Digressions&Impressions

14 March 1979: Foucault on Two Contexts of Neoliberalism, Shallowness, and Hayekian Utopia (XXVII)

There are some major differences between European and American neo-liberalism. They are also very obvious, as we know. I will just recall them. In the first place, American liberalism, at the moment of its historical formation, that is to say, very early on, from the eighteenth century, did not present itself, as in France, as a moderating principle with regard to a pre-existing raison d’État, since liberal type claims, and essentially economic claims moreover, were precisely the historical starting point for the formation of American independence.  That is to say, liberalism played a role in America during the period of the War of Independence somewhat analogous to the role it played in Germany in 1948: liberalism was appealed to as the founding and legitimizing principle of the state. The demand for liberalism founds the state rather then [sic?] the state limiting itself through liberalism. I think this is one of the features of American liberalism.
Second, for two centuries—whether the issue has been one of economic policy, protectionism, the problem of gold and silver, or bimetallism, the question of slavery, the problem of the status and function of the judicial system, or the relation between individuals and different states, and between different states and the federal state—liberalism has, of course, always been at the heart of all political debate in America. We can say that the question of liberalism has been the recurrent element of all the political discussions and choices of the United States. Let’s say that whereas in Europe the recurrent elements of political debate in the nineteenth century were either the unity of the nation, or its independence, or the Rule of law, in the United States it was liberalism.
Finally, third, in relation to this permanent ground of liberal debate, non-liberalism—by which I mean interventionist policies, whether in the form of Keynesian style economics, planning, or economic and social programs—appeared, especially from the middle of the twentieth century, as something extraneous and threatening inasmuch as it involved both introducing objectives which could be described as socializing and also as laying the bases of an imperialist and military state. Criticism of this non-liberalism was thus able to find a double foothold: on the right, precisely in the name of a liberal tradition historically and economically hostile to anything sounding socialist, and on the left, inasmuch as it was a question not only of criticism but also of daily struggle against the development of an imperialist and military state. Hence the ambiguity, or what appears to be an ambiguity in American neo-liberalism, since it is brought into play and reactivated both by the right and the left.
Anyway, I think we can say that for all these completely banal reasons I have just mentioned, American liberalism is not—as it is in France at present, or as it was in Germany immediately after the war—just an economic and political choice formed and formulated by those who govern and within the governmental milieu. Liberalism in America is a whole way of being and thinking. It is a type of relation between the governors and the governed much more than a technique of governors with regard to the governed. Let’s say, if you like, that whereas in a country like France disputes between individuals and the state turn on the problem of service, of public service, [in the United States] disputes between individuals and government look like the problem of freedoms. I think this is why American liberalism currently appears not just, or not so much as a political alternative, but let’s say as a sort of many-sided, ambiguous, global claim with a foothold in both the right and the left. It is also a sort of utopian focus which is always being revived. It is also a method of thought, a grid of economic and sociological analysis. I will refer to someone who is not an American exactly, he is an Austrian whom I have spoken about several times, but who then lived in England and the United States before returning to Germany. Some years ago Hayek said: We need a liberalism that is a living thought. Liberalism has always left it to the socialists to produce utopias, and socialism owes much of its vigor and historical dynamism to this utopian or utopia creating activity. Well, liberalism also needs utopia. It is up to us to create liberal utopias, to think in a liberal mode, rather than presenting liberalism as a technical alternative for government. Liberalism must be a general style of thought, analysis, and imagination.--Michel Foucault, 14 March, 1979,  translated by Graham Burchell, Lecture 9, The Birth of Biopolitics, 217-219.

I noted recently, in a comment on the lecture 8 that Foucault has a kind of historicist sensibility toward neoliberalism. There, without explanation, Foucault treats original ORDO-neoliberalism as a kind of organic political solution to circumstances.  Whereas the application of the copy of neoliberalism in France during the apparently more ordinary political crisis of the 70s is treated as disruptive and radical. In this ninth lecture he explains his conceptual decision. The Ordos and Chicago-school neo-liberalism are in a political-cultural sense indigenous to the national art(s) of government because liberalism is a 'legitimizing principle' in their national contexts. Of course, in the German context the Ordos also help invent the very, particular kind of idea as legitimizing principle in state formation whereas in the American context the Chicago school inherits it from a pre-existing semi-national tradition. I use 'semi-national' in the previous sentence because American liberalism, with its founding fathers and Lincolnesque re-founding is itself, at least partially, cosmopolitan in character and draws richly from Roman writings, native-American practices (see here;* recall), English, French (Montesquieu!), and Scottish thought (etc.).

So, Foucault offers a distinction between two contexts in which neo-liberalism is practiced: (i) where liberalism is itself an indigenous legitimizing principle of government--that is, political jurisdictions where liberalism is a constitutive principle of political life; (ii) where liberalism merely plays a moderating or ameliorative role in political life. 

And while I am primarily interested in how this distinction impacts Foucault's analysis, it is important to see how polemical this claim is in the French context since it rejects the idea that any of the French revolutions (note the plural) form a genuine rupture with what came before. And Foucault treats the rich history of French liberal theorizing as continuous which pre-existing French political life. It also means that French neo-liberalism will be understood as a rupture or radical (as Foucault does).

One other effect of the distinction is that in places where neo-liberalism is indigenous in the sense used above, it need not concern itself with foundational questions about its own legitimation. For "Liberalism in America is" and can presuppose "a whole way of being and thinking." (How quaint that reads now!) By this I do not mean that it is merely economic in character. As noted in the same lecture (recall), on Foucault's view, Chicago economics understands itself not merely as a critique of the welfare state, but it understands itself also as a critique of a kind of illegitimate social contract that underpins it. But in its criticism of 'collectivism,' it can take for granted -- and this gives it at times a seemingly shallow character -- certain background commitments to liberalism inherited from its semi-national tradition. Interestingly enough, as Ordo-liberalism became confident about the survival of the Bonn settlement, it takes on more characteristics of this apparent shallowness. 

I do not mean to deny there is something reductive about Foucault's interpretation of American liberalism which subtly get identified with economic claims ("since liberal type claims, and essentially economic claims moreover, were precisely the historical starting point for the formation of American independence.") The Bill of Right are here downgraded relative to the right to property and the Commerce Clause.

Be that as it may, I do not mean to suggest that American liberalism becomes shallow in Foucault's hands because he recognizes, almost alone among twentieth century commentators (and something missed by nearly all his would-be-followers and those that use 'neoliberalism' in the sense popularized by David Harvey; recall here, too) that the Chicago criticism of of Keynesianism is not just economic in character but, driven by concern over its role in "laying the bases of an imperialist and military state." It's for this reason Foucault's emphasis (recall) on Simons as the founder of Chicago must be explained. And part of the drama of the Chicago school's evolution is how this was lost.

And this means, in practice, that what looks like a public goods problem in France, will be understood in terms of competing freedoms Stateside. Now, one fascinating feature, and here I anticipate some of Foucault's later lectures, is that the later rise of law and economics and the re-invention (via Robbins) of homo oeconomicus at Chicago (which in some senses is a break with Simons and Hayek), and its revival and re-interpretation of, as Foucault noted in lecture 2, English (post-Benthamite) radicalism (that is, utilitarianism) also changes the character of how public services are understood in America. And, oddly enough, as we will see, by analyzing governmental practice in terms of maximizing utility, by generating a 'technical alternative' the Chicago school's effect on American public life is to turn it into being more like the French administrative state! 

And just as Foucault is about to launch into his much more concrete analysis of then contemporary Chicago economics, with a focus on Becker, he reminds his audience of the significance of Hayek.  And, again, rather than turning to polemics (which his audience wants), Foucault mentions Hayek (who had then already visited Chile for the first time) not to discredit Chicago or neoliberalism, but rather to note that if one one wishes to understand why -- even in a period of stagflation, and crisis -- liberalism as "living thought" a globalizing manner of thinking "with a foothold in both the right and the left" the contemporary author most salient to understand is Hayek. Foucault is freely quoting from Hayek's (1949) "The intellectuals and Socialism." 

This is an essay in which Hayek confronts the influence of intellectuals on public life in democracies in the long run. For Hayek intellectuals are not philosophers or scientist/experts (who invent and test ideas), but "secondhand dealers in ideas." In the essay, Hayek tracks a distinction, also familiar from Arendt, between the public real of opinion, in which intellectuals act as opinion-makers, and other institutions (justice, science, perhaps markets, etc.) where truth is produced. The production of intellectuals is one of the tasks of universities (even if they can become populated by intellectuals).+

Now, one reason to mention Hayek's (1949) essay in this context is also clear. For it is the place where Hayek explicitly confronts the kind of shallowness of thought characteristic of liberalism on behalf of liberalism. For Hayek the call to a liberal utopia means that "the philosophic foundations of a free society" must be made "once more a living intellectual issue." It is somewhat extraordinary that Foucault inserts this call into his lecture just before he starts describing the manner in which (late) Chicago school liberalism becomes a matter of technique. And one cannot help but wonder if Foucault is alerting his audience to his own double role, as intellectual and philosopher

 

On Quentin Skinner's neo-roman criticism of classical liberalism; or Hume vs Skinner (IV)

I...concentrate...on the other and more knock-down objection commonly levelled against the theory I have been laying out. According to a number of eminent critics, the analysis of the concept of liberty underlying the claim that it is only possible to live freely in a free state is itself misleading and confused. Those who have raised this objection commonly mount their attack in two waves. First they reaffirm the Hobbesian principle that the extent of your individual liberty depends on the extent to which the performance of actions within your powers is or is not physically or legally constrained. As Paley, for example, puts it, 'the degree of actual liberty' will always bear 'a reversed proportion to the number and severity of the restrictions' placed on your ability to pursue your chosen ends. But the neo-roman theorists, according to Paley, are not talking about this situation. They are talking about the extent to which the performance of such actions may or may not be free from the possible danger of being constrained. But this, Paley goes on, is to confuse the idea of liberty with a wholly different value, that of enjoying security for your liberty and the exercise of your rights. So the neo-roman writers 'do not so much describe liberty itself, as the safeguards and preservatives of liberty: for example, a man's being governed by no laws, but those to which he has given his consent, were it practicable, is no otherwise necessary to the enjoyment of civil liberty, than as it affords a probable security against the dictation of laws, imposing arbitrary and superfluous restrictions upon his private will'
The second wave of the attack then follows at once. As soon as this confusion is uncovered, we can see that the basic claim made by the neo-roman theorists to the effect that you can only be free in a free state is simply a mistake. The extent of your freedom as a citizen depends on the extent to which you are left unconstrained by the coercive apparatus of the law from exercising your powers at will. But this means that what matters for civic liberty is not who makes the laws, but simply how many laws are made, and thus how many of your actions are in fact constrained. This in turn shows that there is no necessary connection between the preservation of individual liberty and the maintenance of any particular form of government. As Paley concludes, there is no reason in principle why 'an absolute form of government' might not leave you no less free than the purest democracy'.

...It seems to me, however, that Paley's line of criticism fails to come to terms with the most basic and distinctive claim that the neo-roman theorists are labouring to make about the concept of civil liberty. The claim is implicit in the analysis I have already given, but it is now time to spell it out.
The neo-roman writers fully accept that the extent of your freedom as a citizen should be measured by the extent to which you are or are not constrained from acting at will in pursuit of your chosen ends. They have no quarrel, that is, with the liberal tenet that, as Jeremy Bentham was later to formulate it, the concept of liberty 'is merely a negative one' in the sense that its presence is always marked by the absence of something, and specifically by the absence of some measure of restraint or constraint. Nor have they any wish to deny that the exercise of force or the coercive threat of it must be listed among the forms of constraint that interfere with individual liberty. Despite what a number of recent commentators have implied, they are far from merely wishing to put forward an alternative account of unfreedom according to which it is held to be the product not of coercion but only of dependence.

What, then, divides the neo-roman from the liberal understanding of freedom? What the neoroman writers repudiate avant la lettre is the key assumption of classical liberalism to the effect that force or the coercive threat of it constitute the only forms of constraint that interfere with individual liberty. The neo-roman writers insist, by contrast, that to live in a condition of dependence is in itself a source and a form of constraint. As soon as you recognise that you are living in such a condition, this will serve in itself to constrain you from exercising a number of your civil rights. This is why they insist, pace Paley, that to live in such a condition is to suffer a diminution not merely of security for your liberty but of liberty itself.

The issue, in short, is how to interpret the underlying idea of constraint...

If you are a subject of the sultan, you will be less free than a citizen of Lucca, simply because your freedom in Constantinople, however great in extent, will remain wholly dependent on the sultan's goodwill. But this means that in Constantinople you will suffer from a form of constraint unknown even to the humblest citizen of Lucca. You will find yourself constrained in what you can say and do by the reflection that, as Harrington brutally puts it, even the greatest bashaw in Constantinople is merely a tenant of his head, liable to lose it as soon as he speaks or acts in such a way as to cause the sultan offence. The very fact, in other words, that the law and the will of the sultan are one and the same has the effect of limiting your liberty. Whether the commonwealth be monarchical or popular, the freedom is not still the same...
...

By the end of the nineteenth century, Henry Sidgwick felt able to declare in his great summation of classical liberalism that the errors underlying the neoroman theory of liberty are beyond dispute. To speak of individual liberty, Sidgwick first reminds us in his Elements of Politics, is to speak of an absence of external impediments to action, either in the form of 'physical coercion or confinement', or else of coercive threats that inhibit us by 'the fear of painful consequences'. Once this is understood, we can see that to think of the freedom of citizens as possible only within free states is simply to fall into 'the confusion which the common use of the word "Freedom" is apt to cause'. The truth is that individual freedom has no necessary connection with forms of government, since it is perfectly possible for a representative legislature to 'interfere with the free action of individuals more than an absolute monarch With this reiteration of the classical utilitarian case, Sidgwick dearly felt that the neoroman theory had finally been laid to rest.--Quentin Skinner, Liberty before Liberalism, 79-99.

This is the concluding post ((recall here; here; here; here; here) in my series on Skinner's Liberty before Liberalism , and the one in which I disagree with him. One important feature of Skinner's treatment of the debate between the "neoroman theory" and the "liberal," even "classical liberal" response to it is that the main representatives of the latter he discusses, from Paley to Sidgwick, are all utilitarians. And of these, Mill goes entirely unmentioned (except for in Skinner's "preface"). This subtly skews the terms of the debate. 

For in Skinner's hands the neoroman litmus test for freedom is the ability to speak one's mind at court by those"devoted to public service by acting as advisers and counsellors to the rulers and governments." (87ff) Since utilitarians often conceive of their own science in terms of such (philanthropic) service -- they model their own activity in terms of social planner or philanthropy -- this is entirely fair. And, indeed, in their public service, in so far as policy-advisors become dependent on the whims of the prince, and, as Machiavelli (recall) already noted, incentivized to flatter the prince and disagree among themselves, the neoromans are right to regard it as a mistake to treat them as paradigmatically free in such an unstable political environment. 

Why then do I say that the debate is skewed? First that there is nothing distinctively liberal about these utilitarian responses to the neoromans. By this I do not mean to imply that the utilitarians are hostile to liberalism. I agree with, say, Foucault (recall) that they constitute the epitome of the "radical" tradition within liberalism. But it doesn't mean that in all things utilitarians are constitutive of liberalism or especially liberal in their sensibility. When in  Considerations on Representative Government, Chapter 3. Mill, who himself has a tendency toward paternalism, warns against the attractions of "good despotism" he is attacking the fondness for Enlightened dictatorship to be found in (other) utilitarians (and earlier the physiocrats). Again, I do not mean to deny that within otherwise eminently liberal thinkers there is a recurring lapse toward the attractions of the wise legislator who resolves political problems by fiat.

My point is that so-called negative liberty by itself is not especially liberal. For, one thing notably missing in the presentation of the liberal response to the neoroman account of freedom, as presented by Skinner, is the significance of the rule of law.+ The classical liberals granted the neoromans that one was not free under despots. For, example the sultan's mastery "of the life and fortune of any individual" is treated as a danger to and restriction of freedom by Hume. This despite the fact that the sultan was, according to Hume, constrained in his ability to impose taxes. 

But informed by Machiavelli on the significance of mechanism design, the classical liberals also claimed that the rule of law was compatible with a variety of constitutional and political formats. What's needed, in addition to the rule of law, is a separation of powers capable of resisting the executive so that impartial and general rule of law is secured. As Hume, who is by no means the greatest friend of liberty among the classical liberals, writes in remarking on the "struggle" between "authority and liberty:"

The government, which, in common appellation, receives the appellation of free, is that which admits of a partition of power among several members, whose united authority is no less, or is commonly greater than that of any monarch; but who, in the usual course of administration, must act by general and equal laws, that are previously known to all the members and to all their subjects. In this sense, it must be owned, that liberty is the perfection of civil society;

Notice that in the quoted passage, Hume accepts the neoroman claim that you can only be free in a free state. The problem with the neoroman position for Hume is not that the neoromans confuse freedom with constraints on freedom (and should adopt the Hobbesian, negative conception of freedom). Skinner is entirely right that this line of argument that is ground in the idea that "individual liberty is basically a matter of non-interference" (116, in context this is a criticism of Isaiah Berlin) begs the question against the neoroman account of liberty. Hume does not beg the question in that way.*

Rather, the neoroman theorists call the wrong kind of states free. This needs to be corrected. For Hume, the problem with the neoroman account is that, as (recall Constant) any reader of Rousseau's Social Contract will have recognized, the neoroman theory facilitates what one may call democratic despotism. (This was noted in Berlin's Two Concepts.") And in so far as republican theorists recognize this, and introduce  institutional safeguards against it, they move toward the liberal position articulated by Hume (and Montesquieu, etc.), and, indeed, Livy.++

I do not mean to deny that lurking here is an important disagreement over the best form of life. Classical liberals do not sign up for the neoroman idea that devoted public servant is the paradigmatic citizen,  although Hume and Smith felt the pull of it. And from a neoroman perspective this is indeed troubling. But the liberal rejoinder is that in their kind of free state, which is compatible with a whole range of constitutional forms (but not despotism/tyranny, etc.), the public servant is no more dependent or unfree on the ruler than any other citizen is. But that's because the liberal espouses the idea when, in a free state (in the corrected sense), the citizen exercises her judgment in order to make meaningful choices, she can express her personal freedom in a diversity of ways in the pursuit of many valuable ends.

 

 

On Foucault on 17 January 1979: On Dynamics of Liberty or Method and Enemies (V)

Undertaking the history of regimes of veridiction—and not the history of truth, the history of error, or the history of ideology, etcetera—obviously means abandoning once again that well-known critique of European rationality and its excesses, which has been constantly taken up in various forms since the beginning of the nineteenth century. From romanticism to the Frankfurt School, what has always been called into question and challenged has been rationality with the weight of power supposedly peculiar to it. Now the critique* of knowledge I would propose does not in fact consist in denouncing what is continually—I was going to say monotonously—oppressive under reason, for after all, believe me, insanity (déraison) is just as oppressive. Nor would this political critique of knowledge consist in flushing out the presumption of power in every truth affirmed, for again, believe me, there is just as much abuse of power in the lie or error. The critique I propose consists in determining under what conditions and with what effects a veridiction is exercised, that is to say, once again, a type of formulation falling under particular rules of verification and falsification. Michel Foucault, 17 January 1979, lecture 2  The Birth of Biopolitics. translated by Graham Burchell, 35-36

One strain easy to miss in the fascinating ambitions of lecture 2, is Foucault's polemic with the Frankfurt school. That is to say, I missed it when I taught last year it only to be taken by surprise (looking ahead) in lecture 5. His main criticism above seems to be that ideology critique lacks originality (it goes back to romanticism) and is tired old hat ("etcetera;" "once again;" "well- known;" "constantly" "always"). The more subtle criticism, which is a consequentialist argument from authority ("believe me") is is that if the effect of ideology critique is a regime of unreason or error, it is no better. That is to say, and this has been noted by critics of Foucault, there is a kind of status quo bias built into Foucault's methodology; it is not sufficient to show that the status quo is problematic if you don't have a path toward a better outcome. 

It would be tempting now to turn to Foucault's methodology, but, as it happens, the polemic with Frankfurt is not finished yet. A few pages (or since these are lectures, minutes) later he claims that:

We should keep in mind that heterogeneity is never a principle of exclusion; it never prevents coexistence, conjunction, or connection. And it is precisely in this case, in this kind of analysis, that we emphasize, and must emphasize a non-dialectical logic if want to avoid being simplistic. For what is dialectical logic? Dialectical logic puts to work contradictory terms within the homogeneous. I suggest replacing this dialectical logic with what I would call a strategic logic. A logic of strategy does not stress contradictory terms within a homogeneity that promises their resolution in a unity. The function of strategic logic is to establish the possible connections between disparate terms which remain disparate. The logic of strategy is the logic of connections between the heterogeneous and not the logic of the homogenization of the contradictory. So let’s reject the logic of the dialectic and try to see—this is what I will try to show in these lectures—the connections which succeeded in holding together and conjoining the fundamental axiomatic of the rights of man and the utilitarian calculus of the independence of the governed. (42-43)

The heterogeneity he has in mind (recall) is liberalism's two traditions/concepts of liberty -- the contractualist-republican and utilitarian ones. And the significance of his claim, to liberalism, and this anticipates structurally something Jacob Levy has recently emphasized (recall;and recall) in a slightly different fashion, is the creative tension, a dynamics of liberty, within liberalism of these non-identical yet coexisting conceptualizations of liberty. And strikingly, Foucault wants to adopt a logic of inquiry that does justice to and can convey precisely these dynamics, "the connections which succeeded in holding together and conjoining the fundamental axiomatic of the rights of man and the utilitarian calculus of the independence of the governed. " As I signaled earlier in the week, by adopting what he calls strategic logic, Foucault's rewriting of the tradition is simultaneously a means of extending it because it facilitates the expression of this creative dynamic. 

At this point it is unclear whether Foucault thinks that by so doing one gives liberalism a new lease on life or one helps to push it over the precipice. But he is explicit that dialectical logic (which I take him to associate with the Frankfurt school, especially Horkheimer and Marcuse [both mentioned later in the lecture series)) is both simplistic and incapable of respecting the creativity lodged within the liberal tradition. De facto he is saying that the unity they offer is not worth having.

I could stop here, but it is worth noting what liberalism's rule of reason he is willing to apply strategic logic to is. He writes:

Governmental reason in its modern form, in the form established at the beginning of the eighteenth century with the fundamental characteristic of a search for the principle of its self-limitation, is a reason that functions in terms of interest. But this is no longer the interest of an entirely self-referring state which only seeks its own growth, wealth, population, and power, as was the state of raison d’État. In the principle to which governmental reason must conform, interest is now interests, a complex interplay between individual and collective interests, between social utility and economic profit, between the equilibrium of the market and the regime of public authorities, between basic rights and the independence of the governed. Government, at any rate, government in this new governmental reason, is something that works with interests....In its new regime, government is basically no longer to be exercised over subjects and other things subjected through these subjects. Government is now to be exercised over what we could call the phenomenal republic of interests. (44...46)

The rule of reason is thus the rule of interests, and this is, quite clearly, itself in constant motion a moving target. And in part it is a moving target because as interests are both shaped and pursued, perceived needs and how these perceptions are constituted evolve. So, we  may say that in this phenomenal republic there is lodged a further complex dynamics that has, in turn, a complex interplay with the dynamics of liberty. 

These complex, multi-faceted dynamics come together in the market which is (recall) a stupendous machine that helps coordinate the pursuit of our needs. I put it like this because here in lecture 2, Foucault has already signaled, without mentioning his name, that Hayek is not an aberration from liberalism but central to the tradition. But the lecture ends on alerting to the reader to the significance of James Buchanan's research program (e.g. Calculus of Consent):

The fundamental question of liberalism is: What is the utility value of government and all actions of government in a society where exchange determines the true value of things? this question encapsulates the fundamental questions raised by liberalism. With this question liberalism posed the fundamental question of government, which is whether all the political, economic, and other forms which have been contrasted with liberalism can really avoid this question and avoid formulating this question of the utility of a government in a regime where exchange determines the value of things. (46)

This is, of course, precisely the research agenda of public choice theory (Buchanan, Tullock), which goes unnamed in the Birth of Biopolitics (and perhaps everywhere in Foucault's work). And, of course, if we look at Buchanan's research project closely it mixes the two traditions noted by Foucault. The contractualist-republican element is (recall) exhibited in the significance to Buchanan of the constitutional moment; this is the part of Buchanan where he is very close to Rawls.  But within the constitutional order Buchanan inherits (what Foucault calls) the radical tradition and applies in Foucaults terms the utility value of government and all actions of government in a society where exchange determines the true value of things.* That is to say, Foucault helps explain why the Virginia school is, itself, an expression of the central problematics of liberalism. 

 

On Foucault on 17 January 1979 On Two Concepts of Freedom (IV)

So, there is a shift of the center of gravity of public law. The fundamental problem of public law will no longer be the foundation of sovereignty, the conditions of the sovereign’s legitimacy, or the conditions under which the sovereign’s rights can be exercised legitimately, as it was in the seventeenth and eighteenth centuries. The problem becomes how to set juridical limits to the exercise of power by a public authority. Schematically, we can say that at the end of the eighteenth and the beginning of the nineteenth century there were basically two ways of resolving this. The first I will call the axiomatic, juridico-deductive approach, which was, up to a point, the path taken by the French Revolution—we could also call it Rousseau’s approach. In what does it consist? It does not start from government and its necessary limitation, but from law in its classical form. That is to say, it tries to define the natural or original rights that belong to every individual, and then to define under what conditions, for what reason, and according to what ideal or historical procedures a limitation or exchange of rights was accepted. It also consists in defining those rights one has agreed to cede and those, on the other hand, for which no cession has been agreed and which thus remain imprescriptible rights in all circumstances and under any possible government or political regime. Finally, on this basis, and only on this basis, having thus defined the division of rights, the sphere of sovereignty, and the limits of the right of sovereignty, you can then deduce from this only what we can call the bounds of governmental competence, but within the framework determined by the armature constituting sovereignty itself. In other words, put clearly and simply this approach consists in starting from the rights of man in order to arrive at the limitation of governmentality by way of the constitution of the sovereign. I would say that, broadly speaking, this is the revolutionary approach. It is a way of posing right from the start the problem of legitimacy and the inalienability of rights through a sort of ideal or real renewal of society, the state, the sovereign, and government. Consequently, you can see that if, historically and politically, this is the revolutionaries’ approach, we can call it a retroactive, or retroactionary approach inasmuch as it consists in taking up the problem of public law that the jurists had constantly opposed to the raison d’État of the seventeenth and eighteenth centuries. In this respect there is continuity between the seventeenth century theorists of natural law and the jurists and legislators of the French Revolution.
The other approach does not start from law but from governmental practice itself. It starts from government practice and tries to analyze it in terms of the de facto limits that can be set to this governmentality. These de facto limits may derive from history, from tradition, or from an historically determined state of affairs, but they can and must also be determined as desirable limits, as it were, as the good limits to be established precisely in terms of the objectives of governmentality, of the objects with which it has to deal, of the country’s resources, population, and economy, etcetera. In short, this approach consists in the analysis of government: its practice, its de facto limits, and its desirable limits. On this basis, it distinguishes those things it would be either contradictory or absurd for government to tamper with. Better still, and more radically, it distinguishes those things that it would be pointless for government to interfere with. Following this approach means that government’s sphere of competence will be defined on the basis of what it would or would not be useful for government to do or not do. Government’s limit of competence will be bounded by the utility of governmental intervention. The question addressed to government at every moment of its action and with regard to each of its institutions, old or new, is: Is it useful? For what is it useful? Within what limits is it useful? When does it stop being useful? When does it become harmful? This is not the revolutionary question: What are my original rights and how can I assert them against any sovereign? But it is the radical question, the question of English radicalism; the problem of English radicalism is the problem of utility.
Don’t think that English political radicalism is no more than the projection of a utilitarian ideology on the level of politics. It is, rather, an attempt to define the sphere of competence of government in terms of utility on the basis of an internal elaboration of governmental practice which is nevertheless fully thought through and always endowed and permeated with philosophical, theoretical, and juridical elements. In this respect utilitarianism appears as something very different from a philosophy or an ideology. Utilitarianism is a technology of government, just as public law was the form of reflection, or, if you like, the juridical technology with which one tried to limit the unlimited tendency of raison d’État....for English radicalism, “radical” designates a position which involves continually questioning government, and governmentality in general, as to its utility or non-utility.
So, there are two approaches: the revolutionary approach, basically structured around traditional positions of public law, and the radical approach, basically structured around the new economy of government reason. These two approaches imply two conceptions of the law. In the revolutionary, axiomatic approach, the law will be seen as the expres sion of a will. So there will be a system of will-law. The problem of the will is, of course, at the heart of all the problems of right, which again confirms the fact that this is a fundamentally juridical problematic. The law is therefore conceived as the expression of a collective will indicating the part of right individuals have agreed to cede, and the part they wish to hold on to. In the other problematic, the radical utilitarian approach, the law is conceived as the effect of a transaction that separates the sphere of intervention of public authorities from that of the individual’s independence. This leads us to another distinction which is also very important. On one side you have a juridical conception of freedom: every individual originally has in his possession a certain freedom, a part of which he will or will not cede. On the other side, freedom is not conceived as the exercise of some basic rights, but simply as the independence of the governed with regard to government. We have therefore two absolutely heterogeneous conceptions of freedom, one based on the rights of man, and the other starting from the independence of the governed. I am not saying that the two systems of the rights of man and of the independence of the governed do not intertwine, but they have different historical origins and I think they are essentially heterogeneous or disparate. With regard to the problem of what are currently called human rights, we would only need look at where, in what countries, how, and in what form these rights are claimed to see that at times the question is actually the juridical question of rights, and at others it is a question of this assertion or claim of the independence of the governed vis-à-vis governmentality.
So, we have two ways of constituting the regulation of public authorities by law, two conceptions of the law, and two conceptions of freedom. This ambiguity is a characteristic feature of, let’s say, nineteenth and also twentieth century European liberalism. When I say two routes, two ways, two conceptions of freedom and of law, I do not mean two separate, distinct, incompatible, contradictory, and mutually exclusive systems, but two heterogeneous procedures, forms of coherence, and ways of doing things.  Michel Foucault, 17 January 1979, lecture 2  The Birth of Biopolitics. translated by Graham Burchell, 39-42

The other day I said that this second lecture by Foucault is dazzling. In this long quote he sketches an interpretation of liberalism as the complex working out of two traditions, which are simultaneously enacting two concepts of freedom/liberty. The working out takes place within each tradition and in their interactions (and distant shadowing). It would be tempting to treat these as geographically distinct, but I don't think that's Foucault's purpose. Part of the dazzle is to see Foucault rewrite Constant, Green, and Berlin (although as I have noted, it is not necessary to efface the mothers of liberalism when doing so). And this rewriting raises a fascinating (and somewhat familiar) question.

The rewriting of a tradition is simultaneously a means of extending it. Of course, it can also be a form of ideology critique or unmasking. But Foucault is explicit that this is not his current enterprise.* Rather, he wishes "to make reality intelligible" and this "is simply showing that it was possible; establishing the intelligibility of reality consists in showing its possibility." (34) This is the kind of passage that analytic philosophers like to mock (if X exists X surely is possible). But one need not be a British Idealist in order to recognize that social reality is, at least in part, constituted by intentional objects (and our beliefs and narratives about them, ad infinitum). And at minimum, Foucault is saying that there is a sense in which the very liberal tradition(s) he is constructing are not fully self-conscious or self-aware. For prior to his articulation the reality they aim to be co-constituting are not fully intelligible (to themselves). 

While there is much more to say about the nature of modality and intentionality Foucault is presupposing here (and which sit uneasily with the theories of concepts and modality fashionable in analytic philosophy [and which are not very useful in thinking about social reality)], we should also marvel at the rationalism inherent in Foucault's project. This is easily missed by all the ways one can assimilate Foucault and his focus on the conditions of possibility (of intelligibility) to a variety of neo-Kantianisms. But that reality is intelligible is the axiomatic commitment of philosophical rationalism.** That is to say, Foucault opens up the possibility for a liberalism that understands how its own art of governance and, thereby, become mature. 

On Foucault's view, liberalism really starts once the questions of sovereignty and constitutions are settled or, more cautiously, can be assumed to be safely settled. That is, liberalism is (recall this post on Hume) a post-revolutionary enterprise. Or to put it differently, it comes to its own when it is safe to ignore foundations and when expectations can be thought reasonable. Foucault, thus, is tracking the liberal's philosophically problematic tendency not to question everything (recall Kofi Bright on logical empiricism (and Zizek on Kant)).

The previous paragraph may be obscure, but note how one conception of freedom starts "from law" (which I will call contractualist-republican) and the other utilitarian one starts "from governmental practice." Yes, Foucault calls the former a revolutionary approach, but the key point is that it occurs "within the framework determined by the armature constituting sovereignty itself." That is a polite way of saying, after revolutionary violence. So, liberalism makes reality intelligible by taking the violence that makes it possible for granted. To put it in Spinozistic terms: the state of nature remains latent in liberal civilization. And what Foucault is saying, is liberalism need not be deceptive about this at all. 

The second key claim here is that liberalism is, thus, a mitigating project. (I have repeatedly noted (recall) this is true to its proper self-understanding.) And it does so by generating technologies of government. Foucault is a bit too quick in assuming that these technologies are intrinsically liberal. But from this perspective civil unrest and riots are (here; here; and also here) part of the technology of government or a signal that governance is malfunctioning.

The problem -- to which Foucault understands himself as a salutary corrective is -- that neither the contractualist-republican tradition (focused on securing rights 'of man') and the utilitarian tradition (focused on independence within the extensive division of labor it embraces) always understand itself primarily as a technology of governance (this is less true of 19th century utilitarianism which did theorize itself like this). And so what both strands of liberalism would gain from self-awareness is that within the liberal art of governance it should secure the proper regulation of itself as a technology. It's as if Foucault is playing Turing to a robot to nudge it to became aware of itself and then formulate and thereby impose the laws of robotics as a subject on itself.

 

On Levy and Hayek and a(nother) Rebirth of Liberalism

Since it has been argued so far that an essentially liberal economic regime is a necessary condition for the success of any interstate federation, it may be added, in conclusion, that the converse is no less true: the abrogation of national sovereignties and the creation of an effective international order of law is a necessary complement and the logical consummation of the liberal program. In a recent discussion of international liberalism, it has been rightly contended that it was one of the main deficiencies of nineteenth-century liberalism that its advocates did not sufficiently realize that the achievement of the recognized harmony of interests between the inhabitants of the different states was only possible within the framework of international security.[7] ....

That nineteenth-century liberalism did not succeed more fully is due largely to its failure to develop in this direction; and the cause is mainly that, because of historical accidents, it successively joined forces first with nationalism and later with socialism, both forces being equally incompatible with its main principle.[9] That liberalism became first allied with nationalism was due to the historical coincidence that, during the nineteenth century, it was nationalism which...fought against the same sort of oppression which liberalism opposed. It later became allied with socialism because agreement as to some of the ultimate ends for a time obscured the utter incompatibility of the methods by which the two movements tried to reach their goal. But now when nationalism and socialism have combined—not only in name—into a powerful organization which threatens the liberal democracies, and when, even within these democracies, the socialists are becoming steadily more nationalist and the nationalists steadily more socialist, is it too much to hope for a rebirth of real liberalism, true to its ideal of freedom and internationalism and returned from its temporary aberrations into the nationalist and the socialist camps? The idea of interstate federation as the consistent development of the liberal point of view should be able to provide a new point d’ appui for all those liberals who have despaired of and deserted their creed during the periods of wandering.

This liberalism of which we speak is, of course, not a party matter; it is a view which, before World War I, provided a common ground for nearly all the citizens of the Western democracies and which is the basis of democratic government...But the realization of the ideal of an international democratic order demands a resuscitation of the ideal in its true form. Government by agreement is only possible provided that we do not require the government to act in fields other than those in which we can obtain true agreement. If, in the international sphere, democratic government should only prove to be possible if the tasks of the international government are limited to an essentially liberal program, it would no more than confirm the experience in the national sphere, in which it is daily becoming more obvious that democracy will work only if we do not overload it and if the majorities do not abuse their power of interfering with individual freedom. Yet, if the price we have to pay for an international democratic government is the restriction of the power and scope of government, it is surely not too high a price, and all those who genuinely believe in democracy ought to be prepared to pay it. The democratic principle of “counting heads in order to save breaking them” is, after all, the only method of peaceful change yet invented which has been tried and has not been found wanting. Whatever one may think about the desirability of other aims of government, surely the prevention of war or civil strife ought to take precedence, and, if achievement lies only in limiting government to this and a few other main purposes, these other ideals will have to give place..--Hayek (1939) "The Economic Conditions of Interstate Federalism" [HT: Wolfgang Streeck, Buying Time]

This post was prompted by yet another fascinating essay, "The Shortcut to Serfdom," by Jacob Levy and its re-reading of Hayek's Road to Serfdom. (Read it in full.) Levy treats the technocratic presidency of "the Obama administration" as the misguided but well-intentioned cause for the "increasing the [dangerous] presidential power that the Trump administration would now inherit."* The passage just quoted merely suggests that certain powers of the Trump administration are a consequence of the Obama administration, but below I quote a much stronger claim on the slippery slope from Obama to Trump.

Even so, the real interest in Levy's piece is not its explanatory framework, but that it is aiming to shape the future of classical liberalism (which includes libertarianism as its most intellectually active component) and thereby to return it to its true orientation. In fact, there are two polemical points. First, a rejection of

[t]he long postwar “fusionist” alliance with organized conservatism entangled many libertarian admirers of Hayek with the rearguard defense of Jim Crow. The Confederate-sympathizing southern populism of some self-identified libertarians is even worse, identifying the cause of liberty with the celebration of serfdom or slavery itself. It is long past time for those links to be broken, and for the people who think of themselves as heirs to Hayekian liberalism to identify with the civil rights movement that broke serfdom once and for all.

While this is a strictly American phenomenon, many European liberals have also succumbed to the temptation of getting entangled with (hierarchy loving and ethnocentric) conservatives. Levy has made the point before (from the inception of BHL) [recall], but with the rise of Trump disassociating liberal views from ethnocentric nationalists has become more urgent. For Trump represents a strategic danger: he may seem to represent the defeat of the "democratic left" and is quite capable of buying off some would-be-liberal-interests; yet, thereby he cements an illiberal regime which is the last thing a classical liberal wishes for. As Levy writes:

A deceptive, ruthless, nationalist executive, unconstrained by either traditional rules of law or by parliamentary or legislative oversight, choosing particular firms and industries for favor and disfavor, seeking to undo the international system of trade: this is very much the shape of the rising populist and nationalist authoritarianism in the world, from Turkey to Hungary to the United States. Hayek’s warning is that the good intentions of the democratic left can lead to bad results like that. To embrace those results for the sake of keeping the democratic left at bay is to dishonor [Hayek's] warning, not to heed it. This is true even if the lawless nationalist authoritarian promises a few pro-market victories on policies or personnel: some deregulation here, a tax cut there, a couple of undersecretaries.

Levy closes his piece by channeling Constant and warning against the demagogue who promises the bourgeois "public order, protection from [terrorists], and enjoyment of private profits." (I have inserted terrorists where Levy has 'the mob.') I hope Levy succeeds in orienting North American, classical liberalism in the direction of "the combination of secure private liberty, including freedom of religion, speech, and commerce, with public constitutional, parliamentary government anchored by the rule of law." I call this 'Constant's combination' in what follows.

Unfortunately, Levy's analysis falls short of Hayek's for three different reasons. First, Hayek recognizes that nineteenth-century liberalism, which Constant espoused, failed. Hayek tried to address this failure in the 1939 essay that I quoted above. The essay anticipates ("socialists are becoming steadily more nationalist") Road to Serfdom's more sophisticated general slippery slope argument that Levy highlights. Hayek suggests that liberalism within a single country is fragile; it requires (i) an international order and within it (ii) a species of global federalism. (Here Hayek ends up agreeing with the internationalist, Marxist analysis of the survival of would-be-Socialism.) For, in fact, the 1939 essay is an important blueprint for the kind of federalism now familiar from the EU (but, in his essay, Hayek clearly is thinking to include the Americas and the British commonwealth countries).**

By contrast, while Levy both recognizes that "international peace" and "order" are key aims of classical liberalism as well as that "rising populist and nationalist authoritarianism" is an international phenomenon, his response appears to be fairly local. His position seems to be that we need Constant's combination, which is a national political agenda. But as Hayek reminds us, that not a stable position. To be sure, it is not obvious that Hayek's globalist approach is the right response to the nineteenth century failure of Constant's combination, but Levy's solution does not seem to acknowledge the problem--rather it doubles down on it.

As an aside (to which I return at the very end), it is a peculiar fact that the EU does not use the resources it has available to combat the rising "rising populist and nationalist authoritarianism" in its midst. The EU has genuine leverage--supplying up to 5% of GDP in Hungary and Poland, and innumerable soft and indirect other economic and political advantages. What this shows is that the institutions of interstate federation are not sufficient to ensure their own survival--what is required is political leadership in their functioning.

Second, Levy is right that Hayek was a defender of a social safety net (but a critic of the way it was organized). But while the welfare state has not been withered away at all, it is hardly the main threat to a liberal order. For, Levy does not really come to terms with the consequences of the financialization of the economy (either prior or after the crash). Now, to be sure, Wall Street is one of the most heavily regulated industries in existence. And, it turns out, the Wall Street we have is one of the greatest sources of political instability (and old-fashioned corruption/rent-seeking).

So, my point is not the simplistic one that the financial crisis and its aftermath is a product of blind faith in markets (after all, bail-outs are themselves a species of rent-seeking [recall]). But, rather the more sober fact that classical liberals were taken to be cheerleaders for the stock market we have and the spread of financial products and market values into many new areas of human life. Even if one were to grant that Obama's administration caused the Trump one, the effects of the market panic surely (yes?) aided in Obama's initial election. (This is not to deny "populist and nationalist authoritarianism" were already rising prior to the crisis, but they were boosted by the stagnation and malaise that has followed.)

How to respond to this observation is not easy.  In my view, classical liberals need to be guided by Adam Smith's rather skeptical stance toward financial innovation and financialization (see his scathing treatment of the circulation of bills of exchange). For, Smith was happy to promote "regulations of the banking trade.” Even so, the Smithian position requires strong state capacity, especially epistemic capacity, to generate the right institutional order to contain excessive financialization. It is an open question to what degree this is a viable way forward, especially in light of Hayek’s observation (in the 1939 essay) that in a global liberal order the individual. state economic capacity is weakened.

Third, in his essay, Levy is silent on the Hayekian willingness to make space for transitional dictatorship: “Absolute powers that need to be used precisely in order to avoid and limit any absolute power in the future.” (The context is Pinochet, but Hayek also mentions approvingly Cromwell, Salazar, and the Adenauer/Erhardt duo.) The point here is not to score rhetorical points by mentioning Pinochet at the expense of Hayekian liberals. Nor is the point a reminder that (recall) last year some of the (non-liberal) intellectual defenses of Trump were articulated in terms not too dissimilar of Hayek’s sense that in times of social “rupture” a transitional dictator may be legitimately required. After all, Levy embraces parliamentary government.

Rather, it’s the more important issue that liberals need to think much harder about a species of the transition problem (recall), that is, how we move from extremely imperfect political order with populations cultivated in imperfect institutions to a moderately tolerable, stable liberal end state.*** There are really at least three challenges in the vicinity here:

1. Not all liberalizations bring us closer to a stable liberal order. Markets often have a tendency to disrupt the status quo, and we need to become much savvier about the political costs of this. (In addition, Hayek himself was very clear on the fact that market outcomes mixes merit and luck. Yet, too many liberals focus only on the merit side.) But the gyrations of (leveraged and interconnected) financial markets can cause major disruptions.
2. Not all existing liberal institutions promote a liberal political order. For example, a free press is absolutely central to a liberal order. But classical liberals have not grappled yet with the ways in which a for-profit press paved the way for Trump’s victory because such a press can also have clear (short-term) interests in undermining liberal values and political order.
3. The means from here to there matter. Shock therapy may kill the patient. (For this reason Smith is a gradualist.) In fact, the 1939 essay is useful here because it reminds us of a more authentic (Schumpeterian) liberal defense of democracy: “counting heads in order to save breaking them.” That is, voting is a method of peaceful change in power (perhaps, the only “yet invented which has been tried and has not been found wanting.”) The prevention of civil war is the price we are willing to pay while risking, mass human folly. Of course, there need to be democratic means internal to the democratic order to prevent the rise of nationalist authoritarianism. Here, the EU's simultaneous unwillingness to defend its liberal order against Hungarian and Polish (and earlier Austrian) nationalist authoritarianism and its simultaneous willingness to impose huge suffering on the Greek population does not inspire confidence in the resources of liberal, interstate federalism even if it were a global order. The vitality and rebirth of the true liberal tradition  as a political program requires that we find creative solutions to these challenges.

 

On The Right to Work in Adam Smith and The Origin Of the Harm Principle

The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right... The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.--J.S. Mill (1859) On Liberty

In the context of a critical discussion on attempts to prevent competition by guild and settlement laws (etc.), Adam Smith writes in the (1776) Wealth of Nations:

The property which every man has in his own labour, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of a poor man lies in the strength and dexterity of his hands; and to hinder him from employing this strength and dexterity in what manner he thinks proper without injury to his neighbour is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. (1.10.67)

Smith is relying on the conceptual closeness among property, propriety, and proper-ness. But Smith’s conception of the nature of fundamental property rights, with its emphasis on the work performed by a poor person’s hands, is quite narrow (it is more narrow than Mill's "more expansive own body and mind") and also quite egalitarian (although it does not cover the severely disabled).* Leaving aside here what grounds Smith's argument for his position, according to Smith there is a basic right to manual work and this property-right grounds “all other property.”

But while the basic right is “the most sacred and inviolable,” it follows that other forms of property may be less sacred and inviolable. On this basis (and a few other texts), I have argued that Smith distinguishes between original and (institutionally dependant) derived property rights, and according to Smith none of us can claim an inviolable, absolute right to all of it. In fact, as Steve Darwall has urged on me, Smith's position relies on a reflective endorsement from the perspective of having an equal authority to make claims and demands on one another at all. (See here for a fuller argument.)

none of us can claim an inviolable, absolute right to all of it. One can see in this, as Steve Darwall has urged on me, a reflective endorsement from the perspective of having an equal authority to make claims and demands on one another at all. (See here for a fuller argument.) - See more at: http://digressionsnimpressions.typepad.com/digressionsimpressions/2015/05/adam-smith-vs-thomas-painebut-with-a-twist.html#sthash.YDTjGJah.dpuf

So, we find in Smith a tight connection among the right to work (as well as right to free settlement), basic property rights, commercial contracts, and what came be to known as ‘negative’ liberty (in Constant who certainly knew his Smith). But upon re-reading the passage, I also noticed not just that the basic form of property right according to Smith is work, but also that one ought to have an absolute right to contract for work as long as one does not harm others ("in what manner he thinks proper without injury to his neighbour"). In fact, Smith here anticipates the famous articulation of the (more expansive) harm principle in the French 1789 Declaration of the Rights of Man: “Liberty consists in the freedom to do everything which injures no one else.”

As an aside, Smith's way of phrasing the principle -- 'without injury to his neighbour -- evokes the Biblical injunction to love thy neighbour. He, thereby, signals that his principle is consistent with, even a necessary condition for, a broader religious outlook.

Now, I am not the first to connect Smith with the history of the harm principle. But generally the link is made through a rather (wimpy) passage in The Theory of Moral Sentiments (TMS). For example, Jethro Lieberman calls attention to this text:

There is, no doubt, a propriety in the practice of justice, and it merits, upon that account, all the approbation which is due to propriety. But as it does no real positive good, it is entitled to very little gratitude. Mere justice is, upon most occasions, but a negative virtue, and only hinders us from hurting our neighbour. The man who barely abstains from violating either the person, or the estate, or the reputation of his neighbours, has surely very little positive merit. He fulfils, however, all the rules of what is peculiarly called justice, and does every thing which his equals can with propriety force him to do, or which they can punish him for not doing. We may often fulfil all the rules of justice by sitting still and doing nothing. (TMS).

For Smith (and Hume) 'justice' simpliciter tends to mean the rules governing property. But 'justice' can also refer to a set of rules that govern an individual's (negative) virtue (as it does in the passage quoted). The right rules prevent and avoid harm to others. These rules connect individual propriety with harm to others. It's not so clear in this quoted passage, however, that it also involves the regulation of contracts unless one allows that Smith is also tacitly relying on the traditional meaning of 'justice.'

Political Liberty, After Ferguson

"Political liberty consists in security, or, at least, in the opinion that we enjoy security. This security is never more dangerously attacked than in public or private accusations. It is, therefore, on the goodness of criminal laws that the liberty of the subject principally depends."--Montesquieu, The Spirit of the Laws, Book XII, ch. 2.

The security-liberty link has sometimes been obscure to some people, especially those more used to thinking about trade-offs between liberty and security. But, as Montesquieu understood, those who are not secure from arbitrary arrest, imprisonment without trial, or murder in the streets are not free.--Jacob T. Levy at BleedingheartLibertarians.

I am grateful to Jacob Levy to remind us of Montesquieu and thereby to help me start thinking about our times without being consumed by despair and rage.  I would like to expand a bit on Levy's gloss of the Montesquieu passage which is quite pertinent in a context in which law enforcement officers have very wide discretion to use lethal force [HT Don Howard o FB]. For, first, Montesquieu is explicit that what matters are not just the facts pertaining to security, but also perceptions. And while one cynically might interpret this as encouragement for state propaganda, the wiser and more enduring course is to ensure that all citizens really feel secure. Regardless of one's views on the merits of the grand jury's decision not to prosecute Darren Wilson, the massive embrace of "hands up, don't shoot" has exhibited that such security is not, in point of fact, felt by many American citizens, especially African American citizens. That is to say, given that some of the public have an insecure state of mind, political liberty is absent in The United States of America -- whose Founders were certainly influenced by Montesquieu -- despite, perhaps, the existence of other trappings of political freedom (free elections, a free press, freedom of religion, free markets, etc.).

In the context of the passage quoted from Montesquieu, Montesquieu makes sure the point is not missed because he allows that one might have philosophical liberty, that is, freedom to choose (to buy, to travel, to marry, to choose an occupation, a religion, etc.) absent political liberty. And at the end of chapter quoted by Levy, Montesquieu leaves no doubt that political liberty in this sense has (moral, political, lexical, etc.) priority. In fact, in the next chapter, headed by 'same subject continued,' Montesquieu's argument entails that 'to be a nation under God' just means having obtained such political liberty.*

 

On the Dangers of Philosophy: a Note on Constant's Two Liberties

[W]e can no longer enjoy the liberty of the ancients, which consisted in an active and constant participation in collective power. Our freedom must consist of peaceful enjoyment and private independence.--B. Constant

The main point of Benjamin Constant's (1819) essay-lecture (recall pre-history), "The Liberty of Ancients Compared with that of Moderns," is a criticism of the earlier "noble and generous" generation of French revolutionaries (of 1789); the criticism is not that they were violent, sacrilegious, or failed to obey tradition. Rather, his criticism is two-fold: the more obvious first criticism is that they did not understand the "spirit" of their own times and thereby misapplied the wrong political philosophy to their own situation. They thereby aimed at a form of freedom that is incompatible with the kind of society French was becoming in the late eighteenth and early nineteenth century. For, Constant is a certain kind of historicist about freedom. The less obvious obvious -- and largely ignored -- second criticism is that these revolutionaries, due to a faulty (but "necessary") education, relied on theories developed by philosophers (Rousseau and Mably) that failed to grasp properly the relationship between their own theories and the social world they inhabited. The two points are connected: because of such mismatch these disinterested and humane philosophers unintentionally made "fashionable" lapsed ideas and thereby "furnished deadly pretexts for more than one kind of tyranny." A better philosophy could have helped design beter social institutions: "Free institutions, resting upon the knowledge of the spirit of the age, could have survived."

The second point is notable because Constant is willing to criticize Rousseau for consequences of his theorizing that were not intended (see my musings on the "Socratic Problem"). It is as if Constant applies to Rousseau a rhetorical precautionary principle: do not promote ideas that can be a pretext for tyranny.  That is to say, Constant takes seriously the possible influence of philosophy on society and views it as legitimate criterion for judging another philosopher. I think Constant is right about this. But, in this essay, Constant  does not wrestle with the question if such a pretext is only a consequence of flawed theorizing or also a consequence of theorizing that tracks social reality; he also does not ask to what degree we ought to be held accountable for the social consequences of our philosophical activity even if we made no error.+

On the first point, it is worth asking, what is a "spirit of the age" and what would be knowledge of it? Constant thinks that security from attack (due to relative geographic proximity, population-size) is a key factor in a society's organization. According to Constant the (Greek and Roman) Ancients were focused on permanent warfare (due to lack of security). This focus on war entailed a fundamental division of labor: a free and leisurely warrior class and enslaved working class.  (Constant allows that there are exceptions to the generalization.) If war defined the "spirit" of Greeks and Romans , then this "spirit" gives raise both to (i) a fundamental, spirit-relative human need (including a variety of liberty), and (ii) influences even the "customs, habits, [and] way of trading with others," that is "their commerce was itself impregnated by the spirit of the age, by the atmosphere of war and hostility which surrounded it." The two (i-ii) are connected as follows:

the liberty we need is different from that of the ancients, it needs a different organization from the one which would suit ancient liberty...in the kind of liberty of which we are capable, the more the exercise of political rights leaves us the time for our private interests, the more precious will liberty be to us.

Two Concepts of Liberty, and the forgotten Sophie de Grouchy

The standard source of the distinction between two senses of “liberty” is a speech in 1819 by the great political theorist Benjamin Constant. The first, “the liberty of the ancients,” consists in having a voice into the policies and representatives that govern us. The second, “the liberty of the moderns,” is the right to pursue our private interests free from state oversight or control. "Is the United States a ‘Racial Democracy’?" (New York Times, Opinionator),  JASON STANLEY and VESLA WEAVER.

Stanley and Weaver, treat these as "two different aspects of the conception of liberty at the heart of American democracy, rather than distinct concepts."So, throughout their piece (recall my comment), they rely on the distinction between, on the one hand, two "senses" or "notions" or "aspects" of liberty, and, on the other hand, the one "conception" of liberty. In their hands, liberty as such can be removed; and a system of laws can be unworthy of liberty.

I started reflecting on Stanley and Weaver's tacit distinction because I was surprised that while mentioning Constant they did not mention Isaiah Berlin, the twentieth century thinker  responsible for revival of interest in Constant and his distinction. When I turned to Berlin's famous essay, Two Concepts of Liberty, and looked for the famous passage on Constant, the distance between Stanley and Weaver and Berlin (and Constant) become transparent at once. Berlin writes, "No one saw the conflict between the two types of liberty better, or expressed it more clearly than Benjamin Constant" For Berlin (and Constant), if liberty were one it would be in constant tension with itself. Stanley and Weaver are liberty-monists, while Berlin is a Liberty-dualist (or -- if we read him as allowing even more concepts -- even a Liberty-pluralist).