Front Page Titles (by Subject) II: Law, Liberty, and Political Thought - Literature of Liberty, Winter 1981, vol. 4, No. 4
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II: Law, Liberty, and Political Thought - Leonard P. Liggio, Literature of Liberty, Winter 1981, vol. 4, No. 4 
Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.
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Law, Liberty, and Political Thought
Literature of Liberty continues to report on the interconnections of law, liberty, and individual rights (cf. our Autumn 1981 issue, pp. 82 ff.). The two opening summaries scrutinize the various rationales for legal punishment. Then follows a group of five studies on the importance of free contract and private property in social analysis. The next group turns to the consequences of legal regulation on different human activities. A theme running through the concluding summaries is the significance of individual freedom in defining the contours of a humane society. Apropos to Kingsley Widmer's bibliographical essay, “Utopia and Liberty,” several of the following legal and political topics urge an openness to implementing ideal moral values and visions in the areas of criminology, contract, property rights, industrial freedom, nondiscrimination, and travel.
Restitution vs. Punishment & Crime Prevention
“The Justice of Restitution.” The American Journal of Jurisprudence 25(1980):117–132.
Recently, scholars have given much attention to the topic of making restitution to victims of crimes. Most studies, however, have concentrated on how restitution might be implemented or how it has fared in other cultures and times. The author, by contrast, considers what sort of justice theory would properly underlie a restitutive approach and how such a restitutive theory compares with more familiar versions of criminal justice. The author builds his current analysis upon his two earlier articles: “Restitution: A New Paradigm of Criminal Justice.” Ethics 87 (July 1977): 279–301, in which he showed the systemic weakness of the paradigm of punishment (deterrence, disablement, and reformation) as against restitution and victim compensation; and “Assessing the Criminal: Restitution, Retribution and the Legal Process,” in Assessing the Criminal, eds. Randy E. Barnett and John Hagel III (Cambridge, Mass.: Ballinger, 1977), pp. 1–31, where he argued that a system of justice should only rectify infringements of moral rights and not engage in crime prevention through deterrence, disablement, reformation, or rehabilitation—however worthy such moral goals, as distinct from moral rights, may be.
A restitutive theory of justice is a rights-based approach to criminal sanctions that interprets a crime as an offense which one commits against another's right and which, therefore, demands forced reparations by the criminal to the victim. Restitution is a sharp departure from the two predominant sanctioning theories: retribution and crime prevention.
Some rights-based analysts have criticized the restitutive approach for failing to include mens rea (criminal intent) into the calculation of sanctions, thereby ignoring the traditional distinction between crime and tort. Such a distinction, however, is problematic since punishment for an evil mind (mens rea) cannot be made compatible with a coherent individual rights framework. To attempt to do this would require our claiming the right to certain thoughts of others, a position that is morally and theoretically objectionable.
To understand the argument for a restitutive remedy for the violation of rights we must define what a crime is: an unjust redistribution of entitlements by force, if necessary, from the offender to the victim. The author addresses common objections to such a theory of restitution, including the difficulty of measuring damages, the impossibility of reparation and the problem of criminal attempts which fail.
Criminology & Rationales for Punishment
“Criminology: The Birth of a Special savoir: Transformations in Penal Theory and New Sources of Right in the Late Nineteenth Century.” I&C (Ideology and Consciousness; England) No. 7 (Autumn 1980): 17–32.
The nineteenth century witnessed a profound transformation in defenses of punishment, in notions of criminology, and in jurisprudence relating to the debate over criminal anthropology. Focusing on the strange shifts in the history of ideas concerning rationales for punishment and conceptualizations of “the criminal,” Pasquino lays bare the often arbitrary and ideological justifications of penal theory. In tracing these roots of modern criminology, he reveals how nineteenth-century social and intellectual transformations gave birth to a human “science” of criminality erected on the slogan of “social defense.”
During the 1870s and 1880s, the classical theory of penal law, whose roots lay in Beccaria's and Benthamite liberal utilitarianism, was overturned by the “social school” of criminologists, which included such figures as Enrico Ferri and von Liszt, the mentor of the Young German School of Criminal Psychologists. For classical theory penal justice applied to all men and revolved around the concepts of law, crime, and punishment. Since classical theory maintained a universal theory of human nature and free will, no separate species of “criminal man” (homo criminalis) existed in its system. Anyone can commit a crime through an accident of will. Such temporary deviation would label the offender homo penalis: while remaining a man he might be subject to a utilitarian calculus of punishments intended to deter him and others from further crimes. Punishment and intimidation served to maintain a contractual society of free and equal individuals and did so through a liberal conception of law as the “constitution of liberty.” A transgressor remained a member of human society and humanity, but one who required the therapy of punishment.
The new social school of criminology no longer considered the transgressor a human; he became a separate pathological species, homo criminalis. No longer studying the legal transgressor as part of a general anthropology of human action, the new “science” of punishment went beyond the remedy of deterrence to “neutralization” and liquidation of this evolutionary throwback and freak, the “criminal.” The newly conceptualized “criminal” lacked free will and required a special class of psychological and legal “experts” with a special “knowledge” appropriate for such an exotic specimen. The new “science” also reconceptualized society, diverging from the earlier liberal and laissez-faire interpretation of society as the contract of free individuals under the rule of law. Society shifted from the free union of voluntary subjects protecting themselves by law to a mystical and primary amalgam, considered as a complex of conflicts and interest. Society is no longer “nature” but organic community, Gemeinschaft. It exists prior to and superior to its members.
The new social school melded into its notion of the criminal earlier marginal and problematic beings (the monster, the incorrigible child, perverts, homosexuals, prostitutes, and the common poor). The new “experts” carved out a niche for their new savoir, establishing a novel pedagogy for criminologists, explaining the socio-psychological causes of crime, and recommending legislative “social hygiene” to deal with “anti-social” acts and species.
Defending Freedom of Contract
“In Defense of ‘Unbridled’ Freedom of Contract.” The American Journal of Economics and Sociology 40(January 1981):1–14. [An earlier version of this paper was presented at a symposium on Freedom of Contract, sponsored by the Institute for Humane Studies and the University of Dallas, 1978]
The doctrine of freedom of contract holds that each person should have the liberty to enter into and the right to insist on the fulfillment of any rights-respecting contract. Professor Mack expands, clarifies, and defends this general doctrine and defines it as an implication of a Lockean emphasis on natural right.
This natural rights perspective requires the rejection of all collective social good theories (for example, utilitarianism) and the rejection of objections to freedom of contract which proceed from such theories. Mack considers four specific objections to freedom of contract. Each of these objections appears to flow from an “individualistic” emphasis on freedom and rights. Each of these, however, is dismissed either for misconceiving the nature of freedom or for involving an underlying appeal to some implausible social goal theory.
The author points out that the actual historical doctrine referred to as “freedom of contract” is rather timid and narrow in comparison to a more generally consistent and bolder philosophical understanding of free contract which would ban all coercive restrictions on free market relationships. The more modest historical version of freedom of contract probably reached its high-water mark as a constitutional doctrine in Coppage v. Kansas (1915). In that case the Supreme Court struck down a Kansas statute which forbade employers from requiring that their employees agree not to join labor unions as a condition of their employment. Throughout his paper, Prof. Mack draws on the opinions offered in Coppage v. Kansas for illustration of his arguments.
Mack argues that we can establish the existence of a negative obligation not to coerce others and also the correlative right against being coerced (this involves defining an appropriate theory of private property rights). Once we demonstrate this and further show that we cannot establish the existence of pre-contractual positive rights and obligations, we then have the full and sufficient basis of affirming the general philosophical doctrine of freedom of contract. This would then empower us to defend the much narrower historical claims of freedom of contract.
Privatizing Public Parks
“Parks, Property Rights, and the Possibilities of the Private Law.” The Cato Journal 1(Fall 1981):473–499.
Private property rights are commonly assumed to be incompatible with preserving such environmental resources as our national parks. Many thus believe that government ownership is necessary to preserve park areas. Professor Beckwith argues that private alternatives to public ownership of parks are, in fact, legally feasible and are, moreover, desirable on both efficiency and ethical grounds.
The impediments to privatization of the public parks are not legal. Indeed, the legal system could quite easily adapt to a privatized system of parks and recreation. If there were a need, imaginative conveyancing lawyers could devise a way to meet it. Just as the private lawyers made possible the mortgage, long-term lease, and numerous uses of the law of trusts, so could they be the legal architects of the private parks. Private lawyers' creative drafting could renew the private law and build consensual, voluntary institutions consistent with economic efficiency and individual freedom.
The impediments to privatizing public parks are, in fact, primarily political. The legal possibilities of privatizing public parks are today inseparable from questions of public choice since interest group coalitions have politicized economic choice by invoking public law. Such public choice questions are crucial ones for lawyers. Because they are often harbingers of a drone-like “rent seeking” in a politicized society, their services are frequently a form of social waste. By encouraging the rent seekers' breakdown of restraint, the new public lawyers are degrading and transforming the law from an instrument of spontaneous private agreement into one of public coercion. The era of politicization has witnessed the decline of the evolving common law and the rise of transfer legislation.
Privatization of park services would encourage efficiency by awarding contracts to low-bidding firms. User charges assessed against those who visit the parks would control overuse and deterioration. It is essential that property rights in parks be defined, transferred, and enforced, for it is only by the alleged inability to exclude nonusers that anyone could justify public control and the avoidance of user fees.
Public parks nominally belong to “the people,” but this really means that they belong to only those people who use them, not to all the people. Public parks could be sold at auction to the highest bidders. The new private owners could charge market-clearing admission fees. Being more responsive to consumer preference, the parks would become much more diverse. Individual liberty would also be enhanced since private parks would rest on the consent of the voluntary contracting parties. The private ownership of the parks would be a form of “fee simple absolute” and would allow the owner to use, sell, or bequeath the park at will. The author develops several legal questions in regard to how the parks would be managed by corporations or tenancy in common under the traditional tort principles of caring for the park users. Other legal issues analyzed are the qualification of the fee simple, promises regarding the use of the park land, and privatization with respect to tort law and criminal law.
Law and the American Economy
“Regulation, Property Rights, and the Definition of ‘The Market’: Law and the American Economy.” The Journal of Economic History 41(March 1981): 103–110.
Professor Scheiber identifies four problems in the recent interdisciplinary studies of property rights, law, and economic development in the nineteenth-century United States.
First, recent studies stress too exclusively the positive functions of law in either the “release of entrepreneurial energy” or the exploitative allocation of advantages (by courts and legislatures) to the business interests leading industrialization.
Second, the dichotomy between alleged “instrumentalism” as the prevailing judicial style before 1860 and ‘formalism” after 1865 has been exaggerated.
Third, generalizations have been based too much on the eastern states and Wisconsin.
Fourth, there has been a failure to identify accurately the winners and losers in the struggle over regulation and the definition of property rights.
Thus, although rediscovery of the importance of institutions by economists and the renaissance of legal history among historians and legal scholars constitute welcome and converging developments in recent scholarship, much more research is needed on these main themes and literature.
Sumner, Social Darwinism & Property
“Social Darwinism and the Liberal Tradition: The Case of William Graham Sumner.” The South Atlantic Quarterly 80(Winter 1981):61–76.
Social Darwinism in late nineteenth-century America intellectually challenged the prevailing political and social values. The most systematic of the Social Darwinist thinkers, Herbert Spencer (1820–1903), as well as his American disciple, Yale sociologist William Graham Sumner (1840–1910), borrowed freely from Darwinian evolutionary theory. They tried to show that social life was subject to particular laws of development and that man's ethical values were and should reflect the evolutionary process. Even though man was still a moral agent, he was unable to act effectively in his moral capacity while pursuing a preconceived design. This belief challenged a basic premise of American liberal democratic theory — that individual aspiration was the central stimulus of social life.
The authors, however, contend that Social Darwinism in America, as interpreted by William Sumner, drew upon themes and ideas that were firmly established in American political consciousness. In fact, the introduction of such notions as the struggle and competition for survival dramatized and highlighted some of the central concerns of the liberal tradition. Stripping it of its optimism and its benevolent view of man, Sumner, nevertheless, did not discard liberal theory, but his synthesis contained inherent tensions.
Like Spencer, Sumner placed the individual at the center of his sociology. Society, he believed, could improve only if men removed restrictions on their economic life. For Sumner, individual liberty had value because it facilitated competitive interaction between groups.
There was no inherent contradiction in Sumner's mind between social harmony and competitive struggle, for one could not flourish without the other. Undoubtedly, he lacked both the optimism concerning moral sentiments and the concern for the aesthetic that characterized the Scottish Philosophers and the Jeffersonians. Nonetheless, he did not challenge their fundamental belief in the primacy of the individual. Indeed, Sumner believed that he was reinforcing liberalism by removing the unverifiable humanist elements of the eighteenth century and substituting a hard-edged, scientific foundation.
Sumner's reputation among historians as a conservative rests primarily on his attitude toward property. The authors dispute this characterization. True enough, Sumner did not seriously challenge the concentrations of wealth in his day. He regarded property as the natural reward for hard effort and success in the struggle for life, and he believed that any interference with the ownership of capital would undermine the basic reward mechanism. Nonetheless, unlike conservatives, Sumner rejected the idea of a fixed, historic social order and advocated (much like the liberals) voluntarism and laws to limit the authority of the state.
According to Sumner, property not only enabled man to run his affairs more efficiently, but also to liberate his energies. He thus attested to the liberal faith that acquisition served to confirm man's reason and to give society a special cohesion.
Sumner, therefore, was hardly a conservative masquerading in liberal clothing. He espoused a materialistic ethic and believed that capitalism would serve to harness liberal ideals to industrial life in late nineteenth-century America. True, Sumner echoed the views of the entrepreneurial class. Yet he managed to rehabilitate the owners of wealth. They were no longer Whigs, at odds with the democratic temper, but the very standard-bearers of the liberal persuasion in America.
Lagos and Colonial Property Rights
“Property Rights and Empire Building: Britain's Annexation of Lagos, 1861.” Journal of Economic History 40(December 1980):777–798.
Britain's annexation of Lagos in 1861 has been accorded considerable importance in studies of West Africa's occupation by European powers in the second half of the nineteenth century. The annexation was central in accounts of Nigeria's formation, since Lagos became successively the colonial and federal capital, as well as the leading port of that country. Prof. Hopkins believes that the role of property in the acquisition of Lagos has not been sufficiently appreciated. Thus, with the aid of previously unused sources, he attempts a new interpretation of the question from the perspective of property rights as both a cause and consequence of annexation.
The principal sources concerning British policy towards tropical Africa in the mid-nineteenth century abound with references to property, usually along with two companion concepts—life and liberty. The abolition of the external slave trade in 1851 significantly changed property relations in West Africa. Property in human beings offended newly formulated beliefs in individual liberty and was also considered economically inefficient and socially retrogressive.
The abolition of the slave trade struck a blow to the power of the kings of Lagos. By privilege, this commerce had been reserved exclusively for them. The distribution of the resulting largess and jobs was essential to maintaining their political following. Efforts to substitute the palm-oil trade and taxes on it merely succeeded in impoverishing the kings and creating a powerful new merchant class. This class was largely comprised of Europeans, repatriated ex-slaves, and Sierra Leonean newcomers.
The rising merchant community in Lagos found it to its advantage to implant European notions of property, including rights of alienation and sale for a market price. Implanting such ideas presupposed the existence of a stable, civilized government which would protect and propagate them.
By the early 1860s, the British Foreign Office and Colonial Office grew increasingly receptive to European and Sierra Leonean demands to annex the territory of Lagos. “Most of them,” wrote British Consul McCoskry, “have reason to complain of the want of protection of property under the rule of (King) Docemo.”
A Treaty of Cession was, thus, forced on Docemo in August 1861. By the terms of the treaty, the system of land grants established during the consular period was confirmed, laying the foundations for a property-owning democracy. Land values jumped as soon as the treaty was approved. New settlers scrambled for unclaimed plots. Within 40 years, the new property institutions began to attract the natives of Lagos, who came to appreciate the idea of handing property over to their children without encumbering limitations.
Although African merchants ceased to compete with European firms soon after the turn of the century, they and their families clung tenaciously to landed property whenever possible. In becoming rentiers, the merchants retained their gentility and used income from this source to finance the education of their children. In this way, they helped generate new forms of property based on the service industries—notably the professions and, the greatest of all prizes, government employment.
Prof. Hopkins holds that the deep political and social changes wrought by property development in Lagos have their parallels in numerous areas on the African continent. The data strongly suggest, he asserts, that the study of African history would benefit from assigning higher priority to the analysis of property rights other than those embodied in slaveholding.
Price Controls, Legal Regulation & Inflation
“Government Price Controls and Inflation: A Prognosis Based on the Impact of Controls in the Regulated Industries.” Cornell Law Review 65(March 1980):303–329.
Government price controls in the United States have historically followed one of two patterns. Controls have, first, been imposed upon specific industries to remedy perceived deficiencies in the pricing practices of the individual industries affected (such as the regulation of railroad rates); second, controls have been imposed on the economy as a whole, dictating virtually all prices and regulating wage levels as well. The author draws on a substantial body of evidence on the effects of price controls in regulated industries to consider the manner in which these controls have functioned and to determine whether this evidence sheds any light on more general efforts at price control. He studies three areas: (1) the application of price controls to “monopoly” enterprises, (2) the application of controls to “competitive” industries, and (3) the implications of this experience in judging the prospects of a large-scale program of government price controls. The author draws on his unpublished monograph, The Impact of Common Carrier Regulation on Competitive Activities, which IBM submitted to the FCC in 1977.
As to the effects of government price regulation on such “natural monopolies” as public utilities, the author sees some flaws. “But on the whole, profits have been effectively limited, service has been made widely available, and productivity gains and price levels compare favorably with other sectors of the economy.”
More disastrous consequences attend price regulation in “competitive industries.” Whereas public utilities aimed at forbidding competition, government regulation in this second area sought to retain competition while attempting simultaneously to control “discriminatory practices.” Attempts to control competitive industries which lack monopoly characteristics “can be expected to produce unsatisfactory results,” in price levels, service quality, and innovation. Government regulation diverts energies of the regulated firms from the provision of improved service or lower prices to the prevention of actions by rivals who may provide improved service or lower prices. “The competitive rivalry is suppressed in the marketplace and intensified in the regulatory area. This diversion of energy and attention is not conducive to innovation, improved economic performance or increased consumer welfare.”
Moving from particular industry regulation, what is the prognosis of a general program of wage and price controls? Enormous difficulties would prevent a federal price administration authority from controlling evasive accounting methods and product variation (to escape price controls). The price of attempts to control prices is high. “Government regulation of prices may result in price levels that are too high or too low compared to the levels that would be achieved by competitive markets. Dictating low prices will make service deteriorate, drive away needed capital, and produce shortages. Shortages, in turn, will call for more government intervention in the form of short-run rationing and long-run subsidization. Dictating prices higher than the market creates obvious wastes. Whether government sets prices too high or too low, the result will be inefficient performance and a decline in the nation's productivity. Lower productivity will seriously augment the harm of inflation, which would be the most dangerous aspect of wage-price controls.
Discrimination and Affirmative Action
“Weber and Bakke, and the Presuppositions of ‘Affirmative Action’.” In Discrimination, Affirmative Action, and Equal Opportunity. Edited by W.E. Block and M.A. Walker. Vancouver: The Fraser Institute, 1982, pp. 37–63.
Paradoxically, the Supreme Court upheld racial quotas in the Weber case (1979), only one year after striking down quotas in the Bakke case. The court in each case stressed the narrowness of the issues they resolved. But how consistent are these cases and how reasonable the underlying reasoning of judicial attempts to reverse discrimination through “affirmative action”? Professor Sowell's discussion seeks to clarify: (1) the evolution of “affirmative action” as a concept, (2) its presuppositions about social processes, and (3) the implications of the Bakke and Weber cases specifically.
Through evolution the original meaning of “affirmative action” (a general attempt to inform and recruit applicants from groups long excluded from employment) gave way to its current meaning—choosing among applicants on the basis of numerical quotas. This shift replaced the prospective concept of opportunity with the retrospective concept of results. This shift implies that nothing but discrimination can explain large intergroup differences in such areas as pay and hiring. Thus, the four dissenting justices in the Bakke case created a hypothetical ideal world in which sufficient numbers of qualified minority applicants would have outperformed Bakke if past discrimination had been corrected by affirmative action quotas.
This hypothetical retrospective conjecturing presupposes that discrimination alone must be the decisive explanation of intergroup differences. We may however, concede the moral evil of discrimination, but still insist that that is no measure of its causal impact. Nor is it a reason to ignore the causal role of such non-moral variables as age, location, and cultural values. Empirical evidence shows the weakness of the causal primacy of discrimination. For example, among the highest income groups in the United States are non-white groups with a history of severe discrimination (e.g., the Japanese Americans who suffered mass internment in World War II). The uniqueness of the historic disabilities of blacks undermines their causal and legal arguments. There are non-enslaved, non-Jim Crowed, non-black groups worse off in respect to median family income, occupational level, years of schooling, I.Q., and unemployment rates. The economic performance of West Indian blacks in the United States suggests that color discrimination is not the weightiest causal factor.
Ironically, the historic discrimination against one racial minority is now being invoked as the basis for discrimination against the residual minority of persons not designated as special by arbitrary government experts. Thus, Chinese Americans (though they have high incomes and more education) are designated as an official minority over Irish Americans. More ironically, blacks and women (for whom reverse discrimination is claimed) largely reject preferential treatment. Finally, the lack of popular support for affirmative action raises grave questions of anti-democratic judicial usurpations of power.
The First Amendment and Pornography
“Pornography and the First Amendment: Prior Restraint and Private Action.” In Take Back the Night: Women on Pornography. New York: William Morrow and Company, 1980, pp. 241–247.
Kaminer presents a legal positivist analysis of pornography, freedom of speech, and current feminist anti-pornography activities.
Obscenity, Kaminer notes, is not now protected by the First Amendment. In 1957 in Roth v. United States, 354 U.S. 476, the Supreme Court held that obscenity (like libel) was not speech and could be prohibited. Problems arise, however, in defining obscenity and separating it from protected speech. The current definition of the Supreme Court was enunciated in 1973 in Miller v. California, 413 U.S. 15. Obscenity is material that among other things, “lacks serious artistic, political, or scientific value.”
Theoretically, most “hard-core” pornography could be found legally obscene under the Miller decision and could be prohibited. This is not practically possible since the First Amendment has been interpreted to prohibit prior restraint of material before publication.
Some feminists have suggested that pornography could be readily prohibited because it is deemed dangerous and may incite violence against women, and therefore represents a “clear and present danger” to them. Kaminer argues that the application of the “clear and present danger” standard to pornography undermines the current legal rationale for censorship. The “clear and present danger” standard applies to protected speech, not unprotected speech such as obscenity. Traditionally the standard is used to restrict political speech: anti-draft pamphleteering in 1919; “subversive” speech in 1950; the Pentagon Papers. Application of this standard to pornography would imply that pornography contained “serious political values.” Since the “aggrieved party” would not be the state “in its role as guardian of national security,” but women as a class, application of the “clear and present danger” standard to pornography would exempt it from all regulation as protected political speech which does not threaten the state.
Kaminer notes that such a defense of freedom of speech for pornographers was attempted in Roth v. United States, 354 U.S. 476, and predicts that the current feminist anti-pornography movement's definitions and analyses of pornography may provide a climate in which a defense will be successful.
The Right to Leave Any Country
“Citizenship and the Right to Leave.” American Political Science Review 75(September 1981):636–653.
The Universal Declaration of Human Rights (1948) proclaimed among “human rights and fundamental freedoms” the right to leave one's country, together with the right to change one's nationality. Both these asserted rights are studied in historical and philosophical perspective with special reference to what they imply concerning a theory of citizenship.
These rights are novel claims in enumerations of fundamental rights and are at variance with traditional conceptions of state sovereignty and with the practice of many states, past and present. They are also rights which have been infrequently defended, and have often been denied by political and legal philosophers. These critics have usually defended stronger ties of allegiance and obligations between the citizen and the state than is evidently implied by the human rights doctrine.
These asserted rights are clearly grounded in basic liberal values of individual liberty and voluntarism; however, they represent extensions of these values beyond what was usually acknowledged in the classical liberal tradition.
The Evolving Notions of Individual and Society
“Society and the Individual from the Middle Ages to Rousseau: Philosophy, Jurisprudence and Constitutional Theory.” History of Political Thought 1(Summer 1980):145–166.
What is the relationship between the individual and the group? Is individual autonomy (or “methodological individualism”) a preferable conceptualization to absorption of the individual in the group (or “social holism”)? Discussions on the nature of human groups did not begin with Popper's argument that holism must lead to totalitarianism and that liberal democracy ultimately rests upon methodological individualism; similar discussions were a central acivity of medieval thought. Also, did the early medieval man lack a sense of individualism until the thirteenth century or even later? The author addresses these questions together with the differences between legal and empirical styles of political thinking.
In the Middle Ages, lively and diverse debates centered on the relationship between the whole and the parts in society. Just as today, rival positions ranged from holism to individualism. Although it is conventional to suppose a contrast between a primitive holism of those earlier times and a more self-aware individualism of our day, much evidence suggests that ordinary people in these earlier periods were often individualistic. Independence of mind and liberation from the social whole are always rare and may be evenly distributed in most ages.
The Middle Ages also made a connection between social philosophy and moral constitutional norms, but in large measure the reverse of our modern fashion. Atomism and individualism in this earlier period marched with monarchy, whereas methodological holism (cf. the Conciliarists) was the prop of popular sovereignty. These connections may be more accidental than necessary. One can argue for popular sovereignty just as easily from a holist as from an individualist position.
Political thinkers of the Middle Ages not only used jurisprudence to express their ideas but also followed the lawyers' concept of fictio in constructing a unique language for politics. The theory of the social contract itself may be seen as a logical development of an artificial and reified mode of legal reasoning.
The author traces the linguistic, philosophical, religious, constitutional, and legal transformations and evolution of the concepts of group and individual through the various political and religious-philosophical studies and debates of the Middle Ages and after-wards. These diverse domains cross-fertilized each other in developing the history of these ideas.
STATEMENT OF OWNERSHIP, MANAGEMENT AND CIRCULATION