the particulars; and the judge is concerned only with the abstract relations which must be preserved while the particulars change. Such a system of abstract relationships is not a constant network connecting particular elements but a network with an ever-changing particular content. (Law, Legislation & Liberty vol I, p 120)
When we say that all criticism of rules must be immanent criticism, we mean that the test by which we can judge the appropriateness of a particular rule will always be some other rule which for the purpose in hand we regard as unquestioned. The great body of rules which in this sense is tacitly accepted determines the aim which the rules being questioned must also support; and this aim, as we have seen, is not any particular event but the maintenance or restoration of an order of actions which the rules tend to bring about more or less successfully…
[W]e do not maintain that all tradition as such is sacred and exempt from criticism, but merely that the basis of criticism of any one product of tradition must always be other products of tradition which we either cannot or do not want to question; in other words, that particular aspects of a culture can be critically examined only within the context of that culture. (Law, Legislation, and Liberty, vol II, p 25)
The case for same-sex marriage rests on two traditions that no one in the debate seriously wants to question. These two traditions are each pervasive in our society and generally thought of as good. Yet they now stand in conflict with one another. These traditions are, first, marriage itself, and second, the ideal that government should wherever possible treat people equally with regard to gender.
The first ideal, marriage, is self-evidently traditional, however much its forms may have changed along the way. The second ideal, gender equality before the law, evolved more or less naturally from early liberal ideals about legal personhood and equality. If all men should be equal before the law, what about women? It was a perfectly fair question to ask, and again, it was itself the work of an immanent critique, which merely examined an already accepted normative claim and offered an extension to it that could not be refuted.
Advocates of same-sex marriage propose only that we reconcile the conflict between marriage and gender equality, just as Hayek argues that societies ought to do. In this case, it means ending the gender discrimination that says that women are forbidden from marrying women, even while men can do so, and vice versa. It means finding the one way that we can have both of our cherished traditions.
Using the norm of gender equality before the law to critique the institution of marriage is the very picture of an immanent critique. As a result, it’s not terribly invasive. For all existing marriages, nothing would change. For nearly all relationships that have not yet become marriages, again, nothing would change. For a few relationships that have not yet become marriages, yes, there would be a change. And the ideals of marriage and gender equality before the law would be reconciled, where previously they were in conflict.
If only we had the time. If only. But Perry seems fated to short-circuit all that, alas.
 This is also why polygamy is not nearly a proper extension from same-sex marriage. Where gender equality before the law is a deeply entrenched ideal in all western societies, polygamy is not.