Liberty Matters

Not Reading Hume through Capaldi’s Oakeshott

In my previous post I raised some doubts about Nicholas Capaldi's claims about the nature of liberty as the default position. I suggested some of his thinking might be explained by the influence of Michael Oakeshott. Let me elaborate on this before going on to say why I have my doubts about Capaldi's thinking. In the end, I prefer my Humean critique of Oakeshott to Capaldi's Oakeshottian reading of Hume.
It is from Oakeshott, I think, that Capaldi derives his reading of modernity as a condition in which liberty is the default assumption. In the third essay of his masterpiece, On Human Conduct, Oakeshott offers an account of the modern European state as a form of association in which human beings have learned to live together largely, but not entirely, as members of voluntary and self-governing communities. To the extent that the states in question were civil associations, rather than enterprise associations (and all states were mixtures of the two forms, oscillating uncertainly between extremes), they were forms in which individuals related to one another as free persons, and the structures under which they lived were ones best understood as the products of their wills. At least in the European context, modernity was distinguishable from the pre-modern world by this understanding of the nature of political association. Oakeshott suggested that if the thinking of the ancient (European) world were to be characterized, the key concepts would be reason and nature. In the modern world, by contrast, the key concepts were will and artifice. In the modern world, if we describe it in the terminology of modern philosophers, we live under institutions we have created — and we have created them through our interactions with one another as separate, independent, agents.
It is this thought, I think, that lies behind Capaldi's view that liberty is the default position in the modern world. That world is best understood as Oakeshott would have us do so: as the product or the outcome of our independent, autonomous choices as separate (free) agents. This is why Hobbes is so important in Oakeshott's thinking. Hobbes offers us the most powerful and compelling account of the idea of the modern world as the artifice that arises out of the freely contracting wills of human agents. Hobbes may not have cared too much about our freedom under the state, but he insisted that that "mortall God" was nothing other than the product of our free and rational wills.
But Hume is not Hobbes. As much as Oakeshott admired Hume and may well have assimilated the Humean worldview to that of his illustrious 17th-century predecessor, Hume breaks decisively from Hobbes. Not only does he reject theological foundations for political authority, but he also pours scorn on social-contract theories suggesting that legitimate authority derives from the consent of the governed. As Capaldi rightly noted at the outset, Hume thought that legitimacy meant nothing more than that the populace acquiesced in the workings of authority — not that they consented to it. But this did not mean that authority was the construction of individual wills in the way that Hobbes (and later, Locke, Rousseau, Kant, and Hegel) would suggest, but the accidental and unintended outcome of interested conduct. Human institutions are not the product of will—not God's will, as the Tories would have it, nor human will as the Whigs proposed. There is nothing about the will that is capable of binding or obligating. What induces people to acquiesce in anything is that their interestsare served thereby.
Now, with the development of society usually comes some kind of juridical order—a context in which notions like contract and agreement are meaningful—but that juridical edifice rests on a foundation of interest. The modern theorist who has most clearly appreciated Hume's insight is Michel Foucault. For Hume, Foucault notes, "it is not because we have contracted that we respect the contract, but because it is in our interest that there is a contract. That is to say, the appearance and the emergence of the contract have not replaced a subject of interest with a subject of right."[39] The subject shaped and motivated by interest never goes away, and if interest is not placated, obligation or compliance cannot be expected. "So juridical will does not take over from interest."[40] Foucault elaborates on this point when he writes:
The subject of right does not find a place for itself in the subject of interest. The subject of interest remains, subsists, and continues up to the time a juridical structure, a contract exists. For as long as the law exists, the subject of interest also continues to exist. The subject of interest constantly overflows the subject of right. He is therefore irreducible to the subject of right. He is not absorbed by him. He overflows him, surrounds him, and is the permanent condition of him functioning. So interest constitutes something irreducible in relation to the juridical will.[41]
What the theorists of the social contract, no less than those who have looked for theological foundations for political society, have imagined is a condition in which all human relations are governed fundamentally by right. Interest, if it has not been banished altogether, has been so tamed as to have no place in any account of the basis of political society. The state can then be understood as the product of the uninterested and disinterested wills of its subjects.
What Hume's way of looking at matters suggests is that this thought is neither plausible nor necessary nor even particularly welcome. It is not plausible because it is not true in fact—not merely because there was never an original contract or that there are no communities founded by explicit agreement—but because states have been established either by violence or by the struggles of political elites to create, promote, and sustain institutions of their own devising, regardless of the wills (though mindful of the interests) of the populace affected. It is not necessary because constructing a narrative that presents the state as the product of the will of the people—as a juridical structure embodying the understanding and ethical commitments of those who live within it—does nothing to secure the stability of that order, or to ensure that it is more just, or to make its members more free. To see the state as the embodiment of the will of its members is unwelcome because it perpetuates a fiction which, in denying the significance of interest, works only to serve the interests of particular parts of society whose advantages are not thereby reduced but simply more elaborately concealed.
If we are to appreciate Hume as the preeminent theorist of modernity, we must leave Oakeshott—and Hobbes and Hegel—behind.
[39.] Michel Foucault, The Birth of Biopolitics: Lectures at the Collége de France 1978-1979 (New York: Macmillan, 2008), p. 274.
[40.] Ibid.
[41.] Ibid.