Dine at the Table of Liberty, Whine, or Resign

     

Dan Klein raises an important (perennial) and challenging question when he points out that we find in Hume and Smith "both a constitutional notion of an institutional system of liberty and the jurisprudential flipside notion: others not messing with one's stuff."

I translate this as follows: Can liberty be defined in such a way that the definition specifies (a) all necessary and sufficient conditions and (b) precisely identifies when illegitimate coercion has been instituted either by other individuals or by some level of government?

Short of an appeal either to a contestable theology (e.g., "...we are endowed by our creator…") or to a contestable metaphysics (e.g., state of nature, original contract, original position, etc.), the answer is NO.

Does this create intellectual or ideological problems for partisans of liberty? The answer is certainly yes. Critics of liberty will point out that there are no in-principle limits to government coercion. By itself, this does not license unlimited government coercion unless one subscribes to an equally contestable philosophical foundation (usually some version of egalitarianism). However, what this does do, seemingly, is establish that partisans of liberty do not have a knock-down foundation.

What is it then that partisans of liberty have on their side?

Individual liberty is the default position. (More on this below.) Defenders of liberty do not have to prove that what they do is permissible or good or contributes to some other goal (although it might). Those who would seek to limit liberty have the onus of showing that (a) a particular action is harmful and (b) curtailing that action will not have even more harmful consequences. Liberty or liberties do not have to be defended; curtailments do. It is important to stress that there is a big difference between living in a society where liberty is the default position ("innocent until proven guilty") and living in a society where it is not. This default position is coherent with lots of other norms (prosperity, security, etc.).

Why is liberty the default position? It is the default position because it is a product of practices that evolved spontaneously out of English history (Tacitus on the mores of the Germanic tribes, MacFarlane on the rise of English individualism, the history of the common law, Hume on the History of England, etc.). Any critique or emendation of this inheritance has to be immanent (for all the reasons already explained in the original essay).

There is an important connection here between law and liberty. The Anglo-American legal system operates with liberty as its meta-norm. (Oakeshott's civil association is an expression of this.) Can a code be constructed that explicitly grants a priori legal protection to a specific liberty, e.g., a market order? That would require a transcendent (rationalist) intervention, something rejected by Hume, Hayek, and Oakeshott among others. More importantly, no legal system can operate by legislative intervention alone; the full meaning of legislation is itself something that emerges (evolves) in subsequent legal challenges and decisions. The only protection is having liberty as the meta-norm or default position.

Having explained why liberty is the default position, we can ask whether we can predict and control all future permutations. The answer is no. This will not satisfy everyone for lots of different reasons, but no one can offer an alternative without appealing to a contestable theology or metaphysics. Your choices are dine at the table of liberty, whine, or resign.

There is an important rhetorical/dialectical element to be considered here. By trying to provide an unassailable principle that applies itself without qualification (academic and legal industry), partisans of liberty do two negative things: (a) legitimate the search for absolutes ("absolutes" reflect transcendent philosophy that Hume rejects) and (b) fail to achieve it and thereby provide ammunition to the liberty-limiters. This is crucial because I believe that liberty-limiters have no positive argument on their behalf (other than discredited theology and metaphysics) and survive only by attacking the failed transcendent hypotheses of the partisans of liberty. When partisans of liberty stop trying to provide knock-down arguments, the liberty limiters will have nothing but discredited philosophy and self-defeating spin. Muddling through is the most effective strategy.

Andrew Sabl, author of the excellent book Hume's Politics: Coordination and Crisis in the History of England (2012), raises three important points: (1) whether political order has primacy; (2) whether Humean metaphysics and epistemology entail or are the only supports for a liberal society; (3) whether Humeanism is and will continue to be a minority taste.

I heartily agree that Hume gave politics a prominent role. If I had more space, I would have elaborated Shirley Letwin's discussion of Hume's political disposition (chapters 8-10 in Part I of her book The Pursuit of Certainty 1965; Liberty Fund reprint in 1998), most especially because it is a version of Oakeshott's politics of skepticism. Where I would go further is to insist that the legal order is even more fundamental than the political order for a liberal society. One of the great under-discussed contemporary issues is whether law is an instrument of politics (what Hayek feared it had become as a consequence of positivism and is now reflected in the dominance of an anti-democratic administrative state) or whether it is a way of limiting government, including a democratically elected one. Hume's History of England alludes to this issue.

This leads to the second issue of the philosophical foundations of a liberal society. What I argue is that Hume provides (a) an historical account of how a liberal order arose in England and (b) how his epistemology (evolutionary inductivism) and metaphysics are compatible with that order. One never deduces the practice from the theory; all one can do is intellectually explicate the practice.

Projecting these two points (priority of law and role of explication) into contemporary discussion, I argue (in a forthcoming book) that individual freedom is essential to the meaning of the rule of law (Dicey, Hayek, Fuller, Oakeshott's civil association), that the rule of law developed only in Anglo-American societies, that the continental legal tradition has "rule through law" not "rule of law," that a different historical tradition and the dominance of scientism, rejected by Hume, are responsible for this, and that Brexit is, in part, a consequence.

With regard to the third issue, I would agree, unhappily, that Humeanism will probably never be popular. I take consolation in Oakeshott's response to this kind of issue when he said, "The desire of the 'masses' to enjoy the products of individuality has modified their destructive urge" (p. 383 of Liberty Fund publication of "The Masses in Representative Democracy" in Rationalism in Politics and Other Essays, ed. Timothy Fuller, 1991).

As usual, the ever-perceptive Chandran Kukathas has put his finger on two crucial issues. The first is the status of liberty. The short response is that Hume (a) insists upon the existence of moral pluralism; (b) the rule of law evolved throughout English history as an institutional response for managing potential conflicts; and (c) the rule of law presupposes, among other things, individual liberty as the default position (Oakeshottean civil association). Hume's History commences with Tacitus's reference to the liberty-loving "Germans" and proceeds to show how liberty evolved and became more sophisticated – one could make a case that the whole of the History is the history of the evolution of the rule of law so understood. (See Siedentop on Ockham, Inventing the Individual, and MacFarlane on the Origin of English Individualism).

The second issue is the epistemological (and metaphysical) basis of moral pluralism and its reflection of individualism. Hume is the inheritor of the British intellectual tradition of nominalism (Ockham, Bacon, Hobbes, Locke, etc.). (Even philosophy has to be understood historically.) Nominalists reject the rationalist (Cartesian) contention that discursive reason allows us to understand ourselves by isolating a disembodied mind or self. There is no apprehension of the self independent of what it does. There is no Aristotelian distinction between a thing and its properties; properties are revealed in action (Newtonian). The complex idea of the self emerges in action as the object of pride and humility. Hume's conception of personal identity (idea of the self) anticipates Oakeshott's conception: the self of which we are not immediately aware is free to use imagination to define itself as an individual and give meaning to its historical experience in the making of choices; this is how we learn about and make ourselves (idea of the self); this engagement is a self-enacted history (adventure in self-definition). "Almost all modern writing about moral conduct begins with the hypothesis of an individual human being choosing and pursuing his own directions of activity" (Oakeshott, "The Masses in Representative Democracy," p. 367).

"Moral philosophy," as opposed to "ethics," comes into being in the 17th century. It reflects the recognition that there is no natural teleology (as in Aristotle) so that the question of how the interests of the individual are related to the interests of others or to society as a whole (i.e., our moral obligations) becomes a real issue. Aristotle would never have raised such an issue because he saw a seamless web of the individual and society. Precisely because of the nominalist epistemology/metaphysics, Hume can explain (explicate) how we gradually discover how our understanding of the rule of law evolved and how a sophisticated notion of individual liberty emerges as the default position. Without the rule of law so understood, individualism will be superseded by the tyranny of the majority.

Finally, Mark Yellin astutely reminds us that an important case needs to be made for the contents of the qualified generalizations made by Hume with regard to public policy.

Alan MacFarlane, The Origins of English Individualism: the Family, Property, and Social Transition (Oxford: Blackwell, 1978).

Michael Oakeshott, Hobbes on Civil Association (Indianapolis: Liberty Fund, 2000).

Oakeshott, "The Masses in Representative Democracy" in Rationalism in Politics and Other Essays, ed. Timothy Fuller (Indianapolis: Liberty Fund, 1991).

Shirley Robin Letwin, The Pursuit of Certainty: David Hume, Jeremy Bentham, John Stuart Mill, Beatrice Webb. (Cambridge: Cambridge University Press, 1965; Indianapolis: Liberty Fund,1998).

Larry Siedentop, Inventing the Individual: The Origins of Western Liberalism (Harvard University Press, 2017).