Aaron Ross Powell: Welcome to Free Thoughts,
a show about libertarianism and the ideas
that influence it, from The Cato Institute
and Libertarianism.org.
I’m Aaron Powell.
Trevor Burrus: I’m Trevor Burrus.
Aaron Ross Powell: Joining us today is Professor
Jacob T. Levy of McGill University.
He’s the author of the new book Rationalism,
Pluralism and Freedom.
Welcome to Free Thoughts.
Jacob Levy: Thank you very much for having
me.
Aaron Ross Powell: Your book is about a central
tension you’ve identified within the liberal
intellectual tradition and you sum that up
– towards the end you write the core claim
of this book is that a full liberal theory
of freedom cannot do without the insights
of either rationalism or pluralism.
These are probably impossible to fully reconcile.
So why don’t you start by having – explain
to us what that sentence means.
Jacob Levy: All right.
So first I will explain what rationalism and
pluralism mean in that context and the book
is organized around the idea that there are
competing traditions within liberal thought.
One of them more trusting of the modern rationalizing
state form as a way of bringing equality before
the law and liberation from local tyrannies
and local despotisms, through centralization
and uniformity, especially legalized uniformity.
The other pluralist tradition that places
more confidence in the freedom that is to
be found in voluntary associations, in churches,
in cultural groups and in local and provincial
levels of government, thinking that the variation
that we find there is more the product of
free people making free choices than it is
a sign of local tyranny and exceptionalism
from the law.
Aaron Ross Powell: So would it be an OK characterization
to say that rationalism then would be focusing
on the role of the state is to protect the
rights of individuals and the pluralism – specifically
rights to freedom from violence and freedom
of expression and all the things that we talk
about every day at The Cato Institute.
But then the pluralist would focus more on
a right to freedom of association.
Jacob Levy: Yes.
The freedom of association is an individual
right.
It’s a way of building a kind of rights
of groups out of the rights of individuals
to come together and do things together.
The freedom of a church is a collective corporate
freedom but it’s built out of the religious
freedom of individuals who wish to come worship
together in the same way, in the same light,
according to a common authority structure,
a common set of beliefs about authoritative
scripture and so on.
The rationalist tradition though would look
at a church and worry about the authority
and the power that a priest might hold over
parishioners or that the religious tradition
as such holds over say women and children
within the tradition and want the state to
act against the religious tradition for the
sake of protecting as you say the freedom,
the autonomy, the development, the individuality
of the members of the organization.
Trevor Burrus: In reading your book, I was
– I kept thinking of the Amish.
It’s an interesting example of the tension
because I have described I think a similar
thing in some of my talks and saying on one
level, we could try to create a system wherein
from the top, roughly speaking, we try to
create a floor, some sort of guarantee of
rights.
On the other one, we could create a system
where there’s just a bunch of little groups
and we let them be pluralistically individualistically
or group identity maintain – like the Amish.
The Amish are not – the Amish, they’re
not libertarian.
They’re not democrats.
They’re not socialists.
They have a bunch of different things and
they’re allowed to do their own thing.
Are you saying basically that the fear there
is whether we should go into the Amish and
stop them from being oppressive if they’re
being – from a top down situation if they’re
being oppressive in some way or just let them
flourish in their …
Aaron Ross Powell: We have a concern that
the members, the individual members, the Amish
from a liberal perspective might not be genuinely
autonomous or free because they’ve been
indoctrinated into the society that radically
limits the kind of lives open to them.
Jacob Levy: That’s right.
We start by asking the question whether the
rules are oppressive.
The Amish are constituted by their rules.
That’s what it means to be Amish, to live
a life according to a very elaborate set of
rules and restrictions and religious beliefs.
Those are expressed as chosen by the adult
members of the Amish.
You have to freely choose your way into baptism
after you’re 18.
Routinely Amish teenagers will get some exposure
to the outside world before they decide to
come back.
But the rules are very, very stringent.
If they were the laws of the state, we would
say that it was an extremely oppressive, tyrannical
state.
But they’re not and we can look at it through
one eye and say, “This is really a very
illiberal, conservative, restrictive society.
These aren’t fully free people,” or we
can look at it through the other eye and say,
“These are people choosing a thing to do
with their lives and the thing they’re choosing
to do with their lives involves following
norms, living according to values, and that’s
one of the things that free people can do.”
That has to be right.
No matter what else is true, it has to be
the case that free persons can choose to live
according to norms and values and rules.
But then they create a community that is self-perpetuating.
New people are born into the community who
come to know fewer and fewer choices over
time.
The ability of someone to choose to leave
well into adulthood is significantly compromised.
Just one thing to say.
You have a choice once when you’re 18.
But what happens to the 40-year-old, the 50-year-old
who comes to wish for something new and not
have the resources?
There’s something true in both of those.
It’s part of the claim of the book.
Trevor Burrus: Now what makes them both liberal
then?
Jacob Levy: They’re both concerned with
the freedom of their members.
The ability to choose the conservative life,
to choose the religious life, that’s one
of the things that the liberally-free person
must be able to choose.
It’s not the case that liberalism somehow
says you’re only free if you are choosing
radical libertarianism.
It’s not the case that only if you recreate
your life every day are you a free person.
Free persons can make commitments.
That means you signed up for rules.
This is true in elementary of cases as free
persons can sign contracts.
They can limit their freedom tomorrow for
the sake of a project that they wish to be
pursuing today and tomorrow.
That’s a liberal vision.
But the liberal vision is also genuinely concerned
with oppression and domination and to put
it in the affirmative light, with the development
of individuality.
There’s a sense in which the liberal looks
at the Amish and says, “You’re not wholly
free people even though you’ve created this
situation freely.”
Aaron Ross Powell: How do we distinguish an
intermediate group?
I believe you call it like the Amish from
a state, because you said if we thought of
the Amish as a state, they would be a very
repressive state and we would – certainly
an illiberal state.
But don’t people choose to participate in
the state that they live in?
They have the option of exit in most cases
especially in the Western world.
So what’s the difference?
Why do we – why do liberals say the state
is not allowed to be oppressive potentially
in these certain ways but the Amish are?
Jacob Levy: A lot of traditional answers here
have to do with the coerciveness of states’
abilities to punish.
An intermediate group normally within a liberal
society, when faced with a member who refuses
to obey the rules, has no punishment more
extreme than say expulsion and shunning.
A club, a society, they can expel a member.
They can excommunicate a would-be believer.
But then the person is free to go along their
way.
The church or the club or the university,
they don’t have prison sentences they can
hand out.
That’s a distinction with some real moral
weight and I do think that that does a lot
of work.
It doesn’t do quite as much work as people
have sometimes thought because the intermediate
societies gain legal personality.
They gain legal rights of their own and their
ability to persist as corporate bodies, as
legally organized entities means that they
call on the legal enforcement mechanisms of
the state.
We’ve seen this a few times when dissenting
members of a religious group, for example,
women dissenting from the rules of an orthodox
Jewish synagogue or of a mosque about where
women can pray would say, “We too are orthodox
Jews.
We too are Muslims.
We are going to move into the area of the
synagogue or the mosque where we’re not
supposed to be.”
Then the officials of the synagogue or the
mosque as the legally authorized representatives
of that corporate body, if push comes to shove,
things get far enough, can call in the police
to take the women away.
If things get really extreme, they can arrest
the women for trespassing.
That is the coercive punishment isn’t entirely
off the table.
So in the book, I do take seriously the difference
between coercive punishment and voluntary
punishments like excommunication.
But I do think that states are on a continuum
with other groups.
They’re not morally utterly different.
That’s part of what generates the tension
within the book, the view that says states
are just morally, magically, completely other.
It has sometimes gone along with saying – and
therefore associations can do whatever they
want.
In terms of the book, that would mean only
the pluralist vision is right because we can’t
define anything that happens within the groups
as un-free.
I don’t think that’s true.
Moreover, I offer some reasons in the book
to think that local governments and provincial
governments are even closer to intermediate
groups on this spectrum, which suggests that
the state form isn’t morally completely
alien to other kinds of groups, social organizations.
Trevor Burrus: Do these two different traditions
– you call them irreconcilable and we will
get into kind of the genesis of that.
But it seems to me that they could be coming
from the different concerns about which one
– where the danger lies more, whether or
not – they’re not coming from different
value systems.
If they’re both liberal, they can’t be
to some extent just like, “Oh, sure.
If you want to have your own little intermediate
group that’s North Korea and you constantly
just beat people, that’s not OK,” or some
sort of [0:11:19] [Indiscernible] not going
to blow.
But is it really just a concern about where
the slippery slope lies, if the slippery slope
lies with the pluralistic tradition or the
slippery slope lies with centralized power
that may start doing things that you don’t
want it to do?
So just an emphasis about the dangers of the
future.
Jacob Levy: I think that’s right and I spend
a lot of part one of the book arguing that
we should think of the traditions in terms
of where they view dangers.
A lot of the other ways of talking about these
kinds of issues in political theory, in political
philosophy, have tended to treat the two views
as coming from utterly different value systems.
One of them is individualistic and one is
collective for example and I think that that’s
a serious mistake.
Association is generated out of individual
free choices and free persons, as I’ve said,
are free to choose rules and values and norms
or one of them is concerned with individual
autonomy, understood as a strong commitment
to the person creating themselves.
I think the really radical version of individual
autonomy that people talk about in that setting
is ultimately incoherent because we are – none
of us creating ourselves wholly from scrap.
We’re all socialized.
So what happens is the idea of autonomy is
wielded in very opportunistic and hypocritical
ways for example to say we secular white Westerners,
we are autonomous.
We choose our lives whereas you brown people
with your religions, you seem not to be autonomous
because you’re doing what your parents – well,
most of us do what our parents did most of
the time.
So I’m at some pains to say there aren’t
different fundamental values.
These are both flowing from common liberal
values and the difference is then grounded
in a different kind of normative sociology
on account of what groups are like and what
states are like, what their patterns are,
what their habits are.
Under what kinds of social conditions you
would expect to find really significant abuses
coming from the state or under what kinds
of conditions you would expect to find really
significant abuses coming from intermediate
groups.
Trevor Burrus: That seems like it would have
something to do with voice and exit possibly
in the Hirschman sense that one of these you
can leave these – that should be maybe a
fundamental right that the liberal order must
maintain.
In the other one, you should try to change
essentially from within.
Jacob Levy: There’s something to that.
But lots of states and lots of intermediate
groups draw on both.
It’s not the case that states are always
smaller or it’s not the case that states
are always larger that – what I’m calling
intermediate groups.
A lot of intermediate groups are transnational.
The Roman Catholic Church is very much larger
than most states in the world.
Exit is hard.
Exit is tremendously costly and we say that
exit is hard from states, partly psychologically,
partly economically, partly because it’s
hard to find a place to go.
Well, exit is hard from the Catholic Church
too.
If you’re still a believer, but you have
some real objection to some component, what
do you do?
Well, what you do is voice.
Our relationship to intermediate groups isn’t
just like our relationship to economic firms
on the marketplace which was Hirschman’s
standard case of – cases where we dissent
using exit.
Trevor Burrus: Yeah, I don’t like Burger
King.
I leave Burger King.
I go to McDonald’s.
Jacob Levy: That’s right.
Trevor Burrus: They don’t try to change
Burger King from within and take it over and
vote them out and then everything else.
Jacob Levy: But my relationship to my church
isn’t really like that very much, even [0:14:55]
[Indiscernible] there’s a tremendous proliferation
of Protestant denominations that are very
close to one another and yes, if you don’t
like something about your local church, you
can find something that’s a little bit different.
But still, we take it more seriously than
that.
We do try to exert some voice.
We do try to change our intermediate organizations.
Aaron Ross Powell: So given that these definitions
scale and as you said the Catholic Church
is much larger than many as an intermediate
group is much larger than many states, does
pluralism I guess eat rationalism at some
point?
These countries themselves are – I mean
we’re embedded in these things, these cultural
groups, the – we come out of this liberal
tradition but that’s just a tradition that
we were a part of.
So does taking pluralism seriously at some
point means saying something like – well,
even these individual rights that we seem
to care about, this autonomy that we seem
to care about, those are just particular factors
of this one intermediate group that we happen
to be a part of, that maybe stretches back
to the dawn of time.
But it’s a tradition and it’s just like
the Catholic tradition and so we should treat
it the same as we would treat any other intermediate
group.
Jacob Levy: I don’t quite think that.
I see what you’re up to.
I do think it’s important to treat the state
as being continuous with other kinds of groups
and as being an entity with a sociology of
its own.
It’s important not to treat it as a lot
of philosophers often have, as being a kind
of disembodied machine for the dispensing
of justice and all we have to do is come up
with the right tier of justice to feed into
the state and then the state will do the justice.
Now states have patterns and dysfunctions
of their own.
They’re populated by real people and they
have histories.
They haven’t always existed.
They share that with intermediate groups too.
But there is something distinctive about this
particular kind of group, the kind of mode
of organization that’s developed over the
course of European modernity since the 1500s
or so.
It extends to significant bureaucratization
and a significant push toward universalism
and uniformity within it in a way that isn’t
mirrored in even very large other groups.
The Catholic Church is not prone to the same
dysfunctions as a state is.
There are other kinds of things we want to
worry about.
We want to worry about excessive conservatism.
We want to worry about the excessive power
of priest over parishioner.
But what we don’t normally find in the church
that we do find in states is the trend toward
radical centralization, radical uniformity
and a deep determination to know everything
about the members in order to make them marked
in a kind of lockstep.
That has to do with the kind of power that
the state has as a – at its disposal.
It’s a contingent matter.
It’s what the state happens to turn into
over the course of the 1500s, 1600s, 1700s.
But it does mean that we expect different
kinds of dangers from the state than what
we expect from the other kinds of intermediate
groups, and therefore I think it’s still
useful to treat them separately.
Trevor Burrus: As a member of the academy
in Canada no less – and I don’t know if
that makes it meaningfully different in terms
of the political persuasions of your colleagues
and the people you interact with professionally.
It would seem to me based on my reading of
the situation that at least in the political
science and somewhat of the political philosophy
realm, the preference has been over the last
few years for the rationalist viewpoint, at
least in the sort of sense of being very afraid
of groups and being less about toleration
and more about top down rules.
We see that whether it’s toleration on campuses
or the move to let’s say international human
rights law or the UN.
We need to have a rational order that guarantees
a floor for everyone.
These groups are a big problem.
The feminist tradition has long attacked the
family as the source of the problem.
The subjugation of the one within the family
goes to the rest of society.
So we need to be able to get inside the family
and not let them.
Would you agree that that’s the general
trend right now in political science and political
philosophy?
Jacob Levy: I think there’s something in
philosophy in particular that tends to be
attracted to the model of the state as a justice
dispensing machine.
They don’t think of it as being a statist
view.
What they think of it as is the articulation
of right reasons and we can’t give up on
the enterprise of finding the right reasons
and the right rules.
But then once we got the right reasons and
the right rules, well, here’s this handy
machine over here that we will feed the right
reasons and the right rules into.
They take the state for granted as being a
transparent way to get the right reasons and
the right rules expressed in the world.
Part of what the pluralist tradition has always
emphasized is when states go wrong, the existence
of a plurality of groups and sites and locations
and organizations within society can provide
a variety of kinds of counterbalancing, a
variety of kinds of experimentation to find
out what better rules are.
It emphasizes that we don’t know what the
right laws would be and there’s an emphasis
on pluralism as a discovery procedure.
I don’t think that political science has
quite the same tendency.
Political science is the study of the state
for a living and so we’re not going to take
it for granted in that same invisible transparent
way.
We’re plenty aware of the pathologies of
states and we treat them as part of the analysis.
Trevor Burrus: Do you think that there’s
any sort of transposing of the pluralist or
rationalist tradition on to modern political
parties or political debates or is it always
kind of [0:21:02] [Indiscernible]?
Because I could see conservatives talking
about the family or conservatives talking
about church groups as being the ones – similarly
right now, talking about the pluralist tradition
and not wanting to be forced into association
for baking a wedding cake for a gay wedding
or things like this.
It seems to be coming from more of the pluralist
tradition and then the left is coming in more
of the rationalist tradition or is that the
state …
Aaron Ross Powell: Let me actually modify
that because that was kind of – I was thinking
of asking something similar and that one of
the things that strikes me about modern politics
and thinking about it through this tension
that we talked about is groups seem to be
– so interest groups, whether those are
social conservatives versus progressives or
union membership or whatever the interest
groups and the factions that are at play.
They’re rationalists when they’re winning
and they’re pluralists when they’re on
the defensive.
So that’s why when you talk about the conservatives,
oh, we need this pluralism.
We need – so that people can choose to live.
Well, that’s because social conservative
is losing right now and so we need the freedom
to not marry gay people whereas before the
argument was gay people should not be allowed
to get married and we’re going to use the
rationalist state to force that on them and
the left wanted pluralism when they were – we
wanted the choice to be beatniks or whatever
in the – but now that they’re dominant,
it’s – we’re going to use the rational
state because it’s not – it’s no longer
pluralism.
Our group is right and all the other groups
are wrong.
Jacob Levy: To a first approximation, I think
that’s a lot closer than a mapping of the
distinction on to an ongoing overtime left-right
distinction.
We can see it pretty clearly in the case of
federalism which I treat as one importantly
distinctive kind of pluralism.
If you think that your side controls the central
government and is going to go on controlling
the central government, then you tend not
to be supportive of federalism.
You tend to think the central government will
give us the answers and the states and the
provinces have to fall into line and on gay
marriage we’ve seen an astonishingly quick
turnaround.
Within a generation, we’ve gone from the
federal Defense of Marriage Act and social
conservatives who actively supported a constitutional
amendment to ban same sex marriage even in
states where DOMA hasn’t been passed at
the state level to the reverse where now the
conservative argument is well, let the last
few states that haven’t legalized same sex
marriage go on their way.
That’s a very robust pattern.
That doesn’t mean that there aren’t some
other patterns.
It very often is the case that conservatives
will in particular be sympathetic to the claims
of churches and religious groups to be able
to govern themselves.
But there are other institutions in society.
Universities are an important kind of intermediate
group.
One of my favorite messy cases to talk about
these days are the laws that are passed in
a few states to mandate that universities
allow people with concealed harry handgun
permits to carry their guns on campus.
That’s a way of saying that the university
is not its own space with its own rules.
That professors and students can’t come
together and agree to a different setting
and say in this space we think that this is
appropriately not bound by the same rules.
Like the Amish agree to not exercise a variety
of their liberties, we could say in the classroom,
we’re not going to exercise our liberty
to carry handguns.
But conservative state legislators are interested
in shutting down that institutional autonomy
of the universities and instead mandating
a rule about who can carry guns where.
Trevor Burrus: Let’s talk a little bit about
the history because a significant part of
the book is the genesis of these two doctrines
and Montesquieu is a central figure.
But where does the pluralist tradition do
you think – what are the legs of the – that
usually stands on the philosophers and the
ideas?
Jacob Levy: The ideas come second in my telling.
I’m interested in first showing that medieval
Europe, late medieval Europe from about a
thousand or 1100 onward generated a lot of
what we now think of as intermediate institutions
including institutions that are continuous
with the ones we have today, the church, cities,
universities above all.
And that they already had proliferated by
the time the modern states started to coalesce
in the 1500s or so against the vision that
we get sometimes from reading just the history
of political thought, especially the social
contract theorists that says before the state
there was nothing.
It turns out that before the state, there
was quite a lot and quite a lot that we now
think of as the pluralistic intermediate sphere.
It wasn’t an intermediate.
There wasn’t a state over it but those institutions
did exist in their variety of forms with their
variety of functions.
Then I tell an intellectual history that partly
builds on what happens when the state shows
up and when the early modern absolutist monarchs
start to realize what they can do with this
new organizational form.
What they want to do is to subjugate all of
the other orders of society, make it all orderly
and rational and taxable and conscriptable
and governable and therefore eliminate the
traditional rights to govern themselves that
universities and cities and the church and
so on had all had.
Then in the fight between the absolute monarchs
and their critics.
Trevor Burrus: Such as the Stuart kings.
Jacob Levy: Such as the Stuart kings and the
Whigs.
Then you start to get the articulation of
political ideas that say we have an ancient
constitutional order here.
Trevor Burrus: Those words are always used,
“ancient constitution”.
Jacob Levy: That’s right.
In England, the ancient constitution is the
common law and in continental Europe, it is
grounded obviously not in the common law but
just in the traditional rights to govern themselves
of the provinces and all the rest.
This brings together groups that had not seen
themselves as allies before.
The church and the cities had not been friends
ideologically, intellectually during the high
Middle Ages.
But in the face of centralizing absolutist
monarchs, they discovered they have common
cause in defense of what they partly imagined
to have been the ancient constitution.
It has to be an imagination because they’re
projecting an order backward when there didn’t
need to be an order when there wasn’t an
overarching state and there wasn’t a unified
legal structure to tie it all together.
The social contract theorists, Hobbes and
Locke especially, they are offering in different
ways accounts of the justification of the
state and of the modern state and they wipe
out everything else that isn’t normatively
derived from the agreement that we all make
together all at once.
A church or a city or a university isn’t
derived from that universal national agreement.
It’s built on what its members have done.
Their critics, the Whigs, the common lawyers,
the ancient constitutionalists …
Trevor Burrus: The critics of the social …
Jacob Levy: The critics of the social contract
tradition and the critics of absolutism.
They draw on a different normative language.
It doesn’t have to do with the idea that
we justify everything in society all at once.
But rather each of these things has its own
justification.
Each of these things has its own history and
it is the duty of kings to respect the traditional
laws that have allowed each of these things
to govern themselves.
This comes together especially in Montesquieu
who I think turns the ancient constitutionalist
intellectual tradition from being partly just
a political tool into being a full blown political
theory.
Aaron Ross Powell: Tell us more about Montesquieu
because he’s probably someone that – I
mean most of our listeners probably know something
about Hobbes, about Locke, about Mill.
But Montesquieu …
Trevor Burrus: He’s also – The Spirit
of the Laws is 1500 pages long or something
like that.
It’s a pretty diverse work.
So yeah, so fill us in on Montesquieu.
Jacob Levy: That’s right.
It’s a very big book and it’s also a book
that unlike Hobbes – Hobbes is Leviathan.
It doesn’t even pretend to be accessible
to someone just picking it up.
Hobbes thinks that he has discovered a political
science that anyone can master just by opening
the book the same way that he thinks you could
discover the geometry, that you could master
just from within.
A lot of The Spirit of the Laws and history
in sociology – and if you don’t know the
proper nouns that he’s throwing around,
if you don’t know the eras that he’s talking
about, then some of it won’t make any sense
and a part that do make sense, you won’t
always understand why he’s talking about
it at such length.
Nonetheless, The Spirit of the Laws is the
first really major work of political and social
theory of the European Enlightenment and one
of the most influential books in the history
of European ideas.
More than Leviathan, more than any other modern
book up to its time offered the idea and the
hope of a general social science of modern
political and social life.
A lot of what Montesquieu is interested in
is the constraints that states face in trying
to govern complicated societies.
He’s convinced that legislators and governors
and rulers and kings, they try to make their
states simpler than they are.
They try to govern according to simpler laws
that actually make sense.
So he’s constantly making reference to complexity.
One of the most famous parts of this discussion
of complexity is the two books, books four
and five, about the development of commerce
in modern Europe and Montesquieu is cited
as the originator of the [0:31:37] [Indiscernible]
thesis that commerce tends to soften barbaric
mores and encourage peace among nations.
He’s seeing that there’s an area of human
activity that isn’t just the creation of
deliberate decisions by state lawmakers.
He says given that we’ve had these commercial
revolutions in European modernity, how does
that shape what the laws should be and what
the laws can possibly do?
All right.
To us in the 21st century, that is a little
bit familiar.
We can say, yes, OK, the economy might have
laws of its own that constrain what an effective
government can actually accomplish.
But a lot of the rest of the book is about
that too.
A lot of the rest of the book is about how
the religious habits of the people, how the
cultural habits of the people, how the traditions
of the people, how the geography and climate
of the society, how all of these things put
constraints on what it is the lawmaker can
hope to create from scratch and so he’s
throwing complexity after complexity from
one society after another at the reader in
order to say here are things that are relevant,
that a lawmaker would have to take into account
because the world is more complicated than
the lawmaker imagines.
Trevor Burrus: Well, I see that as somewhat
related although you see kind of – as a
middle figure seems the way to describe them
but the Scottish Enlightenment figures kind
of made these claims too about the organic
nature of society and the institutions that
develop whether it’s Adam Ferguson or Adam
Smith or Hume’s work on political thought.
Will that be in the more Montesquieu tradition
would you say or …
Aaron Ross Powell: Ferguson and Smith were
absolutely clear about the amount of the debt
that they owed to Montesquieu.
Ferguson said at one important point in his
essay on the history of civil society, “I’m
not really sure why I should bother saying
anything about this because Montesquieu has
already said it.”
Smith did think that he had important improvements
to offer on what Montesquieu had said about
commerce but Ferguson and Smith both drew
a lot on Montesquieu’s theory of historical
change.
Part of the complexity that Montesquieu offers
is to say the laws that make sense in one
time won’t make sense in another time when
all of these cultural and economic and other
factors have changed and therefore what we
think of even as justice over the course of
centuries or millennia is meaningfully different.
The whole legal system has to change from
one century to the next.
Ferguson and Smith are fully in Montesquieu’s
debt and open about that.
Hume’s relationship to Montesquieu is a
little bit more complicated.
Hume is close to being a contemporary of Montesquieu
and his thought was closer to being fully
formed by the time The Spirit of the Laws
came out.
There was a lot that he agreed with Montesquieu
about but there were gaps there that don’t
exist with Ferguson and Smith relative to
Montesquieu.
Aaron Ross Powell: What’s the story then
post-Montesquieu?
Trevor Burrus: Actually before we go post-Montesquieu,
I just want to clarify just to say – so
is it Montesquieu’s position – I guess
it’s very complex and it’s hard to get
into.
I’ve tried to read it many points in time.
But is the big constraint on the state?
Is he concerned with the constraints on the
state?
Is the big concern of the state humility?
I guess humility of the rulers to understand
that there’s more complexity and pluralism
out there.
Is that an adequate characterization or accurate
…
Jacob Levy: No, there has to be more than
that because rulers won’t abide by that
kind of thing.
Montesquieu generally thinks that modern states
will be monarchies.
He thinks the republics are characteristic
of the ancient world and now that we have
commerce and now that we have big countries
like France and England, we’re going to
have monarchies.
He says over and over again of monarchies
that they are constituted by their intermediate
bodies.
If you don’t have intermediate bodies – and
he names the church and the cities and the
provinces and the guilds and the nobility.
If you don’t have those in a monarchy, the
monarchy will become a despotism.
He doesn’t say this will happen when we
get a bad monarch.
He says it’s intrinsic.
All of those bodies stand up for their rights
and in standing up for their rights, they
help protect the law and they help protect
the idea that there are legal limits on what
the king or the lawmaker or the central government
can do.
If they go away, if all you have is an absolute
central state and disconnected individuals,
despotism necessarily results more or less
regardless of how well-intentioned or good-spirited
that king is.
A lot of the spirit of the laws is barely
sub-textually an account of how Louis the
XIV had brought France to the brink of despotism.
It is officially sub-textual.
He never quite says that out loud but it’s
barely sub-textual and Voltaire hated him
for it and spent decades afterwards writing
defenses of Louis the XIV against Montesquieu
as he took scurrilous charges.
The claim wasn’t that Louis the XIV had
been a bad man, though he does think that
Louis the XIV was arrogant and a simplifier.
It was more fundamentally that Louis the XIV
had damaged the constitution by attacking
all of the decentralized pluralistic intermediate
bodies, by centralizing the nobility at Versailles,
leaving them in the countryside tending to
their various responsibilities.
In order to get freedom in a modern constitutional
monarchy, we are going to have to have pluralism.
Aaron Ross Powell: So then how did we get
to where we are today, where this pluralism
seems to have faded somewhat from the way
that we talk about things and by – it seems
like – I mean – maybe this is an accident
in this country of the American founding and
the focus on a social contract theory that
seems to dominate the way that we think about
the state and think about liberalism and think
about our freedoms.
But how did this ascendency of the rational
approach …
Jacob Levy: So there are a couple of important
steps and lurking in the background is always
that the state continues to consolidate as
an organizational form over the course of
modernity.
The state that Montesquieu is writing about
50 years before the French revolution, it
was by our standards still a pretty fragmentary,
disorganized, non-bureaucratized, non-professional
body.
Trevor Burrus: Well, they didn’t have the
technology to really be that overweening.
Jacob Levy: They didn’t have the technology
and our straightforwardness but they also
didn’t have the social technology.
There were all kinds of sociological obstacles
to the state governing the way that it wanted
to govern and these were obstacles that the
Jacobins and the French revolution were going
to run headlong into and then try their best
to break –
Trevor Burrus: Try to reform the society from
the ground up by killing all the pluralists.
I mean is that the ultimate rationalist endeavor
of the French Revolution?
Kill all the pluralistic groups, restart the
calendar …
Jacob Levy: So again, since I’m trying to
tell this as an understanding of views within
liberalism, I don’t want it to be understood
just as a story about, well, reactionaries
and Jacobins because there are liberal ways
of being a rationalist who worries about intermediate
group power.
The Jacobins were not liberals.
They were extreme rationalists but I don’t
talk about the Jacobins much in the book because
I’m interested in rationalist liberals …
[Crosstalk] [0:39:09]
Jacob Levy: … in the way the Jacobins don’t.
But the French Revolution accelerates the
growth of central state power and they figure
things sociologically out.
They figure out new ways of governing, new
mechanisms they have at their disposal.
They aren’t about the invention of computers.
They are about for example mass conscription
and they are about how you can finance a much
bigger bureaucratic state that will then have
an ongoing census and an ongoing tax base.
Those are kinds of technological change but
they’re not in our engineering sense technological
changes.
So the state keeps getting more powerful.
That’s in the background.
The French Revolution also changes the base
of legitimation of the centralized and centralizing
state.
The absolute monarchs hadn’t been able to
say the reason why I should rule everything
is that I am the whole nation.
Louis the XIV didn’t say …
[Crosstalk] [0:40:08]
Jacob Levy: L'état, c'est moi but not [Indiscernible]
c'est moi.
He said that he was the only source of state
legitimacy and state power and the provinces
and the cities, they did not have autonomous
state powers of their own.
But the French Revolution and the nationalistic
democracy that comes into being starting at
about the turn of the 18th century, that generates
the very powerful idea that we the people,
a people should govern itself as a singular.
It could govern itself all at once in a unified
way.
That gives the centralizing state tremendously
more normative legitimacy and more popular
appeal than the old absolute monarchs had
had.
That’s going to become the primary preoccupation
of liberal political theorists in the 19th
century.
Alexis de Tocqueville here is the most important
but I think that Benjamin Constant is extremely
insightful about these things too.
Tocqueville sees the continuities between
the old regime absolute monarchs and the new
revolutionary state and he says, “Under
democracy, how would I ever be able to resist
the power of the centralizing state?”
Because everyone feels that they’re a member
of it and yet there’s something terrible
on the horizon he thinks when the democratic
majority governs itself this way.
One of the things he’s looking for when
he comes to America and talks about the rise
of voluntary associations is how a free and
equal democratic people can still be pluralists,
how they can be pluralism without privilege.
He’s tremendously impressed with what the
Americans have done.
From his initial vantage point, he says we
would have assumed that the Americans already
would have fallen into despotism because there
aren’t any intermediate bodies.
There’s nothing really robust to stand up
against the state, not in this old regime
sense of having institutions whose privileges
were a thousand years old.
However, the Americans have figured out ways
through township government he’s very interested
in and through churches and through the tendency
to associate together to do things in civil
society rather than directly lobbying the
state to do things for us.
He doesn’t maintain tremendous optimism,
that that can be a solution forever.
He doubts it can be a solution forever for
the Americas and he’s pretty sure that France
had by that time lost the possibility of just
generating it spontaneously.
Trevor Burrus: Does that seem to still be
the case do you think that the new world,
the lack of coming up to finding institutions
as you find them and having to deal with them
and coming across the ocean led the Americas
or maybe just the United States to be more
– less into institutions and more about
the sort of rationalist theory of liberalism?
Jacob Levy: Yes, but.
I mean the United States is a federation and
that matters.
I think the United States hasn’t maintained
its federal form as well as some other federations
partly because most other federations have
at least one province or state that has a
really robust sense of pre-political identity.
Trevor Burrus: Well, you live in Quebec.
Jacob Levy: I live in Quebec.
It is absolutely the case and Quebec is exactly
what I had in mind.
Aaron Ross Powell: Texas.
Trevor Burrus: What about Texas?
Jacob Levy: I think that Texas’ distinctiveness
is mostly sublimated within the south.
There certainly are Texas patriots and there
are people who wave their Texas flags and
talk about Texas succession.
Trevor Burrus: They don’t have their own
language though, not exactly.
[Crosstalk] [0:43:55]
Jacob Levy: That’s right.
It has mainly expressed itself politically
just as southern white conservatism whereas
Quebec or Catalonia in Spain or Scotland in
the UK or Bavaria in Germany or any number
of linguistically and religiously distinct
states in India, these states really systematically
– they don’t turn their identity into
just being part of the left-right coalition
at the national level.
They say one of our most important political
projects …
Trevor Burrus: Is Quebec.
Jacob Levy: Is Quebec, that’s right.
Trevor Burrus: It’s Catalonia, yes.
Jacob Levy: And that has exerted an important
balancing force that helps protect federalism
in Canada, in Spain and these other countries
that I think the US has generally lacked to
its disadvantage.
But that’s not about social contract theory
versus not social contract theory.
That’s about the deliberation that was made
in the 19th century in the United States that
says no state will be admitted to the union
until there’s a white English-speaking majority.
We are not going to let Oklahoma be a state
when Oklahoma is an Indian country.
We’re not going to let Hawaii be a state
until there’s a white settler majority and
…
Trevor Burrus: Or we’re not going to let
Utah be a state under a theocratic type of
…
Jacob Levy: That’s right.
We’re really going to break the power of
the Mormon Church in important ways.
We’re going to demand the Mormon Church,
abandon polygamy.
We’re going to put the union army outside
Salt Lake City and tell them you have to behave
like a reformed Protestant denomination and
not like you have traditionally behaved.
You can’t be too different and have your
own state within the American union.
Aaron Ross Powell: One thing I was curious
about when going through the book is that
– so we have – the tension is we have
got this potential threat and both – and
potential [0:45:42] [Indiscernible] the liberty
of the centralized power and then the individual
group that we might be a part of.
But what about the threat between groups that
– because the central authority – even
if the central authority might be a threat
to groups, it might also be supportive of
them because it’s going to be prevent one
religious denomination from potentially wiping
out in the ways that it might prevent – some
it would prevent, some others it wouldn’t.
But it’s going to act as a referee.
It’s – yeah, it’s going to set the rules.
It’s going to enable something that looks
like Nozick’s Utopia of Utopias where we’ve
got the set of rules and that allows the groups
to form.
So what’s the …
Jacob Levy: Absolutely.
One of the things that I think is a truth
of the rationalist liberal tradition is the
idea that the intermediate bodies are better
off and are better for us once we become genuinely
intermediate.
Locke was very insightful about this in talking
about religious liberty and the way in which
religious liberty was connected to his theory
of generating the state all at once and it
would be a uniform state for everyone all
at once.
The religious wars were very bad for people
in their religious groups and the end of the
religious wars involved in part a strengthening
of state power to check what the religious
groups could do to each other.
It’s not only that because the states were
also participant in and enablers of the religious
wars.
But it was partly that and there are ways
in which the stable uniform legal framework
that the modern European state has to offer
lets us make better use of what we’re going
to do in our intermediate group lives.
It doesn’t come for free and it doesn’t
come without cost but it does come.
Trevor Burrus: I think that’s an interesting
point of your book and you try to make it
clear that this is a taxonomy more than a
– this one is better than the other one.
You seem to have a preference for the pluralism
tradition but it’s not what the book is
about and maybe this conversation because
the libertarian fear of the rationalist state
is – seems like we’re saying, oh, the
pluralism one is clearly correct but the …
Aaron Ross Powell: Actually that doesn’t
strike me – I mean I would argue that most
of us – most libertarians tend to argue
more from within the rationalist.
That the government is there to protect our
rights and that means protecting us that – shutting
down the power of these powerful interests
to dominate our lives, that it should set
these hard and fast rules and it should make
sure that we’re free to pick and choose
in that kind of radical autonomy and self-authorship
seems very central to modern libertarians.
Jacob Levy: I’m delighted this exchange
happened this way.
Trevor Burrus: This is exactly why you wrote
the book.
Jacob Levy: That’s right.
I genuinely don’t think, really, really
genuinely don’t think that the pluralist,
rationalist distinction maps on to for example
the distinction between libertarian and egalitarian
kinds of liberalism.
A long time before the book came out, I had
an article first developing a rationalist
pluralist distinction partly by arguing just
this.
Among contemporary libertarians, you could
say who owes a greater debt to Hayek and who
to Nozick?
Hayek is a pluralist.
Hayek mistakenly thought that his pluralism
was what market liberalism was all about and
there’s an important, influential, interesting
and wrong chapter in The Constitution of Liberty
that treats his understanding of pluralism
as being constitutive of what it is to be
a classical liberal or a market liberal.
But when you start from a theory of robust
individual rights and you say what we need
is the fully coherent night watchman state
who will protect all of our rights and to
do nothing else, that is absolutely a rationalist
project and it is a way of treating state
as a justice dispensing machine.
If only we hit it right, then the state will
do what we tell it to do and nothing else.
There really are significant rationalist and
pluralist components of contemporary libertarian
liberalism as well as other kinds of liberalism
lurking way in the background of my interest
in writing this book, is to express the view
that libertarian liberalism is continuous
with liberalism.
That is, it is not the one true heir of the
liberal tradition that I’ve talked about.
I think that contemporary egalitarian liberalism
of the kind that’s expressed in John Rawls’
A Theory of Justice, the kind that got politically
manifested in the Warren Court resolutions
about the American constitutional order.
that’s a genuine descendant of liberalism
and the rationalist, pluralist tension is
faced in more or less the same ways and in
more or less – to more or less the same
degree by libertarian and egalitarian liberals
alike and in showing that, we can start to
see some of the ways in which the difference
over how much the redistributive state is
going to spend on alleviating poverty is not
the only or the most important difference
within liberalism and it’s certainly not
the difference between some who are truly
the liberals and the heirs of liberalism and
others who are alien to it.
Trevor Burrus: Now, there – going back to
Aaron’s first question, which I think is
a kind of good last question because we went
off and around and whatever.
We talked about the irreconcilability.
So you think these two things are irreconcilable.
Why is that the case and what should we learn
from that if there’s a normative lesson
to learn from that going forward?
Jacob Levy: The rationalist and pluralist
views if I’m right are based on accounts
of what can go wrong in states and intermediate
social groups.
They can both be correct about those things
and that’s not going to free us from the
need to do something in a particular case,
to side with the state or the group in some
particular dispute.
But unlike a theory that’s built up from
first principles about individual rights,
this is going to be the kind of model in which
we might just be faced with a choice of bads
and a weighing that is not determinant.
The thing that we do to check the intermediate
group from repressing its members might be
justified and yet might leave us with a stronger
state than we had before in ways that we genuinely
want to worry about and vice versa.
Moreover, I think that the psychology and
sociology of worrying about intermediate group
life and the psychology and sociology about
worrying about the state are really genuinely
different kinds of insights.
One of the pairings I talk about in the book
is between John Stuart Mill who among 19th
century liberals was especially important
in seeing the ways that the family and the
traditional culture can be oppressive.
He understood that the traditional patriarchal
family was a site of household despotism,
robust critique of slavery, robust critique
of the cultural conservatism of Victorian
England and understood that that could be
repressive in its own right and Lord Acton,
the British Whig liberal historian who was
one of the most important theorists of federalism
in the liberal tradition.
He rightly saw what Mill did not see, that
the emerging European nation state, to drive
to nationalism and to break up the large multinational
empires into democratic nation states, that
that was going to be significantly oppressive
because it was going to unify nation and state
and therefore make states seem more legitimate
than they really were and generate nationalistic
fervor in supportive states that are going
to be bad for minorities.
All things that turned out to be true.
He was very, very good on understanding religious
freedom and the freedom of churches to govern
themselves.
In the book I talk about a correspondence
that Acton entered into after the US Civil
War with Robert E. Lee.
It is an extraordinary depressing set of documents.
It’s obsequious.
Acton says he mourns more for the stake which
was lost at Richmond, that is in the crucial
battle that decided that the civil war was
truly going to end as it did.
I mourn more the stake which was lost at Richmond
than I celebrate that which was protected
at Waterloo.
For 19th century Englishmen, 19th century
member of the British House of the Lords,
to say that.
The American Civil War turned out worse than
the defeat of Napoleon turned out well is
mind-boggling.
It’s not that Acton didn’t know that slavery
was wrong.
It had always been clear that slavery was
wrong but he thought that the protection of
federalism was so important for protecting
human liberty going forward in the era of
mass democracy and the era of the emergence
of the modern state, that he was willing to
just completely swallow the concern about
slavery in order to say the confederacy really
needed to establish robust state rights and
now that we have the triumph of the unified
centralized nation state under Lincoln, now
we’re all doomed.
I think the sources of his insight and his
blindness are the same source and the same
might well be true of Mill’s abilities.
He was wrong with the family and his inability
to see what’s wrong with nationalism.
There’s a psychology and a sociology that
you bring to the table.
If Mill and Acton who I regard as both having
been great, tremendous, important, brilliant
thinkers, if they could both go so far wrong,
then I’m inclined to say there’s a reason
to doubt that we’re going to get it right.
If they couldn’t see both truths at the
same time, then even though I tend to – to
where the pluralists side, I’m not willing
to hubristically think I’m going to be the
one to get it right and to square the circle
and to solve all the problems at once.
My pluralism undoubtedly generates blind spots
of its own.
Aaron Ross Powell: Thank you for listening.
If you have any questions, you can find us
on Twitter, @FreeThoughtsPod.
Free Thoughts is produced by Evan Banks and
Mark McDaniel.
To learn more, find us on the web at www.Libertarianism.org.
