Digressions&Impressions

Montesquieu, Spinoza, Federalism, and Political Hebraism

IF a republic be small, it is destroyed by a foreign force; if it be large, it is ruined by an internal imperfection.

To this twofold inconveniency democracies and aristocracies are equally liable, whether they be good or bad. The evil is in the very thing itself, and no form can redress it.

It is therefore very probable that mankind would have been, at length, obliged to live constantly under the government of a single person, had they not contrived a kind of constitution that has all the internal advantages of a republican, together with the external force of a monarchical, government. I mean, a confederate republic.

This form of government is a convention, by which several petty states agree to become members of a larger one, which they intend to establish. It is a kind of assemblage of societies, that constitute a new one, capable of increasing by means of farther associations, till they arrive to such a degree of power, as to be able to provide for the security of the whole body....

From hence it proceeds that Holland, Germany, and the Swiss Cantons, are considered in Europe as perpetual republics.

The associations of cities were formerly more necessary than in our times. A weak defenceless town was exposed to greater danger. By conquest, it was deprived not only of the executive and legislative power, as at present, but moreover of all human property‡.

A republic of this kind, able to withstand an external force, may support itself without any internal corruption; the form of this society prevents all manner of inconveniences.

If a single member should attempt to usurp the supreme power, he could not be supposed to have an equal authority and credit in all the confederate states. Were he to have too great an influence over one, this would alarm the rest; were he to subdue a part, that which would still remain free might oppose him with forces independent of those which he had usurped, and overpower him before he could be settled in his usurpation.

Should a popular insurrection happen in one of the confederate states, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound. The state may be destroyed on one side and not on the other; the confederacy may be dissolved, and the confederates preserve their sovereignty.

As this government is composed of petty republics, it enjoys the internal happiness of each; and, with regard to its external situation, by means of the association, it possesseth all the advantages of large monarchies.

THE Canaanites were destroyed by reason they were petty monarchies, that had no union nor confederacy for their common defence: and, indeed, a confederacy is not agreeable to the nature of petty monarchies.

As the confederate republic of Germany consists of free cities, and of petty states subject to different princes, experience shews us, that it is much more imperfect than that of Holland and Swisserland.

The spirit of monarchy is war and enlargement of dominion: peace and moderation is the spirit of a republic. These two kinds of government cannot naturally subsist in a confederate republic.--Montesquieu, Charles. Complete Works, vol. 1 The Spirit of Laws. T. Evans, 1748, pp. 165-166. Book IX Chapters 1-2

It is fairly well-established that these paragraphs inspired in various ways Madison and Kant's Perpetual Peace. It seems to be less well known that Montesquieu is echoing Spinoza's Political Treatise (3.15-16 [recall here; here]),* where Spinoza explains how one can use conventions by which several small states agree to become members of a larger voluntary confederation. 

That we're in the ambit of Spinoza (and Machiavelli) is clear from Montesquieu's concern with corruption (which is a major theme of Spinoza's political writings, or so I argue here) and also by Montesquieu political reading of the Biblical narrative in the quoted paragraph (which also has Machiavellian roots). For, rather than emphasizing the Caananites' idolatry or Jewish providential election, Montesquieu remarks that the conquest of land of Canaan was due to institutional weakness of the Canaanites and, de facto, institutional strength of the Biblical Jews. Montesquieu echoes here, and offers a gloss, on chapter 17 [paragraphs 44-55] of the Theological Political treatise. There Spinoza had emphasized the confederate nature of the conquering Biblical Jews and compared them explicitly to the Dutch in his own day [III/210]. (Spinoza notes that the Dutch lack a common temple.)

While I don't mean to suggest that Montesquieu is slavishly echoing Spinoza here, there are further hints of Montesquieu's debts to Spinoza's chapter 17 of the TTP. For, in the quoted passage from Montesquieu I read six terse arguments in favor of confederate republics:

1. Common protection against foreign enemies. This is the defensive character of a confederacy.
2. Protection against usurpation by an individual citizen of one of the confederate states.
3. Protection against insurrection by the masses of one of the confederate states.
4. Ability to combat local rent-seeking
5. Ability to reform local institutions.
6. Ability to survive implosion of member units.

Except for the first argument, the other five all involve the capacity to notice problems in a member unit of the confederacy and for the remaining units to act on this diagnosis. And what these five arguments presuppose, thus, is that the confederacy lacks a central power that can over-awe the member units, so that the member units can be self-correcting with each other. And, in fact, near the end of chapter 17 of TTP, Spinoza notes that by turning the confederacy into a  monarchy (which does have such a central power), the first Hebrew state became vulnerable to usurpation [see paragraphs 83-111],  insurrection [107-108], corrupt/rent-seeking [106], and the inability to reform the institutions piecemeal [111].** (See also, the treatment of Benjamin by the other tribes at 17.57. And while Spinoza does not explicitly anticipate the sixth it's logically presupposed in his argument (including the survival of Judah after Israel was destroyed).

 

 

 

 

 

Hume, Lazar, Locke, and the State of Exception, revisited

The protector, the two secretaries, the council of state, with any five or more that the senate appoints, are possessed, on extraordinary emergencies, of dictatorial power for six months.--David Hume, Idea Of a Perfect Commonwealth

Seven years ago (recall) I discussed the quoted passage on this blog, and then eventually published a paper on the material (here). Today, I revisit it because of an extraordinarily fertile book (published in 2009), States of Emergency in Liberal Democracies by Nomi Claire Lazar, which I recently read and had overlooked before. Lazar offers what she calls a 'Lockean' approach to states of emergency amply documented in Locke's Second Treatise, but developed and elaborated by her in very creative ways.

Now, the key move of Lazar's Lockean approach is to insist that states of emergency need not abolish accountability (of the sovereign, the executive, the dictator). In the right sort of political order, accountability is "an ever-present possibility." (p. 149) And one of the neatest chapters in her book shows that this is even so in the case of the institution of Roman dictatorship (made famous (recall) by Livy in his treatment of Cincinnatus). Such accountability can be formal in a political and juridical sense. Or it can be more informal by way of the political restraints of countervailing powers and forces, including public opinion.

That during states of emergencies accountability need not be abolished builds on another key insight of hers: that there is no sharp division between states of emergency and the ordinary rule of law. In particular, first, in both instances rights derogation occur, but the manner in which this happens is different. In fact, her book reminds the reader that even in the most noble liberal democracies, many of our rights can be derogated within the ordinary rule of law (as rights clash or in instances of ordinary punishment). This is recognized in treaties and constitutions that set an explicit limit on which rights can be derogated (see p. 145). Second, these rights derogations reflect the ordinary pluralism, even "pervasive" conflict of values in ordinary political life (p. 89).

And, third, office holders have considerable discretion not just in cases understood as emergencies, but also in ordinary political life. As Locke notes in his "Of Prerogative," which, as noted, is important to Lazar's overall argument, "many things there are, which the law can by no means provide for; and those must necessarily be left to the discretion of him that has the executive power in his hands, to be ordered by him as the public good and advantage shall require." (Second Treatise, Chapter 14, sect 159; quoted by Lazar on p. 116). The cumulative effect of these three points is that states of emergency are part and parcel of what Locke (and Foucault) call the 'art of government.' If Lazar is right -- and she is -- then states of emergency also belong to a distinctly liberal art of government.

However, there is also a complication. And I introduce it by way of Locke. Locke goes on to claim that this discretion is in the service of "public good and advantage" in the context of circumstances "that as much as may be, all the members of the society are to be preserved...for the end of government being the preservation of all." It is notable that Locke puts this not in terms of the survival of society (the effect of, or instituted by, the social contract), but rather in terms of the preservation of  "all" the individuals (the "members") that compose society. On Locke's view, the prerogative, thus, really is in the service of the preservation of (individual) life rather than, say, the preservation of the state.  (This makes sense because for Locke, unlike Hobbes, we can survive just fine outside society and the state.)

The claim in the previous paragraph nicely illustrates Lazar's point that "emergency powers take on the moral character of the end they serve." (p. 138) In Locke, then, the prerogative and the powers it licenses are means toward serving the interests of individuals. Admittedly, Locke often treats this in terms of serving the "public good" -- which is more expansive than mere individual survival --, so I don't mean to suggest that for Locke emergency powers ought only focus on preservation of bare life. But for Locke the proper functioning prerogative is in the service of the same values as those that justify the social contract. And in so far as we can treat these as liberal -- some will object here to my anachronism here -- for Locke emergency powers can be liberal.

The point of my last two paragraphs is to note that Lazar goes beyond Locke in an important way . To be sure, Locke anticipates, as she notes, her claim that public opinion is an important check on the use of prerogative. But rather (and this gets me to the complication), for Lazar, emergency powers are invoked when "the state order through which norms and laws are normally enforced is threatened, the order itself is threatened." (p. 103) As she recognizes the preservation of such order is not self-evidently a liberal value. In her account this is not a bug, but a feature. Because for her, 'extra-liberal values' are also "pervasive" in "the moral life of liberal democracies." (P. 93) She includes "security, order, desert, group cohesion, cultural pluralism, and the preservation and expression of cultural heritage" among the list of pervasive non liberal values, and the source of pervasive pluralism and conflict of values in liberal democracies. 

And the way Lazar handles this conflict -- and this puts her in the camp of political realists -- is to distinguish between the "quotidian ethics animating the day-to-day functions of political order" which are constituted by "liberal values" and the "existential ethics" that govern the foundation and preservation of the liberal democratic order (p. 88; see also p. 12). And such existential ethics "are characterized by their relative uniformity across regime types." (24) So, for Lazar, the ordinary liberal art of government always involves navigating extra liberal values. And this is, we might say, intensified and more noticeable during states of emergency where the existential ethics that guide the preservation of order may be more important.

In a way, Lazar meets contemporary critics of liberalism, often inspired by Schmitt on their own ground (recall this post on Agamben). These tend to insist that the state of emergency is always (and hypocritically) lurking in liberal practice. And such critics have had ample ammunition during the last (say) fifteen years with the ways in which central banks operated during the great financial recession, the ways in which France (and other countries) have tackled Islamic terrorism, and the ways in which the Pandemic has been governed. Lazar shows that the critics are not wholly wrong in calling attention to the phenomenon, but they misunderstand the significance of it. 

As an aside, I take the positing of two such ethics as characteristic of what is now known as political realism, which insists that political life has norms of its own and, if the state is worth having, ought to be governed by them. (For a an important recent paper on this, see Matt Sleat here, which nicely refutes the idea that such political norms must be non-moral a view he associates with my colleague Enzo Rossi.) And Lazar's slender work (but fertile in ideas) ought to have a place in the developing canon of recent political realism.*

Be that as may, as should be clear from what I said above I do not think Locke is committed to such bifurcation between quotidian ethics and existential ethics. Because for Locke the state of nature is livable, the preservation of order is always instrumental to the grounds of (entering) civil society.

Having said that,  Lazar's view does characterize Hume's position nicely. (For recent work on Hume as such a political realist, see Andrew Sabl's book (here), and my paper.) As the quoted passage above makes clear, in his ideal constitutional order, Hume made place for provisions of states of emergency. That order -- it is a federation -- is modeled (and Hume is explicit on this) on Dutch political arrangements improved in light of experience. And, in fact, Hume's construction quite clearly addresses a weakness in the Dutch political order that Hume has diagnosed in his History. That in foreign policy affairs its decision-making process could be too slow and so too vulnerable to foreign influence: 

The articles of this confederacy [viz. the defensive alliance between England Holland negotiated by Temple and De Witt] were soon adjusted by such candid and able negotiators: But the greatest difficulty still remained. By the constitution of the republic, all the towns in all the provinces must give their consent to every alliance; and besides that this formality could not be dispatched in less than two months, it was justly to be dreaded, that the influence of France would obstruct the passing of the treaty in some of the smaller cities. D’Estrades, the French ambassador, a man of abilities, hearing of the league, which was on the carpet, treated it lightly; “Six weeks hence,” said he, “we shall speak to it.” To obviate this difficulty, de Wit had the courage, for the public good, to break through the laws in so fundamental an article; and by his authority, he prevailed with the States General at once to sign and ratify the league: Though they acknowledged,13th Jan. that, if that measure should displease their constituents, they risqued their heads by this irregularity. [Emphasis added]

The emphasized part in the quoted passage nicely illustrates one of Lazar's key points that even in an emergency, a political leader is aware of the reality of accountability and acts accordingly.+

In larger context, Hume presents De Witt as acting for the survival of the Dutch republic which is threatened by (their former ally) France which has just overrun Flanders. And so the alliance with England is negotiated (while England and Holland are still at war with each other!) in order to save "the remaining provinces of the Low Countries could be thereby saved from the danger, with which they were at present threatened." And it is clear that for Hume the survival of the state, the continued existence of order (and property), "the public good" justifies the means. While Hume rejects the social contract, he is in this respect closer to Hobbes than to Locke (as I have argued in a paper with Spencer Pack here).

That, for Hume, non-liberal values can guide the art of government is illustrated by Hume's praise for the De Witt (earlier in the 1665 war with England) "by his management a spirit of union was preserved in all the provinces." This shows that for Hume the conditions that maintain the survival of the state -- this includes among them such a public spirit -- are, indeed, part of the non-liberal art of government. So, I'd like to suggest that Hume (who I am here treating as a key thinker in the liberal tradition) is the historical figure that anticipates Lazar's position.

 

 

Historiography of the Enlightenment in The Dawn of Everything, Pt 2

Kandiaronk: For my own part, I find it hard to see how you could be much more miserable than you already are. What kind of human, what species of creature, must Europeans be, that they have to be forced to do good, and only refrain from evil because of fear of punishment? … 
    You have observed that we lack judges. What is the reason for that? Well, we never bring lawsuits against one another. And why do we never bring lawsuits? Well, because we made a decision neither to accept or make use of money. And why do we refuse to allow money into our communities? The reason is this: we are determined not to have laws – because, since the world was a world, our ancestors have been able to live contentedly without them.

Given that the Wendat most certainly did have a legal code, this might seem disingenuous on Kandiaronk’s part. By laws, however, he is clearly referring to laws of a coercive or punitive nature. He goes on to dissect the failings of the French legal system, dwelling particularly on judicial persecution, false testimony, torture, witchcraft accusations and differential justice for rich and poor. In conclusion, he swings back to his original observation: the whole apparatus of trying to force people to behave well would be unnecessary if France did not also maintain a contrary apparatus that encourages people to behave badly. That apparatus consisted of money, property rights and the resultant pursuit of material self-interest:

Kandiaronk: I have spent six years reflecting on the state of European society and I still can’t think of a single way they act that’s not inhuman, and I genuinely think this can only be the case, as long as you stick to your distinctions of ‘mine’ and ‘thine’. I affirm that what you call money is the devil of devils; the tyrant of the French, the source of all evils; the bane of souls and slaughterhouse of the living. To imagine one can live in the country of money and preserve one’s soul is like imagining one could preserve one’s life at the bottom of a lake. Money is the father of luxury, lasciviousness, intrigues, trickery, lies, betrayal, insincerity,– of all the world’s worst behaviour. Fathers sell their children, husbands their wives, wives betray their husbands, brothers kill each other, friends are false, and all because of money. In the light of all this, tell me that we Wendat are not right in refusing to touch, or so much as to look at silver?

For Europeans in 1703, this was heady stuff.---David Graeber & David Wengrow (2021) The Dawn of Everything, pp. 54-55

This is the second digression on The Dawn of Everything (here is the first); and here tweet impressions of each chapter (see here for links). When the book first appeared, David Bell (a historian of the French Enlightenment at Princeton) skewered the book for its misrepresentations of the French enlightenment, even going so far as to use "scholarly malpractice." Soon, this was followed by a generous and sensible, but at times critical review by Kwame Anthony Appiah in the New York Times. This review also strongly suggests that the characterization of Enlightenment thought is flawed. Meanwhile, Justin Smith (Paris), who arguably is the leading historian of early modern philosophy of my (now senior--shit times flies) generation, gave the book a very positive review (here). Smith notes, quite rightly that their achievement can be found in "their sympathetic plaidoyer for the singular reality of lives lived in the past, their commitment to the idea that these were real people, as weird and idiosyncratic and unfathomable by quantitative methods as you and I....It’s a weird thing to have to insist on: that there is something that it was like to be a member of the prehistoric leisure class, which is to say to have been a prehistoric human being." However, when he comes to their treatment of Lahontan's Dialogues avec le sauvage Adario, he expresses considerable skepticism about their insistence that 'Adario' just is expressing the views of the historical Kandiaronk (a Huron statesman).* I then read a critical (as of yet) unpublished review by Helen de Cruz (who among her specialities is an expert on the philosophy of anthropology and the cognitive sciences). 

As it happens the last few years, I have been reflecting a bit on the encounter of Europeans with the new world as reflected in early modern (political) philosophy. And so, before I say anything else, I think it is highly likely that European philosophy was shaped by the Jesuit Relations as Graeber and Wengrow suggest (p. 44ff), and that it makes a lot of sense to look for traces of (American) indigenous influence on European thought. Prompted by Ryan Hanley, my own focus has been on the Jesuit reports on China, but I noticed, while preparing this post, that Leibniz comments on Lahontas and 'Adario' in a letter from 1710, and does not treat him as fictional. (This letter is discussed in scholarship on Lahontas.) 

In various undergraduate courses, I teach Machiavelli's The Prince, which seems to have circulated as early as around 1513, but was published in 1532; I teach More's Utopia, which was first published in 1516, and I teach the Las Casas-Sepulveda (or The Valladolid) debate (1550–1551), centered on Las Casas' Defense of the Indians read at the Valladolid debate (and drawing on his earlier works). I mention these because they are very well known through the next few centuries; all of these texts are much earlier than Montaigne's Essays, which seems a common reference among Appiah, Smith, and Bell. Now, of these three works, The Prince is rather provincial. Even though it has quite a bit to say about Mediterranean politics, the Turkish barely register, and the other Islamic powers are ignored. It is a surprisingly Euro-centered book.

By contrast, More's Utopia is clearly responding to, and drawing on, another Florentine's adventures in the Americas, Amerigo Vespucci’s The Four Voyages. Utopia is important because, in passing, great civilizations of the Americas ("New Castille," that is, what we would call Peru) are mentioned in passing, "they came to towns, and cities, and to commonwealths, that were both happily governed and well peopled." And it is strongly implied that the locals have knowledge of navigation and astronomy (but lack a compass). In The Dawn of Everything, Utopia is mentioned in passing, as an exemplary work representing "civic prosperity and hierarchy," (p. 336) but little more. The fictional city that gives Utopia its name, is generally not treated as hierarchical because property is in common and money abolished (!), and it is in many respects rather egalitarian, but it does have a political hierarchy: in which the federation is governed by elected representatives.

In addition, the whole book, Utopia, is framed by a critique of the legal practices then current among Europeans (recall back in 2013). In fact, a stadial theory (with the Bible being the savage baseline!) is inscribed in this account! And the implication, as I noted a few years ago, is that the Europeans are the real savages (a point echoed by Montaigne and by eighteenth century legal reformers like Beccharia (recall) and Sophie de Grouchy). So, this precedes Kandiaronk's criticism by considerable  time. Now, some indigenous described in Utopia are treated as savages and ripe for colonialization, so I don't want to suggest More's book is unproblematic (recall here; here). 

Las Casas  was himself steeped in the Spanish conquest and control of the Americas. (By comparison, Justin Smith does mention Garcilaso de la Vega, who wrote a generation after Las Casas.) He wrote detailed histories of the conquest (and its brutalities), and echoing the work by some fellow Dominicans, he famously attacked the Aristotelian view of natural slavery (in which the indigenous were natural slaves), from the (more biblical) perspective of natural equality. Throughout his adult life he attacked the manner of Spanish rule, and as a bishop refused absolution to slave owners. Las Casas was very famous for the next few centuries. (Unfortunately, he is the originator of the idea -- which he later much regretted -- of importing African slaves to the Americas.)

Now, Las Casas' rival, Sepulveda invents (recall) the disastrous trope that the natives are inferior, and like backward children: *"If you know the customs and manners of different peoples, that the Spanish have a perfect right to rule these barbarians of the New World and the adjacent islands, who in prudence, skill, virtues, and humanity are as inferior to the Spanish as children to adults." This idea has a disastrous afterlife. In the Essay, Locke, who (alas) was rather invested in the colonial enterprise, frequently treats the savage mind as if a child's (see, especially, 1.2.27), and he suggests they don't think general propositions (1.2.12). The effect of this, and the tremendous influence of his anthropology, is -- as Chris Berry, Sandra Peart, and David Levy taught me--, that for some Enlightenment thinkers, it became natural to equate indigenous people with an earlier ('savage') age or stage of the development of the human species. It's this view that became influential among nineteenth century imperialists and their anthropological handmaidens, who draw on a contrast (which gets its most eloquent articulation, alas, in David Hume (recall here; recall here, drawing on Chirimuuta)) between civilization and savagery to justify conquest. Much of The Dawn of Everything is on the legacy of such views in anthropology and popular culture since.

But as plenty of scholars have noted, the Lockean anthropology, while influential, has notable critics including Adam Smith (recall, also with a passing comment on The Dawn of Everything) and Beattie (recall).  Hume and Smith both had stadial theories. But, as the previous sentence suggests, they have very different details. This is important because Graeber and Wengrow suggest -- and I was really fascinated and impressed by this -- that stadial theories are invented by Turgot (a contemporary of Smith) as a response to the "indigenous critique" (of the sort quoted at the top of this post), although presented by Madame de Graffigny in fictional form. And as the rightly suggest (p. 60), Turgot draws on what I have been calling a Lockean anthropology and so for him the earlier stages are vestiges of our earlier selves. (I think there is a direct influence of Locke on Turgot, but leave that aside.) This kind of thinking, inspired the earlier anthropologist mindset that studying indigenous types was kind of a window into our past (like the light of distant stars). But as I documented in my book, Smith's critique of this whole approach was well known in the nineteenth century (although some (recall) also treated him like a Lockean in these matters). While I am happy that Wengrow and Graeber are critical of the use that people like Pinker make of the Enlightenment, their own approach also flattens the intellectual landscape (and the intellectual roots of their own discipline).

Locke matters to the larger story in other way, and especially in light of the passage quoted above, but before we get there a brief detour with regard to  Las Casas, who is not mentioned in the book, but he is alluded to in the following passage:

Legal scholars in universities like Salamanca in Spain were not impressed by this expedient. At the same time, attempts to write off the inhabitants of the Americas as so utterly alien that they fell outside the bounds of humanity entirely, and could be treated literally like animals, also didn’t find much purchase. Even cannibals, the jurists noted, had governments, societies and laws, and were able to construct arguments to defend the justice of their (cannibalistic) social arrangements; therefore they were clearly humans, vested by God with powers of reason.
    The legal and philosophical question then became: what rights do human beings have simply by dint of being human – that is, what rights could they be said to have ‘naturally’, even if they existed in a State of Nature, innocent of the teachings of written philosophy and revealed religion, and without codified laws? The matter was hotly debated. We need not linger here on the exact formulae that natural law theorists came up with (suffice to say, they did allow that Americans had natural rights, but ended up justifying their conquest anyway, provided their subsequent treatment was not too violent or oppressive), but what is important, in this context, is that they opened a conceptual door. Writers like Thomas Hobbes, Hugo Grotius or John Locke could skip past the biblical narratives everyone used to start with, and begin instead with a question such as: what might humans have been like in a State of Nature, when all they had was their humanity? Each of these authors populated the State of Nature with what they took to be the simplest societies known in the Western Hemisphere, and thus they concluded that the original state of humanity was one of freedom and equality, for better or worse (Hobbes, for example, definitely felt it was worse). It’s important to stop here for a moment and consider why they came to this verdict – because it was by no means an obvious or inevitable conclusion.--The Dawn of Everything, pp. 32-33.**

But this story does no justice to the fact that people like Las Casas attributed genuine civilization to the Americans. And, in fact, when Suarez (in 1612), the greatest of the Salamanca school, develops his state of nature theory to justify a social contract (recall), his is ground in an account of the Fall, where political life originates in patriarchic clans (and this is by no means projected onto the Americas). So, the story that Graeber and Wengrow tell while not implausible skips a few steps. (In my own view it is more likely that Hobbes and Grotius are drawing on Book 3 of the Laws and Lucretius.)

So, Hobbes' choice, in chapter 13 of Leviathan, to project the state of nature on "many places of America" (not all) actually cries out for a better explanation. These Americans are treated as anarchist, but sadly find themselves in a war of all. But unlike the later Locke, Hobbes is a natural egalitarian and so his Americans are not children or idiots. For while they are savages, they "are not without some good Morall Sentences; also they have a little Arithmetick, to adde, and divide in Numbers not too great." (Chapter 46) It's true they not philosophers, but that's because, on his theory, the state of nature prevents the development of higher sciences.

So, where are we? There was a huge sixteenth discussion of the Americas in Europe. Thomas More's brother-in-law, John Rastell, has an interest in exploring Newfoundland (but the expedition ended near Ireland in a mutiny). It's a problem that this material has not been properly assimilated yet into scholarship of the Enlightenment (despite Pagden's efforts). And we see that from the start, that is the early sixteenth century, this is the occasion for stadial theories. But these are used to criticize the European (late Feudal) status quo.

I could stop here, but I want to offer a remark on the quoted passage from Lahontan. Kandiaronk's position is completely compatible with Locke's description of the state of nature in chapter 5 of the Second Treatise (1689). For Locke (recall) the invention of money facilitates accumulation of property (and of itself) (see sect 35-48), and the need for laws that can settle disputes (94). And then in section 49 he writes, "thus in the beginning all the world was America, and more so than that is now; for no such thing as money was any where known." (That is an important contrast with More's account of the Utopian abolition of money.)

 I have no reason to doubt the words attributed to Kandiaronk are his. But the position was not wholly original. (Remember Locke's state of nature is actually rather pleasant; that's part of his criticism of Hobbes.) The difference being that Locke thinks the institution of money and property have beneficial outcomes that are endorsed, whereas Kandiaronk sees in them (what soon became known as Mandevillian) vices. That is to say Lahontan's readers could assimilate what they read to an already familiar position. In addition, while it is true that Lahontan's work influenced other Enlightenment books that used and perhaps drew indigenous critiques of Europe, Lahontan himself was not wholly original. He had been preceded by a somewhat mysterious and wildly popular work (recall) Letters Writ by a Turkish Spy (L'Espion Turc), which was written from the perspective of a Turkish visitor to France. Of course, that work did not offer an indigenous critique, but an oriental(ist) one! And finally, Fenelon's The adventures of Telemachus, son of Ulisses (1699) was widely influential (and overshadowed Lahontan) and offered a potent attack on European hierarchies founded in luxury. But it projected the ideal into the remote (Greek) past. 

None of this amounts to a charge of scholarly malpractice. I learned quite a bit from their critical treatment of Enlightenment stuff. I would happily give the book to a nerdy kid wanting to be inspired by intellectuals taking on big problems. And, as a scholar, I am glad they have re-opened the debate over the influence of indigenous views on European intellectual life in such a provocative way. My suggestion is that this influence is real, but that it should be pushed back into the early sixteenth century. And that many of the tropes (both bad and noble) that shape debates since, actually can be found already there. 

Okay, let me stop here for now. And leave the question of why we are stuck now, for future occasion. 

 

 

 

On Táíwò and Elite Capture

In 1957 the pioneering African American sociologist E. Franklin Frazier published an English translation of his study of the U.S. black middle class, Black Bourgeoisie. We might also think of it as a pioneering work in the study of elite capture of politics. Frazier accuses the black middle class of being insecure and powerless, constantly constructing a world of “make-believe” to deal with an “inferiority complex” caused by the brutal history of racial domination in the United States. Immediately controversial upon its publication, the book notes in a preface to the 1962 edition that Frazier was both applauded for his courage and threatened with violence...

Value capture is managed by elites, on purpose or not. In other words, elites don’t simply participate in our community; their decisions help to structure it, much in the way that game designers structure the world of games. After all, elites face a simpler version of oppression than non-elites do: whereas working-class black folk are pressed by racial slights and degradation alongside economic problems that might require “socialized medicine” to solve, elites’s economic position makes them comfortable enough to focus on their own status and cultural power—often at the expense of non-elites....

Such elite capture threatens a whole group’s value structure, as everyone is confronted with this simplified version of the initial values and incentives to adopt it. This can tend, over time, to push understandings of the group values—both by those in the group and outside of it—toward the elites’ simpler direction.

There is another crucial insight that can be gained from applying the analogy of games to our discussion of elite capture. Design decisions structure a game’s built environment, baking the outlook of designers into the decisions players are faced with. In similar fashion, elite decision-making determines what options are available to non-elites. This is precisely the role that the press, social media influencers, military top brass, and titans of capital have in our lives. That is, they frame the conditions of work (and play) for the rest of us.--Olúfẹ́mi O. Táíwò (May 7, 2020) "Identity Politics and Elite Capture" Boston Review 

Last year Olúfẹ́mi O. Táíwò published a number of striking essays on elite capture (I mentioned these in passing here). In Addition to the piece from Boston Review I have partially quoted above (and will quote below), I also warmly recommend this post here. And judging by his personal website (and Amazon), he is about to publish a whole book on elite capture. But since there are a lot of fascinating moving parts in the Boston Review essay, I'll focus on it alone. Do read the essay because it very cleverly draws on ideas by C. Thi Nguyen to explicate what they call "value capture," which for Thi Nguyen and Táíwò involves the narrowing and simplification of values in virtue of participation in a (gamified) process.

As Táíwò (recall also this post) notes, "Elite capture is not unique to black politics; it is a general feature of politics, anywhere and everywhere," (emphasis added). Elite capture is, thus, a law of politics. It's a natural effect of the division of labor within politics, and the natural obstacles (time, expertise, lack of transparency, etc.) to monitoring by non-elites of elites, and so shows up within political parties, unions, and basically any social organization that allows some kind of distinction between the membership and its leadership. Elite capture is also reinforced by the absence of political consensus in the context of pluralism (which makes elite negotiation and representation so important).

Now Táíwò rightly singles out Frazier's (1962) Black Bourgeoisie as a landmark study of elite capture, but it should not come as a surprise that a law of politics has been studied before: the late nineteenth and early twentieth century, Italian Elite school of political sociology-- with Pareto, Mosca, and Michels as most famous scholars -- had developed a whole theory of politics ground in this political law. Including an account of rent-seeking.** In his 1943 book The Machiavellians: Defenders of Freedom, James Burnham had introduced them as a group to a wider English speaking public, and ideas about elite capture are central to his reconstruction. (Of course, Pareto, Mosca, and Michels were very well known to specialist sociologists and economists of the age.)* Both Walter Lippmann's (1922) Public Opinion, and Schumpeter's Capitalism, Socialism, and Democracy (1942), are also very indebted to ideas of the Italian Elite school.** And while I'll leave this hanging here, in fact, Pareto (partially mediated by Parsons) and Schumpeter shaped the analysis of the ideas on crony-capitalism and rent-seeking in public choice and Chicago economics (recall here).

I don't mean to disparage the originality of the Black Bourgeoisie, a book very much worth re-reading. In fact, it was so controversial in its own day that Frazier encountered what we would call canceling in his own time. As he recounts in the 1962 preface to a reprint of the book, "I was invited by a Negro sorority to discuss the book but so much bitterness was aroused by the invitation that it had to be canceled. One leading member of the sorority accused me of having set the Negro race back fifty years." (p. 2) If one goes on to read the book one learns that fraternities and sororities play a key role in his analysis of elite formation (or "molding") and recruitment, and elite commitments. 

In his Boston Review essay, Táíwò argues convincingly that identity politics as pioneered by Combahee River Collective was originally part of a broader effort to avoid certain kinds of elite capture (that expressed itself in tokenism and marginalization), and so an enabling condition of coalition politics. And he notes that they suggest more strategies (including consciousness raising, and elite participation in activism) to avoid elite capture in the "right kind of political culture."

Now, above I used Táíwò's words to attribute a law of politics to him. So, if I were interested in gotchas it would be tempting to suggest here that by his own lights political culture cannot solve the problem of elite capture, it can only mitigate it. And perhaps this is all Táíwò means to argue. (Maybe the book will shed light on this.) But, of course, the problem is that according to the theory of elite capture, political culture is shaped by elite institutions and practices, as Táíwò himself notes. So, I don't think this solves his problem.

But he has another out: he could argue that by "the right kind of political culture" he means a species of sophisticated anarchism (say, of the sort recently revived in The Dawn of Everything by David Wengrow and David Graeber). For, at least conceptually some kinds of anarchism avoid the distinction between membership and leaders (masses and rulers, etc.) As it happens, the Italian Elite school and Burnham don't ignore anarchism, and claim it, too, is inevitably shaped by elites. (Something Ursula Le Guin also suggests in The Dispossessed.) But it's conceivable one can develop a form of anarchism that is not subject to the phenomenon of elite capture. And Táíwò's closing emphasis on the fact that 'we're in it together' might suggests he inclines toward such a view. (I return to this below.)

I want to close with three observations. First, Pareto was what we would now call a classical liberal when he developed ideas of elite capture. But when Burnham popularized Pareto's ideas, Burnham -- a professor of philosophy at NYU -- was an ex-Trotsky-ite (then famous for his book The Managerial Revolution) and on his way of co-founding the revival American conservatism (co-founding The National Review with William Buckley).+ And for Burnham the key to freedom, in the context of the inevitability of elite capture, is the possibility of opposition to the government which requires a rule of law, which in turn requires that within society that there are multiple social forces that counter each other and mechanisms to prevent the concentration of power. (And because Burnham is no liberal this does not require a focus on markets or property rights.)

And so my first observation is that 'elite capture' is not an idea exclusive to one political orientation. It's an important idea to all students of political life. And it is a standing problem for conceptualizations of politics that assume representatives speak for their (political, union, or shareholder, etc.) electorates or where politics is treated like an ideal speech act. So, Táíwò is right to emphasize it, and I look forward to engaging with his book.

However, second, it's possible that Táíwò does not think of 'elite capture' as a general law of politics, as I presented him. For he writes, "it is a fully general problem of politics in a world that distributes power and resources unjustly and unequally." (emphasis his!) And this suggests that he thinks elite capture can be avoided once the material conditions have been equalized (i.e., "resources unjustly and unequally") and there is no difference in power. But the only possible political system that delivers that is a form of anarchist-syndicalism. Fair enough. But this is more than a change in political culture.

Third, I fear that in using Thi Nguyen's ideas on "value capture," Táíwò also ends up suggesting that without mediation of elites there is a more authentic and discrete set of values and commitments that should guide policy. That is, value capture corrupts the will of the people. Now, I think one can recognize the phenomenon of value capture in the political sphere, but deny that this always involves a corruption of ordinary or popular will in the context of the division of political labor.++ (The idea that elites corrupt by way of elite capture is very popular among far right populists.)  For, in virtue of the division of cognitive and political labor, outsiders, masses (etc.) will often be in the position of having no access to a minimal opinion on a topic at all. I grant that such a view can easily slide in a cynical or meritocratic attempt to down-play the views (and interests) of non-elites, but that's not what I am suggesting here. Rather, it's the political process itself that makes clear what the people's values and their orderings are (and this is shaped by elites). So, such value capture is necessary to a well-functioning liberal democracy. And that requires elites that work in the interest of those they represent. So, rather than elite capture only being a problem to liberal democratic political life, it must given its inevitability also be part of its solution. To be continued.

 

 

 

On Charles Larmore and the Legitimacy of Political Order in Political Realism

It is important to recognize that legitimacy, though not the same as authority, still depends on it. Since the overall relation between the two concepts is somewhat complex, let me review again. The state must seek to justify its rule if it is to achieve the authority, the acceptance of the right to institute binding rules on society, that is necessary if order and social cooperation are to be possible to any significant extent. For that reason, it must address its claim of legitimacy only to those within its territory whom it considers to be full-fledged members of society, for it is their allegiance alone that it seeks. From others (e.g., resident or visiting aliens) it demands merely submission.--Charles Larmore (2020) What is Political Philosophy? Princeton UP: 98.

l had not seen or spoken to Charles Larmore, one of my wonderful supervisors, for more than a decade when a visit to Brown brought us together a few years ago. Since I had not read his (2013) article, I was surprised by the direction of his thought (because unaware by his engagement with the revival of political realism in the reception of the (recall) posthumous works of Bernard Williams). Since I had then just taught Enzo Rossi's pro-seminar to the graduate students (Rossi is one of the contemporary leaders of this new type of political realism), and working with Paul Raekstad (another colleague and himself developing a version of political realism) on a paper, I was by accident fully immersed in the political realism literature ((recall here; here; here). I was also surprised by Larmore's resigned pessimism about the future of liberalism.

The engagement with political realism and the resigned pessimism are on display in What is Political Philosophy? A lucid and focused work that is simultaneously metaphilosophy and political philosophy. Larmore agrees with the political realists that the question of legitimacy is constitutive of political philosophy and helps distinguish it from moral philosophy (e.g., p. 5). He also claims it has priority over other questions in the field. In addition, in virtue of addressing the question of legitimacy, "political liberalism," and here Larmore also speaks for, and (simultaneously) corrects, Rawls, undertakes "a refoundation of the liberal tradition." (151)

Larmore's political realism responds to, and simultaneously accepts, reasonable disagreement as a feature of modernity. That is to say, and Larmore is explicit about this, he treats liberalism as a latecomer in the history of political theory (16; 123; 169). In addition, this entails that Larmore explicitly accepts Carl Schmitt's "important truth" that "every principle of political inclusion" is "also a principle of exclusion," (166-7) that is, consensus on the content of legitimacy is impossible.

At this point, one may well wonder what is so liberal about Larmore's political liberalism since it gives up on liberalism's universalism and the thought that each individual counts. (Recall that Schmitt's claim presupposes the existence of collectivities.) For, in Larmore's hands, while the principle of justification of legitimacy -- a "principle of respect" for persons -- is supposed to be moral in character, it is addressed to those who are or taken to be "citizens" or would be citizens and their "reasonable agreement," (77; see also 158-162).* Larmore is admirably frank about the (possible) exclusionary implications of this in some contexts (102-3/ 116).

Now, as an aside I consider the question of legitimacy, while important, a dead-end for the revival of the liberal tradition. You may ask why; short answer: liberals should stop focusing on justifying the state's coercion of people, and rather focus on articulating theoretically salient, emancipatory solutions to concrete problems individuals face in contemporary (political) life in light of an ambitious theoretical vision and, thereby, help re-invent the tradition. 

Be that as it may, here I focus on what is, for lack of a better phrase, a mistake of articulation. For,, in the quoted passage above (and other places in his argument), Larmore conflates the nature and needs of political philosophy with the nature and needs of political life. For, let's grant, for the sake of argument, that Larmore is right about the centrality of legitimacy to political philosophy. And let's also grant him that "political rule" is the "solution" to the "need for cooperation and the basic human tendencies that render it difficult if not impossible." (82) This need and difficulty "form...the circumstances of politics." (82;** his "impossible" conveys a sense of Larmore's pessimism.) If true, it also gives a heroically, tragic quality to political life.

For, Larmore assumes without argument that authority and legitimacy presuppose an articulated attempt at justification. His reason  for this presupposition is that Larmore wants to distinguish (again, let's stipulate), correctly, between mere (psychological) acceptance of a state's legitimacy by its citizens and the fact of legitimacy. And the fact of legitimacy must, according to Larmore be ground in some moral principle. He thinks a failure to do so muddles Williams' argument (and confuses Max Weber's readers). So, in what follows my objection is not to Larmore's attempt to ground the authority of political power in moral principles of some sort. 

There are really two mistakes here: (i) Larmore assumes that a state can only be legitimate if it offers some kind of legitimation story, what Larmore (repeatedly) calls "a justification," (e.g., 105; 97, etc)  for its authority; (ii) Larmore assumes that such authority is de facto required if the circumstance of politics are to be solved (" if order and social cooperation are to be possible to any significant extent.") While the first claim (i) can be interpreted as a conceptual claim, the second claim (ii) is a claim in political sociology or psychology. It is notable that Larmore offers no evidence for (ii). Machiavelli, who knew something about the circumstance of politics (in Larmore's sense), would deny (ii). For Machiavelli authority is maintained if "property nor...honor" of citizens "is touched."

Now in treating (i-ii) as mistakes I do not wish to deny that legitimations are recurring features of political societies. But to establish the legitimacy of a state (from a liberal perspective), the question is not what they say, but what they do (do the oppress, silence, terrorize, etc.). That is, what matters for liberal legitimacy -- say from the perspective of liberalism of fear -- is how people are treated, and can be expected to be treated, over time. It is odd that Larmore does not note this because as he says, the "guiding conviction of liberal thinking" really is "with how we should treat others." (12)

Now Larmore may response that since legitimacy involve the justified imposition of "enforceable rules" (e.g. 5)-- and enforceable rules must be articulated -- what is said is essential. The reason why Larmore would claims something like this is that he considers only two possible options to tackle the problems generated by the circumstance of politics: (a) reliance on "moral convictions." (39) This he (correctly) rejects because, as Mozi has taught before him, moral disagreement is (also) the predictable effect of the use of our reason. And if all people were systematically capable of acting from moral conviction no state would be needed among them. And (b) "the binding authority of laws, arrived at by legally established procedures." (39) Since he endorses (b) it means that for Larmore authority, and the legitimacy it helps generate, is essentially juridical in character (even if it is, in turn, secured by appeal to moral principle).  And this is why Larmore slips, without commenting on it, between conceiving authority in terms of binding rules and in terms of binding laws. Once one thinks of authority as juridical in character, it might seems self-evident that justification of their authority has to be verbal.

Now, liberalism does have a fundamental commitment to the rule of law. And its absence is indeed a way in which a state may be (partially) illegitimate. (Larmore nicely argues that legitimacy comes in degrees.) But it does not follow that the justification for the rule of law is required for its authority. That is while liberalism is self-consciously philosophical in character (this is partially a feature of its lateness), it does not require the state to be philosophical in this way for it to have authority and be legitimate.

As Hume teaches, for rules to function as rules they do not require or originate in justification (even if they can be justified post facto). All effective authority may require is the coordination and stimulation of the right sort of rules long before they give rise to 'legally established procedures' or generate skilled citizens to justify them. Of course, once authority presents itself as principled, the principles appealed to can be evaluated and judged "by the moral assumptions on which they rest." (49) But Philosophy even political philosophy is a true human need, but it is not required for (liberal) authority. 

 

 

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.

 

 

Quentin Skinner, Paley, Tocqueville, and the Charge of Utopianism (III)

A number of critics [of neo-roman liberty] argued that, even if this contention is not actually incoherent, the suggestion that an equal right to participate in government is indispensable to the maintenance of civil liberty is so Utopian as to make it irrelevant to the political world in which we live. This objection was widely canvassed at the time of the American and French revolutions, with William Paley coming forward in his Principles of Moral and Political Philosophy in 1785 as perhaps the most influential spokesman for what became the classical liberal case. As Paley urges in minatory tones, 'those definitions of liberty ought to be rejected, which by making that essential to civil freedom which is unattainable in experience, inflame expectations that can never be gratified, and disturb the public content with complaints'. warning takes on an added significance in the light of the fact that his Principles became for the teaching of political theory throughout the nineteenth century.
I shall not attempt to counter Paley's criticism, save by observing that I have never understood why the charge of utopianism is necessarily thought to be an objection to a theory of politics. One legitimate aspiration of moral and political theory is surely to show us what lines of action we are committed to undertaking by the values we profess to accept. It may well be massively inconvenient to suggest that, if we truly value individual freedom, this commits us to establishing political equality as a substantive ideal. If this is true, however, what this insight offers us is not a critique of our principles as unduly demanding in practice; rather it offers us a critique of our practice as insufficiently attentive to our principles.--Quentin Skinner (1998) Liberty before Liberalism, 77-79

The quoted passage is just before Skinner takes on the main, "more knock-down objection commonly levelled against the [neo-Roman] theory I have been laying out." (79) So the quoted material is easy to miss also because Skinner admits that he is not attempting "to counter Paley's criticism." As promised (recall here; here; here; here), I shall take on Skinner's response to the "more knock-down objection" in a future post, but I hope readers find dwelling on the quoted passage instructive anyway.

One reason to think it might be instructive is that in the second paragraph, Skinner enunciates a principle -- "One legitimate aspiration of moral and political theory is surely to show us what lines of action we are committed to undertaking by the values we profess to accept' -- that is central (recall) to his  defense of his methodology; near the end of the argument of his  lecture, when he is defending his methodology, he claims that "professed principles...will nevertheless help to shape and limit what lines of action you can successfully pursue." (p. 105) I won't repeat my criticism of this claim here, but I think it is fair to say that while this part of Skinner's response to Paley (yes that Paley) may not be central to his own refutation of liberal liberty, it does represent an important strain in Skinner's thought.

So, it is a peculiar fact that Skinner misunderstands Paley's objection. For, the charge against the neo-roman definition of liberty here is not that it is utopian, but that is dangerous. The charge of "utopianism" is a charge of feasibility (e.g., "unduly demanding"). Admittedly, Skinner himself clearly need not understand the charge of utopianism as a charge of feasibility (despite "utopianism;" "unduly demanding"). For he also losses it, as a charge of massive inconvenience. This is indeed much closer to Paley's sense, and so I treat this as Skinner's objection. But even this misunderstands the nature of Paley's position.

Now Paley is clearly a consequentialist and, as Skinner suggest, one of the early utilitarians.* So, it is not surprising, even consistent, that Paley would evaluate the "propriety" (see Paley) of a definition or a principle in terms of its foreseeable effects. The key part of Paley's is criticism is not the feasibility claim, although it is present in his argument ("unattainable in experience"). That is not a problem. If accepting unfeasible principle would produce good consequences, Paley might (if it does not offend other features of morality and religion) well have to embrace it. But rather that in virtue of its infeasibility, people's expectations will be raised and denied. This is bad enough in its own right given that for Paley the "final" aim of "all rational politics" is to "produce the greatest quantity of happiness in a given tract of country." Let's call this Paley's internal objection to the neo-roman definition. It is internal to Paley's system and may well be unsatisfying to those who reject his other commitments.

But, Paley is also offering a political objection against the neo-roman definition in the passage quoted by Skinner at the top of this post. For, the political objection to neo-roman liberty is that it makes minimal civic concord impossible.

To see what this is about it is important to remember that there are roughly two models of the causes of political revolution. First, there is (recall) the Platonic model that in an unequal/class/hierarchical society disunified elites cause revolutions (Republic 545d). Second, there is the model commonly associated with Tocqueville that revolutions occur when things start to improve:

Revolutions are not always brought about by a gradual decline from bad to worse. Nations that have endured patiently and almost unconsciously the most overwhelming oppression, often burst into rebellion against the yoke the moment it begins to grow lighter. The regime which is destroyed by a revolution is almost always an improvement on its immediate predecessor, and experience teaches that the most critical moment for bad governments is the one which witnesses their first steps toward reform.--Tocqueville, The Old Regime and the Revolution**

One of the possible mechanisms behind this second model is anticipated in Paley's idea that inflamed desires that are frustrated are dangerous. (I take it this is the significance of Paley's use of inflamed.) These cannot (remember infeasibility) be removed by "wisdom or the benevolence of government."  

Now, if one thinks a revolution is warranted then perhaps thinking then, perhaps, it is natural to treat a warning about not facilitating the conditions of revolution as menacing ('minatory'). But if one thinks that even the most welcome revolutions are also dangerous/harmful to many innocent bystanders -- as they nearly always are --, then Paley's stance may well be thought humane, even moral.

More contextually, neo-Roman ideas were implicated in the revolution of the US then (1785) recently concluded. So Paley is clearly pointing out that neo-roman ideas generated the conditions of revolution. Now, none of us need to mourn the diminishment of British empire. But Paley's idea is simply that neo-Roman ideas are always dangerous to public order. This is why I call the 'political objection.'+

Notice that Paley takes his own political objection seriously enough to propose alternative principles that one can live by. So, while it may be true, from a neo-roman perspective that there is"a critique of our practice as insufficiently attentive to our principles," Paley is not an appropriate target of this complaint because he is changing the principles in virtue of their foreseeable effects. And Paley's stance is consistent because he embraces principles that (plausibly) are capable of delivering what he takes to be the end "rational politics." (That is compatible with noticing that labeling this 'rational' is a form of political rhetoric by making other  ends seem irrational!)

One may well charge Paley, as one may charge many utilitarians, of being too close to the perspective of authority and power here. And, perhaps, Paley, is taking too much the perspective of his students (the future clerical and political elite). And one may also wonder if the rejection of revolution is, in context, a species of admirable gradualism (of the sort I attribute to Adam Smith) or just quietism. But Paley's particular charge is that neo-republican liberty invites permanent turmoil, if not, revolution. 

Skinner could deny Paley's claim on empirical grounds. Perhaps Paley is wrong about the empirical effects of neo-roman liberty. One may also argue (on Machiavellian/Popperian grounds) that some kind of permanent tension is fruitful. But in so far as political theory is, in part, also the search of principles that lead to stable authority, and, thereby stable expectations that can generate what we may call the fruits of peace, Paley's objection instantiates responsible speech. For Paley's view is de facto (and here he echoes Hume) that on neo-roman grounds no legitimate government is possible in actuality.

Popper on Freedom and Creative Turbulence

Against the claim that an aim like this can be formulated sufficiently clearly and definitely, many objections have been raised. It has been said that once it is recognized that freedom must be limited, the whole principle of freedom breaks down, and the question what limitations are necessary and what are wanton cannot be decided rationally, but only by authority. But this objection is due to a muddle. It mixes up the fundamental question of what we want from a state with certain important technological difficulties in the way of the realization of our aims. It is certainly difficult to determine exactly the degree of freedom that can be left to the citizens without endangering that freedom whose protection is the task of the state. But that something like an approximate determination of that degree is possible is proved by experience, i.e. by the existence of democratic states. In fact, this process of approximate determination is one of the main tasks of legislation in democracies. It is a difficult process, but its difficulties are certainly not such as to force upon us a change in our fundamental demands. These are, stated very briefly, that the state should be considered as a society for the prevention of crime, i.e. of aggression. And the whole objection that it is hard to know where freedom ends and crime begins is answered, in principle, by the famous story of the hooligan who protested that, being a free citizen, he could move his fist in any direction he liked; whereupon the judge wisely replied: ‘The freedom of the movement of your fists is limited by the position of your neighbour’s nose.’

The view of the state which I have sketched here may be called ‘protectionism’. The term ‘protectionism’ has often been used to describe tendencies which are opposed to freedom. Thus the economist means by protectionism the policy of protecting certain industrial interests against competition; and the moralist means by it the demand that officers of the state shall establish a moral tutelage over the population. Although the political theory which I call protectionism is not connected with any of these tendencies, and although it is fundamentally a liberal theory, I think that the name may be used to indicate that, though liberal, it has nothing to do with the policy of strict non-intervention (often, but not quite correctly, called ‘ laissez-faire’). Liberalism and state-interference are not opposed to each other. On the contrary, any kind of freedom is clearly impossible unless it is guaranteed by the state. A certain amount of state control in education, for instance, is necessary, if the young are to be protected from a neglect which would make them unable to defend their freedom, and the state should see that all educational facilities are available to everybody. But too much state control in educational matters is a fatal danger to freedom, since it must lead to indoctrination. As already indicated, the important and difficult question of the limitations of freedom cannot be solved by a cut and dried formula. And the fact that there will always be borderline cases must be welcomed, for without the stimulus of political problems and political struggles of this kind, the citizens’ readiness to fight for their freedom would soon disappear, and with it, their freedom. (Viewed in this light, the alleged clash between freedom and security, that is, a security guaranteed by the state, turns out to be a chimera. For there is no freedom if it is not secured by the state; and conversely, only a state which is controlled by free citizens can offer them any reasonable security at all.)--Popper (1945) The Open Society & Its Enemies, 105-106

I had two motives to return to Popper. First, I wanted to use Popper's fanatically uncharitable reading of Plato (and Aristotle) to oppose Callard's literal reading and show how important and vital it is to "entangle those authors in contemporary power struggles." Second, and more important, to remind myself what Popper had to say about what he calls the "perennial revolt against freedom" (178) and "the significance of the perennial fight against" totalitarianism (xli). But I got distracted by the paragraphs above, which are a kind of lengthy aside in his diagnosis of Plato's totalitarianism, and so, if I comment on these two issues at all, it will be obliquely and indirectly (I return to this some other time).

Not unlike other liberal readers of Lippmann's (1938)  The Good Society -- Popper calls it a "most admirable book" in his first footnote (513) --, not the least the ORDOs, Popper rejects nineteenth century liberalism. The direct context of the passage is his defense of the idea that one can be a "social technologist" and "approach political problems rationally." (105; I don't mean to deny that Popper is a critic of certain other forms of social engineering.) The new form of liberalism will be one that presupposes state activity to achieve liberal ends constrained, as the first paragraph of the quoted passage shows, by the harm principle. 

But what caught my eye was Popper's claim that a free society requires creative turbulence conducive to freedom. This is an idea that is (recall) prominent in Machiavelli (who is strikingly absent in Popper's learned argument). Now, unlike Machiavelli, Popper does not claim such turbulence leads to the development of better institutions. But he does think that permanent political agonism is conducive to freedom.

The underlying idea seems to be that in a tranquil and consensual (and for Popper these seem near synonyms) polity, citizens would lose the habit of vigilance. Whereas in a state in which political challenges do not have the appearance of being permanent solved, political talents and mobilization are exercised. In particular, the citizens' capacity to resist the government's attempts to remove their freedoms and rights will then be contested. 

It is important to see that Popper's position is not Arendtian. He does not seem to think that political agonism is the highest or best form of life. Nor is he attracted to republican theories of non-domination. 

I mentioned Lippmann above, because he inherits from Lippmann the idea that politics is the working out, in the "spirit of adaptation," of differences of interests and resolving of social problems that arise from changing circumstances and the development of new technologies. But whereas Lippmann demands from legislators a juridical impartiality that is not to be expected given their incentives (and the imperfection of human nature), Popper expects a never ending "process of approximate determination." Almost alone of the great liberals  who had to confront the collapse liberalism before the Allied victory, Popper discerns that one cannot eliminate politics by some decision rule, a science of politics, or elite rule, or replacing politics by the market (or some combination thereof).

And while Popper rejects the political theory of Heraclitus’ and Empedocles' emphatically, he retains the idea that political life is one of open-ended strife. But here the strife is in the service of a system that ought to be ruled by the prevention of mutual harm. And by implication, what counts as harm is in some sense constantly contestable and contested. There is no neutral place where we have the luxury to treat each other as aliens. And while this sounds like a recipe for disaster, or a politics ground in Nietzschean will to power, Popper takes the fact that somewhat liberal states have existed as evidence for its evident possibility.

Some other time I return to Popper's analysis of the sociological preconditions of the maintenance of freedom (and also explore some of its limitations). But here I close with a thought.  There are plenty of sociological and argumentative reasons for the a peculiar fact that Popper's reputation is at a nadir among (political) philosophers today.* Even so revisiting him is to encounter the rare, adult appreciation of the political challenges of maintaining a liberal political life while being sympathetic to liberal ideals (in addition to the harm principle, he emphasizes the rule of law, and equal benefit from the law).+

There is also a good intellectual reason why his political philosophy has faded. His is also a demanding, perhaps too demanding, almost existentialist form of liberalism (hence my nod to Arendt). The politics of freedom is not an intellectual game; there is no refuge from its demands. There are no slogans -- free speech, human rights, etc.--  that can circumvent the demands of judgment. "Personal responsibility" is a phrase that is repeated repetitively throughout the Open Society. For Popper this includes (but is not exhausted by) a willingness to judge others for the uptake of their ideas, and, reciprocally, a demand to be held accountable for them by other persons. 

On Quentin Skinner On the Practice Use of Historical Studies (I)

We ought, I think, to be prepared to ask ourselves quite aggressively what is supposed to be the practical use, here and now, of our historical studies. It has never seemed to me adequate to reply that they satisfy a natural curiosity, and it seems to me dangerously self-indulgent to suggest, as Lord Acton once did, that 'our studies ought to be all but purposeless', especially in a culture as committed as ours has become to a banausic view of 'relevance'. The accusation of antiquarianism is, in short, one that troubles me deeply, and it is one that all professional  historians ought, I think, to stand ready to answer, at least to the satisfaction of their own consciences. We must expect to be asked, and must not fail to ask ourselves, what is supposed to be the point of it all....

[O]ne of the ways - perhaps the only way - of improving our understanding will be to go back to the historical juncture at which this way of thinking about politics was first articulated and developed. We shall then be able to see how the concepts we still invoke were initially defined, what purposes they were intended to serve, what view of public power they were used to underpin. This in turn may enable us to acquire a self-conscious understanding of a set of concepts that we now employ unselfconsciously and, to some degree, even uncomprehendingly. It is arguable, in short, that we need to become intellectual historians if we are to make sense not merely of this but of many comparable aspects of our present moral and political world.
    This is hardly a new thought. It is the thought animating F. W. Maitland's last and most dazzling group of essays---Quentin Skinner, (1998) Liberty Before Liberalism, pp. 107-110

βαναυσικός can be translated as 'pertaining to mechanics.' In English 'banausic' seems to have been coined as a pejorative in the middle of the nineteenth century (see here); this reflecting aristocratic prejudice. But is pretty clear that Skinner means to say that in our culture 'relevance' has a kind of practical or mundane sense. And, while he may well feel some regret over this fact, he seems to use 'banausic' in neutral fashion. It is noticeable that dictionaries often use 'utilitarian' when explaining banausic; because part of the overall argument of the book is that the purportedly liberal utilitarians (from Paley to Sidgwick) have displaced the neo-roman sense of liberty with a different sense by using less than fully convincing arguments.+ 

After rejecting pure antiquarianism -- a charge that arises from Skinner's early work -- and an "essentially aesthetic" (p. 107) justification for engaging in historical studies, Skinner takes up a practical justification for historical studies in his extended version of his justly famous (1997) inaugural lecture. He is unusually forthright, perhaps historicist, in suggesting that in our culture* antiquarianism (and aesthetics, perhaps) are not properly self-justifying. Strikingly, Skinner does not claim to be offering a justification to the wider or interested public (of the sort rejected recently (recall here) by Zena Hitz (and her book)), but rather he hopes to craft a response that can convince the "consciences" of his fellow "professional historians." Skinner leaves it to the reader to figure out what standards of judgment enter into such disciplined conscience.

Part of the answer can be found in the second half of the passage I quoted above. The point of historical practice of intellectual historians is to generate a species of  "self-conscious understanding of a set of concepts that we now employ unselfconsciously." This is rather Socratic. Skinner wishes to provide a form of self-understanding of (to switch to Wittgenstein) fundamental concepts habituated in our form of life and, then, indirectly, to make questioning of these forms of life possible.* (I return to my 'indirectly' below.)

Skinner is cautious in the way he conveys the questioning part. He explicitly distances himself from moralising historians, who are likely to be enthusiasts or indignant when "surveying the crimes, follies, and misfortunes of mankind." (p 118) He prefers the "aloof" kind of historian. Yet, he also suggests that in our status quo, we do not understand our most fundamental concepts; we deploy them 'unselfconsciously" and "most of us do not know" what some of these may mean. (p. 109). It is worth remarking that it is left unclear if this is a typically liberal disease or, as seems more likely, a perennial, or durable, feature of political life. 

So, the task of the professional historian, who wishes to improve thinking about politics for most of us not in the know, is to remove the pervasive ignorance about core even hegemonic  (p. 117) moral and political concepts. So, while the justification is offered to fellow historians, it is the many, or the public, which is supposed to benefit from the exercise. One cannot help admire such philanthropic impulse!

Above I used 'indirectly' because while Skinner leaves no doubt that he thinks that within "the traditions of thought about the character of the liberal state" (p. 119), the arguments that displaced the neo-roman conception of liberty are based on fallacious reasoning; at one point he claims that "the conclusion has already been inserted into the premise." (p. 115)).+ Despite exposing the argumentative flaws in a certain kind of liberal self-understanding (recall), he leaves it to the reader's autonomous, ruminating (120) judgment to decide whether the past choices "between different possible worlds" (p. 117) were right. So, the professional historian exercises vocational self-command. 

Since Skinner is a celebrated and much admired historian of our age, we can say that he has found a way to question moral and political pieties without attracting Socratic notoriety. Perhaps, this indifference to such foundational challenge is characteristic of liberal society.

I close with two thoughts. First, Skinner very adroitly prevents a certain kind of philosopher, who thinks the origin of concepts is irrelevant to present self-understanding, of raising the genetic fallacy. Skinner claims that by retracing concepts to their first definitions and use may help uncover what is now in some sense suppressed from us (recall: "how the concepts we still invoke were initially defined, what purposes they were intended to serve, what view of public power they were used to underpin. This in turn may enable us to acquire a self-conscious understanding of a set of concepts that we now employ unselfconsciously and, to some degree, even uncomprehendingly.")

Skinner doesn't offer us an argument why this is the best or the only way toward self-understanding (which he need not insist on); nor does he explain how this is supposed to work at an abstract level. He does not need to explain it because he has just exhibited/shown it in the book. I agree firmly with Skinner (who explicitly associates this with Foucaultian "archaeological analysis" (112)) that returning to the historical moment when concepts enter into practice/fashion is often very illuminating on the possibility spaces they help open up, and foreclose; and so heartily endorse his practice. This is because when concepts are first introduced, and the principles they animate, they are often explicated and contested by those who understand the foreseeable effects of uptake. This helps shed light on how concepts become part of an "ideology" (23; 59; 77) or life-affirming practice.

Second, one may wonder whether removing the lack of ignorance about core moral political concepts and principles improves thinking about politics. I am not here questioning the Enlightenment faith that removal of ignorance is conducive to better thought in some sense. Rather, what I have in mind is something more roundabout. Skinner explicitly endorses Pocock's idea that what is revealed by the "intellectual" historian (101) is "the changing political languages in which societies talk to themselves." (p. 105) One can agree that Namier's position -- that is, that how we talk politically acts "as the merest ex post facto rationalisations of political behaviour" -- is undoubtedly too narrow an understanding of such talk. Skinner is right to object to this because what one might wish "to legitimise [politically]...depends on what courses of action you can plausibly range under existing normative principles." (p. 105) 

But he then goes on to claim that "professed principles...will nevertheless help to shape and limit what lines of action you can successfully pursue." (p. 105) Let's grant that this is so in some great political cultures which have a juridical sensibility. Even so, this is a peculiar claim.** I do not just mean that wholly new principles may be invented or old ones reinterpreted to legitimate and even explicate the manner of success of actions after the fact (as Namier suggested), but rather, and more importantly for one's craft as political philosopher, that in order to grasp the nature of politics we must leave open the possibility of actions devoid of legitimacy and ungrounded in principles, and yet successful, even necessary, after a fashion. 

 

On Livy, Hybridity, Elective Kingship, and Freedom

Ancus reigned twenty-four years, unsurpassed by any of his predecessors in ability and reputation, both in the field and at home. His sons had now almost reached manhood. Tarquin was all the more anxious for the election of the new king to be held as soon as possible. At the time fixed for it he sent the boys out of the way on a hunting expedition. He is said to have been the first who canvassed for the crown and delivered a set speech to secure the interest of the plebs. In it he asserted that he was not making an unheard-of request, he was not the first foreigner who aspired to the Roman throne; were this so, any one might feel surprise and indignation. But he was the third. Tatius was not only a foreigner, but was made king after he had been their enemy; Numa, an entire stranger to the City, had been called to the throne without any seeking it on his part. As to himself, as soon as he was his own master, he had removed to Rome with his wife and his whole fortune; he had lived at Rome for a larger part of the period during which men discharge the functions of citizenship than he had passed in his old country; he had learnt the laws of Rome, the ceremonial rites of Rome, both civil and military, under Ancus himself, a very sufficient teacher; he had been second to none in duty and service towards the king; he had not yielded to the king himself in generous treatment of others. Whilst he was stating these facts, which were certainly true, the Roman people with enthusiastic unanimity elected him king. Though in all other respects an excellent man, his ambition, which impelled him to seek the crown, followed him on to the throne.--Liviy, 1.35.

It is rarely remarked that the two greatest empires the Mediterranean basin has seen -- the Roman and the Caliphate -- originate in a succession of (nearly) unanimously elected kings. And while the the "Rightly Guided Caliphs" had some tribal connections to each other, the Roman version is more astounding in that the Romans are presented as willing to elect foreigners (Numa) and immigrants (Tarquin). The last king, Lucius Tarquinus (the proud), not to be confused with the Tarquin (his grandfather or father) mentioned in the quote above, is together with Romulus, the only king who was not elected; he was a murderous usurper.* 

In fact, ethnic or tribal mixing and the welcome to asylum seekers is a key characteristic in the presentation and self-understanding of the early history (and pre-history) of Rome. This mixing is, in fact, in addition to elected kingship, one of the key social constants throughout the initial period of kingship, which saw the development of various state religious cults, social hierarchy (including institution of census), the increasing prevalence of slavery, land distribution, new political alliances, etc.

That this openness to foreigners is a new form of nationhood is, in fact, thematized in the reported of Tarquin's stump-speech. Tarquin is clearly addressing concerns about his provenance and citizenship. Even in Rome, we might say, Tarquin risks looking like a carpetbagger. And he offers us an interpretation of citizenship in which what one does (and has) is more important than where  one originates. We might call this an activist conception of citizenship: bringing in wealth, obeying and knowing the laws, participating in religious and military life, loyalty to the royal house, and liberality are clearly marks of such active citizenship. This clearly anticipates the conception of citizenship in which the republic develops into a multinational empire. 

At the death of Servius Tullius, Livy makes an explicit point of remarking that elective kingship, which is just and legitimate, and can be glorious, came to an end: [ceterum id quoque ad gloriam accessit quod cum illo simul iusta ac legitima regna occiderunt.]+ I think it is pretty clear that for Livy the legitimacy resides in the popular acclaim/consent.** It is not obvious that this is so; legitimacy can also reside in religious sanction or in the (good) effectiveness of the rule. But I think from context it's clear Livy thinks the legitimacy is ground in the people's acclaim. 

At the start of book 2, once the republic is founded, Livy re-starts his narrative with the claim that he is embarking on "The new liberty enjoyed by the Roman people, their achievements in peace and war, annual magistracies, and laws superior in authority to men will henceforth be my theme." (LIBERI iam hinc populi Romani res pace belloque gestas, annuos magistratus, imperiaque legum potentiora quam hominum peragam.) And while the people still elect their rulers (for short terms) a striking claim is that their new freedom consists in part in being subject to the rule of law than subject to men. Part of the point is that on their conception of freedom, too, the early Romans are innovative. This abstract feature that the roman people enjoy (and will lose) is the great theme of the book. Livy notes later down the page, that limiting the duration of consular rule is a necessary condition on the birth of freedom. Laws and rules increase in significance once rulership rotates regularly (they help smooth out, we might say, individual arbitrariness) and, thereby, create stable expectations.  

So, we can sum up: elected kingship and republican rule are both legitimate. I think, thus, it a mistake to over-emphasize the contrast between the two. Their legitimacy is ground in the consent of the people. (Yes, I am skipping over complication related to the franchise.) And while undoubtedly place of birth is crucial element of membership among the people which are intrinsically hybrid, this is complemented with a conception of active citizenship for worthy foreign born. But while elections are necessary conditions for freedom; they are not sufficient.

And while I do not deny that Livy eventually develops a conception of freedom in terms of a contrast to slavery (and analyzed by republicans today in terms of independence or non-domination), the initial, new freedom of the Romans is conceived, even celebrated, in terms of submission to the law, even rule of law.++ This is so even if one grants that Livy is anachronistically projecting backwards (and I, in turn, etc.) in order to say something to his contemporaries.