Digressions&Impressions

Rawlsian Minutiae, Mill, and Free Speech

First of all, it is important to recognize that the basic liberties must be assessed as a whole, as one system. That is, the worth of one liberty normally depends upon the specification of the other liberties, and this must be taken into account in framing a constitution and in legislation generally. While it is by and large true that a greater liberty is preferable, this holds primarily for the system of liberty as a whole, and not for each particular liberty. Clearly when the liberties are left unrestricted they collide with one another. To illustrate by an obvious example, certain rules of order are necessary for intelligent and profitable discussion. Without the acceptance of reasonable procedures of inquiry and debate, freedom of speech loses its value. It is essential in this case to distinguish between rules of order and rules restricting the content of speech. While rules of order limit our freedom, since we cannot speak whenever we please, they are required to gain the benefits of this liberty. Thus the delegates to a constitutional convention, or the members of the legislature, must decide how the various liberties are to be specified so as to yield the best total system of equal liberty. They have to balance one liberty against another. --John Rawls A Theory of Justice, p. 203. {Emphasis added--ES}

At one point, in his marvelous (1989) Hayek and Modern Liberalism, Chandran Kukathas quotes from Rawls' A Theory of Justice in order to illuminate the point that "conflicts among different pursuers of values are best regulated according to principles which respect (the right to) liberty." (p. 147) Kukathas quotes the part I have highlighted and italicized. I want to call this part Rawls' "ordered conception of free speech" stance. (One might also call it 'the rule governed conception of free speech' or the 'transcendental conception of free speech' etc.) And its that highlighted and italicized material that triggered this post.

While Rawls goes on to discuss Mill's On Liberty in the next sections (on freedom of conscience), he does not comment on the fact that the ordered conception of free speech is at variance with the more tumultuous conception of free speech that is usually ascribed to On Liberty. I put it like that because I don't want to perpetuate the error that Mill holds 'a free market in ideas that will lead to truth view' although the marketplace of ideas view is even more frequently (and, as Jill Gordon persuasively argues, mistakenly) attributed to Mill (recall this post); recall also see, for example, here; here,  and here.) 

One reason to call it Rawls' account an 'ordered conception' of speech is that the value he ascribes to it is articulated in functional terms. One might say that for Rawls the intelligibility of freedom of speech presupposes that it has a certain function namely to produce 'intelligent and profitable' speech (which he may have inherited from Knight--see the second picture). Leaving aside the elitist commitments on display here (and, if one wishes, the generosity toward profit if we read him over-literally), lots of emotionally significant expressive speech clearly is not like that even if it falls short of the vituperative speech that Mill worries about.  In fact, this contrast between expression and discussion is explicit  on p. 346 in Frank Knight's treatment of some such contrast, and is one of the heavily annotated passages in Rawls' copy of The Ethics of Competition.*

The following is from p. 352 in Knight:

Now, before I continue, I do not want to claim that Rawls thinks governments have very broad scope to regulate speech to make it 'intelligent and profitable' or to promote the ordered conception. He may well also believe that this would be imprudent or, that the enforcement of speech restrictions, would generate concerns about violations of other liberties (privacy, assembly, freedom of conscience, etc.). And he may also think that when the government regulates speech it really is interested in content and not order (and so cannot be trusted to get this right). In fact, in A Theory of Justice Rawls is by and large not that interested in freedom of speech. But one can see why the functional significance of the ordered conception lends itself well to the rather extensive speech restrictions (in selling financial instruments, in selling pharmaceuticals, in selling tobacco, etc. ) which are quite common in the contemporary administrative state (and often ignored in recent public debates over woke and freedom of speech).

As an aside, I don't mean to satirize the ordered conception of speech. It clearly has debts to Knight's and Buchanan's diverging conceptualizations of liberalism as involving "democracy as government by discussion" that was, as I have suggested above, have been familiar to Rawls. (I also think one can extract the ordered conception from Mill's writings on representation.) I am myself not immune to the pull of the ordered conception of speech in some contexts. For example, it informs my own views on academic freedom which fundamentally involves ordered speech of different kinds (in journals, the seminar room, etc.) I also tend to suspect (echoing Iris Marion Young) that advocates of deliberative democracy and (closer to Rawls' own heart) public reason tend to be (dangerously) enthralled by the ordered conception of speech.

Be that as it may, if one works with the revised (1990) edition of A Theory of Justice, the ordered conception is less pronounced. In fact, the passage is re-written in non trivial ways. Among the most significant changes, the revised version of the passage removes 'intelligent and profitable" and the distinction between rules of order and rules on content altogether:

First of all, one must keep in mind that the basic liberties are to be assessed as a whole, as one system. The worth of one such liberty normally depends upon the specification of the other liberties. Second, I assume that under reasonably favorable conditions there is always a way of defining these liberties so that the most central applications of each can be simultaneously secured and the most fundamental interests protected. Or at least that this is possible provided the two principles and their associated priorities are consistently adhered to. Finally, given such a specification of the basic liberties, it is assumed to be clear for the most part whether an institution or law actually restricts a basic liberty or merely regulates it. For example, certain rules of order are necessary for regulating discussion; without the acceptance of reasonable procedures of inquiry and debate, freedom of speech loses its value. On the other hand, a prohibition against holding or arguing for certain religious, moral, or political views is a restriction of liberty and must be judged accordingly. Thus as delegates in a constitutional convention, or as members of a legislature, the parties must decide how the various liberties are to be specified so as to give the best total system of liberty. They must note the distinction between regulation and restriction, but at many points they will have to balance one basic liberty against another; for example, freedom of speech against the right to a fair trial. The best arrangement of the several liberties depends upon the totality of limitations to which they are subject.--John Rawls A Theory of Justice, Revised edition, p. 178. {emphasis added--ES}

I suspect part of the change of wording is due to that it is easy to abuse a purported restriction on order as a restriction on content. For, while officially dropping the distinction, the revised version leans into denying the government any significant content restrictions, by adding the point that "a prohibition against holding or arguing for certain religious, moral, or political views is a restriction of liberty." But as the highlighted part suggests, even so, the crucial element of the ordered conception of speech does remain in the revised version.

Let me close with a sociological observation. Despite the fact that advocates of public reason and deliberative democracy, which lean heavily on conceptions of ordered speech, have thriving research programs (and the former is very indebted to Rawls), it is safe to say that Rawls' conception of freedom of speech has not been as influential as other parts of his project. I have three kinds of evidence for this claim: first, in Katrina Forrester's In the Shadow of Justice, freedom of speech barely figures. (Of course, civil disobedience does!) Second, the emphasized and italicized parts of the passages are quoted very rarely in the secondary literature (although I found it in a few dissertations especially). Third, it is my perception that in scholarly and more public intellectual discussions of free speech, Rawls' shadow has not, displaced Mill. Obviously my perception counts for nothing, but I would be amazed if data crunchers could show otherwise.

*PS After reading an earlier draft of the post, David M. Levy was kind enough to share some marking up of Rawls' personal copy of Knight's The Ethics of Competition (which has Knight's earliest use of 'government by discussion' as I learned from the paper by Ross Emmett linked above). The fact that Knight treats the rules of discussion as game is important evidence for Forrester's argument on the early Rawls' interest in what is now known as neoliberalism. For some other salient to the present post's passages see these pix:

 

From p. 343:

 

Sydney Hook's Creed of Liberal Democracy

Our conception of a democracy without event-making figures runs counter to a plausible but fundamentally mistaken critique of democracy developed by a notable school of Italian theorists Mosca, Pareto, and Michels. These men in different ways seek to establish the impossibility of democracy. Their chief argument is that all political rule involves organization and that all organization, no matter how democratic its mythology, sooner or later comes under the effective control of a minority élite. The history of societies, despite the succession of different political forms, is in substance nothing but the succession of different political élites. Democracy is a political form that conceals both the conflicts of interest between the governing élite and the governed and the fact that these conflicts are always undemocratically resolved in favour of the former. To the extent that these élites make history, their outstanding leaders are heroes or event-making figures even in a democracy.

The whole force of this argument rests upon a failure to understand the nature of ideals, including political ideals. In addition, the critique overlooks the fact that the problems of political power are always specific and that they allow choices between courses of conduct that strengthen or weaken, extend or diminish particular political ideals. Finally, it underestimates the tremendous differences between societies, all of which fall short in varying degrees of the defined ideal of democracy, and the crucial importance of institutions in the never-ending process of realizing ideals.

In virtue of the nature of things and men, no ideal can be perfectly embodied. There is no such thing as absolute health, absolute wisdom, absolute democracy, an absolutely honest man—or an absolutely fat one. Yet when we employ these ideals intelligently we can order a series of flesh and blood men in such a way as to distinguish between them in respect to their being healthier, wiser, or fatter. And so with states. There is no absolutely democratic state, but we can tell when states are more democratic or less democratic. Ideals, in short, are functional. They are principles of organization and re-organization but cannot be identified with any particular organization as it exists at any place and time.

If we define a democratic society as one in which the government rests upon the freely given consent of the governed, it is obvious that no society is a perfect democracy, even one in which the members are so few that they can all meet in one place without delegating power to representatives! For we never can be sure that consent is freely given, that is, not in bondage to ignorance, rhetoric, or passion. Further, the division of labour requires that decisions be carried out by individuals and not by the assembly. There can be no guarantee that these decisions as well as the discretionary powers they entail will be carried out in the same spirit as that in which they were authorized.

What follows? That democracy is impossible? No more so than that a man cannot be healthy because he cannot enjoy perfect health. The defects when recognized become problems to be remedied by actions, institutions, checks, and restraints that are themselves informed by the principle or ideal of democracy. The remedies are of course imperfect, fallible, and unguaranteed. But we do not therefore reject them. We continue to improve them—if we are democrats. And we test by the fruits of the process the validity of the unrealizable democratic principle that serves as our functional guide.

Mosca, Pareto, and Michels make much of the fact that when power is delegated in a democracy and when political organizations arise, as they must in a society sufficiently complex, the decisions of the government may reflect the interests of the governors more than the interests of the governed. This is indisputably true.

What follows? Not that democracy is impossible but that it is difficult. It is more difficult under certain social and historical conditions than under others. But as long as we hold to democratic principles, again the remedies consist in thinking up of specific mechanisms, devices, and checks which (1) increase the participation of the governed in the processes of government, (2) decrease the concentrations of powers—educational, religious, economic, political—in the hands of the governors, and (3) provide for the renewal or withdrawal of the mandates of power by the governed. Again, the remedies may be defective. But if we believe that those whose interests are affected by the policies of government should have a voice in determining those policies, either directly, or indirectly by controlling the makers of policy, the direction which the never-ending task of democratizing process must take is clear. Whether it does take that direction depends greatly upon us.

That there will always be a governing élite to administer government is true...The governing élite will always have more power for good or evil than the medical élite. But it need not be more permanent or even as permanent as the medical élite. So long as the governing élite operates within a framework of a democracy, we have a choice between élites. Where élites must contend with out-élites, the victor must pay a price to the governed for victory. How high the price is depends in part at least on how much the governed ask.

The great limitation of the thought of Mosca, Pareto, and Michels is their failure to appreciate the differential advantages of the specific institutions available in a democracy that enable us both to select élites and to curb them. They overlook the concrete ways in which the governed through pressure groups, strikes, public debates, committee hearings, radio discussion, telegrams to newspapers and their representatives, petitions, mass meetings, primaries, and elections actually contribute to moulding the basic policies and decisions of the government in a democracy.

...

The amount and quality of freedom and democracy in a society are determined by many things—economic organization, education, tradition, religion, to name only a few. But they depend just as much upon our willingness, to fight for them as upon any other thing.

Democracy is difficult, and it is made more difficult because many who call themselves democrats are totalitarians in disguise. The moral is not to call off the struggle but to struggle all the more.--Sydney Hook (1943) The Hero in History (chapter 11; emphases in original).

In the 1930s, Hook and James Burnham had collaborated in organizing the American Workers party and in various Trotsky-ite circles. But in the quoted passage, Burnham's The Managerial Revolution (recall here) and The Machiavellians are Hook's clear (albeit unnamed) target. Burnham helped co-found the revival of American conservatism. Hook's journey was more complex in part because he never quite severed his ties with pragmatism.

From the vantage point of the development of professional philosophy and the partial merger of pragmatism and analyic philosophy, Hook's writings are important because they help us understand the character of naturalism and the criticism of dialectical materialism (recall) that became standard within analytic philosophy (in part through the efforts of Ernest Nagel) as well as point us toward the character of political philosophy in the Pre-Rawlsian era in which it is often said, falsely, that political philosophy did not exist.

Despite its archaic and somewhat misleading title, as Hook notes "The Limits of the Hero in History" would be just as apt, The Hero in History is a fun mixture of the philosophy of social science/history, social theory, and political philosophy. In fact, one finds in it all kinds of moves one tends to associate with others. For example, I had to think of Popper while reading Hook's criticism of Spencer and Hegel that their positions are "irrefutable because it does not risk anything by venturing specific predictions. It represents the triumph of metaphysics over empirical method in the study of history." (chapter 4.) There are more resonances with Popper not the least in that Hook also denies that one must tolerate those that wish to overthrow democracy through armed means (chapter XI).

The key distinction in the book is the hero as the eventful man and the hero as event-making man (chapter IX). Despite the gendered language, Hook allows women as heroes. In fact, Catherine II is the exemplar of an eventful person (and, in chapter X, Lenin the exemplar of an event-making man). And Hook's main point is, as is clear from the quoted passage at the top of this post, that in democracies one should be quite resistant to (would-be) event-making heroes in politics.

There are in fact at least three reasons for this democratic suspicion of the event-making political persona: first, the politician who thinks of himself as event-making often is very naive and has a impoverished view of social causation. In chapter 9, Neville Chamberlin at Munich is held up as the kind of dangerous innocent who completely misunderstands his own role in social affairs. It's a devestating portrait.

Second, and unsurprising, is the demagogue, who uses "the very instruments of democracy to debase its quality." This is about as good a definition of a demagogue I have encountered, except that I am inclined to think that a demagogue also expresses the permanent risk of such debasement. In addition, the demagogue acquires "a contempt for the group he leads by virtue of the methods by which he corrupts them."

Third, in a proper functioning democracy, what counts as a hero, should be go against the invidious distinction between leader and masses and should glory, what (recall here; and here) Francis Hutcheson calls, "Heroism, in all stations." In fact, Hook goes beyond this by claiming that a statesman exercises leadership merely by 'proposing' policy. But that its acceptance is in the hands of individuals and their representatives. And they will do so if they are properly educated or enlightened. From this Hook infers that

A successful democracy, therefore, may honour its statesmen; but it must honour its teachers more—whether they be prophets, scientists, poets, jurists, or philosophers. The true hero of democracy, then, should be not the soldier, or the political leader, great as their services may be, but the teacher—the Jeffersons, Holmeses, Deweys, Whitmans, and all others who have given the people vision, method, and knowledge. (Chapter XI)

This quoted claim suggests a kind of intellectual elitist counter position (remniscent of Lippmann) to the elitist school of Pareto, Mosca, and Burnham. But as the passage quoted at the top of this post suggests (and as reflects Hook's pragmatist and organizing background), democratic education can also be moulded from the bottom up, including through all kinds of pressure groups and political activism/organization (which are themselves schools of political education). And the multiplicity of ways in which such moulding takes place is the effect not just of the nearly infinite diversity of "human capacities" (that Hook posits), but also the never finished task of democratic renewal.

In fact, Hook articulates the point in terms of a kind of democratic faith:

A democracy should encourage the belief that all are called and all may be chosen. All may be chosen because a wisely contrived society will take as a point of departure the rich possibilities that Nature herself gives through the spontaneous variations in the powers and capacities of men. These variations are the source and promise of new shoots of personality and value. The belief that all may be chosen, acted upon in a co-operating environment, may inspire the added increment of effort that often transforms promise into achievement.

It follows, that if this creed is lacking, or if some are left behind, our society is not well-ordered.

Arendt, Foucault, Orwell, Swift, on the newness of totalitarianism

Hannah Arendt's book appears in 1951 by which time relative interest in totalitarianism already seems to have peaked. There is a further irony lurking here: the term 'totalitarian' is introduced in the context of (Italian) fascism and not always as a term of disapprobation. In her big book, Arendt is adamant that 'fascism' needs to be distinguished from 'totalitarianism.' For her the distinction between the two is roughly (and to simplify) that the former aims to capture the state and is in many ways no different from a military dictatorship that despite its ambitions leaves much alone, whereas the latter actually destroys the state as an independent institution in the service of an all powerful party (or its leader) that aims to control all facets of life.* For, she writes, "the "totalitarian state" is a state in appearance only, and the movement no longer truly identifies itself even with the needs of the people. The Movement by now is above state and people, ready to sacrifice both for the sake of its ideology." (p. 266) While 'fascism' and 'totalitarianism' are relatively new terms, only totalitarianism is something really new, on Arendt's view. What's interesting about the ngam is that it empirically does track a point Arendt makes after the death of Stalin (in later editions) that the USSR has stopped being totalitarian (and has shifted to a more ordinary dictatorship).

Foucault agrees with Arendt (without mentioning her name) in his lecture of 7 March 1979: "I would also like to suggest that the characteristic feature of the state we call totalitarian is far from being the endogenous intensification and extension of the mechanisms of the state; it is not at all the exaltation but rather a limitation, a reduction, and a subordination of the autonomy of the state, of its specificity and specific functioning—but in relation to what? In relation to something else, which is the party." (Birth of Biopolitics, p. 190) In context he is clearly thinking of Nazism and Stalinism.

As an aside, a certain kind of correlational linguistic historicist will deny that a social phenomenon can really exist before the term that describes it has been coined and gained wide circularity. For such a historicist, racism (for example--see the NGRAM below) is really the more modern phenomenon that comes into existence pretty much after the civil rights movement has peaked! 

Perhaps we can burry some forms of linguistic idealism? Be that as it may, that totalitarianism is distinctly new is not an agreed upon fact. As I have noted before, in passing (recall), Orwell, who also thought deeply on the matter, claims that Swift is the original theorist of totalitarianism. Orwell writes in 1946:

Swift's greatest contribution to political thought in the narrower sense of the words, is his attack, especially in Part III, on what would now be called totalitarianism. He has an extraordinarily clear prevision of the spy-haunted ‘police State’, with its endless heresy-hunts and treason trials, all really designed to neutralize popular discontent by changing it into war hysteria. And one must remember that Swift is here inferring the whole from a quite small part, for the feeble governments of his own day did not give him illustrations ready-made. "Politics vs. Literature — An examination of Gulliver's travels"

To be sure, Orwell's wording suggests that in Swift's time the intent to be totalitarian already exists, but the capacity was lacking in a certain sense.  And so that leaves an open question when this capacity was first developed. And this also suggests that one can a be a theorist of the future. (Plato's Laws may prompt similar reflections.)

A careful reader may well think there is an important equivocation here. A 'police state' is not identical to what Arendt, and we moderns, means by 'totalitarianism.' And one reason to think that is that a police state is centered on the state whereas totalitarianism seems to efface it. This is, in fact, Foucault's very point in the lecture from the Birth of Biopolitics that I have quoted above, where he goes on to say (inter alia) that "the totalitarian state is not the...the nineteenth century Polizeistaat pushed to the limit." (p. 191) 

Even so, it's worth noting that in Arendt's The Origins of Totalitarianism, 'police state' is barely used. One rare occasion is in a footnote to her preface to part III, when she reports it is the term Bukharin is said to use (in 1936) in order to accuse Stalin of having changed Lenin's party. So, if there is a distinction between police state and totalitarianism it's not in terms of actor's categories. (There is a further complication here in that 'police' itself shifts meaning from roughly what we might be inclined to call 'policy' to a particular instrument of 'law enforcement.' However, in both uses wider issues of social control and terror are lurking.)

In the Birth of Biopolitics, at the very point I have been quoting, Foucault promises to develop his ideas. He is recorded to have said, "The party, this quite extraordinary, very curious, and very new organization, this very new governmentality of the party which appeared in Europe at the end of the nineteenth century is probably—well, in any case this is what I may try to show you next year, if I still have these ideas in mind—at the historical origin of something like totalitarian regimes, of something like Nazism, fascism, or Stalinism." By implication, here we are really promised a kind of extended reflection on Arendt's famous book or at least the themes in it. 

As scholars of Foucault note, Foucault changed direction and started to explore very different issues in subsequent years. One possible reason for this is that Foucault seems to have changed his mind about the nature of totalitarianism. For he has come to side with Orwell (and Bukharin as reported by Arendt). For, in the second of his Tanner Lectures delivered at Stanford, 16 October 1979, he explicitly describes the police state, and its interventions, as "totalitarian" in character.

I actually think that in the Tanner Lectures Foucault expresses and develops a point he had already started to recognize at the beginning of The Birth of Biopolitics, "The object of police is almost infinite....the absence of a limit in the exercise of government [is characteristic of] the police state." (p. 7; 10 January 1979; 'police' here is closer to our 'policy.') So, that he came to realize that his prying apart of the police state and totalitarianism (as he done later in the Birth of Biopolitics) was on shaky grounds.

There is, of course, a way to resolve these apparent changes of heart and differences among the thinkers discussed. One can claim that the techniques and aims of totalitarianism are already present in the police state and its conceptualizations. But that these are state centered in a way that the ideology of totalitarianism is ultimately not. Somewhat paradoxically, when state capacity develops to use such techniques of control and terror on mass populations, the state's necessary independence simultaneously is fatally undermined by the ideology and people that wish to deploy it. That fact has not changed, yet.

 

Arendt and the Illusions of democracy

The success of totalitarian movements among the masses meant the end of two illusions of democratically ruled countries in general and of European nation-states and their party system in particular. The first was that the people in its majority had taken an active part in government and that each individual was in sympathy with one's own or somebody else's party. On the contrary, the movements showed that the politically neutral and indifferent masses could easily be the majority in a democratically ruled country, that therefore a democracy could function according to rules which are actively recognized by only a minority. The second democratic illusion exploded by the totalitarian movements was that these politically indifferent masses did not matter, that they were truly neutral and constituted no more than the inarticulate backward setting for the political life of the nation. Now they made apparent what no other organ of public opinion had ever been able to show, namely, that  democratic government had rested as much on the silent approbation and tolerance of the indifferent and inarticulate sections of the people as on the articulate and visible institutions and organizations of the country. Thus when the totalitarian movements invaded Parliament with their contempt for parliamentary government, they merely appeared inconsistent: actually, they succeeded in convincing the people at large that parliamentary majorities were spurious and did not necessarily correspond to the realities of the country, thereby undermining the self-respect and the confidence of governments which also believed in majority rule rather than in their constitutions.

It has frequently been pointed out that totalitarian movements use and abuse democratic freedoms in order to abolish them. This is not just devilish cleverness on the part of the leaders or childish stupidity on the part of the masses. Democratic freedoms may be based on the equality of all citizens before the law; yet they acquire their meaning and function organically only where the citizens belong to and are represented by groups or form a social and political hierarchy. The breakdown of the class system, the only social and political stratification of the European nation-states, certainly was "one of the most dramatic events in recent German history" and...favorable to the rise of Nazism....--Hannah Arendt (1951) The Origins of Totalitarianism, Part 3: Totalitarianism (Chapter 10: "A Classless Society"), New Edition, pp. 312-313. ]

I often return to the quoted passage. It's not unfair to say that quite a bit of existing normative and deliberative democratic theory (alongside much social theory) tacitly continues to adhere to the illusions diagnosed by Arendt. It's often treated as bad taste or, worse, a sign of one's reactionary sensibility to point this out. And if you don't believe me, recall all the good things that are supposed to flow -- as you probably also believe my dear reader -- from (say) the abolition of the electoral college once pure majoritarianism can work its magic.

While it is easy to be distracted by Arendt's argument for the functionality of social hierarchy to democratic political life, the key historical claim that she makes is that the ideology or commitments of governments (and the minority of rotating elites that can form one) are central to the survival of liberal democracy or parliamentarianism. And she implies that if (ruling) political elites had been less respectful of majoritarianism and more willing to defend constitutional government, the collapse of liberal democracy could have been prevented.

The point is not a historical (or moral one), but rather follows from her observation that [liberal] "democracy could function according to rules which are actively recognized by only a minority." That is to say, that as long as elites are willing to adhere to constitutional norms because these are part of their esprit des corps or shared ideology liberal democracy can survive. Lurking in Arendt's argument are the ideas of Pareto, Michels, Mosca, and Schumpeter. (She cites Michels a few pages before, and mentions Pareto in passing later.)*

Of course, the more fundamental point is that for there to be elites in the relevant sense, society needs to have the right sort of social hierarchy that maps onto political hierarchies as instantiated by political parties and social intermediaries. On her view liberal democracy is compatible with mass society -- notwithstanding Arendt's own recurring nostalgia for the ancient Polis -- as long as social differentiation can be made politically functional. 

I don't mean to deny that one could respond to Arendt's claim by arguing that if liberal democracy is to be secure one could also aim to convince the vast majority that it should adhere to constitutionalism. Surely civic religion -- with ceremonial pledges to constitutions not to monarchs/presidents/flags -- can be organized to promote this. And one may well believe that by serving the interests of the majority, constitutional elites can gain its approbation and support. I don't think Arendt would disagree as long as the elites don't assume that this is sufficient for constitutional survival (that's one of the exploded illusions).

It's pretty clear today that the enemies of liberal democracy are better students of earlier collapses of democracy than its defenders are. For in many countries they aim, while drawing on all kinds of conspiracy theories, to convince the people at large that parliamentary majorities are spurious and do not correspond to the realities of the country.  In fact, they relentlessly aim to show that all kinds of elites (medical, legal, political, academic, etc.) are 'out of touch' or 'in a bubble' or lacking in 'common sense.' (Recall also Michael Polanyi's diagnosis.) This is why the unwillingness to pay lip-service to abide by electoral outcomes, or to suggest that these are fictitious (based on fraud etc.), are themselves signs that one is unwilling to act according to the rules of democratic and constitutional life, but that one stakes one's political fortune on a truer reality.  

In larger context, Arendt is predicting that the spirit of totalitarianism is not defeated permanently in Europe because the grounds of its revival -- "isolation and lack of normal social relationships" (317) -- are not gone with the end of war. (One fears the pandemic may well be an accelerating cause.) In mass society the views of the fundamentally unpolitical majority are shaped by "all-pervasive influences and convictions which [are] tacitly and inarticulately shared by all classes of society alike." (314) And these convictions are even with a robust civic religion never fundamentally about constitutional life; they are about nation, religion, a cult of financial success, celebrity, etc. 

It may seem that Arendt rests her hopes on the prudence or interest of political elites in the status quo to fight off the would-be-usurpers. But as she notes, this cannot be expected when respectability and playing by the rules are treated as naïve (that is, when the gangster's practices becomes admired), and when constitutional order itself is taken to be the barrier to action and the true destiny of society. 

The Origins of Totalitarianism is not a manual for the survival of liberal democracy. In fact, as Arendt explicitly notes in the book there are, in addition to totalitarianism, more ways democracy can end (e.g., fascism, military dictatorships, plebiscitary dictatorship, etc.). But it's very hard not to read chapter 10 without coming away thinking that liberal democracy is doomed. Nearly all the examples she mentions of the anticipations of democratic decay in the arts and social culture can be updated to our age. And if one is familiar with Arendt's essays from the 1960s, one can't help but think this pessimism stayed with her. Yet, it's seventy years on, and European liberal democracy with its re-founded parties turned out to be much more robust in a mass age than Arendt seems to have thought possible. Why this is so --memory of the earlier collapse or a side-effect of cold war, American empire, years of prosperity, or a new kind of stratification (based on education) -- I do not know. Perhaps, social differentiation was made politically functional. But even in our post-post-modern age, dancing on the precipice of environmental catastrophe, it is worth figuring out.

 

Riker on The Calculus of Consent; some Rawls and Strauss and the confused and unproductive state of Political Theory

As numerous writers have pointed out, political theory as a field of academic concentration has been in a confused and unproductive state for at least the last generation. Most of the academicians who have written about it have been either historians of ideas who speculated about the influence of writer A on writer B or literary critics who simply explicated and criticized the texts of A and B. Very few academicians have had the intellectual courage to play the role of A and B themselves; so that, in consequence, most contemporary political theory has been produced by politicians and journalists. Refusing thus to theorize themselves, most academicians have been limited to a consideration of intellectual primitives or of, what amounts to the same thing, the rantings and ideological tergiversations of half-educated modern pamphleteers. In almost no other field of study do the professionals thus abase themselves before the ancients and the amateurs.

    Not unsurprisingly, there has been much dissatisfaction with this state of affairs and in the last decade or so a number of writers have tried to reorient the study of political theory. Some, like Leo Strauss, have urged a return to the great tradition; but unfortunately the process of return, as it appears in the work of both master and students, has turned out to be an even more sterile historicism than that against which they revolted. Others, like T. D. Weldon and Carl Friedrich, have urged a close and systematic study of words; but again unfortunately, word-study, while a useful preliminary to theorizing, has produced no more than literary criticism and is not properly theory at all. Still others, the political behaviorists, have turned to the theories of contemporary psychology and sociology for a new start in theorizing about politics; and, while these writers have undoubtedly succeeded in generating descriptive theories that can actually be tested empirically, still their theories seem to have more in common with social psychology than with the traditional subject matter of politics. Furthermore, their positivistic character, wholly appropriate for descriptive theories, is far from satisfying to those who believe political theory should be at least partially normative. These three attempts at re-orientation have been useful in the study of history, philosophy, and behavioral science; but they have not added much to political theory itself. Indeed, if these three schools were all we had, it would be fair to say that political theory was no better off than before.

    There is still a fourth school, to which the book here reviewed belongs, which offers some hope of a really successful reorientation of political theory. Since its inspiration is more from economics than any other source and since economics is the social science closest to politics both in the nature of the events abstracted for study and in the process of abstraction, it happens that the works of this school are clearly political in nature. Since economics like politics has a long tradition of normative theorizing, these writings contain normative elements alongside of positive ones. Most important of all, however, they seem to be capable not only of reformulating traditional problems in a more sophisticated way but also of dealing with problems beyond the ken of even the great theorists of the past. Some of the main works in this fourth school of re-orienters of political theory are: Duncan Black, The Theory of Committees and Elections; Anthony Downs, An Economic Theory of Democracy; Morton Kaplan, System and Process in International Politics (although this work has its roots as much in sociological as in economic theory); Thomas Schelling, The Strategy of Conflict; and, as an important addition, James Buchanan and Gordon Tullock, The Calculus of Consent.--William H. Riker (1962) Midwest Journal of Political Science, Vol. 6, No. 4 (Nov., 1962) [Reviewing The Calculus of Consent. by James M. Buchanan and Gordon Tullock], pp. 408-409.

Because I am working on a side project (recall here; here) on the (non-)reception of Leo Strauss within analytic philosophy, I stumbled on this passage in Riker's review of The Calculus of Consent. I also want to situate the passage in the black hole in our collective narrative of what exactly political philosophy could be within analytic philosophy and its sister-discipline political theory pre-Rawls (which was re-opened for me by Katrina Forrester's In the Shadow of Justice: Postwar Liberalism and the Remaking of Political Philosophy (recall (recall here; here; here; and here). Somewhat to my own surprise these issues intersect with my interest in neoliberalism and the split between ('positive') economics and ('normative') philosophy.

I suspect most of my readers know who William Riker is (not to be confused with the Star Trek character). He is now widely seen as one of the founders of rational choice theory, and among other achievements introduced game theory and social choice theory into political science. He is, what in an earlier generation disparagingly would have been called (by the sociologist Talcott Parsons [recall]), an exponent of 'economic imperialism.' We call it 'intellectual arbitrage' now. He founded the so-called Rochester School that's associated with the 'behavioral revolution' in political science. When he published the review of Buchanan and Tullock, Riker had just published The Theory of Political Coalitions, which was a major contribution to orientation he promoted.

About half of the review is quoted above. And only after this set-up does Riker discuss the contents of the book. So, the review itself is self-consciously a methodological intervention and cannon creation. 

So, Riker distinguishes four approaches to political theory. First, there is the return to the classics which he (correctly) associates with Leo Strauss. This is treated -- much as Bacon treated final causes -- as sterile. Riker correctly represents Strauss's school as critical of historicism, but then misrepresents, either from confusion or from sincere insult, Strauss as instantiating historicism. (I am unsure he ever engaged with Strauss in substantive fashion elsewhere.)

Second there is a school devoted to "a close and systematic study of words." Riker's criticism of it echoes Isaiah Berlin's (1958) criticism of ordinary language philosophy (recall). T.D Weldon I know primarily as a Kant scholar and as being the supervisor of Wilfrid Sellars. But he is also the author of The Vocabulary of Politics (1953), which in reviews is described as an attempt to apply ordinary language philosophy to politics. A book I, thus, have to read because it is clearly in the event horizon of the black hole of analytic political philosophy whose shadow Rawls has (ahh) blotted out.*

I have to admit that I am puzzled by Riker's inclusion of Friedrich in this category. Friedrich's approach is so eclectic, that I would think he would be hard to categorize. This is not to deny he sometimes focuses on words, too. But this comment (alongside the Strauss as historicist 'mistake') makes me wonder, if Riker actually had carefully studied the schools he is rejecting. Or whether his polemics derive from supreme confidence in his own (sophisticated!) methods. That confidence is not without robust intellectual foundation, but one does wonder if in his polemics with opposing schools there isn't an element of bluster and bluff. (This combination is not unfamiliar to us within analytic philosophy.) I actually suspect that Riker is confusing Friedrich with Felix Oppenheim (who can, perhaps somewhat unfairly, be slotted into this category.)

No exemplar of the third school is mentioned. I suspect Talcott Parsons (or those influenced by him) is one of the targets. This school is also engaged in intellectual arbitrage from other social sciences, but Riker finds them wanting. Riker's two criticisms of this approach (not very far removed from his own) are very interesting: first, they produce work that fits social psychology but is in some sense not properly political. One would have liked an extra sentence here because it would have illuminated his own stance toward the subject (or the discipline). Second, on Riker's view political theory ought to be descriptive/empirical (or at least fruitful in generating theoretically salient empirical generations and be an engine for theorizing) and normative/positive. So, the right kind of theory can help us study the political world and tell us how to improve it. (I return to this in the next paragraph.)

These two criticisms do not apply to the fourth school (which is Riker's own). From my perspective what is most interesting here is that Riker rejects the very firm distinction entrenched within economics (in word, less so in deed) since the time of Marshall, Sidgwick, and John Neville Keynes, and articulated by Lionel Robbins (and Milton Friedman) between the positive and normative projects.+ The final paragraph of the review actually explains Riker's own stance on this:

If it is assumed that most men are rational and that the appropriate rational behavior is transparently obvious, then the analysis is entirely positive. If it is assumed that rationality is a goal rather than a fact, then the calculus is normative. If it is assumed that the logic of the calculus is not obvious until it is deduced, then again the analysis is normative. (411)

Of course, the problem here is not the willingness to combine empirical and normative aims, but (to use scientistic terminology) that how to think about circumstances of what is 'transparently obvious' to the theorist/expert may not be so to (ahh) 'most men' and, more important, if, in a political context, the latter have to rely on the former for the deductions in the 'logic.' [As a slogan: Riker takes the relationship between theorist and theorized for granted.]

Be that as it may, lurking in the final paragraph that I quoted at the top of the post is the sense that the fourth school is generating a scientific revolution: "Most important of all...they seem to be capable not only of reformulating traditional problems in a more sophisticated way but also of dealing with problems beyond the ken of even the great theorists of the past." The fourth school has moved beyond the past and is progressive. (Such claims are common among economists of the age.) Interestingly enough the Nobel committee in economics has also recognized the contributions of this school of 'political theory' (including, in addition to Buchanan, Schelling).

After the polemical first half, the rest of the review of Calculus of Consent "list[s] what are for [Riker] some of the most interesting notions in the essay." (409) One important point is that Riker treats Calculus of Consent (not unfairly) as an advance beyond Downs on the question of what the effect is "of differing intensities of concern about particular issues under the rule of simple majority voting." (410)

From the vantage point of thinking about the nature and evolution of political theory at the middle of the twentieth century, the first, main question is actually rather important:

The main question the authors ask is: On what basis does a rational man, situated in a society created by unanimous agreement, consent to the transfer of a particular activity from private to collective decision-making? This question is, of course, a new and more sophisticated form of the question to which the theory of the social contract provided the answer. (409)

In the spirit of progress (we may say), Riker understands Buchanan and Tullock as having surpassed and made obsolete social contract theory. While the historian in me hesitates to disagree with such a well-informed contemporary of them,  Riker somehow misses (presumably for his own polemical purposes) that Buchanan and Tullock themselves present their own work, en passant (but not obliquely) as a contribution to social contract theory. For, throughout Calculus of Consent, they imply both that individuals cannot withdraw from the social contract, as well as (and  more important) that "Insofar as participation in the organization of a community, a State, is mutually advantageous to all parties, the formation of a “social contract” on the basis of unanimous agreement becomes possible." (ch. 17; the whole chapter is relevant, including for understanding why they frequently use scare-quotes around 'social contract,' but not always.)** So, the main question by Riker's lights is answered in terms of a social contract analysis according to Buchanan and Tullock. (The character of their social contract is worth exploring in a digression some time.)

Two final quick promissory thoughts connected to Rawls, since I click-baited you here with Rawls. First, there was a pre-Rawlsian political analytic philosophy. (Riker's second school.) Weldon is an example of this. (So is, perhaps, Felix Oppenheim.)++  And it was noticed by outsiders. But Rawls did not respond to it in The Theory of Justice.*** Oppenheim is cited once respectfully in TJ, and Weldon isn't mentioned. Rather, Rawls took the fourth school, the re-orienters, as his interlocuters and rivals. In fact, in TJ, Rawls also cites Black, Downs, Buchanan and Tullock, and Mancur Olson as authorities. And whatever else he is doing, he is also trying to offer an alternative to their project.+++ That's partially obscured to later readers because he doesn't name them much as targets. But it is worth noting they inherited their own normative project from utilitarianism, which is Rawls' official target. And partially obscured by the fact that after the mid to late 1970s Rawls himself emphasized the normative project in Kantian terms and so it's much harder to see TJ as building on and in competition with Rochester and Virginia.

 

 

Huizinga on Schmitt and the Collapse of the Whole System of International Law

    Though there may be abundant traces of play in domestic politics there would seem, at first sight, to be little opportunity for it in the field of international politics. The fact, however, that these have fallen to unheard of extremes of violence and dangerousness in political life among nations does not in itself exclude the possibility of play. As we have seen from numerous examples, play can be cruel and bloody and, in addition, can often be false play. Any law-abiding community or community of States will have characteristics linking it in one way or another to a play-community. A system of international law is maintained by the mutual recognition of certain principles and maxims which, in effect, operate like play-rules despite the fact that they may be founded in metaphysics. The explicit acknowledgment of the pacta sunt servanda principle is a de facto recognition that the integrity of the system rests on a  willingness to play along. Once a party withdraws from the rules of the system, the whole system of international law must, if only temporarily, collapse unless the outlaw is banished from the community as a "spoilsport." 
   The maintenance of international law has always been dependent on the [continued] validity of principles such as honour, decency, and good form. An important part of European rules of warfare developed, after all, out of the code of honour proper to chivalry. International law tacitly assumed that a defeated state would behave like a gentleman and a good loser, even if it seldom did. The duty to declare war officially, though often violated, belonged to the good form of warring states. In short until quite recently modern European war included and still retained the ludic elements of war, which we have uncovered in all archaic eras, and on which the absolutely binding character of the rules of war in large part rested. 
   A common phrase in German speech speaks of the entry of war as "Ernstfall". In strictly military parlance the term is correct. Compared with the sham fighting of manoeuvres and drilling, 'real' war is undoubtedly what seriousness is to play. But it's altogether different when he term "Ernstfall" is understood politically. It would entail that foreign policy has not attained its full degree of seriousness, her real effectiveness, until the state of war is reached. This view is confessed by some. [In the Dutch, but not English, there is a note to Huizinga's (1935) In the Shadows of Tomorrow.] For them all diplomatic intercourse, insofar as it moves in the paths of negotiation and agreement, is only a preface to war or a transition between two wars. It is logical that its adherents, who regard war and its preparations as the sole form of serious politics, should deny that war has any connection with contest [Huizinga uses 'wedkamp' here which as he notes earlier, signals the rolling of betting in legal and athletic contests--ES] and hence with play. The agonistic factor, they tell us, may have been powerfully operative in earlier eras, but contemporary warfare is elevated above the old contest. It is based on the "friend-enemy" principle. All real political relationships among nations and states, so they say, are dominated by this principle. [Here Huizinga cites Schmitt's Der Begriff der Politischen in Dutch and English editions.]** The other group is always either your friend or your enemy. Enemy, of course, is not to be understood as inimicus or εχθρός (echtros), i.e. personally hated, or though wicked, but only as hostis or πόλεμιος, i.e. the stranger, who is in your group's way or about the stand in its way. Schmitt refuses to regard the enemy even as a rival or adversary. He is according to him just an opponent [tegenstander] in the most iteral sense and is thus to be liquidated [uit de weg ruimen]. If ever anything in history has corresponded to this gross reduction of the idea of enmity, which turns it into an almost mechanical relationship, it is precisely that archaic antagonism between phratries, clans or tribes where, as we saw, the play element was of considerable significance, and from which the growth of culture has carried us beyond. In so far as there is a glimpse of correctness in Schmitt's inhuman delusion, the conclusion has to be: war is not the 'Ernstfall,' but peace is. Only by conquering that pitiable friend-enemy relationship will humanity lay claim to the recognition of her dignity. With everything that evokes or accompanies it, war always remains ensnared in the daemonic witchcraft of the game.--J.H. Huizinga (1949 [1944]) Homo Ludens: A Study in the Play-Element in Culture, London Routledge pp. 208-209. {With corrections by Eric Schliesser in bold.}*

Homo Ludens appeared in Dutch in 1938. After the Von Leers incident (recall), Huizinga was effectively black-listed in Nazi-Germany (see Gossman's "Afterword" to Otterspeer's article). Somewhat amazingly the English translation was translated from the German edition, which, according to the English translation,  is supposed to have appeared in Switzerland in 1944. But, in fact, Huizinga was also pretty effectively black-listed in neutral Switzerland. The book first appeared in German with Pantheon (a small press) in Amsterdam in 1939. Pantheon, which was not a Jewish firm, continued operation during the war. In Switzerland, the book was finally republished by Burg-Verlag in Basel, including a 1944 edition, which seems to have been a source of the English translation. I write 'a source' because the (anonymous to me) English translator appended the following note to the book:

THIS edition is prepared from the German edition published in Switzerland, 1944, and also from the author's own English translation of the text, which he made shortly before his death. Comparison of the two texts shows a number of discrepancies and a marked difference in style; the translator hopes that the following version has achieved a reasonable synthesis. (vii)*

While it is tempting to turn swiftly to Huizinga's argument against Schmitt, it is worth noting that in Dutch the sub-title of the book is, "Proeve Eener Bepaling van het Spel-Element der Cultuur." In contemporary Dutch, a 'proeve' primarily means a 'tasting,' but in the past it is often used in terms of a 'trial' or 'assaying' (or 'essay'). It shares a root with the English 'proof'. And if you read the book, it's pretty clear that Huizinga intents to convey that the book involves taste and assaying. The first word ("Essai") of the sub-title French translation ("Essai sur le fonction sociale du jeu") captures these resonances by using 'Essai', although interestingly enough the rest of the sub-title is rather over-interpretive (even reductive). But I also suspect, as (also) passages that I quoted above from near the end of the book imply, Huizinga means to suggest that in his own day the play-element of culture is being challenged if not in danger of collapsing (a proeve in the sense of a beproeving--an ordeal or test).

Okay, with that in place let's turn to Huizinga's argument. It is no surprise that writing in an age of the collapse of the League of Nations into farce that Huizinga would have thought that the system of international law was rather fragile--that a single defection could make it collapse unless the rest is strong enough to banish the rule-breaker altogether from the system. We now know that this is need not be the case. The international system can survive considerable rule breaking by even its vital and leadings members and, what is more amazing, can maintain many of its norms with important rule-breakers while they are knowingly violating international law. So, for example, even while countries are putting sanctions on Putin's regime, Russia participates in an enormous range of international commercial and technical practices that are regulated by international law that nobody will consider revoking. Obviously, there is a tipping point where that may not be true anymore.

One way to understand Huizinga's diagnosis of Schmitt's position is that according to Huizinga (and I have a distinct feeling that this anticipates Foucault's interpretation of liberalism), and in a reversal of Clausewitz's famous dictum, Schmitt treats ordinary politics and diplomacy as a continuation and extension of war. It's in this fact that, according Huizinga's Schmitt, the paraphernalia of diplomacy and politics have their true significance.   

Now, the position attributed by Huizinga to Schmitt that ordinary politics and statecraft are just the continuation of war and preparation for it implies that on the Schmittian picture there is no escape from the Hobbesian state of nature at all. So, it is worth noting that Huizinga converges on a crucial agreement with Strauss's criticism of Schmitt: (recall) that Schmitt remains, despite his own self-understanding, in the Hobbesian ambit. (I have no evidence that Huizinga was familiar with Strauss' reading of Schmitt.)

In addition, Huizinga attributes to Schmitt an ideal of progress. (Again, this is accord with Strauss, who discerned the existential providentialism in Schmitt, who is for all his rejection of liberalism a committed modernist.) But according to Huizinga, Schmitt's idea of progress presupposes the overcoming of the ludic and agonic ideals that were once inherent in the conceptualizations of war. And, on Huizinga's account this makes modern warfare the true barbarism because it mechanically promotes the killing of enemies.

Here, Huizinga echoes the practice -- from Thomas More forward, but reaching its peak in Enlightenment thought -- of treating modern Europeans as the true barbarians. And this is supposed to meet Schmitt on his own terms because according to Schmitt it's those very humanitarian ideals -- which turn the enemy into a inhumane monster -- that lead to total war. 

At first sight, it might seem that Huizinga misses in his analysis of Schmitt is that enemies are symmetrical to each other: that there is a moment of existential choice in which some are recognized as friends to which one belongs and other social unities as enemies. This parity is absent in social domination and subordination. So, something of the agonic element is maintained even in Schmitt's analysis. And, in fact, I think this is Huizinga's position ("war always remains ensnared in the daemonic witchcraft of the game"), although it's unclear if Huizinga also thinks this is an immanent critique of Schmitt.

Be that as it may, while it's true that there is a sense in which Huizinga's response to Schmitt is question-begging (humanity is not common ground), it is not silly, and strikes me as coherent.+ In particular, Huizinga promotes the idea that the overcoming of the friend-enemy distinction is a real possibility and once this overcoming is associated with humanity's dignity (there are Kantian deals lurking here) a worthy ideal. In this, Huizinga echoes Ortega Y Gassett (recall) and he anticipates Popper's argument (recall). This is something that cannot be denied by Schmitt because the enemy-friend distinction itself presupposes an existential choice; and so could be otherwise. (Again, Strauss who parts ways with these liberals had noticed that Schmitt shares common ground in such matters with his liberal opponents.) Huizinga's position does not deny that politics plays a role in culture or in games, but rather that such activities, even when fully immersed in them, can reach beyond themselves to something ethical (or sittlich in a soft-Hegelian sense).

Huizinga does not claim that all of culture is play. In fact, he invites us to consider the renewal or development of a political art in all seriousness: this is the art of peace, how to achieve it and how to maintain it. (And given the Kantianism, this is really the art of world-federation.) And Huizinga claims here (and at the start of Homo Ludens) explicitly the authority of Plato's Laws 803:  "It is the life of peace that everyone should live as much and as well as he can." And matching Schmitt's Christian political theology, with Plato's, we learn that in order to be serious about the art of peace, we must learn to understand ourselves, looking up, as God(s)'s playthings. 

 

 

Russell, Locke and Order without Authority

There is, of course, imperialistic commerce, where men are forced to buy at the point of the sword; but this is not the kind that generates Liberal philosophies, which have flourished best in trading cities that have wealth without much military strength. In the present day, the nearest analogue to the commercial cities of antiquity and the middle ages is to be found in small countries such as Switzerland, Holland, and Scandinavia.
    The Liberal creed, in practice, is one of live-and-let-live, of toleration and freedom so far as public order permits, of moderation and absence of fanaticism in political programs. Even democracy, when it becomes fanatical, as it did among Rousseau's disciples in the French Revolution, ceases to be Liberal; indeed, a fanatical belief in democracy makes democratic institutions impossible, as appeared in England under Cromwell and in France under Robespierre. The genuine Liberal does not say "this is true," he says "I am inclined to think that under present circumstances this opinion is probably the best." And it is only in this limited and undogmatic sense that he will advocate democracy.
    What has theoretical philosophy to say that is relevant to the validity or otherwise of the Liberal outlook?
    The essence of the Liberal outlook lies not in what opinions are held, but in how they are held: instead of being held dogmatically, they are held tentatively, and with a consciousness that new evidence may at any moment lead to their abandonment. This is the way in which opinions are held in science, as opposed to the way in which they are held in theology. The decisions of the Council of Nicaea are still authoritative, but in science fourth-century opinions no longer carry any weight. In the U.S.S.R. the dicta of Marx on dialectical materialism are so unquestioned that they help to determine the views of geneticists on how to obtain the best breed of wheat, though elsewhere it is thought that experin1ent is the right way to study such problems. Science is empirical, tentative, and undogmatic; all immutable dogma is unscientific. The scientific outlook, accordingly, is the intellectual counterpart of ·what is, in the practical sphere, the outlook of Liberalism.

    Locke, who first developed in detail the empiricist theory of knowledge, preached also religious toleration, representative institutions, and the limitation of governmental power by the system of checks and balances. Few of his doctrines were new, but he developed them in a weighty manner at just the moment when the English government was prepared to accept them. Like the other men of 1688, he was only reluctantly a rebel, and he disliked anarchy as much as he disliked despotism. Both in intellectual and in practical matters he stood for order without authority; this might be taken as the motto both of science and of Liberalism. It depends, clearly, upon consent or assent. In the intellectual world it involves standards of evidence which, after adequate discussion, will lead to a measure of agreement among experts. In the practical world it involves submission to the majority after all parties have had an opportunity to state their case...

    I conclude that, in our day as in the time of Locke, empiricist Liberalism (which is not incompatible with democratic social­ism) is the only philosophy that can be adopted by a man who, on the one hand, demands some scientific evidence for his beliefs, and, on the other hand, desires human happiness more than the prevalence of this or that parry or creed. Our con­fused and difficult world needs various things if it is to escape disaster, and among these one of the most necessary is that, in the nations which still uphold Liberal beliefs, these beliefs should be whole-hearted and profound, not apologetic towards dogmatisms of the right and of the left, but deeply persuaded of the value of liberty, scientific freedom, and mutual forbear­ance. For without these beliefs life on our politically divided but technically unified planet will hardly continue to be pos­sible.--Bertrand Russell (1947) "Philosophy and Politics" in Unpopular Essays (1950),  p. 14-20

Because George Reisch's (2005) How the Cold War Transformed Philosophy of Science: To the Icy Slopes of Logic is so beautifully written and so carefully argued its thesis has become part of the lore about our intellectual fathers and (fewer) mothers that after a brief flowering of socially relevant philosophy in Red Vienna, they retreated (cowed like little schoolboys--I exclude Anscombe here) into the ivory tower where they could contemplate their crystal clear arguments about minutiae. I suspect this lore is peddled in part by continental philosophers, who after having lost the war,  can feel that they are now on the right side of history, and in part by our kewl kidz who, in order to climb academia's greasy pole, have to burry the previous generation--and better yet if it buries the boring liberalism of Pax Americana.

I exaggerate, of course, but as regular readers know, I think Reisch's book didn't quite capture properly the mainstream liberal alternative (as articulated by Ernest Nagel) to the Sturm und Drang of Neurath and Carnap, and so obscured the political nature and political aims of the disciplinary choices (see here for the scholarly argument). As it happens Reisch mentions the significance of Russell's politics  -- as an important representative of "the anti-Stalinist left" (158) -- throughout his book, and has a whole section on the The Russell Affair, but he does not actually say much about Russell's political theory such as it was and when he does, he treats him as a pacifist and socialist (50). Now Russell's pacificism was heroic, and there is no doubt that Russell's mature heart was a species of socialism (see here for a fine essay).

As the quoted passages above reveal, Russell's socialism was of a kind that is very much part of a broader liberal tradition. And it is worth noting that the essay I quote contains true praise of Popper's Open Society and its Enemies. (This is something one wouldn't expect in light of Reisch's treatment which treats The Open Society as a target of the folk he admires.) Now, Popper's views are also compatible with a kind of liberal, tempered social democracy, so I don't think Russell's admiration is a coincidence. 

But few socialists can bring themselves to write so admiringly of Locke as Russell. And few would be so open about their reservations about democracy, and their "limited" support for it. And so something also goes off track if one merely calls Russell a 'socialist.'

At the start of his then recent, History of Western Philosophy, Russell treats Locke as the representative of a "half-way compromise philosophy, the doctrine of liberalism, which attempted to assign the respective spheres of government and the individual." (I mention the book in part because Russell self-plagiarizes from it in the essay!)* And later in the book, when he introduces Locke, he says, "The first comprehensive statement of the liberal philosophy is to be found in Locke, the most influential though by no means the most profound of modern philosophers."  I don't mean to suggest Russell only admires Locke. My favorite passage in the History is this one: "No one has yet succeeded in inventing a philosophy at once credible and self-consistent. Locke aimed at credibility, and achieved it at the expense of consistency. Most of the great philosophers have done the opposite." And while Russell is critical of Locke going all in on the defense of property, he thinks Locke's political philosophy is the least worst (in the History) or the last one standing ("Philosophy and Politics").

Now, unlike Nagel, for whom his liberalism is intrinsic, even constitutive of his philosophy (including his philosophy of science), Russell's political writings are often treated, not the least by Russell, as non-philosophical. And, speaking as a historian, that is not wholly without merit--his political essays are often unlike the works that established his philosophical credentials. Russell himself acknowledges in the "preface" to Unpopular Essays, that his essays "may seem flippant." And they certainly do not seem to belong to what professional philosophy was becoming in the age (under the influence of Carnap and Nagel). But Russell once quite rightly described his "life" -- in a self-authored "obituary" that is, in fact, in dialogue with Hume's little autobiography -- as having "a certain anachronistic consistency, reminiscent of that of the aristocratic rebels of the early nineteenth century." (p. 171) And, crucially, he claims that his principles "governed his actions." That is to say, as these essays articulate these principles are philosophical by the lights and standards of that earlier epoch. And this is the use of 'philosophy' in the final paragraph quotes above (e.g., empiricist Liberalism is the only philosophy).

Order without authority is, of course, an excellent summing up of liberalism,+ even if, too often, there is more than a hint of violence supporting that order. And not unlike the more classically liberal Michael Polanyi, Russell insists that science and liberalism are kind of mirrors of each other (another version of this idea can be found in Ernest Nagel as I argued.) I intend to return occasionally to the character and content of Russell's liberalism (in which there is plenty to criticize). 

But here I want to close with an observation on Russell's claim that "The genuine Liberal does not say "this is true," he says "I am inclined to think that under present circumstances this opinion is probably the best."" Now, there is a natural, epistemological reading of this such that the 'present circumstances' just refers to the evidence supporting it. (This is, in fact, Nagel's version of pragmatism in the era.) And what I am about to say is not meant to contradict the natural reading. But I also think one could read "present circumstances" as referring to the political and social circumstances of the age--that strikes me as quite plausible in light of the argument Russell is putting forth. And that suggests that the social significance or social effects (including inductive risk) of an opinion enter into its evaluation. And this puts Russell's account into the realm of responsible speech (just like Nagel's political defense of analytic philosophy).

If the previous proposal is plausible, then for Russell a liberal's views are sensitive to political circumstances. So, say, one's defense of democracy is sensitive to the particulars of one's age or place and one's considered judgment how 'human happiness' can be promoted. And so while the non-liberal will see lack of consistency in first order judgments, the liberal will see merely different tactics while aiming for order without authority in the service of happiness. 

 

A note on Le Guin and Fanon, and Carl Schmitt

"You are the same species, race, people, exactly the same in every way, with a slight selection towards color. If you brought up an asset child as an owner it would be an owner in every respect, and vice versa. So you spend your lives keeping up this tremendous division that doesn't exist. What I don't understand is how you can fail to see how appallingly wasteful it is. I don't mean economically!"

"In the war," he said, and then there was a very long pause; though Solly had a lot more to say, she waited, curious. "I was on Yeowe," he said, "you know, in the civil war."

That's where you got all those scars and dents, she thought; for however scrupulously she averted her eyes, it was impossible not to be familiar with his spare, onyx body by now, and she knew that in aiji he had to favor his left arm, which had a considerable chunk out of it just above the bicep.

“The slaves of the Colonies revolted, you know, some of them at first, then all of them. Nearly all. So we Army men there were all owners. We couldn’t send asset soldiers, they might defect. We were all veots and volunteers. Owners fighting assets. I was fighting my equals. I learned that pretty soon. Later on I learned I was fighting my superiors. They defeated us.”

“But that—” Solly said, and stopped; she did not know what to say.

“They defeated us from beginning to end,” he said. “Partly because my government didn’t understand that they could. That they fought better and harder and more intelligently and more bravely than we did.”

“Because they were fighting for their freedom!”

“Maybe so,” he said in his polite way.

"So ..."

"I wanted to tell you that I respect the people I fought."--Ursula K Le Guin (1994) "Forgiveness Day" in The Found and the Lost: The Collected Novellas of Ursula K. Le Guin, p. 287.

Because I am about to teach The Dispossessed (recall) again, I am trying to read all the books in the so-called Hainish cycle. "Forgiveness Day" is part of a series of interlocking stories (also collected in Four Ways to Forgiveness) about two planets, Werel and Yeowe. As the quoted passage suggests, Werel is a slave-owning society that treated Yeowe as a colony. In fact, Werel is an extremely patriarchical society, too, which treats its women in the way Athens treats theirs. 

The nameless 'he' is Rega Teyeo, a scion of a rural soldiering elite; conservative and stoic in his ways. He discovers that after the lost war on Yeowe his own people, who are modernizing and shifting toward commerce, have little use for him. So, he ends up a bodyguard to Solly, the alien (female) ambassador to his planet. In many ways it's a humiliating end to his public service. 

The quoted exchange takes place in the turning point in the relationship between Rega and Solly, which itself occurs when they think they are in mortal danger. I am not a big fan of "Forgiveness Day" because the writing is relatively clunky and the characters are relatively stereotypical. Because it's Le Guin, there is still plenty of food for thought about the nature of patriarchy and the interlocking forms of oppression and resistance it generates.

The quoted passage illustrates my complaint about the writing in the novella; that Teyeo respects the people he fought is already abundantly clear before Le Guin makes it explicit ("I wanted to tell you that I respect the people I fought."). 

Having said that, the passage did remind me (no surprise we are in the ambit of Hegel's master-slave dialectic) of a kind of symmetrical point in the famous first chapter of Fanon's The Wretched of the Earth that in the Manichean world colonialism, "At the individual level, violence is a cleansing force. It rids the colonized of their inferiority complex, of their passive and despairing attitude. It emboldens them, and restores their self-confidence." (p. 51)

Le Guin invites us into thinking that when you have been defeated on the battle-field it is difficult to deny the fundamental equality of your victor. She published "Forgiveness Day" when the Vietnam war was living memory. As Le Guin's novella shows, that individual experience on the battle-field need not transform wider social attitudes toward those thought inferior if that society can insulate itself, to some respect, from the military defeat. As a cursory glance at history shows, for every Rega Teyeo whose attitudes are transformed, there may be a lance corporal who prefers a dagger-stab legend. And in her story Le Guin, who is not naïve about such matters, suggests that individual character matters a lot to when a potentially existential experience becomes transformative.

Earlier in the story, after Rega has requested a discharge from his duty to protect Solly, his request is declined by his (and her) employer as follows:

"Love of god and country is like fire, a wonderful friend, a terrible enemy; only children play with fire. I don't like the situation. There's nobody here I can replace either of you with. Will you hang on a while longer?"

What's striking about the response is that it is couched in terms familiar from Schmitt (with its friend-enemy distinction) [recall here and here mediated via Popper]. This is interesting because the employer I have just quoted represents in Le Guin's story, and in the wider Hainish cycle, the Kantian federative ideal of the aspiration toward perpetual peace founded in human equality. And what Le Guin recognizes is that one can accept that in some circumstances the friend-enemy distinction is empirically adequate of people's ('childish') behavior even though one is oneself committed to a different ideal that is supposed to abolish or overcome it.

Now, in light of "Forgiveness Day" it is tempting to suggest that the friend-enemy distinction itself rests, if not conceptually then at least on the battle-field, in a kind of symmetry between the two foes. And this symmetry is itself ground in a kind of equality or mutual recognition. And so, one may be tempted to see in this observation a refutation of Schmitt.

As an aside, this is why 'wars' on cancer, drugs, and on poverty are such strange ways of speaking. (This is extended to the "courageous battle" one wages against a fatal disease.) They do not have the latent possibility of such mutual recognition. Norman MacDonald (who died of cancer) makes the point in a sketch here. His punchline is that, if you die, the cancer dies at exactly the same time in your body. “That, to me, is not a loss. That’s a draw.”

Be that as it may, of course, Schmitt anticipates the point and suggests that the political distinction is orthogonal to any moral interpretation of such mutual symmetry.  It is entirely compatible with his view that one can find one's enemies moral, even beautiful. (I doubt he would grant that they are superior, but it seems logically consistent.)

Now, it is important to Schmitt's analysis that these judgments involve collectivities not individuals (as it is in Le Guin and Fanon). And so there is an important sense that Schmitt can accommodate the point about symmetry or the transformative experience of the battle-field, as long as (and I find this ironic) it is understood in, and limited to, individual terms. 

And, in fact, one of the psychological, perhaps, social conditions for Rega's judgment, or maybe it's an effect of it, is his disenchantment with his own society. And while this turns out to be a pre-condition for his political understanding (he starts to see through slogans) it also leads him to withdraw from it emotionally, politically, and eventually physically. Part of the closing line of the story with him going into a kind of exile is (also) explicit about this: "he had lost his world." And so, while one can read the Hainish cycle as resting on a kind of faith that Schmittianism can be overcome, Le Guin recognizes that there are circumstances in which its logic is impeccable. 

 

 

 

On Jemisin, On the Curated Stories we Tell the Young, and Omelas (part I)

But some knowledge is dangerous.
Um-Helat has been a worse place, after all, in its past. Not all of its peoples, so disparate in origin and custom and language, came together entirely by choice. The city had a different civilization once-one which might not have upset you so! (Poor thing. There, there.) Remnants of that time dot the land all around the city, ruined and enormous and half-broken. Here a bridge. There a great truck, on its back a rusting, curve-sided thing that ancient peoples referred to by the exotic term missile. In the distance: the skeletal remains of another city, once just as vast as Um-Helat, but never so lovely. Works such as these encumber all the land, no more and no less venerabe to the Um-Helatians than the rest of the landscape. Indeed, every young citizen must be reminded of these things upon coming of age, and told carefully curated stories of their nature and purpose. When the young citizens learn this, it is a shock almost incomprehensible, in that they literally lack the words to comprehend such things. The languages spoken in Um-Helat were once our languages, yes--for this world was once our world; it was not so much parallel as the same, back then.--N.K. Jemisin (2018) "The Ones Who Stay and Fight" in How Long the Black Future Month?, pp. 7-8. [HT  David Duffy] 

A few years ago, several readers recommended Jemisin to me after I had posted (yet again) on Le Guin. I am late to the party because her Broken Earth series (a trilogy) was, rightfully, a sensation when the individual volumes appeared wining every prize possible despite opposition from sexist, white supremacists.* The Ones Who Stay and Fight is a short story and a response, in complex ways, to Le Guin's The Ones Who Walk Away from Omelas. (It's possible that "Um-Helat" just is "Omelas" with a vowel shift and a few centuries drift.) There are many echoes of Le Guin's short story in in Jemisin's short shory.

There is, in fact, one kind of direct reference to Le Guin in Jemisin's story: among the population of Um-Helat, we are told, there are/is a "gethen" (7). Gethen is a planet in one of Le Guin's most famous novels, The Left Hand of Darkness (set in her Hainish universe). Gethen is populated by ambisexual people with no fixed sex. The implied narrator of "The Ones Who Stay and Fight" leaves it ambiguous whether this gethen is meant to be a descendant of the people of Gethen. If so, Jemisin's story is also part of the Hainish iniverse. I say 'also' because Le Guin had retrospecively inserted "The Ones who Walk Away" into the Hainish cycle with a dedication attached to another story (which I recently discussed), "The Day Before the Revolution." Or, the narrator is using 'gethen' as a means to refer to any kind of ambisexual (in the way that 'fridgerator' and 'xerox' function), and the implication is that Le Guin's writings are at least familiar to the narrator.

The previous paragraph is a kind of aside, but that there ambisexual people in Um-Helat is meant to be another illustration that in this city -- which (see also the quoted passage atop this post) is multi-lingual, multi-racial, multi-religious -- practically all human possibility is welcomed. As the narrator tells us on p. 1, "This is a city where numberless aspirations can be fulfilled." In reading about Um-Helat, I am often reminded of Plato's and, especially Al-Farabi's description of the democratic city. Recall Al-Farabi's take, "The democratic city is the city in which every one of its inhabitants is unrestrained and left to himself to do what he likes. Its inhabitants are equal to one another, and their traditional law is that no human being is superior to another in anything at all." Al-Farabi describes democracies as naturally, welcoming, cosmopolitan, multi-cultural and multi-ethnic societies ("the nations repair to it and dwell in it, so it becomes great beyond measure. People of every tribe are procreated in it by every sort of pairing off and sexual intercourse.") Democracy is presented in dazzling colors: it is "the marvelous and happy [polity]. On the surface, it is like an embroidered garment replete with colored figures and dyes. Everyone loves it and loves to dwell in it...." This dazzling feature is very present in Um-Helat, too, from the first page.

The first inkling we get of this in the story, is that in Um-Helat "anyone can earn auntiehood." (1) This suggest that it has an inclusive notion of family-hood. To be an 'auntie' in Um-helat, just means to care for a youngster. In fact, we later learn (and this is non-trivial point to the story, even a SPOILER--don't keep reading if you are not into that) that exclusive love to off-spring and parents at the expense of serving the common interest is highly problematic in Um-Helat. So, being a true 'auntie' in Um-Helat involves not favoring your own nephews and nieces.  

However, unlike the democratic city, Um-Helat has social mechanisms and customs that are clearly designed to prevent any instability and the degeneration of democracy into tyranny. In particular, these mechanism are designed to prevent ideologies that promote human inequality from taking root. The 'gethen' mentioned above (again SPOILER alert), is one of the so-called 'social workers' whose job it is to root out those who secretly consume and circulate our inequality promoting (social) media. These social workers -- with a nod to 'paradox of freedom' [in the story something analogous is called the 'paradox of tolerance' (p.5)] -- literally police the spread of dangerous memes and their (human) carriers. (The viral/contagious metaphors run through the story.) Some other time, I'll return to the nature of these social workers, but in the remainder I focus on peculiar such mechanism designed to create resistance to dangerous ideas (that promote unequal respect/dignity). 

For, not unlike Omelas (recall), Um-Helat has a peculiar and structurally not dissimilar coming of age ritual quoted above this post. What I am interested in here, is the content of the 'carefully curated stories.' For, not unlike the children in Omelas, they learn something about their city/polity that both is carefully kept from them (which implies an important social taboo), and simultaneously crucial to the political identity of the city and its citizens. In the case of Um-Helat it is connected to historical memory of a post-apocalyptic re-founding, and in which the archeological remnants of a bombed out civilization figures greatly.

In fact, there are plenty of hints throughout the story that Um-Helat understands itself as progressing, a work in progress, from a terrible nadir. Since the remains of the war are omnipresent and left highly visible, I was reflecting on what might be the content of the curated stories that so shock the kids.** I believe they are told that treating others as unequal, as worth dominating, inevitably leads to war, even civil war. Let's call this the bedrock principle of Um-Helat. And the reason they are shocked by the bedrock principle is that the very idea and the conceptualizations of treating others as unequal is banished from Um-Helat (remember the 'social workers' police this violently--they are like Platonic guardian-auxiliaries who guard city from internal and external enemies). It may well be very difficult to phrase in their language. (We are told they have plenty of vocabulary to mark difference, but not to express superiority in difference.) 

We are told, that what "shocks the young citizens of Um-Helat is the realization that, once, those differences of opinion involved differences in respect. That once, value was ascribed to some people,
and not others. That once, humanity was acknowledged for some, and not others." (p. 9) It is pretty clearly part of the logic of the story that the carefully curated coming of age ritual is designed as a kind of social inoculation against of the spreading of inequality in respect.

Now, the passage just quoted (from p. 9) does not support my claim that what they are taught in the coming of age ritual is that treating others as unequal, as worth dominating, inevitably leads to war, even civil war. It's possible they are merely that treating others as unequal did lead to war/civil war.

But I think bedrock can explain another oddity. The social workers don't just police the spread of ideas of unequal treatment/respect, but they are especially on the lookout for people who consume our (social) media. Um-Helat is a branch that split of from us at some point in (a possible) past. (The metaphysics and epistemology of the branching worlds is worth its own post.) And the oddity of the coming of age ritual of Um-Helat is that they explicitly teach in (carefully curated fashion) the very knowledge that is considered dangerous even explicitly forbidden in Um-Helat!

Now, one might that what's central (and again there are shades of Plato) is that the reason our (social) media is forbidden in Um-Helat is that it packages especially dangerous ideas in ways that makes its spread more likely that facilitate uptake for evil. This is certainly part of the story. But as the narrator recognizes (and the folk of Um-Helat, too), by making it "forbidden" fruit, it becomes "so seductive." (p. 9) And since in order to become adult in Um-Helat is to be explicitly exposed to these dangerous ideas anyway, why make it more attractive -- to inquisitive and rebellious natures -- by forbidding becoming acquainted with the versions circulating on our (social) media? 

I suspect that, in fact, the really dangerous idea -- and this is also what's so unsettling about the nature of Omelas -- is that it is not true that societies that are built on mutual disrespect, or on harming some and not others, fundamentally must lead to civil war.+ In fact, Omelas is explicitly a polity "without soldiers." To put this in the language of game theory, a fundamentally inegalitarian polity may be a suboptimal equilibrium, but an equilibrium nevertheless. And it is idea, which is key to bedrock, that is kind of the noble lie of Um-Helat. And if you don't believe that Um-Helat, which is lovely in many ways, can have any noble lies, you are in for a shock when you read the story for the first time and learn of the manner in which the social workers prevent the virus of inequality spreading. But I return to that before long....stay tuned.

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.