Liberals Need to Learn to Say No

The legal theorist Richard Weisberg argues that rather than castigate conservatives for their intransigence, liberals ought to become more infliexible themselves.

By Bernhard Schlink

July 10, 2014 The Daily Beast - The Latin proverb “Times Change and We Change With Them” used to be memorized by generations of students of Latin. Today its truth seems more obvious than ever before. The progress of science, the spread of the internet, the globalization of business and finance, the transformation of the working environment, the diversification of familial structures, the threats of terrorism—how might we cope with these changes without being adaptable and flexible? Given the speed of change, yesterday’s experiences and beliefs seem inadequate to meeting tomorrow’s challenges, unless we constantly negotiate and compromise them with new demands.

The liberal mindset is particularly suited to flexibility and compromise. It lives with the heritage of the enlightenment, its idea that all human beings are rational and can find rational solutions for their problems and conflicts, its advocacy of tolerance, its affinity to relativism, its turn against dogmatism. And the liberal mindset is often irritated and even offended when it encounters others who are intransigent, inflexible, unwilling to compromise.

Richard Weisberg’s In Praise of Intransigence: The Perils of Flexibility comes as a surprise and a provocation—and is the right book at the right moment. It comes as a surprise because the author is himself an heir of the enlightenment and defines his political and moral position left of center. It is a provocation because it turns common liberal notions of what’s right and what’s wrong upside down. And it is the right book at the right moment, because today the political and moral position left of center does not run the risk of being too intransigent, but rather of being too compromising. In times of too much intransigence, we need a call for flexibility. In our times of too much flexibility, Weisberg’s call for intransigence reminds us of our duty to hold on to what’s right.

Weisberg begins with the present, with conflicts over abortion, over the teaching of creationism in school, over gun control, and over the use of torture, unlimited detention, and targeted killing in the fight against terrorism. He describes the left’s tendency to attack the right’s unwillingness to compromise instead of answering the right’s substantive arguments forcefully with its own substantive arguments. Instead of battling over beliefs, behavior, and politics, the left engages in battles over the willingness or unwillingness to compromise. And in proving its own willingness to compromise, the left, particularly in times of emergency, sells out its best and deepest values. Weisberg’s American experience matches my German experience: he was as stunned as I was to watch colleagues abandon the taboo on torture because they felt that hard times justified hard means.

The readiness to be flexible is nothing new. Weisberg writes about the Europeans that were flexible enough to accept Fascism as the new reality. They were not Fascists and, being French in occupied France, or British on the occupied channel islands, they hated the Germans. But they adapted to the German occupation and joined in the discrimination and the destruction of Jews that came with it. Weisberg tells the stories of three lawyers, a professor in France, an official in Guernsey, and a judge in Germany, who stood up against the Nazi-crimes, lonely intransigent voices in a sea of flexible murmur. None of them was  punished; the worst that happened to the German judge was his forced retirement on full pension. The fear in those times was often bigger than the danger. And most often it didn’t even come to the point where people acted out of fear. Most often the wish to change with the changing times, to adapt to the new realities, and to be flexible was enough to let people give up what deep down they knew was right.

Flexibility was and is the liberal temptation, and in the 20th and 21st centuries liberals yielded and yield to it again and again. Weisberg’s historical perspective goes back further: “throughout history,” he writes, “it is usually the noncompromisers who stand firm against what everyone afterwards knows have been hideous alterations in the basic values of  society.” To stand firm against changes into the wrong direction it helps to be a noncompromiser. But noncompromisers also stood and stand firm against changes in the right direction—uncompromising monarchists, slaveholders, patriarchs, and others. Weisberg would not deny this. It is not the topic of his book.

A focus of Weisberg’s historical perspective is early Christian thought. He describes how St. Paul and St. John turned the Torah into the Old Testament, distorted it into a mere herald of the New Testament, full of references to Christ and his words and acts. He sees this Christian misinterpretation of the Torah as the fall of man into the perils of flexibility, repeated in the modern flexible distortions of French, British, or German law that protected Jews and Gentiles alike, or even of American law that granted African Americans and women equality. He sees the Christian affinity to flexibility showing also in the emphasis on faith rather than on obedience to God’s law, faith being by nature subjective and flexible, while loyalty to the law requires intransigence. Here he finds the ground prepared for the anti-semitic attack on rigidity, stubbornness, inflexibility as Jewish qualities. Perhaps this was the anti-semitism directed against Jews living behind Ghetto walls, while modern anti-semitism seems to focus more on flexibility as a Jewish quality, the accusation being that Jews adapt to the people around them, sneak into their social fabric, undermine and destroy it, like parasites—consistency was and is not anti-semitism’s main concern.

The equivocation leads Weisberg to shift the meaning of flexibility. First he writes about the flexibility that one has—the flexibility that makes one change with the changing times, makes one ready to compromise. Writing about early Christian thought he writes about flexibility as a tool—St. Paul and St. John developped an interpretation of the Torah that flexed its meaning. Neither St. Paul nor St. John were flexible characters or had flexible minds; they pursued their goal of building the Christian religion with intransigence. They distorted the Jewish tradition into a prehistory of Christianity, and in doing so demonstrated a talent for changing and bending and flexing. But that doesn’t make them flexible or willing to compromise; they didn’t change with the times, they changed the times.

What they did is not that different from Stalin taking Trotsky out of the history of the Russian revolution and cutting his image out of the historic photos. To turn Isaiah into a prophet of Christ the Messiah is not that different from the Communist historiography that turns Spartacus and Thomas Münzer into proto-Communists. Religions and ideologies are unscrupulous in their use of the past. But religions and ideologies are the opposite of flexible and compromising.

It is not easy to follow Weisberg in his shift from dealing with flexibility as a specific mindset to writing about intransigent minds flexing past events and traditions. He returns to the flexible mind, addressing Shakespeare’s Hamlet, Glaspell’s jury of women, and Faulkner’s hero Lucas Beauchamp and presenting three vignettes on the limits of compromise. Here, the founder of the law and literature movement shows his mastery in bringing literature to philosophical bloom. Finally, the scholar of constitutional law turns to five famous Supreme Court decisions, old and recent, and demonstrates the flexibility of activist Supreme Court justices who, in their wish to tune in with the Zeitgeist, move far beyond the text of the Constitution, or even contradict it.

“Adeptness in the performance of our values must be ever-present, but identifying and sticking with those values come first.” With this last sentence Weisberg returns to the call to intransigence with which he began his book. It is not an idealist, not a romantic call to ethics of conviction as opposed to ethics of responsibility. It is a call to be principled and practical at the same time. Weisberg talks about radical evil and situations where there is no room for flexibility or compromise. There are other situations with room for flexibility and compromise. But flexibility and compromise have to come after we have assured ourselves of our values and have articulated them to the other side resolutely and emphatically. If liberals don’t start from this basis, if instead they show their willingness to compromise and lament the other side’s unwillingness to compromise, they will lose.

Bernhard Schlink is a former judge and law professor and is the author of numerous works of fiction and nonfiction, including The Reader and, most recently, Summer Lies, a collection of stories. He lives in New York and Berlin.