Conservatism and Pragmatism

In Law, Politics, and Ethics

S. Vannatta

• Verlag: Palgrave Macmillan
• Jahr: 2014
• ISBN:
  9781137466839
• Thema: Politics & International Relations
• Thema: Political History & Theory

Conservatism and Pragmatism illustrates the intersections between classical British Conservative thought and classical American Pragmatist philosophy with regard to methodology in politics, ethics, and law.

Part I

Rationalism in Politics and Ethics

1

Enlightenment Political Theory and British Conservatism

All your sophisters cannot produce anything better adapted to preserve a rational and manly freedom than the course we have pursued, who have chosen our nature rather than our speculations, our breasts rather than our inventions, for the great conservatories and magazines of our rights and privileges.¹

Edmund Burke, Reflections on the Revolution in France

Social contracts and states of nature

Social contract theory, as representative of a strand of natural law theory during the Enlightenment, displayed some common features, to which a conservative political movement would react. These theorists began their inquiries into the nature of legitimate political authority with myths of a beginning, evoking “states of nature” and postulating the laws therein as a function of reason. Reason revealed its critical force against the inherited traditions and dogmas of the Church, against the static hierarchies of the feudal system, and against the economic structures of the guild system, agrarian economies, and mercantilist policies. Thomas Hobbes and John Locke, the authoritarian and the libertarian respectively, were both exemplars of the strength of reason to erect systems meant to stabilize both the disorder of the English Civil War and to redress the transgressions of unlimited monarchical power, backed by the theory the divine right of kings. Reason, on this model of social contract thinking, gives us access to the laws of nature, which prescribe the way legitimate government operates. Reason also secularizes political discourse by attacking the divine right of kings and presenting criteria for legitimate government beyond the rule of inheritance.

Although the pictures of legitimate government drawn by Thomas Hobbes and John Locke differ significantly, they both share the Enlightenment paradigm of beginning with natural laws and deducing political conclusions from these first premises. With Galileo’s articulation of natural laws present at hand, and Newton’s developments on the same model wedged in between Hobbes’s and Locke’s political works, these two political philosophers showed that social, as well as scientific, progress was possible if political theory took its cues from an understanding of the laws inherent in nature.

According to Hobbes, the purpose of the state is to protect the lives of the people and to preserve order. Its origins arise from the problems within the state of nature, which Hobbes equates to war.² In this state, everyone has an equal right to do anything one wants, including stealing and killing.³ Liberty in this state is negative, consisting only of the absence of external restraints.⁴ The only law is the law of self-preservation, the first law of nature.⁵ The second law of nature is to bind with others’ in contract.⁶ In these contracts, people give up natural rights mutually and freely to a third party, who is the sovereign.⁷ The sovereign, who is outside the law, maintains order by fear and punishment, in the form of retributive justice, of transgressions that occurred in the state of nature.⁸

Unlike Hobbes’s, Locke’s “state of nature” is different from the “state of war.” In a Lockean state of nature, men are born free, equal, and independent, governed only by the law of nature, which is self-preservation and the power of reason.⁹ In this state, every man has the right to enforce laws of reason, including the right to punish and to seek reparations.¹⁰ A “state of war” only occurs when someone abandons the laws of reason and uses force illegitimately.¹¹ Locke distinguishes liberty, which is grounded in man’s possession of reason and therefore in his self-control, from license, which does not exhibit rational self-control.¹² Here we see that there is no freedom without law, either the self-imposed law of reason or the civil law, which emerges out of a social contract, whose function is to protect those rights found within the state of nature: life, liberty, and property. The first of these natural rights is life, derived from the fact that we cannot take our own life because it belongs to God.¹³ The second, liberty, is derived from the first, in that we cannot be deprived of the liberty to sustain our life.¹⁴ And the third, property, is protected as the means of preserving the first by mixing our labor with nature.¹⁵ Civil Society emerges when each member gives up his natural right to punish transgressors of natural laws to the community at-large and concedes the power of adjudicating disputes to a civil government whose duty is to protect these now-civil rights.¹⁶

Important in an analysis of Locke’s state of nature is the ontological starting point of the individual. While nearly every commentary on Locke’s state of nature, from Thomas Jefferson’s Declaration of Independence to the present day, emphasize the freedom and equality of each individual, far fewer focus on the individual qua independent. Jefferson explicitly relies on a Lockean logic. The equality of men is “self-evident,” as is their right to liberty. Legitimate government is the product of the consent of the governed, and when the civil government fails to fulfill its mission of protecting civil rights, government can be legitimately dissolved. But is this starting point of independent individuals armed with a reason which discovers their own freedom and equality warranted? A common point of disagreement with this rationalist method is that the individual qua undividable atom is the product of a communal inquiry into proper governance. Rather than importing the concept of an individual into a mythical and unhistorical state of nature, conservatives and pragmatists alike view individuals and individual rights as outcomes of inquiries into the problematic situation of feudal associations and outmoded means of representing members of a civil association politically. But such a critique must be postponed until we get a broader view of Enlightenment politics broadly construed.

Jean-Jacques Rousseau’s version of the social contract differs from Hobbes’s and Locke’s, but he is equally concerned with differentiating government, whose so-called right to rule is based only on power and force, from genuinely legitimate government. Rousseau is also a state of nature thinker, imagining a mythical beginning where “man was born free.”¹⁷ Also in line with Hobbes and Locke, for Rousseau, legitimate government is the product of a social compact. Rousseau argues against those, such as Grotius, who think that an entire society can alienate itself to be subjects of a king. For if despotic power has nothing to preserve or protect of the subjects, then there is no quid pro quo in such a forfeiture of natural rights.¹⁸ Rousseau disagrees with both Hobbes and Locke as to the character of the problematic state of nature. It cannot be one of war, as with Hobbes, and it cannot even devolve into a state of war, as with Locke. For Rousseau, wars can only be fought between states, not between men or between states and subjects.¹⁹ The right to kill in war, contra Grotius, ends when the opposing armies lay down their weapons; such a principle, says Rousseau, is “based on reason.”²⁰ The subjugated peoples have no duty to obey their superiors because their superiors have no right to rule. Force and right are not coextensive terms in Rousseau’s thinking.

Rather, all legitimate government rests on the unanimity of an original covenant. When the costs of self-preservation in the state of nature outweigh the benefits, people must bond together in such a way that surmounts one essential difficulty: “How to find a form of association which will defend the person and goods of each member with the collective force of all, and under which each individual, while uniting himself with the others, obeys no one but himself, and remains as free as before.”²¹ The social contract demands that each individual give onself freely and unconditionally to the whole community, and each individual loses his formerly individual rights. But each individual gives himself to no one in particular, such that every man “recovers the equivalent of everything he loses, and in the bargain he acquires more power to preserve what he has.”²² In such a contract, each individual submits his power in the direction of the general will, the common, unified ego of the body politic.²³ If one member were to transgress upon another, he would then transgress upon the whole. Duty and self-interest merge: to violate the whole is to violate each member, and consequently this would be violating oneself. In such a contract, each individual is “forced to be free” by the general will of the whole.

The contract transforms the state of nature into the state of a civil society, where instinct, impulse, inclination, and desire, the faculties of private wills, give way to justice, duty, right, and reason, the qualities of a citizen directed toward the common good. In the transformation of the private into the public persona, the individual gains moral freedom, unfettered by the bonds of his own private desires.²⁴ Similar to Locke, Rousseau defends the ownership of private property so long as the property is the product of labor and necessary to the subsistence of its owner. ²⁵

Sovereignty, in such a state, amounts to the power of the general will. It is inalienable, indivisible, and cannot err. Such a general will is not equivalent to the will of all people. These latter are capable of error; they may serve private interests, while the former cannot. The general will derives its rectitude not from the number of voices which articulate it, but from the common purpose it serves. Because each citizen has a natural desire to protect himself and each is protected equally by the contract, then the general will’s service of the common protection is the product of nature. The covenant is legitimate because it is based on a unanimous contract, equitable because of its universality, useful because of its service of the common good, and durable because it is protected by the “armed forces and the supreme power.”²⁶

While some of Locke’s philosophical descendents attribute to him a libertarian philosophy, many of Rousseau’s claim a communitarian approach to politics. However, while both philosophies aim to defend individual rights, Rousseau’s elevation of the general will to the status of infallibility harbors the potential for abuse and authoritarianism. Conservatives and pragmatists both want to protect individual rights. However, as we will see, these rights are subject to communal inquiry and reform. The right to private property is no a priori trump to the rights of the community, the environment, or any others that may emerge as the product of communal inquiry. The final chapter provides a critical comparison of the virtues of the conservative and pragmatist method with the limitations of liberal and communitarian approaches.

Important to the revision of Rousseau’s method, by conservatives and pragmatists, is the experimental nature of governance. The art of politics must be experimental because we are so fallible. And common to both conservatism and pragmatism is a skepticism of absolutism which forestalls experimental inquiry in the service of infallible truths. Neither conservatives nor pragmatists have a problem with standards and principles, such as justice, which guide political inquiries; but neither treats these as universal and necessary; rather, without being radically relative, these standards are always emergent and situated in a particular cultural context. The infallibility and absolute nature of Rousseau’s general will contains the seeds of authoritarianism and violence, although Rousseau himself did not mean to plant them.

Kant’s transcendental politics

Rousseau’s social contract theory achieves a certain type of fulfillment in the political philosophy of Immanuel Kant, especially toward universality and necessity – Kant’s gold standards of right. Kant combines his deontological ethics with the regulatory idea of Rousseau’s general will to achieve a testing stone of legitimate political authority and just legislation. In doing so, he foreshadows John Rawls’s early theory of justice, covered in the final chapter.

In Theory and Practice, Kant applies the reasoning of his deontological ethics to the public realm of constitutional law. When Kant applies his deontologic...