Digressions&Impressions

Locke, Usurpation (and Trump)

Sect. 197. AS conquest may be called a foreign usurpation, so usurpation is a kind of domestic conquest, with this difference, that an usurper can never have right on his side, it being no usurpation, but where one is got into the possession of what another has right to. This, so far as it is usurpation, is a change only of persons, but not of the forms and rules of the government: for if the usurper extend his power beyond what of right belonged to the lawful princes, or governors of the commonwealth, it is tyranny added to usurpation.

Sect. 198. In all lawful governments, the designation of the persons, who are to bear rule, is as natural and necessary a part as the form of the government itself, and is that which had its establishment originally from the people; the anarchy being much alike, to have no form of government at all; or to agree, that it shall be monarchical, but to appoint no way to design the person that shall have the power, and be the monarch. Hence all commonwealths, with the form of government established, have rules also of appointing those who are to have any share in the public authority, and settled methods of conveying the right to them: for the anarchy is much alike, to have no form of government at all; or to agree that it shall be monarchical, but to appoint no way to know or design the person that shall have the power, and be the monarch. Whoever gets into the exercise of any part of the power, by other ways than what the laws of the community have prescribed, hath no right to be obeyed, though the form of the commonwealth be still preserved; since he is not the person the laws have appointed, and consequently not the person the people have consented to. Nor can such an usurper, or any deriving from him, ever have a title, till the people are both at liberty to consent, and have actually consented to allow, and confirm in him the power he hath till then usurped.--John Locke, Second Treatise. 

One of the oddities of what passes for learned public discussion of American politics since the rise of Trump, is the near total absence of John Locke. The one exception also proves the point: in a New York Times editorial (back in 2019), Locke is mentioned but then set aside for "James Madison, who was as committed as either Locke or Smith to the supremacy of individual liberty but was acutely aware of the inherent tension between liberty and democracy."* It is a peculiar reason to set aside Locke (in the name of saving liberalism) for, of course, that is one of Locke's great themes. Anyway, here I use Locke because he gives us the words we need. And while Locke never acts smarter than his readers, Locke actually thought hard about circumstances when checks and balances may fail. And, while I yield to few in my admiration for Madison, it is not entirely clear the founders can help here (recall this post on Federalist 70; and see also the strange optimism in Federalist 28--although both were probably written by Hamilton). 

So, ahead of the election President Trump started to signal he was willing to become an usurper. His present unwillingness to concede the obvious -- that he was defeated in the election -- and, more important, his legal actions and the behavior of some of his political partisans (I am thinking of Senator Graham's phone call to the Georgia Secretary of State and the attempts to prevent certification of results in Wayne Co. in particular) all are properly conceptualized in terms of usurpation.

Now, it is clear that Locke assumes that usurpation is extra-legal, although note that this is compatible with it being non-violent. And part of the trickiness of the present situation is that Trump and his partisans are not subtle about signaling that they expect, and clearly actively try, to get others to bend the law in their favor. For the rule of law is (recall) fragile when (what we may call) the agents and upholders of the law lack integrity or courage. But even if Trump could prevail with some and obtain formal legal recognition for his actions, it is clear his actions are by no means in the spirit of the laws. And, given that the constitution prevents a further re-election, he would remain an usurper (since the people lack  the "liberty to consent," and opportunity to "confirm in him the power he hath till then usurped").

As an aside, when the Senate refused to convict President Trump after the House had impeached him, it was said, for example by Senator Lamar Alexander,  that 'the consequences of the president's actions should be decided in the next election.' I believe, as I write this, Sen. Alexander has not yet congratulated the President-elect or acknowledged his victory.+

Of course, it is natural to read Locke as kind of assuming that the usurper is not already a legal ruler eager to overstay his welcome. But I think it says something of his foresight that his analysis is compatible with our circumstances. And I doubt this is a coincidence. Because Locke is pretty sensitive to the fact that legal authority, which holds power in trust, can degenerate; he notes all "forms of government are liable to it." (201)

For Locke degeneration starts "when the governor, however intitled, makes not the law, but his will, the rule." (199) And this shift from the rule of law to rule by will is necessary to be considered tyrannical. It is not sufficient because sometimes the laws are broken for the good of the population. As Locke put its on the frontispiece of the work, Salus populi suprema lex, and explains, while quoting it, in sect 158: "whatsoever shall be done manifestly for the good of the people, and the establishing the government upon its true foundations, is, and always will be, just prerogative." So, for Locke a tyrant is a law-breaker acting in his own interest (and generally also likely "to impoverish, harass, or subdue" the people "to the arbitrary and irregular commands of those that have" power. (201; (202)))

Above, i noted that certain political acts like some kinds of usurpation may not formally break the law, even though they bend it greatly against their proper intent. Locke alerts the reader to the significance of this; undermining of the spirit of the law systematically discourages redress through the law. And once such redress is thought impossible, or very discouraged, the door to political violence is opened; as Locke puts it "where the injured party may be relieved, and his damages repaired by appeal to the law, there can be no pretence for force, which is only to be used where a man is intercepted from appealing to the law." (207) That is to say, seriously corrupting the spirit of the rule of law is a return to a (Hobbesian!) state of nature.

Now, my interest in Locke here is to discuss a passage which is exactly on the undermining of what I have been calling the spirit of the rule of law; Locke calls this 'to elude the law' and he uses it in a passage that evokes (and responds to) Plato's ship of state analogy:

210. But if all the world shall observe pretences of one kind, and actions of another; arts used to elude the law, and the trust of prerogative (which is an arbitrary power in some things left in the prince's hand to do good, not harm to the people) employed contrary to the end for which it was given: if the people shall find the ministers and subordinate magistrates chosen suitable to such ends, and favoured, or laid by, proportionably as they promote or oppose them: if they see several experiments made of arbitrary power, and that religion underhand favoured, (tho' publicly proclaimed against) which is readiest to introduce it; and the operators in it supported, as much as may be; and when that cannot be done, yet approved still, and liked the better: if a long train of actions shew the councils all tending that way; how can a man any more hinder himself from being persuaded in his own mind, which way things are going; or from casting about how to save himself, than he could from believing the captain of the ship he was in, was carrying him, and the rest of the company, to Algiers, when he found him always steering that course, though cross winds, leaks in his ship, and want of men and provisions did often force him to turn his course another way for some time, which he steadily returned to again, as soon as the wind, weather, and other circumstances would let him?

As Emily C. Nacol observes in chapter 3 of An Age of Risk, which prompted the present digression, Algiers was then a notorious slave market. She writes, "Locke wants his citizens to be vigilant subjects who guard against tyranny."  (60-1). And as Nacol notes, Locke is quite explicit that there is a right to preventive rebellion, he writes that "men can never be secure from tyranny, if there be no means to escape it till they are perfectly under it: and therefore it is, that they have not only a right to get out of it, but to prevent it." (220) Here we see that Locke anticipates Popper (recall) and allows that a kind of defensive violence against creeping usurpation and tyranny is permitted.

Let me wrap up. One might think that by talking about "the people," Locke assumes -- in proto-Rousseauian fashion -- too much civic unity. One might worry that he misses that in practice, in the context of polarization, eluding the law is a factional affair. And one may think that Locke, thus, misses that an usurper can count on plenty of support while undermining the constitutional order. But this, too, is anticipated by Locke. Sometimes "factions have been fatal to states and kingdoms" (230).

So, here's the bottom line, the longer it's genuinely thought possible that Trump's usurpation might succeed, and that sufficient number of his more prominent supporters are willing to allow it to succeed, the more likely and more legitimate political violence becomes Stateside on Locke's analysis.  Ideally sooner rather than later -- as Trump's legal strategy has clearly run aground--, as states certify results, leading Republicans must signal publically that Trump has genuinely lost the election and it is time to move on to secure a peaceful transfer of power.

Even the fact that one must write such sentences is symptomatic of a deeper problem. Trump's initial rise to power demonstrated that the trust between Republican party elites and their primary voters was broken. The current party elites are clearly loath to re-open such wounds even though after four years of his Presidency, the American electorate has opted for a partial restoration of the situation ex ante. I say 'partial' because few Republican politicians paid an electoral price for their continued support of Trump. And while we're not quite at the precipice yet, we're starting to inch very close to it. And this is, thus, the most dangerous period because, as Locke notes, not only once one falls over it, it's too late, but because one now must face -- and this is the great theme of Nacol's argument -- the uncertainty in judging how other citizens will act, if one acts to prevent such collapse. 

 

 

On Liberal Transition Problems: Popper, Lippmann, and Scheall's Hayekian Political Epistemology (I)

First, there are those epistemic burdens that, starting from a relatively illiberal context, would-be liberalizing policymakers must overcome in order to realize an effective liberal order. From a political-epistemological standpoint, a complete defense of liberalism (indeed, of any political system) requires more than establishing the relative epistemic simplicity of policymaking within such a system; it must be shown that a political system of the relevant kind can be realized through some combination of deliberate policymaking and spontaneous forces. Without such an argument – which Austrian economists and liberals more generally do not have – the case for liberalism (or whatever) is left ungrounded. In effect, the Austrians are left in the same position with respect to an effective liberal order as their socialist rivals are with regard to an effective centrally planned economy: with few reasons for thinking such a system a practicable, real-world possibility. That policymaking is less epistemically burdensome in more liberal contexts is immaterial if there is no reason to think such contexts can be realized, because policymakers’ epistemic burdens are too heavy for, and extant spontaneous forces inadequate to, their realization. Liberals need a theory of liberal transitions, that is, a theory of how more liberal contexts can be realized starting from relatively illiberal circumstances through a combination of deliberate policy action and spontaneous forces.
Second, there are those epistemic burdens that policymakers within liberal orders must overcome in order to maintain the effectiveness of the existing order. I suggest that the long-term effectiveness of a liberal order hinges on policymakers acquiring the know-how necessary to maintain in perpetuity the rule of law, one of the fundamental institutional conditions of an effective liberal order; however, those who succeed in acquiring wealth and power in an institutional environment of the rule of law, private-property rights, and competitive markets are often able to abrogate the rule of law in their own favor, while those less successful and less powerful remain subject to it, a circumstance that quite naturally fosters resentment and undermines belief in such institutions among the latter classes and tends to eventually lead to calls for the replacement of liberal social institutions with less liberal ones. In order to sustain an effective liberal order, policymakers must surmount the epistemic burden of acquiring the know-how necessary to avoid this outcome.
I argue that Austrians have not paid adequate attention to these epistemic burdens.  Indeed, it is not clear that Austrian economists have yet recognized just  how burdensome policymaking of the liberalizing and liberal order-sustaining varieties can be. However, the fact that the Austrians’ political-epistemological approach is applicable to the liberal political systems they themselves prefer and thus suggests a lacuna in their case for liberalism is no argument for illiberal government. If the problem of policymaker ignorance is a problem for liberals, it is no less a problem for defenders of other political systems, within which policymakers’ epistemic burdens are necessarily much heavier, because of the more extensive and more difficult objectives they are charged with deliberately realizing in less liberal contexts. Scott Scheall (2020) F.A. Hayek ad the Epistemology of Politics, Routledge 76-77

Scheall offers an excellent, philosophical immanent critique of what is now known as 'classical' liberal political philosophy (or Austrian political economy) and, thereby, renews it. And while some bits involve a creative interpretation of Hayek in context, it would be a shame if only Hayek-friendly folk read this; the book is fruitful to a wider audience interested in both low level public policy and more significant political transitions. This is so, even though at times the fact that it is an immanent critique means it fails to engage with already existing discussions in other parts of political philosophy.* And he lacks discussion of research in public administration. 

In particular, I am thrilled that Scheal puts transition problems at the heart of theorizing about political life. Recall that (here, here, and here), I understand the transition problem, as [I] how to move from an unjust status quo to an ideal (or vastly improved) state and, in particular, with a population raised under bad institutions. In fact, as (recall) Serene Khader taught me, there are (at least) three species of the problem: the first version [A] really turns on the challenge of finding or developing the right sort of people (with the right education or dispositions, etc.) to get us from here to there and then to have the skills and temperament to make the new circumstances work out well. The second version [B] is to create mechanisms such that the incentives of policy-makers line up with the goals to be pursued and the true interests of people/constituents. The third version is [C] that a population raised under bad institutions may rationally prefer a bad status quo if getting to the better state involves high costs to them.

Perfectionists, including many illiberal types (Plato, Al-Farabi, etc.) tend to be focused on [I]. The liberal tradition, inspired by Machiavelli, has focused primarily on [B] and judging by recent Nobel prizes in economics is still going strong. And progressives/feminists (including liberal progressives/feminists) focus on [C]. Scheall himself is responding to folks focused on [B] (and he ignores the other versions of the transition problem). But in it he is also very sensitive to the fact that [II] at each step of the way from an imperfect status quo to a better destination involves a transition problem and that [III] even maintaining a status quo over time is, in some respects, similar to a transition problem (in the sense of [II]).+ And this point generalizes to all transition problems.**

Okay with that set up, I can state that Scheall's core claim is that the problem of policy-maker ignorance has logical priority to aligning policy-maker incentives with her constituents or society's needs. The core argument is summarized as follows:

[O]n the assumption that some principle like ought implies can is true and practically useful as a guide to action, then the word “can” in such principles must mean deliberately can. Other candidate meanings for the word “can” render such principles practically useless. Thus, by reductio, “can” in ought implies can (and related principles) means deliberately can. But, by definition, deliberately can just means knows enough to. Therefore, ought implies knows enough to: nothing that we cannot know enough to deliberately realize can be an obligation. The nature and extent of our ignorance place brackets around our potential obligations. Epistemic burdens are logically prior to other normative considerations. Since this is a general fact about human decision-making in all contexts, it follows that ignorance is logically prior to incentives in specifically political contexts. (3; Emphases in original).

Before I get to meat of today's post, two qualifications: (a) I don't think Scheall is right to assume that ought implies can applies to all policy contexts. Some policy decisions and ends are not normative nor obligations, and not understood as such by decision-makers. (Pick your favorite pork-barrel spending!) So, the way feasibility enters into these decisions may be more like other forms of instrumental reasoning (with cost-benefit analysis, opportunity costs, etc.). In addition, (b) it may at times make sense to pursue infeasible/utopian ends in virtue of the fact that in some environments aiming too high is better than aiming at a target within reach. But notice that in (a) and (b) epistemic burdens do not disappear (although how to think about (b) is not trivial). So, let's leave these aside.

Now, I will return to Scheall's set up, but today I close with one line of criticism. Throughout the book Scheall assumes that if policymakers lacks the knowledge to pursue an end, they shouldn't pursue it. For, when, the "do-nothing policy is aimed at no particular end, it bears no epistemic burden." (98) [I am not sure this adheres to his own insight [III] unless we sharply distinguish between do-nothing policy aimed at status quo and aimed at no particular end.] But that raises the problem that we might never discover what works.

Here's a version of what I have in mind. Let's say one agrees with Popper that policy should be informed by the spirit of or guided by trial-and-error. I pick Popper because Hayek and Popper have claimed to be kindred spirits on these matters.++ That is to say, only if errors are permitted can policy-makers and policy-scientist discover empirically what works, what are unexpected side-effects, and make mid-way adjustments. The more subtle point here is that Scheall tends to think of each policy-decision as a one-off: if you have the knowledge (ceteris paribus) you may act for an otherwise moral end, if you lack the knowledge (ceteris paribus) you may not.

But a Popperian treats public policy as many decisions extended over time. And by doing so a public policy is conceived as learning both what the means are and (but some other time more argument) what the ends are. That is to say, and this is in the spirit of Scheall, Popperian public policy treats much policy-making as instances of [II].

One final point,  Scheall's approach as articulated has very little space for policy-makers that learn over time. And that's in part because he tends to think of them as elected politicians/officials/assemblies with short time-spans and lots of epistemic burdens. But the modern state has tried to address this: it is full of bureaucracies and dedicated research agencies that are, if institutional memory is allowed to be built up, capable of learning over time.*** This is why some kinds of cutting government can be self-undermining.

And it's not just bureaucrats. Popper was a careful reader of Lippmann. And as Lippmann noted (recall) one benefit of the 'revolving door' is that it would create a kind of permanent circulation of college graduates from universities into government; and technical, government bureaucrats returning regularly to train and teach at universities, etc. Now, it's true that this, in turn, raises other familiar problems (rent-seeking, how to decide which experts to trust), but this is why Scheall's work on [II-III] is so important. To be continued.

 

Hayek on the Epistemic Benefits of (Class) Diversity; the conditions of Radical Change in Spontaneous (Dis)-Order

Where a real change in the law is required, the new law can properly fulfill the proper function of all law, namely that of guiding expectations, only if it becomes known before it is applied.
The necessity of such radical changes of particular rules may be due to various causes. It may be due simply to the recognition that some past development was based on error or that it produced consequences later recognized as unjust. But the most frequent cause is probably that the development of the law has lain in the hands of members of a particular class whose traditional views made them regard as just what could not meet the more general requirements of justice. There can be no doubt that in such fields as the law on the relations between master and servant,36 landlord and tenant, creditor and debtor, and in modern times between organized business and its customers, the rules have been shaped largely by the views of one of the parties and their particular interests—especially where, as used to be true in the first two of the instances given, it was one of the groups concerned which almost exclusively supplied the judges. This, as we shall see, does not mean that, as has been asserted, ‘justice is an irrational ideal’ and that ‘from the point of rational cognition there are only interests of human beings and hence conflicts of interests’,37 at least when by interests we do not mean only particular aims but long-term chances which different rules offer to the different members of society. It is even less true that, as would follow from those assertions, a recognized bias of some rule in favour of a particular group can be corrected only by biasing it instead in favour of another. But such occasions when it is recognized that some hereto accepted rules are unjust in the light of more general principles of justice may well require the revision not only of single rules but of whole sections of the established system of case law. This is more than can be accomplished by decisions of particular cases in the light of existing precedents.--Hayek (1973)  Law, Legislation and Liberty, 88-89 (emphasis added).

I have a tendency to read Hayek's political theory, especially the parts that treat the rule of law as a spontaneous order, as flirting with a variety of potentially troubling forms of status quo bias. So, it was good to be reminded of the quoted passage above.* Hayek explicitly notes three sources in which an evolved common law can have reached a kind of cul-de-sac such that it requires "radical change" (a term Hayek does not use frequently): (i) an erroneous application of legal principles or a judgment based on errors of fact; (ii) or that some legal principles generate unjust consequences over time; (iii) perversions of judgment -- a failure to be properly impartial -- due to class bias. On the previous page, Hayek also recognizes (iv) that circumstances may change faster than the law does--here he echoes Lippmann's focus on technology generating a spirit of legal adaptation.

And, in fact, (i-ii-iii) are often connected; these can endure a very long time. These facts are clear from Hayek's own footnote 36, where Hayek cites, without qualification, the nineteenth century economist, Jevons (one of the co-inventors of marginalism), as follows,‘The great lesson we learn [from 650 years of legislation of English Parliaments] is that legislation with regard to labour has almost always been class-legislation. It is the effort of some dominant body to keep down a lower class, which had begun to show inconvenient aspirations.’ (from The State in Relation to Labour (London, 1882), p. 33. Not to put too fine point on it, but Hayek explicitly recognizes that in some areas the vaunted rule of law, which has generated reliable expectations, has entrenched class warfare for much of its existence.+ 

Because of Hayek's focus on possible solutions that won't work, and the intriguing thought that a spontaneous order can require "radical change," it is easy to miss, and so especially worth noting that Hayek also explicitly recognizes that it is difficult for judges to become truly impartial when they are surrounded by like-minded with sympathy for their own. (They become effectively what used to be known as a 'faction.') That is to say, I read Hayek as suggesting that class bias isn't noticed as class bias in homogenous population of judges and legislators. That is to say, Hayek recognizes that, at least momentarily, class diversity may be constitutive, epistemically, for the discovery of more general, and more impartial principles of justice.

My own view (see pp. 202-208) is that Adam Smith was inclined to support one of the measures rejected by Hayek: "a recognized bias of some rule in favour of a particular group can be corrected only by biasing it instead in favour of another." But Hayek prefers that in practice impartiality is aimed at. So, how can this be generated on his account?

It seems to me that when it comes to the selection of judges (and legislators) some kind of carefully announced and cautiously implemented temporary affirmative action or extra effort to recruit for especially salient forms of diversity can be derived from Hayek. Obviously this is not required on Hayek's account if society has other means of discovering 'more general principles of justice' and making this discovery felt on the legislative process and case law decisions.

Undoubtedly there are Hayekian arguments against more general use of affirmative action. But if the class of legislators/judges has the character of a faction, that is, it systematically serves the group interests from which judges are appointed, then this can be a useful remedy that does not seem ruled out by Hayek.

I recognize that the previous paragraphs will be met with disbelief. But notice that Hayek recognizes that the existing rule of law is not sacrosanct and can require quite serious remedy, including the abandonment and overturning of well established common law. That is itself very costly. So, from the perspective of preventing such radical, destabilizing change, preventing a homogeneous judiciary may well be welcome.**  

 

 

 

 

 

On Adam Tooze, Ideology and Liberal Historiography

If Jamie Dimon quipped that to make sense of Dodd-Frank one needed the services of a lawyer and a psychiatrist, the same is no doubt true of the business of deciphering Donald Trump. But historians can contribute too.¹⁸ Trump offered to a bewildered present a throwback to an earlier era. Born in 1946, the same year as Bill Clinton, Trump would take office at seventy years of age, recycling a rancid version of the baby boomer narrative, which in the 1990s had still seemed fresh. Trump’s racial attitudes reflected the animosities of the era of civil rights, desegregation and New York in the 1970s. His boorish manners and sexism echoed the Manhattan party scene of the 1980s, when bond traders toasted one another as “big swinging dicks.” The sense of national crisis that drove his campaign was a reflux not so much of the recent past as of the first moment when modern Americans felt the world changing around them—the late 1970s and early 1980s. The trauma of defeat in Vietnam, America’s urban crisis and angry Japan bashing—thirty years on Trump was still harping on those fears, but now transposed onto new enemies: China, Islam and undocumented Latino immigrants.--Adam Tooze (2018) Crashed: How a Decade of Financial Crises Changed the World, 569.

One of the non-trivial sub-texts of Tooze's argument is the complacency of the Democrats and even the whole 'political class' in the face of the rise (and eventual) triumph of Trump. I don't want to claim that Tooze always or even often treats his targets as complacent, but it is a recurring theme in the book.* Now, interestingly, on Tooze's presentation, the complacent uniformly believe not just in technocratic skill, but also that by and large the present system is unavoidable (interestingly this flattens any difference between "the determinism of Thatcher and Merkel,"  and that this system is in some world-historical sense progressive ('progress' is repeated frequently in the book).

Tooze is very critical of the political class. Even so, as Perry Anderson notes (83ff.) in his by now (justly) famous review essay, Tooze also admires the complacents's skill which consist in, in part, in managing, so it seems, the irrationality that democracies naturally generate without undoing the liberal status quo (free trade, markets, glocal integragration, etc.) My interest in mentioning this is not Anderson's who is engaged in a polemic from the Marxist left against Tooze's self-proclaimed left-liberalism (p. 21 Crashed; p. 53 in Anderson).+

In fact, I quote the passage at the top of the post  because it is a place where Tooze alerts the reader to his own intellectual perspective (qua historian). And the way I read him, Tooze treats Trump as a kind of expression of atavistic sentiments and outlooks (e.g., 'throwback;' 'recycling;' 'reflux.' etc.) That is to say, just like the complacents, Tooze embraces, despite his sense of contingency, a notion of progress (in his terms an arc of  history) in which some ideas are modern and modernizing and others are old-fashioned or outright primitive. (Because of his progressive Marxism, Anderson can't really object to Tooze's stance here.)

To be sure, Tooze is doing multiple things in the quoted passage: first he explains, briefly, where Trump's ideas come from given Trump's social milieu and personal trajectory.  Second, he is conveying the sense of bewilderment of an establishment of having to confront these ideas and the manner in which they are performed anew. Third, he himself is judging these ideas/performance ("boorish," etc.) I don't think any of these three features are objectionable, and Tooze is transparent about them.

But, fourth, because Tooze treats these ideas as atavistic, he can't quite explain their nature (or their appeal) qua historian (or engaged citizen). So, while throughout the book, Tooze understands the grounds of popular dissatisfaction would with the status quo (the complacents), we're now left with a mystery why the progressive left could rarely capitalize on this dissatisfaction. For, and again Anderson is good on this, why did not ordinary citizens embrace the progressive Keynesian solutions Tooze advocates at the ballot box?

And, in my view, part of the problem for Tooze -- and this emblematic for much liberal thought in the broad sense -- is that he views the fears and desires Trump represents so well as atavistic to be overcome rather than as permanent possibilities of the human condition.** Now the moment one says this one draws the suspicion one is willing to slide into a normative defense of Trump and author authoritarian tendencies. (I have learned that to cast even minimum doubt on the reality of say, moral progress of humanity, is to invite opprobrium.)

But  the fact that those whose business is not to be bewildered were, as Tooze correctly notes, "bewildered" by Trump's rise (and Brexit, etc.) shows that there is a defect in the self-conception of contemporary liberalism. That's different from suggesting that there is a defect in contemporary liberalism that causes the rise of Trump and other authoritarian tendencies (that may be true, too). Since I care about liberalism's survival I think this is a defect in our self-conception worth addressing. The moment one respects what is taken as atavistic as a permanent possibility, one might govern and campaign (and communicate, and theorize, etc.) in a different fashion. For, even recognizing a possibility as a possibility allows one to better prevent it from happening and not treat it as mystery. It is also a start of a better explanation of why it did happen.

That is to say, I think one of the problems in contemporary liberalism is the unstated assumption that certain forms of progress are permanent and that once achieved no back-sliding is genuinely possible. But an ideology that takes its own victories for granted (in being justified and secure), after the fact, really is an ideology.*** What I admire in liberalism is a willingness to learn from experience and self-correct; it strikes me this is a feature within liberalism we need to change, or, better yet, revert back to the wisdom of Judith Shklar and Karl Popper (here; here; here) and be willing to expect the worst.

 

Popper, Schmitt, and Friend & Foe

It cannot, of course, be denied that human individuals are, like all other things in our world, in very many respects very unequal. Nor can it be doubted that this inequality is of great importance and even in many respects highly desirable.12 (The fear that the development of mass production and collectivization may react upon men by destroying their inequality or individuality is one of the nightmares13 of our times.) But all this simply has no bearing upon the question whether or not we should decide to treat men, especially in political issues, as equals, or as much like equals as is possible; that is to say, as possessing equal rights, and equal claims to equal treatment; and it has no bearing upon the question whether we ought to construct political institutions accordingly. ‘Equality before the law’ is not a fact but a political demand based upon a moral decision; and it is quite independent of the theory—which is probably false—that ‘all men are born equal’. Now I do not intend to say that the adoption of this humanitarian attitude of impartiality is a direct consequence of a decision in favour of rationalism. But a tendency towards impartiality is closely related to rationalism, and can hardly be excluded from the rationalist creed. Again, I do not intend to say that an irrationalist could not consistently adopt an equalitarian or impartial attitude; and even if he could not do so consistently, he is not bound to be consistent. But I do wish to stress the fact that the irrationalist attitude can hardly avoid becoming entangled with the attitude that is opposed to equalitarianism. This fact is connected with its emphasis upon emotions and passions; for we cannot feel the same emotions towards everybody. Emotionally, we all divide men into those who are near to us, and those who are far from us. The division of mankind into friend and foe is a most obvious emotional division; and this division is even recognized in the Christian commandment, ‘Love thy enemies!’ Even the best Christian who really lives up to this commandment (there are not many, as is shown by the attitude of the average good Christian towards ‘materialists’ and ‘atheists’), even he cannot feel equal love for all men. We cannot really love ‘in the abstract’; we can love only those whom we know. Thus the appeal even to our best emotions, love and compassion, can only tend to divide mankind into different categories. And this will be more true if the appeal is made to lesser emotions and passions. Our ‘natural’ reaction will be to divide mankind into friend and foe; into those who belong to our tribe, to our emotional community, and those who stand outside it; into believers and unbelievers; into compatriots and aliens; into class comrades and class enemies; and into leaders and led.---Karl Popper The Open Society and its Enemies (one volume edition), 439-440 (emphasis in original)

Yesterday Jerry Gaus (1952-2020), who was the greatest theorist of the open society in our life-time, died. This post is an imperfect homage to his memory. 

Nearly every word in the passage quoted above is a response to Schmitt's Concept of the Political (perhaps mediated by Strauss' commentary). This is easy to miss because in a rare moment of self-command, Popper does not name the target nor attaches a lengthy discursive footnote.* My present interest is to discuss the significance of this, rather than to offer complete proof of the claims in the first sentence of the present paragraph. The quoted passage occurs in chapter 24 of The Open Society. And it helps clarify Popper's decision to call the critics and alternatives to liberalism/Open Society -- which he describes and criticizes with a mixture of polemics and admiration -- 'enemies.' 

In the Concept of the Political, Schmitt claims (recall) that "there is a specific political distinction to which political actions and motives can be reduced is that between friend and enemy.'" In German it is 'feind' which can be translated as 'enemy' and as 'foe.' There is some debate among readers of Schmitt, no doubt encouraged by writings by Schmitt after the war, that there is an important distinction between enemy and foe in Schmitt. But such a distinction is unavailable to Popper in 1943. 

In the quoted passage, Popper twice echoes Schmitt's distinction between friend and foe, and he treats the genesis of the distinction in our emotions ("the division of mankind into friend and foe is a most obvious emotional division.")  That he has Schmitt in mind is clear from the second use of 'friend and foe' which marks those recognized to "belong to our tribe" (compatriots) and not to those outside of it, or as Schmitt would put it, "the other, the stranger."

For Popper the embraces of the Schmittian distinction facilitates the emotional rejection of what Popper calls equalitarianism. Because from the vantage point of our emotions, our differences are highly salient. As Schmitt puts it, "emotionally the enemy is easily treated as being evil and ugly," (emphasis added).

That Popper is shadowing even trolling Schmitt is obvious from his next move -- which one can only describe as chutzpah -- in which he points out that the distinction is recognized by the Christian commandment. Schmitt by contrast had insisted that the Christian love in the commandment is not reserved for the "political enemy."+ 

It is important for Schmitt to make his distinction compatible with Christianity because for Schmitt his rejection of liberal universalism, ultimately rests on his submission to a providential (Christian) faith opposed to the liberal's "anthropological profession of faith."** Strikingly, and as a good Kantian, Popper grants Schmitt the claim that at bottom the choice, for or against liberalism, rests on a species of faith (this is crucial to Strauss' interpretation of Schmitt and Strauss subsequent  historiography).

As Popper puts it, "the choice with which we are confronted is between a faith in reason and in human individuals and a faith in the mystical faculties of man by which he is united to a collective." (450) The second option is the Schmittian outlook. The former option, the "right kind of faith" is Popper's liberalism, which "frankly admits its origin in an irrational decision." (437; emphasis added.) That Popper thinks that there is a faith in individuals as an alternative to a faith in the collective begs the question against Schmitt's insistence that always, a "collectivity of people confronts a similar collectivity," (which begs the question, too). 

I do not mean to claim that for Popper, the choice between himself and Schmittian is reducible to such an existential Kierkegaardian leap (while rejecting any belief in providence). He also thinks the consequence of the Schmittian choice is that it "must lead to an appeal to violence and brutal force as the ultimate arbiter in any dispute." (440)*** That is to say, Popper claims (and here he echoes Strauss again) that Schmitt returns us to a kind of state of nature not worth having. 

Now, the significance of all of this is that it allows us to raise the question how the open society should treat its enemies? In fact, I already noted that Popper thinks a kind of defensive violence, even tyrannicide, is permitted (recall), even obliged, in order and only in order to restore democracy. But the more challenging question is, how should the open society treat its enemies before they have succeeded in overthrowing it? And part of Popper's answer is: make sure you can (conceptually) recognize that there are enemies. What follows from this recognition I explore before long. 

Popper on the Collapse of Social Democracy and the Rise of Fascism

Modern totalitarianism is only an episode within the perennial revolt against freedom and reason. From older episodes it is distinguished not so much by its ideology, as by the fact that its leaders succeeded in realizing one of the boldest dreams of their predecessors; they made the revolt against freedom a popular movement. (Its popularity, of course, must not be overrated; the intelligentsia are only a part of the people.) It was made possible only by the breakdown, in the countries concerned, of another popular movement, Social Democracy or the democratic version of Marxism, which in the minds of the working people stood for the ideas of freedom and equality. When it became obvious that it was not just by chance that this movement had failed in 1914 to make a determined stand against war; when it became clear that it was helpless to cope with the problems of peace, most of all with unemployment and economic depression; and when, at last, this movement defended itself only half-heartedly against fascist aggression, then the belief in the value of freedom and in the possibility of equality was seriously threatened, and the perennial revolt against freedom could by hook or by crook acquire a more or less popular backing.--Karl Popper The Open Society and Its Enemies (one volume edition, p. 272).*

The quoted passage is really an aside in Popper's argument in chapter 12. He discusses the complex relationship among the rivalry between communists and social democrats, their differing attitudes toward Marxist prophecy and tactics, and the rise of fascism much more at length later in ch 18 and especially ch. 19. Popper confronts here the sordid fact so discomfiting to all true democrats: that despite their lack of democratic commitments fascists and would-be-fascists can gain widespread support (even if that falls short of a majority). And while such widespread support should probably not be reduced to a single cause, or exaggerated at all times, Popper calls attention to a feature that has had enduring significance: the collapse of social democracy is somehow an enabling condition, perhaps cause for the rise of fascism.

As an aside, something like this idea has been researched in political science going back to seminal work by Seymour Martin Lipset, who, in a 1959 article (in which Popper goes unmentioned) focused on authoritarian tendencies in the working class, found that "It is probable that organized social-democracy not only supports civil liberties but influences its supporters in the same direction." My direct colleagues --see this paper by Eelco Harteveld; and this paper by Brian Burgoon, Sam van Noort, Matthijs Rooduijn, and Geoffrey Underhill-- do fascinating empirical work trying to tease out the conditions under which authoritarian parties attract voters.

Popper's idea is the rise of fascism and faith in its program is, in part, a rational consequence of the loss of faith in social democracy and its program. Unlike most liberals, Popper treats social democracy as committed to genuinely liberal values (freedom and equality). That is compatible with the thought that there is no agreement between social democrats and liberals on how how freedom and equality are conceptualized or best realized.

The significance of Popper's observation is that the success of social democracy stabilized liberal democracy; its failure necessarily undermines it. So lurking in Popper is an empirical hypothesis that certain voters, a part of the population, is won for liberal democracy by social democratic parties. My (contestable) interpretation of the empirical literature is that Popper's hypothesis is not far off the mark.* In my view this sets Popper apart of most other neoliberals (with the exception, perhaps, of Lippmann and Peter Drucker) of his generation.+

Popper points to three distinct failures of social democracy that account for its popular collapse: its inability to combat the slide into world war (even embrace it), its inability to tackle the great depression, and in its unwillingness to fight fascism decisively. The third of  these is the subject of the later chapters where Popper traces the role of the effect of Marxist ideology about historical necessity on a kind of social democratic fatalism. Popper is, perhaps, too hasty in treating social democratic failure in each of these case as wholly in the hands of social democracy. But the cumulative effect is an ineffectual movement on the big questions of the day despite many relatively smaller but not insignificant emancipatory successes. (One may well suspect that the smaller successes on labor legislation, union legalization, child protection raised expectations that were frustrated in these larger defeats.) 

One may feel this all sounds too rational; that voters evaluate movements in terms of results. But one should emphasize that Popper treats the defeat of social democracy in the eyes of its supporters as an undermining of the values -- freedom and equality -- that social democracy pursues. That is, the perceived defeat of the movement undermines its fundamental commitments. And this is why in its defeat liberal democracy is threatened. Even if we don't find Popper's analysis fully convincing, the problem he points to seems threateningly real enough.

 

Popper on the Right and Duty of Violent Resistance

[1] I am not in all cases and under all circumstances against a violent revolution. I believe with some medieval and Renaissance Christian thinkers who taught the admissibility of tyrannicide that there may indeed, under a tyranny, be no other possibility, and that a violent revolution may be justified. But I also believe that any such revolution should have as its only aim the establishment of a democracy; and by a democracy I do not mean something as vague as ‘the rule of the people’ or ‘the rule of the majority’, but a set of institutions (among them especially general elections, i.e. the right of the people to dismiss their government) which permit public control of the rulers and their dismissal by the ruled, and which make it possible for the ruled to obtain reforms without using violence, even against the will of the rulers. In other words, the use of violence is justified only under a tyranny which makes reforms without violence impossible, and it should have only one aim, that is, to bring about a state of affairs which makes reforms without violence possible.
[2] I do not believe that we should ever attempt to achieve more than that by violent means. For I believe that such an attempt would involve the risk of destroying all prospects of reasonable reform. The prolonged use of violence may lead in the end to the loss of freedom, since it is liable to bring about not a dispassionate rule of reason, but the rule of the strong man. A violent revolution which tries to attempt more than the destruction of tyranny is at least as likely to bring about another tyranny as it is likely to achieve its real aims.
[3] There is only one further use of violence in political quarrels which I should consider justified. I mean the resistance, once democracy has been attained, to any attack (whether from within or without the state) against the democratic constitution and the use of democratic methods. Any such attack, especially if it comes from the government in power, or if it is tolerated by it, should be resisted by all loyal citizens, even to the use of violence. In fact, the working of democracy rests largely upon the understanding that a government which attempts to misuse its powers and to establish itself as a tyranny (or which tolerates the establishment of a tyranny by anybody else) outlaws itself, and that the citizens have not only a right but also a duty to consider the action of such a government as a crime, and its members as a dangerous gang of criminals. But I hold that such violent resistance to attempts to overthrow democracy should be unambiguously defensive. No shadow of doubt must be left that the only aim of the resistance is to save democracy. A threat of making use of the situation for the establishment of a counter-tyranny is just as criminal as the original attempt to introduce a tyranny; the use of such a threat, even if made with the candid intention of saving democracy by deterring its enemies, would therefore be a very bad method of defending democracy; indeed, such a threat would confuse the ranks of its defenders in an hour of peril, and would therefore be likely to help the enemy.--Karl Popper (1945 [1994] The Open Society and Its Enemies, 360-361 [emphases and paragraph numbers added to facilitate discussion.]

The quoted passage is, in context, an aside on Popper's analysis of the political drawbacks of Marxist prophecy of violent revolution. In order to understand his remarks we need to be reminded that for Popper it is constitutive of democracy that "it permits reform without violence" (369; there is more to Popper's idea of democracy.)  One of the bad-making, constitutive features of tyranny is that "it makes reforms without violence impossible." Popper does not define violence, but let's stipulate it's clear he means something like the use of physical force, maiming, torture, killing, murder, etc. More problematically, Popper does not define any of the legitimate limits on reform or a sense of proportionality about the conditions that count as 'tyrannical.'*

As we see in paragraphs [1]&[3],Popper does not rule out political violence categorically. In the first paragraph Popper embraces the idea of legitimacy of tyrannicide. Strikingly, he does not refer to republican writings (Cicero, Seneca, etc.) or to Locke, but to folk we now might associate with the Monarchomachs, perhaps even Aquinas. Tyrannicide is justified only if (a) the rule is tyrannical (and so relies on force); (b) "reforms without violence impossible," and  it aims for a democratic polity, that is, one "which makes reforms without violence possible." 

In fact, Popper has an expansive understanding of tyranny. He does not limit it to the rule of one or a small group. He thinks democratic majorities can be tyrannical (368). If a minority risks being a permanent minority and as a consequence has to bear disproportionate burdens (Popper offers an example of unfair tax burdens), Popper views the majority as tyrannical. In such circumstances, the minority would be justified to use violence.  

Popper is clear [2] that he views legitimate (even if illegal) political assassination as an exception. Because once assassination becomes an instrument of policy he thinks it is foreseeable that it leads to new (generally somewhat fascist) tyranny. Popper's argument here is a mixture of empirical prediction and consequentialism. But in larger context, he is relying on a plausible analysis of the tactics of social democrats, marxists, reactionaries and fascists.

The most striking paragraph here is the third one.** Here Popper confronts the possibility of a democratically elected government, or its extra-governmental allies, undermining the democratic character of the state. Popper is, of course, not responding to a hypothetical case. He personally experienced this in Austria, and the phenomenon is, alas, not a limited one. 

Popper is explicit that only a kind of defensive violence is permitted, in order and only in order to restore democracy. In fact, Popper isn't just claiming it is permitted, he thinks it is obliged ("duty")!  Even if the letter of the law rules against such assassination, one follows then a higher political law. From the perspective of one's democratic conscience, the state and its functionaries ought to be viewed as outlawed. To be clear, Popper does not view this as a general right to resist unjust government. It's a special duty limited to the abolition of tyrants and would be tyrants. 

But one may well think he is vague about under what conditions violent resistance against a democratically elected state becomes legitimate. This is especially so in circumstances where the state pretends to abide by democratic rules and pretends to be outraged at and wishes to punish (some, but not all) use of political violence or election fraud.

So, given Popper's general aversion to political violence, one might think that for Popper one should err here on the side of caution and not view, say, unsavory political opponents as would be tyrants. Yet, Popper also warns against "attempts to overthrow democracy" by governments.  Popper's special right and duty to resist the undermining of democracy is, thus, expansive. Once governments take action to prevent or insulate themselves from being removed they are, on his view, already de facto outlaw and one is qua citizen obliged to take action. While there is no procedure to settle the matter beyond a doubt, on Popper's view, they have it coming.  

There is a recurring temptation to treat and dismiss Popper's Open Society as a book of the cold war.  But for all its evident limitations, the problems it tackles have not gone away.

 

Popper, Foucault, The Art of Leadership, the Liberalism of Fear, and the Birth of Biopolitics

[I] f we approach political theory from a different angle, then we find that far from solving any fundamental problems, we have merely skipped over them, by assuming that the question ‘Who should rule?’ is fundamental. For even those who share this assumption of Plato’s admit that political rulers are not always sufficiently ‘good’ or ‘wise’ (we need not worry about the precise meaning of these terms), and that it is not at all easy to get a government on whose goodness and wisdom one can implicitly rely. If that is granted, then we must ask whether political thought should not face from the beginning the possibility of bad government; whether we should not prepare for the worst leaders, and hope for the best. But this leads to a new approach to the problem of politics, for it forces us to replace the question: Who should rule? by the new 2 question: How can we so organize political institutions that bad or incompetent rulers can be prevented from doing too much damage?--Popper, The Open Society and Its Enemies, chapter 7, p. 115 (emphasis in original)

One of the oddities of Foucault's Birth of Biopolitics, is the near-total absence of Popper. It's odd for three reasons: first, Popper's Open Society is explicitly framed as a response to Lippmann's The Good Society. Since Foucault takes the (1938 Paris) Colloquium on the book as a foundational moment for neo-liberalism, the Open Society is part of the larger sweep of events Foucault is interrogating. Second, it is quite clear that for Popper Plato treats medicine as a political art in order to shape and enhance the population (p. 131ff, chapter 8); so lodged in the Open Society is itself a series of critical reflections on biopolitics and its history. Third, as the passage above reveals, Popper explicitly discusses, in a sense, the art of government, which as we have seen is one of the main themes of the The Birth of Biopolitics.

If we go to the (rather long) footnote attached on the new question, we read the following (in part):

Similar ideas have been expressed by J. S. Mill; thus he writes in his Logic (1st edn, p. 557 f.): ‘Although the actions of rulers are by no means wholly determined by their selfish interests, it is as security against those selfish interests that constitutional checks are required.’ Similarly he writes in The Subjection of Women (p. 251 of the Everyman edition; italics mine): ‘Who doubts that there may be great goodness, and great happiness and great affection, under the absolute government of a good man? Meanwhile laws and institutions require to be adapted, not to good men, but to bad.’ Much as I agree with the sentence in italics, I feel that the admission contained in the first part of the sentence is not really called for. (Cp. especially note 25 (3) to this chapter.) A similar admission may be found in an excellent passage of his Representative Government (1861; see especially p. 49) where Mill combats the Platonic ideal of the philosopher king because, especially if his rule should be a benevolent one , it will involve the ‘abdication’ of the ordinary citizen’s will, and ability, to judge a policy.--Open Society, 579-580

I was pleased to see Popper pick up (recall here; and here) on Mill's argument in Representative Government, but surprised he calls it 'new.' For, it seems to me central (recall) to Hume's (and Montesquieu's) argument against (what Quentin Skinner calls) neoroman liberty and the physiocratic tendency toward benevolent despotism. And while I think in Mill's and Hume's hands the intentions is to further a liberal political life, the underlying ideas can be traced back to Livy and Polybius (and, perhaps, the Hebrew Bible (as Mill suggests).

It strikes me there are two insights coupled in this art of government of (to nod ahead (recall) to Shklar [and here; here]) the liberalism of fear. First, this is emphasized by Hume, to ensure there are sufficient countervailing forces against the executive such that the executive can never hope to dominate society, while remaining effective enough to do her job (defend against foreign enemies and govern the state bureaucracy, faithfully execute the laws). It  is insufficiently appreciated how important this element is. From this perspective, the American fondness -- despite regurgitating at nauseam separation of powers in civics classes --  for an imperial presidency simply feeds the potential of tyranny. The whole tenor of twentieth century practice has been, in this sense, generating the conditions for the success of the eventual rise of illiberal governance.

Second, how to organize institutions such that the downside risk of incompetent, self-interested, or malicious rulers is minimized. It is one of the more amazing, even perverse features of twentieth century intellectual life that the very idea of an open society has become synonymous with risk taking entrepreneurship. Underneath it is an enormous aversion to certain forms of political risk, the possibility of awful government.

What is new, and I think this is, in fact, Popper's seminal contribution (although there are plenty of Schumpeterian premonitions), is to argue that this second point not just from risk aversion, but to argue it also from an analysis of why all the mechanisms designed to prevent bad leadership from arising, for the purposes of a society capable of adapting to changing needs,* are incapable of being sufficiently failure proof. It is this part of the Open Society that is capable of irritating the instructors of mankind and the peddlers of technologies of management. Because he points out that their whole program of meritocratic leadership education is self-contradictory; it leads to mediocrity and is incapable of generating "the spirit of criticism... intellectual independence" (127; this connects up to the heart of Popper's philosophy of science). 

It is an open question how successful Popper's particular argument is against political programs of leadership selection that are illiberal but not meritocratic. But I return to that some other time. Let me wrap up with three observations. First, the two elements of the art of government of the liberalism of fear are not its whole art (see here for a lot more). As Foucault recognizes when he is discussing the ORDOs, one of  their key political arguments of embracing market based competition as a permanent process is to help prevent the rise of overbearing powers. So, here markets are designed to secure the existence of such countervailing powers. (There is a thought like this in Milton Friedman, too.) Obviously, this gives rise to new challenges of preventing monopoly and rent-seeking behavior which may require an executive that opens the door toward more malice (and so the cycle continues). 

Second, within neoliberalism there is an internal dynamic (which is the theme of Foucault's Birth of Biopolitics) such that a focus on the market and the technologies of generating the right sort of agents (with human capital, entrepreneurial, productive etc.) in it start to predominate over other streams of thought that focus on how to develop such adaptive institutions that simultaneously give us the fruits of decent enough government and do not open the door to the generation of tyranny. Once the market is viewed as the antonym of the state in neoliberal thought, this disastrous forgetting of Popper's key insight seems almost inevitable.

Third, and in some sense entirely unrelated, and in another sense absolutely central, Popper concludes his argument on this point with what he calls a "result of some importance:"

Institutions for the selection of the outstanding can hardly be devised. Institutional selection may work quite well for such purposes as Plato had in mind, namely for arresting change. But it will never work well if we demand more than that, for it will always tend to eliminate initiative and originality, and, more generally, qualities which are unusual and unexpected. This is not a criticism of political institutionalism. It only reaffirms what has been said before, that we should always prepare for the worst leaders, although we should try, of course, to get the best. But it is a criticism of the tendency to burden institutions, especially educational institutions, with the impossible task of selecting the best. This should never be made their task. This tendency transforms our educational system into a race-course, and turns a course of studies into a hurdle-race. Instead of encouraging the student to devote himself to his studies for the sake of studying, instead of encouraging in him a real love for his subject and for inquiry, he is encouraged to study for the sake of his personal career; he is led to acquire only such knowledge as is serviceable in getting him over the hurdles which he must clear for the sake of his advancement. In other words, even in the field of science, our methods of selection are based upon an appeal to personal ambition of a somewhat crude form. (It is a natural reaction to this appeal if the eager student is looked upon with suspicion by his colleagues.) The impossible demand for an institutional selection of intellectual leaders endangers the very life not only of science, but of intelligence. Open Society, 128

For those who followed my recent exchange with Zena Hitz (see here for her fascinating twitter response), it will not surprised that I point out that Hitz's concerns are themselves not new. Even if we wince, perhaps, at Popper's gendered way of expressing the point that the very institutions of education are corrupted by worldly advancement (and Popper argues this goes back to Plato). 

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.