This paper was presented at The Future of Freedom Foundations five-year anniversary conference in 1994.
The momentous upheaval in Eastern Europe in 1989, followed by the complete disintegration of the USSR, did not usher in the end of history as claimed by overly-enthusiastic Western commentators such as Fukuyama (1992) in the first wave of euphoria over the collapse of Marxist-Leninist dogma. However, as James Buchanan (1991) noted, it did end a vision of socio-economic political reality based on collectivist-socialist ideas. It is now possible to analyze the complexities of social interaction among individuals without regard to the collectivist-socialist shadow that has been cast over such discussions for the better part of the twentieth century.
It is especially important, in such circumstances, that those who place a high value on individual freedom do not become complacent about their cause. On the one hand, the collapse of the Soviet Empire has provided unequivocal evidence that socialism cannot create wealth and cannot tolerate liberty. If the proposition is accepted that ideas have consequences, then the failure of the socialist idea should open up opportunities for halting and reversing the drift towards collectivization in the advanced Western democracies. On the other hand, false complacency among pro-market scholars and advocates, based on unfounded notions that the philosophic and economic debate has ended in a decisive victory, may lower the vigilance that is continuously necessary to protect liberty against the forces of mercantilism.
As Buchanan (1991) has observed, the demise of socialism has discredited, perhaps forever, the appeal of politics in the large in the sense of the centrally planned and controlled economy in which individuals must seek their own realization as integral components of a socialist community. However, the demise of socialism does not seem to have discredited the appeal of politics in the small in the sense of piece-by-piece interference with market processes. The electorate in its majority has not come to any robust acceptance of the notion that, if politicization does not work when applied over all markets, then it will not work in the case of particular markets, taken one at a time.
In large part, this hesitancy is explained by pressures of public choice. In not inconsiderable measure, however, it is reinforced by a failure of conviction or of continuing resolve among classical liberal scholars including those who once were the intellectual giants of the classical liberal movement. It is the principal purpose of this book to review the determinants of this failure of resolve and to restate in clear and compelling terms the classical liberal case for the minimal state.
In Retreat from Utopia
In 1974, Robert Nozick challenged the most commonly held political and social positions of that time liberal democrat, socialist and conservative by reasserting that individuals have rights and that there are things that no person or group may do to them without violating their rights. So strong and far-reaching are these rights that they raise the question of what, if anything, the state and its officials may do.
His main conclusions were that a minimal state, limited to the narrow functions of protection against force, theft and fraud and concerned with the enforcement of contracts, is justified; that any more extensive state must violate individuals rights to do certain things, and is unjustified; and that the minimal state is inspiring as well as right. Two noteworthy implications are that the state may not use its coercive apparatus for the purpose of requiring some citizens to aid others; or in order to prohibit individuals from certain activities for their own good or protection.
In 1989, Nozick categorically repudiated this concept of Utopia, denied the relevance of philosophy for matters of substantive policy and opted for the zigzag of politics rather than for the principled position of his earlier political philosophy. This retreat from classical liberalism was driven by a judgment that any focus on individual rights detracts from communitarian impulses and fails to embrace humane considerations and joint cooperative activities:
There are some things we choose to do together through government in solemn marking of our human solidarity, served by the fact that we do them together in this official fashion and often also by the content of the action itself (Nozick 1989,287).
In this view, democracy is a mechanism through which individuals seek symbolic self-expression as a means of intensifying the reality of social solidarity and humane concern others. The libertarian view, by looking exclusively at the purpose of government, fails to take account of the meaning of government.
More than this, joint political action does not merely express our ties of concern, it also constitutes a relational tie itself. So important are these relational ties that individuals who do not feel such ties should be required to pay taxes to support the programs that such ties involve. If a democratic majority desires jointly and symbolically to express its most solemn ties of concern and solidarity, the minority who prefer differently will have to participate sufficiently to be spoken for.
Such bonds of concern may imply limitations on liberty concerning particular kinds of human action, for example, justifying antidiscrimination laws in employment, public accommodations, rental or sale of dwelling units, etc. They may lead even to justified limits on the freedom of speech and assembly. No general principle draws the line on such limitations on liberty. All depends upon the extent and range of the general populations actual feelings of solidarity and concern, and their need to give these symbolic political expressions.
Let us suppose that there are multiple competing values that can be fostered, encouraged and realized in the political realm. Further suppose that it is impossible to include all such goals in some consistent manner. Nevertheless, argues Nozick, goals that cannot be pursued together at the same time can be reconciled, over time by pursuing one for some years, then another some years later. This explains why the electorate zigzags between political parties over time. Given a choice between permanently institutionalizing the particular content of any group of political principles thus far articulated and the zigzag process of democratic politics, Nozick is clear which direction he will take: Ill vote for the zigzag every time (Nozick 1989, 296).
In the Bunkers of Civil Society
John Grays early writings on the philosophies of John Stuart Mill, Friedrich von Hayek and Isaiah Berlin placed him forthrightly in the camp of classical liberal political philosophy. Surely, his writings never embraced the concept of the minimal or nightwatchman state in the sense of Robert Nozick (1974). Yet throughout the period 1976 to 1988 he embraced the notion that individual liberty represents an important and worthwhile ethical goal and that classical liberalism can be justified by reference to extant political philosophy.
In his 1976 paper on John Stuart Mill, Gray acknowledges that [i]f there is a consensus on the value of Mills political writings, it is that we may turn to them for the sort of moral uplift that sustains the liberal hope (Gray 1989, 2). He continues by noting that Mills writings contain an argument for an open society which has not yet been decisively refuted, and of which every generation needs reminding (Gray 1989, 1). He endorses the central argument of On Liberty, the claim that a liberal society is the only kind of society in which men confident of their own manifold possibilities but critical of their own powers and of each other, men who aspire to the status of autonomous agents and who cherish their own individuality, will consent to live (Gray 1989,2).
Following a detailed review of Mills utilitarian-driven political philosophy, Gray concludes that [t]hough we must not expect from Mills writings a blueprint for the achievement of a liberal society in a world in many ways very different from Mills, . . . radicals will be unreasonable if they neglect Mills thought on some of the principal dilemmas that perplex us today (Gray 1989, 8).
In his 1980 paper on negative and positive liberty, Gray extols the analysis of Isaiah Berlin whose paper on Two Concepts of Liberty (1968) argues that the concept of negative freedom (the absence of coercion of one individual by another) is to be favored over all other concepts of freedom. Gray endorses Berlins doctrine of value pluralism and his preference for a liberal society in which a wide diversity of ends is promoted.
In his 1981 essay on Hayek, Gray criticizes Hayek for blurring the boundaries of individual freedom and for assimilating it to other goods such as the rule of law and social stability. For this reason, Hayeks account of law and liberty runs the risk of losing the peculiar importance of individual freedom conceived as a virtue of political order (Gray 1989, 97). Gray concludes that a conception of individual rights can be defended only as abstraction from political experience.
Yet, in 1989, Gray pronounced that his twelve year project to define classical liberalism and to give it a foundation had been a failure and he condemned classical liberal ideology as an impossibility. The various projects of grounding liberalism as a set of universal principles in a comprehensive moral theory rights-based, utilitarian, contractarian or whatever had all turned out to be inadequate and essentially incoherent.
This failure was not to be lamented, he argued, since liberal political philosophy expresses a conception of the task and limits of theorizing that is hubristic and defective (Gray 1989, vii). The ruin of classical liberal political philosophy is only the most spectacular instance of the debacle of the received tradition, modern as much as classical, of philosophy as a discipline (Gray 1989, vii).
In 1993, in his book, Post-Liberalism, Gray poked around among the rubble of classical liberal philosophy to determine what, if anything was left. He concluded that none of the four constitutive elements of doctrinal liberalism universalism, individualism, egalitarianism and meliorism (or human flourishing) could survive the ordeal by value pluralism and that liberalism, as a political philosophy, therefore was dead. What is living in liberalism is the historic inheritance of a civil society whose institutions protect liberty and permit civil peace. This is so because such a civil society is the best one for all contemporary cultures, which harbor a diversity of incommensurable conceptions of the good.
If civil society is all that is left the living kernel of classical liberalism, what then is its nature? Grays response to this question is expansive. If there is an ultimate diversity of forms of human flourishing, embodied in ways of life only some of which can be accommodated within a classical regime, then classical liberal orders have no general superiority over orders that are not classically liberal. In short, value-pluralism dictates pluralism in political regimes and undermines the claim that only classically liberal regimes are fully legitimate.
A civil society, for John Gray, is one which is tolerant of the diversity of views, religious and political, that it contains, one in which the state does not seek to impose on all any comprehensive doctrine. Thus Calvins Geneva was not a civil society, and none of the twentieth century species of totalitarianism encompassed civil societies.
A second feature of civil society is that both government and its subjects are restrained in their conduct by a rule of law. A state in which the will of the ruler is the law, and for whom, therefore, all things are permissible, cannot contain or shelter a civil society. One implication of this is that civil society presupposes a government that is not omnipotent, but limited.
A third feature of civil society is the institution of private or several property. Societies in which property is vested in tribes, or in which most assets are owned or controlled by governments, cannot be civil societies.
In Grays view, civil societies thus defined need not have the political and economic institutions of liberal democracy; in historical terms, most do not. Nor need they contain the moral culture of individualism. In his view, Tzarist Russia was a civil society for the last fifty years of its existence, as was Bismarkian Prussia. The authoritarian societies of modern East Asia South Korea, Taiwan and Hong Kong are all civil societies.
Nor finally, for John Gray, is civil society to be identified with market capitalism. Several or private property come in a variety of forms, each of them artifacts of law. The institution of the capitalist corporation is only one species of the private or several property institution on which a civil society rests.
Russia will go badly astray if it seeks to replicate the form of Western capitalism. What is needed in post-1991 Russia, is a radical deconcentration of economic activity to municipal, village and cooperative levels in which the native Russian tradition of cooperation can be revived. In Japan, also, Westernization would only involve injury to valuable social forms with few, if any, corresponding advantages.
Evidently, civil societies come in many varieties. They may be democratic or authoritarian, capitalist or non-capitalist, individualist or non-individualist in nature. What they have in common is the practice of liberty, as evidenced in the rule of law, private or several property, and the civil liberties of voluntary association, conscience, travel and expression. They need not shelter democratic freedom.
This broad tent is put forward as the living kernel of classical liberalism all that remains from several centuries of classical liberal philosophy. In my view, it is not a living kernel but an empty shell. In the remainder of this chapter, I search for an explanation of what has led leading scholars to abandon classical liberal philosophy and I attempt to set record straight by outlining a consistent and coherent Lockeian justification for the minimal state.
Anarchy versus order: The Political Philosophy of Thomas Hobbes
Two great dichotomies dominate the political thought of all times: oppression versus freedom, and anarchy versus order (Bobbio 1993, 29). Thomas Hobbes (1588-1679) belongs in the company of those whose political thought has been inspired by the latter dichotomy. The ideal which he defends is not liberty against oppression, but order against anarchy. Hobbes is obsessed by the idea of the dissolution of authority, the disorder that results from the freedom to disagree about what is just and what is unjust, and with the disintegration of the unity of power, which he views as inevitable once individuals begin to contend that power must be limited. The ultimate goal that motivates individuals in his moral philosophy is pursuit of peace and not of liberty.
Fundamentally, Hobbes is obsessed by the threat of anarchy, which he considers to be the return of mankind to the state of nature. The evil which he most fears is not oppression, which derives from the excess of power, but insecurity, which derives from the lack of power. Hobbes feels called upon to erect a philosophical system as the supreme and insuperable defense against insecurity (Bobbio 1993, 29); insecurity, first of all, ones life; second, of material goods; and last, of that small or great liberty which an individual may enjoy while living in society.
Hobbes three main political works, Elements (1650), De Cive (1651) and Leviathan (1651), provide descriptions of the state of nature which substantively are identical and which are meant to the same functional role. The principal objective condition is that human beings, de facto, are equal. Being equal by nature, they are capable of inflicting the greatest of evils on one another: death. To this is to be added the second objective condition, scarcity of goods, which causes individuals each to desire the same thing. The combination of equality and relative scarcity generates a permanent state of reciprocal lack of trust, which induces all to prepare for war, and to make war if necessary, rather than to seek peace.
Among the objective conditions, Elements and De Cive emphasize the ius de omnia, the right to all things which nature gives to anyone living outside civil society. De facto equality, together with the scarcity of resources and the right to all things, inevitably generates a situation of merciless competition, which always threatens to turn into a violent struggle. This situation is made worse by the fact that nature has placed in this predicament individuals who are dominated by passions which incline them to unsociability.
Hobbes does not have a flattering opinion of his fellow men. While discussing freedom and necessity with Bishop Bramhall, Hobbes asserts that human beings resist truth because they covet riches and privilege; they crave sensual pleasures, they cannot bear to mediate, and they mindlessly embrace erroneous principles. (Bobbio 1993, 40). In Leviathan, after dividing human beings into those devoted to covetousness and those devoted to sloth he comments that these two sorts of man take up the greatest part of mankind (Hobbes 1651,xxx,224). In describing the state of nature, Hobbes stresses vainglory as the passion which deriveth from the imagination of our own power above the power of him that contendeth with us (Elements I, 9, 1, 28).
In Leviathan, Hobbes links together three causes of conflict: competition, which makes individuals fight for gain; diffidence, which makes them fight for security; and vainglory which makes them fight for reputation. In Leviathan, Hobbes clarifies in two lines, the fundamental problem of political science, the problem of power: So that in the first place, I put forward a general inclination of all mankind, a perpetual and restless desire for power after power, that ceaseth only in death (XI, 24). The state of nature is terrifying because the desire for power generates a situation which is a state of war. This is an intolerable condition, which individuals sooner or later must abandon if they wish to save what is most precious to them: their lives.
Right reason suggests to human beings a set of rules in the form of laws of nature which aim at ensuring peaceful cohabitation. These rules are subordinated to a first rule which prescribes the seeking of peace. Individuals have no interest in observing a rule if they are not certain that others will do the same. There is but one way to make the laws of nature effective and to make human beings act according to their reason and not their passions: the institution of the irresistible power of the state. To exit the state of nature and to establish civil society reasoning individuals must enter into a universal and permanent covenant of union.
Since the state of nature is insecure, the principal aim of the agreement is to eliminate the causes of insecurity. The principal cause of insecurity is the lack of a shared power. The aim of the contract that founds the state is to constitute a shared power. The only way to do so is for all to consent to give up their own power and to transfer it to one person, be it natural or artificial, for example, an assembly. This person will have as much power as is necessary to prevent each individual from harming others by the exercise of his own power.
Individuals acquire a fundamental obligation as a consequence of this pactum subiectionis (pact of subjection), namely the obligation to obey all commands of the holder of shared power. This agreement is the covenant of union, an agreement in which all parties agree to subject themselves to a third party who does not participate in the contract. This power combines the supreme economic power (dominium) and the supreme coercive power (imperium). There is no power on earth says the verse from the book of Job which describes the sea monster, Leviathan, which is equal to it (Job 41:24).
By holding that the sovereign power is irrevocable, Hobbes opposes the theory of trust on which Locke later rested his social contract. By holding that the sovereign power is absolute, in the sense of legibus salutus (not bound by laws), he denies the various theories that favor limiting the power of the state. Since individuals give up the right to all things in the covenant, in order to preserve their lives, they retain only the right to their own lives. Thus, human beings must consider themselves released from the obligation to obedience only if the sovereign endangers their lives.
Hobbes justification of absolutism runs counter to a long-held principle of English constitutional doctrine, according to Bractons classical formulation: The king must not be under man, but under God and under the law, because law makes the king (Bracton 1968, 33) Hobbes easily rejects the thesis according to which the sovereign is subject to civil law (thesis in the terminology of Hayek), with the argument that no one can oblige himself. Since civil laws are issued by the sovereign, the sovereign would impose an obligation on himself, were he subject to them.
But a more serious question must be answered; if the sovereign power is unlimited, how is this to be reconciled with other laws, namely the common law (nomos in the terminology of Hayek) and natural law? Not surprisingly, Hobbes is a declared enemy of the supporters of the common law, most notably hostile to Sir Edward Coke, the great protagonist of the common law: Custom of itself maketh no law (Leviathan XXVI, 176).
Hobbes, as a proponent of natural law, repeatedly affirms that the sovereign is subject to the laws of nature and of God. However, in his view, the laws of nature are rules of prudence, or technical norms, compliance with which depends on ones judgment about the feasibility of pursuing ones objectives in given circumstances. Only the sovereign can make this judgment in his relations with his subjects, towards whom he is not bound by any covenant. He has no external obligation to anyone to comply with the dictates of right reason.
Since the laws of nature oblige only in conscience, the dictates of right reason do not limit the sovereigns power. Once the state has been instituted, there exist for the subjects no criteria of just or unjust other than the civil laws. This view makes Hobbes moral theory one of the most extreme expressions of ethical legalism: what is right is what the sovereign commands. Hobbes insists, for example, that though the law of nature forbid theft, adultery, etc. yet if the civil law commands us to invade anything, that invasion is not theft, adultery, etc., and No civil law whatsoever, which tends not to a reproach of the Deity . . . can possibly be against the law of nature (De Cive XIV,10,190-191).
In this perspective, there can be no theory of the abuse of power, since abuse consists of going beyond established limits. On the contrary, what may prompt subjects to consider themselves released from the duty of obedience is not abuse, but defect of power A sovereign who proves incapable of preventing his subjects from relapsing into the state of nature does not perform his task. Subjects then, and only then, have the right to look for another protector.
In this perspective, Thomas Hobbes political philosophy conforms to only one version of modern natural law theory, namely that natural law constitutes the foundation of validity of the positive legal order, taken as a whole (Bobbio 993,157). This version of natural law theory serves well his purpose of founding rationally the ideology of the absolute state. The specific feature of this version of natural law theory is its acknowledgement that, once the state has been instituted, only one law of nature survives. This is the law that imposes on human beings the obligation to obey civil laws.
Thus, if a conflict were possible between civil law and natural law, the citizen who obeyed the latter rather than the former would violate the general law of nature which prescribes obedience to civil laws (Bobbio 199, 165). Civil law is established on the basis of the law of nature, but once it has been established, the norms of the system derive their validity from the authority of the sovereign and not from the particular laws of nature. Hobbes admits only two exceptions to this duty of obedience: (1)when the sovereign commands subjects to offend God; (2) when he commands subjects to honor himself as if he were God. In this way, Hobbes deploys the most sophisticated ingredients of natural law the state of nature, individual rights and the social contract to develop a logically consistent theory of obedience to the state.
I shall attempt to demonstrate in this essay that classical liberal scholars who seek to justify limited government by reference to Hobbesian arguments logically must fail to do so and, almost inevitably, end up at some point on the anarchy order spectrum with their original classical liberal principles in disarray.
Oppression versus Freedom: The Political Philosophy of John Locke
In order to understand the political philosophy of John Locke, and to distinguish it from that of Thomas Hobbes it is essential to return to the concept of the state of nature which is the starting point in Lockes genetic account of the rise of civil societies. For Lockes concept of the state of nature differs fundamentally from that of Hobbes in moral as well as in strictly positive characteristics.
The social characterization of the state of nature in Hobbes is unambiguous. Life is solitary, poor, nasty, brutish and short, a condition of war of every man against every man, a war in which there is no industry, no culture and no real society (Leviathan, chap.13, para.8-9). The moral condition of individuals in that state is less clear, although it is evident they have no moral rights or obligations at all in the ordinary sense the notions of right and wrong, justice and injustice, have there no place. (Leviathan, chap.13, para.13).
Lockes social characterization of the state of nature is much less bleak than that of Hobbes. Want of a common judge with authority, puts all persons in the state of nature (II, 19) ; Men living together according to reason, without a common superior on earth, with authority to judge between them, is properly the state of nature (II, 19). Locke consistently claims wherever no one is entitled to settle controversies between two persons, wherever there is no authorized referee to judge between them, those persons are in the state of nature. It is important to note that this is a sufficient and not a necessary condition.
It is also important to note that what is at issue is not the presence or absence of effective government. Individuals according to Locke may be living under effective, highly organized government and still be in the state of nature, if government is illegitimate with respect to these individuals. At the very least, it is necessary to build into the definition the absence of legitimate government. To deal with this concept it is necessary to take account of Lockes moral characterization of the state of nature which also differs sharply from that of Hobbes.
Lockes definition of the state of nature clearly incorporates moral elements, making use of such notions as legitimacy and voluntary agreement. Individuals are endowed with full-blown moral rights and obligations defined by the law of nature, which is eternal and immutable (II, 135). Although the particulars of the law of nature are not defined in any detail, their general form is clear. They are duties to preserve oneself and others, by not harming persons in their lives, liberties properties. Persons enjoy in the state of nature their full complement of natural rights, which correlate with the natural duties of others to respect those rights.
Each individual is born to this set of rights and duties and receives them fully on reaching maturity (II, 55, 59). Natural rights are a grant or gift from God (I, 116), which individuals possess intact until they consent to enter a legitimate civil society, surrendering some of these rights in the process. However, private contracts between individuals are fully consistent with the state of nature. Such contracts may alter the existing structure of rights and duties among mature individuals, save only for those that in principle are inalienable. In this sense, consent carves the boundaries of natural law (Simmons 1993, 25).
What is the social characterization of the state of nature? Locke sets out two contrasting situations. At one extreme, he describes the state of nature as a state of peace, good will, mutual assistance and preservation (II, 19). At the other extreme, he describes it as a state of enmity, malice, violence and mutual destruction (II, 19). Both descriptions are of possible states of nature, but neither is of the state of nature (Simmons 1993, 23). Where individuals almost always abide by the laws of nature, the state of nature will be one of peace, good-will and the like; where individuals typically disregard the law, the state of nature will be one of enmity, malice and the like.
Since individuals almost always fall between these two extremes, the social characterization of the state of nature in the Two Treatises is a mixed account, or as Locke puts it, one of mediocrity. It is a state of limited safety and considerable uncertainty, a state of significant but not desperate inconveniences, a state to which only certain limited forms of political society, will be preferable. Locke, in distinct contrast with Hobbes, focuses more on the moral than the social characterization of the state of nature. For Locke, the only intelligible choice is between some limited form of government and anarchy. The absolute government favored by Hobbes is clearly worse then the worst consequences of anarchy.
In one respect, both Hobbes and Locke share the same view. They are fundamentally opposed to political naturalism which holds that the natural condition of humans is a political condition; that individuals naturally are subject to political authority; that there can be no understanding of morality or social understanding except within the context of some form of political organization. Contemporary political naturalists take their inspiration from Aristotle or Hagel. Locke was more concerned with defenders of the divine right of kings, like Filmer (1680), whose patriarchal theories of authority defended the autocracy of the House of Stuart.
The Lockeian assertion that each individual is born free in the state of nature correctly recognized that we are not born into political communities, even if we are born into the territories of such communities. We are not naturally citizens. We must do something to become citizens. The claim that our natural moral condition is nonpolitical is a refusal to accept mere accidents of birth as the source of substantial moral differences among persons (Simmons 1993, 38). It is from this compelling foundation that Lockeian political volunteerism begins and develops. It is from this perspective that Nozicks (1989) retreat into communitarianism can be seen to be philosophically flawed.
Locke clearly depicts the state of nature as a state of perfect freedom to order their Actions, and dispose of their Possessions, and Persons as they think fit, within the bounds of the law of Nature, without asking leave, or depending upon the of any other Man (II, II, 4). In this sense, his political philosophy clearly runs on the freedom versus oppression and not on the anarchy versus order spectrum. It is important to note, however, that Lockes state of liberty is not a state of license. The state of nature has a law of nature to govern it, which obliges every individual. No individual ought to harm another in his Life, Health, Liberty, or Possessions (II, II, 6).
The law of nature essentially reflects the moral claim of each individual to negative freedom and the duty of each individual to uphold the negative freedom of all others. To this end, each individual has an executive power to punish the transgressors of the law of nature to such a Degree as may hinder its Violation (II, II, 7). Indeed, those who transgress the law of nature to a sufficient degree may forfeit their own rights to life, liberty and property. The constant danger of the state of nature degenerating into a state of war is the chief reason advanced by Locke for preferring a limited government (civil society) to the state of nature.
Locke was fully aware of the inconveniences of the state of nature which must certainly be great since men may be judges in their own case. Yet, this is a much better situation than that in which men are bound to submit to the unjust will of another. At least, in the state of nature, if any individual judges wrongly in his own or any other case, he is answerable to the rest of mankind. By agreeing to leave the state of nature and to enter into civil society, the individual necessarily sacrifices his right to judge and to punish the breaches of natural law by others. This is no mean sacrifice and it will not be countenanced unless the civil society is strictly limited with respect to the authority that it subsumes.
Civil societies and governments do not possess rights naturally; only individuals have that capacity. For Locke, there is only one possible process by which such political rights can be secured. Only voluntary alienation by the right holder consent, contract, trust can give another person or body political power over the rightholder. Men being . . . by nature, all free, equal, and independent, no one can be put out of his estate, and subjected to the political power of another, without his own consent (II, 95) . No government can have a right to obedience from a people who have not freely consented to it (II, 192).
Lockes wording makes it clear that by consent he means the actual personal consent of each individual. Hypothetical contractarianism plays no role in his political philosophy. Once actual consent is abandoned as the ground on which civil society is made to rest, we also abandon much of what is most compelling about classical consent theory namely the clear, uncontroversial ground of obligation on which it relies, and the high value of self-government with which it remains consistent (Simmons 1993, 78). Societies that refuse to permit or fail to facilitate free choice of political allegiance are simply illegitimate, however many such societies might actually exist.
Lockes emphasis on personal consent does not imply any special commitment to democratic government. Consent, for Locke, is the source of a just government authority and its citizens obligations. It does not determine the form that the government will take. Democracies may be legitimized by consent; but so may oligarchies and monarchies, hereditary or elected. Consent is given to membership in the society. The majority then determines the form of government to be entrusted with the political power given to that society. However, a separate, special consent (II, 138-40) is always required to resolve the issue of taxation under any form of government.
That all individuals possess certain natural rights that are inalienable is a thesis closely associated with Locke as strictly limiting the competence of government. It is important, however, to look more closely at the concept of inalienability. One view, closely associated with resisting oppression, is that an inalienable right is a right that no man can take away. A different, and more extensive, view is that it is a right that cannot be lost in any way, whether voluntarily or involuntarily.
According to Simmons (1993, 103), neither of these interpretations of inalienability is true to the seventeenth and eighteenth century employments of the concept. Revolutionary authors typically viewed inalienable rights as rights that no citizen could be understood to have given away. This view confirms with Lockes rule that [n]obody can give more power (rights) than he has himself (II, 23). We can only alienate rights that are not connected with the preservation of ourselves or others.
From this perspective, governments cannot have the power to take our lives (unless we commit an appropriate crime), to deprive us of property at will, to rule by arbitrary decrees, or to tax us without our consent, because all of these amount to arbitrary powers that might endanger our lives if exercised maliciously. Each such transfer of power would be contrary to the natural law of preservation, which stands as an eternal rule to all men, legislators as well as others (II, 135). In this sense, Lockes limits on government power should be construed to imply that we cannot transfer to government rights that we ourselves lack. Only in this sense does Locke construe the moral limits on government to be limits set by the citizens inalienable rights.
Precisely because Lockes philosophy is focused on the freedom versus oppression spectrum, the Two Treatises may be viewed as a work designed to assert a right of resistance to unjust authority, a right, in the last resort, of revolution (Dunn 1969, 28). It is Lockes attempt to evaluate the moral consequences of governmental transgressions of its limited authority. Lockes employment of strong claim rights allows the revolutionary a moral high ground to stand on in resisting government (Simmons 1993, 152). When Lockes citizen defends his rights, those who oppose him also wrong him by breaching their duties to respect his rights. Crucial to this judgment is Lockes argument that rights can only be alienated by those who possess them; and that certain rights are inalienable in the sense defined above.
Locke employs two distinct lines of argument in justifying a popular right of resistance to oppressive government. In his first line argument, he justifies such resistance on the ground that, under certain conditions, a state of war exists between the people and their government. Here Locke focuses, naturally, on the case of tyrannical executive power (James II). However, he also notes that the legislative may also introduce a state of war with the people using force upon the people without authority and contrary to the trust put in him (II, 155). In such cases, the oppressors forfeit all rights under the law of nature and may themselves be lawfully killed, or used at will by any other person.
In his second line argument, Locke notes that when governments act contrary to the terms of trust by this breach of trust they forfeit the power the people had put into their hands (II, 222). Such a breach of trust need not involve either a basic breach of natural law or the forfeiture of all natural rights. Governors who breach their trust reduce themselves to the status of ordinary persons without authority (II, 235).
Being thus deprived of their referee, the common judge over them all, the people might seem to be returned to the state of nature as a consequence of the misconduct of their government. Locke perhaps incorrectly, rejects this inference. The usual and almost only way the political society itself is dissolved is the inroad of foreign force making a conquest upon them (II, 211). Otherwise, political society remains and the government actually dissolve themselves leaving the people morally free to seek new avenues for securing their rights (Simmons 1993, 163).
The Shift to the Anarchy versus order Spectrum
It is now possible to explain the apparent retreat from classical philosophy evident in the writings of Robert Nozick and John Gray in the very year (1989) that witnessed the final collapse of classical liberals arch-enemy, Marxist-Leninist philosophy. I shall attempt to explain this inexplicable change of course not as a retreat but as a shift of focus from the freedom versus oppression to the anarchy versus order dichotomy. It is entirely possible that this shift of focus occurred unconsciously rather than explicitly on the part of Nozick and of Gray. The consequences, in any event, are profound.
(a) Robert Nozick.
In 1974, starting with a strong assumption of value pluralism (p.309), Nozick concluded that there was indeed a Utopia, one best society for everyone to live in, even though there would not be one kind of community existing and one kind of life led in Utopia. Utopia is a framework for utopias, a place where people are at liberty to join together voluntarily to attempt to realize their own vision of the good life. Utopia in this sense is the Lockeian minimal state. This morally favored state, the only morally legitimate state, the only morally tolerable one, (Nozick 1974, 333) is the one that best realizes the utopian aspirations of untold dreamers and visionaries:
The minimal state treats us as inviolate individuals, who may not be used in certain ways by others as means or tools or instruments or resources; it treats us as persons having individual rights with the dignity this constitutes . . . How dare any state or group of individuals do more. Or less (Nozick 1974, 334).
In 1989, this vision of Utopia was denied by Nozick as a book of political philosophy that marked out a distinctive view, one that now seems seriously inadequate to me (Nozick 1989, 17). A careful reading of The Examined Life suggests that Nozick has shifted focus from the freedom versus oppression to the anarchy versus order dichotomy in thus denying his early scholarship.
First, in his discussion of different stances, Nozick suggests that the very question, How can I be free? is rooted in excessive egoism. The relative stance, he suggests, asks how one can be related to external reality and prizes determination of action. What would be regrettable, on this stance, would be a determinism that was only partial, one that was not complete enough (Nozick 1989, 161). Second, in his discussion of authority (Nozick 1974, 175), Nozick notes that authority has legitimacy to the extent that those commanded feel obligated therefore to obey. A leader functions to resolve the competition of goals. Only under very special conditions can society avoid the need for leadership of some sort. Third, in his discussion of Platos degree of reality theory (Nozick 1989, 199) Nozick emphasizes such criteria as being invariant under certain transformations, being more permanent, specifying a goal toward which things move. In all these observations, a yearning for unity or order is clearly apparent.
This yearning for unity takes full shape in Nozicks retreat from the minimal state with all the disorder that laissez faire seems to imply. Democratic institutions now are viewed as vehicles through which we express the values that bind us together, the solemn marking of our human solidarity (Nozick 1989, 287) the constitution of our relational ties. The zig zag of politics, that sorry Nozickean retreat from the inspiring vision of the moral minimal state, is the only alternative to Leviathan for a scholar who has abandoned freedom for order and unity as the supreme goal of mankind.
(b) John Gray
In a sequence of papers published over the period 1976 to 1988, John Gray pursued the ambitious project of defining classical liberalism and giving it a foundation. Although he always reviewed the writings of the great classical liberal scholars John Stuart Mill, Isaiah Berlin, Friedrich Hayek, Herbert Spencer and James M Buchanan in an appropriately critical manner, Gray culled from their contributions ideas that clearly provided the moral foundations for the limited, if not for the minimal state. There was no real hint in these papers that his project would end in 1989 with a condemnation of classical liberal ideology as an inevitable failure: Our circumstance, then, is the paradoxical one of post-moderns, whose self-understanding is shaped by the liberal form of life, but without its legitimizing myths, which philosophic inquiry has dispelled (Gray 1989, 240).
A careful reading of Grays scholarship, both in his 1989 volume: Liberalisms and in his 1993 volume: Post-liberalism suggests that Gray also has shifted from the freedom versus oppression to the anarchy versus order dichotomy in thus denying his early scholarship. This shift of focus apparently has been driven by the influence of Thomas Hobbes and Michael Oakeshott and by a misunderstanding of the writings of James M Buchanan.
In his paper on Hobbes (Gray 1989), Gray comments that there is an arresting contemporaneity about many of Hobbess insights that we can well profit from and [f]ar from being an anachronistic irrelevance, Hobbess thought is supremely relevant to us, who live at the end of the modern era whose ills he sought to diagnose (Gray 1993, 3). In Grays view, the modern state has failed in its task of delivering us from a condition of universal predation or war of all against all into the peace of civil society (Gray 1993, 3). In its weakness, the modern state has recreated in a political form that very state of nature from which it is the task of the state to deliver us. In this political state of nature, modern democratic states are driven by a legal and political war of all against all and the institutions of civil society are progressively enfeebled (Gray 1993, 3).
According to Gray, the paradox of the Hobbesian state is that, whereas its authority is unlimited, its duty is minimal the maintenance of civil peace. Civil peace encompasses that framework of civil institutions whereby men coexist in peace with one another, notwithstanding the diversity of their beliefs and enterprises and the scarcity of the means whereby these are promoted. In this Hobbesian perspective, the liberties of the subjects of a civil society are not absolute or inalienable rights, since they may be circumscribed by the requirements of a civil peace in the absence of which they are altogether extinguished (Gray 1993, 10). Liberties (such as they are) are intimated by the spirit of civil society itself, which is held together only by recognition of the sovereign. The Hobbesian state is the classical solution of the Prisoners Dilemma in that the Hobbesian contract, by providing for agreed-upon coercion to obey known rules, releases its covenanters from destructive conflict into the peace of civil life (Gray 1993, 13).
In his paper on Michael Oakeshott (Gray 1992), Gray notes approvingly that Oakeshott rejected, as a prime example of rationalism in politics, the attempts by Locke, Kant and Mill to fix the proper scope and limits of the authority of government determinantly, once and for all. The proper tasks and limits of government cannot be determined by reasoning from first principles.
Political discourse is not an argument, but a conversation Gray is especially enamored of Oakeshotts pluralist affirmation of the diversity of modes of discourse and experience, of moralities as vernacular languages whose nature it is to be many and divergent, and of the miscellaneity of practice, which no theory can hope to capture, that embodies his most distinctive contribution to philosophy (Gray 1993, 46).
Gray captures the spirit of Oakeshotts thought in a single phrase, a critique of purposefulness. The image of human life that Oakeshott conveys to him is not that of a problem to be solved or a situation to be mastered. It is our image of being lost in a world in which our vocation is to play earnestly and to be earnest playfully, living without thought of any final distinction. Now, there is a kind of freedom in that image; but it is not the kind of freedom that requires eternal vigilance, that characterizes classical scholarship. Rather it is the freedom of the boat without the compass.
Gray is not content, however, to end his philosophical journey in some Oakeshottian skepticism of human action, viewing philosophical discourse as so much flotsam and jetsam, tossed here and there on the tides of political events. Gray instead seeks out an anchor, in the wake of classical liberal philosophy, in the form of civil society. He anchors the concept of civil society, at least in part, in the scholarship of James M. Buchanan, who paradoxically, he recognizes as focusing a profound moral concern for the fate of free man and free peoples in his reconstitution of classical political economy (Gray 1993, 47).
Gray is particularly attracted to Buchanans indirect, proceduralist contractarianism based on methodological individualism but presupposing the cultural inheritance of Western individualism, with its roots in Christianity and stoicism. In Grays view, it is this cultural context that enables Buchanan to make the hazardous passage from Hobbesian despair to Humeian hope, from the Leviathan of unconstrained majoritarian democracy to the limited government of constitutional democracy.
In his 1990 paper, Gray places at the crux of his enquiry the question: what is the place of liberty in Buchanans contractarian approach? He notes that Buchanan does not privilege liberty from the outset, that his approach does not issue in a determinate list of basic liberties that are fixed and unalterable. This is not surprising, given the Hobbesian pedigree of Buchanans political philosophy (Buchanan 1975).
Buchanan is also clear (argues Gray) that in any plausible real-world situation, contractarian choice will not yield a Lockeian, Nozickian or Spencerian minimal state; nor will it necessarily issue in unencumbered Lockeian rights. Indeed, limited government, according to Buchanan would surely have some redistributional functions. According to Gray, in Buchanans system liberty is not given the apodictive priority it has been in Kantian-inspired contractarianism, nor is it the case that the role of the state is defined by the protection of Lockeian rights (Gray 1993, 60).
Nevertheless, suggests Gray, Buchanans contractarianism is bound to issue, in most real-world contexts in the enhancement protection of individual liberty. It does so by virtue of exploitation of the classical insight that voluntary exchange is mutually beneficial. It does so again because its defense of the market economy is in terms of its contribution to human autocracy rather than to any abstract conception of general well-being or collective welfare. And it does so finally in virtue of its insight that, provided there is a suitable framework of law, the undesigned coordination of the market is superior to any that can be generated by command or coercion.
Gray concludes that Buchanans contractarianism cannot give universal protection to the personal or civil liberties that are central to the Western individualist tradition. This limitation Gray finds to be both inevitable and even desirable: It is far from self-evident, and sometimes plainly false, that the institutions and civil liberties of even limited democratic government are always and everywhere appropriate and defensible. (1993, 61). In Grays judgment, if liberty has a future, it will have been fortified by Buchanans work. For the final message of Buchanans thought, as he interprets it, is that if we wish to preserve the precious heritage of Western individuality, we are bound to engage in the project of theorizing the world as it is, without illusion or groundless hope.
In my view, the retreat from classical liberalism on the part of both Robert Nozick and John Gray is completely explained by their shift, in a troubled world, from a preoccupation with the goal of preserving liberty to that of preserving order, from a commitment to the philosophy of John Locke to that of Thomas Hobbes. In both cases, reliance is now placed on some broad-tent notion of civil society as a basis for preserving the political legacy of classical liberal philosophy from the ravages of totalitarian pressures.
I am far from optimistic about this pragmatic judgment for a number of reasons, some of which Buchanan (1975) himself shares. First, if Gray is truly correct about the Hobbesian nature of man, there really is no prospect of a social contract short of that which creates Leviathan. All potential parties to a Hobbesian contract, short of one that hands over all authority to a superior being, must surely anticipate that the parchment of that contract will be shredded by amoral individuals in the post-contractual environment. Civil society, in such circumstances, swiftly must collapse into Jasays (1985) plantation state, whatever the status of the constitutional agreement.
In this respect, Gray simply misunderstands Buchanans insight in The Limits of Liberty (1975). Surely, Buchanan employs the Hobbesian model, in rationalizing contractual consent for limited government as an alternative to anarchy. Like Locke, however, Buchanan employs Hobbes as the pessimistic scenario of the state of nature, the threat that leads free individuals into civil society. This does not imply that Buchanan believes Hobbesian man to be the norm. Far from it. All his scholarship on constitutional political economy is predicated on the notion that man possesses Lockeian characteristics, that man searches for release from the prisoners dilemma of unlimited democracy, that man wishes to force himself to be free. This grievous misunderstanding leaves Gray with a concept of civil society that has little resemblance to the strictly limited state of Buchanan.
Second, Gray, far more than Buchanan, is willing to countenance redistributionist transfers as a legitimate function of civil society. Insodoing, he denies the Lockeian notion of the right to property that prevents the minimal state from being mutilated as a commons in which the rent-seeking dilemma leads to a war of each against all.
Third, once attention is diverted from the priority of preserving liberty to the priority of preserving order, the dyke is opened for those who would invade individual rights to do so under the guise of avoiding anarchy. One has only to review the reactions in all branches of government to the tragedy of Oklahoma City to see how quickly opportunities to trample on liberties are seized upon by those who perceive economic or political gain.
Finally, and almost inevitably, those who embrace Hobbesian philosophy tend to focus either exclusively on analyzing what is or what, conditionally might be (avoiding entirely all moral discourse) or to ignore Humes naturalistic fallacy and seek to create an ought from an is. Ultimately, of course, such an endeavor is doomed to failure.
In this vale of tears, if one believes in a moral philosophy, one had better articulate it clearly and pursue it with a heart that pumps more than blood. The fine essays in this volume attempt to articulate just such a moral philosophy of the minimal state that is relevant to the new century that now beckons. In my view, these essays bear witness to the fact that classical liberal philosophy is far from dead, indeed that it is alive and well and worthy of the most serious consideration in he post-communist world order.
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