Common Factionalism

The political rhetoric of the common good is poorly disguised factionalism, which the thinkers in whose name it is being advanced would have abhorred

The idea that law and politics should be organized around the principle of the “common good” is in the air on the political right. The left, of course, has had its versions of it for a long time. Both co-blogger Mark Mancini and I have written about “common good” arguments about legal issues, specifically the administrative state (Mark), constitutional law (me), and the Charter’s “notwithstanding clause” (also me), and found them severely wanting. A couple of recent newspaper articles give us an idea of what the “common good” philosophy looks like in practical politics.

On the northern side of the world’s longest closed border, Ginny Roth, writing in the National Post, identifies the Conservative platform in the late and lamented election with “a rich tradition of common-good conservatism that looks more like Edmund Burke than John Locke”. The master idea of this “new conservatism” (wait, is it new or richly traditional? never mind) is that “Conservatives must be positioned to build on the coalition of voters that will support it in this election by correctly identifying what appealed to them about the leader, the party and the platform”. Less blandly, “the left must not have a monopoly on populist politics”. The right should imitate the left, and in doing so advance the policies favoured, or assumed to be favoured, by “coalitions of voters who think the opposite of what the cocktail party goers do”. 

The same ideas, if that’s what they are, are to be found south of the aforementioned border in Josh Hammer’s column in Newsweek. (Mr. Hammer, it is worth noting, is one of if not the closest thing the “common good” movement has to a leader. He is also, apparently, a research fellow with an outfit called the Edmund Burke Foundation.) Mr. Hammer defends bans on private businesses requiring their employees or customers to be vaccinated against the present plague. In doing so, he claims to take the side of “common-good-inspired figures” against “the more adamantly classical liberal, libertarian-inspired pundits and politicians who believe the quintessence of sound governance is simply permitting individuals and private entities to do what they wish”. Mr. Hammer “explains” that “[v]accine mandates will be a convenient fig leaf for a ruling class already gung-ho at the possibility of precluding conservatives from the full panoply of in-person public life”. (Why is that the defenders of tradition so often struggle with their native tongue?) This “wokeist ruling class” must be stopped by a “prudential use of state power to secure the deplorables’ basic way of life”.


With apologies to H.L. Mencken, “the theory that the common people know what they want, and deserve to get it good and hard” seems to be an excellent description of common good conservatism, as propounded by Ms. Roth and Mr. Hammer. The common people are entitled to get their way, and to have the state’s coercive force used to ensure that they get their way. And no need to ask whether their preferences are consonant with some objective standards of morality, or the teachings of experts ― be it in economics, in epidemiology, or what have you. The beliefs of the common people are entitled to prevail because they are their beliefs, not because they are right.

Of course, it’s only the common people, that is, the right kind of people, that are entitled to have their way. The woke cocktail-swilling pundits and politicians are not. Even entrepreneurs, whom the conservatives of yesteryear lionized, must take their orders from those who do drink cocktails. In other words, what Ms. Roth and Mr. Hammer are promoting under the name of the common good is the view that the aim of politics is to give effect to the wishes of

a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.

This is James Madison’s famous definition of faction, in Federalist No. 10. Ms. Roth might not have, but Mr. Hammer, who affects to be a constitutional sage as well as a political visionary, presumably has read the Federalist Papers. He’s read them, and has evidently concluded that he is cleverer than Madison, who feared faction as the seed of tyranny, civil strife, and destruction, and looked for ways to limit its ill-effects.

Madinson saw the remedy in “[a] republic, … a government in which the scheme of representation takes place”. A “republic”, so understood, would

refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose.

Not so for Ms. Roth and Mr. Hammer. Not for them the refining and enlargement of public views by representatives. (It’s the cocktails, don’t you know?) The people themselves, and more precisely the “deplorables”, the ones whose views are the opposite of refined and enlarged, who must govern, and officials are to take their marching orders from them.

Poor Edmund Burke is spinning in his grave. His single most famous idea is doubtless the argument he advanced in his “Speech to the Electors of Bristol”, which deserves to be quoted at length here:

Certainly … it ought to be the happiness and glory of a Representative, to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinion high respect; their business unremitted attention. It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and, above all, ever, and in all cases, to prefer their interest to his own. But, his unbiassed opinion, his mature judgement, his enlightened conscience, he ought not to sacrifice to you; to any man, or to any sett of men living. These he does not derive from your pleasure; no, nor from the Law and the Constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your Representative owes you, not his industry only, but his judgement; and he betrays, instead of serving you, if he sacrifices it to your opinion.

My worthy Colleague says, his Will ought to be subservient to yours. If that be all, the thing is innocent. If Government were a matter of Will upon any side, yours, without question, ought to be superior. But Government and Legislation are matters of reason and judgement, and not of inclination; and, what sort of reason is that, in which the determination precedes the discussion; in which one sett of men deliberate, and another decide; and where those who form the conclusion are perhaps three hundred miles distant from those who hear the arguments?

The populism masquerading as “common good” conservatism being peddled by Ms. Roth and Mr. Hammer is the opposite not only of John Locke’s ideas and James Madison’s, but also of the deeply held views of the great man they dishonour by pretending to admire him.


I should note that there a more purely intellectual and, not coincidentally, intellectually respectable version of the “common good” thought. For the reasons some of which I set out more fully in my earlier posts, I don’t find it compelling. But, at its best, it does involve an honest reflection on the good of the community rather than window-dressing for factionalism. Michael Foran speaks from this perspective when he tweets that “[t]he Common Good shouldn’t be used as the new phrase for whatever political position one happens to already hold. A claim that X is in the common good needs to explain how X is both genuinely good and genuinely common in its goodness.”

As it happens, Adrian Vermeule (among others) has recently shared his thoughts on vaccine mandates with Bari Weiss, and they are not at all in line with Mr. Hammer’s. Along with much sniping at libertarians (does he think Mr. Hammer is one?), he argues that “the vaccine mandate is analogous in principle to … crisis measures” such as wartime conscription or the destruction of property to stop a fire: “[o]ur health, our lives and our prosperity, are intertwined in ways that make it entirely legitimate to enforce precautions against lethal disease — even upon objectors”.

The point is not really that Professor Vermeule is right (which I’m inclined to think he is, albeit not quite for the reasons he advances), and Mr. Hammer is wrong. It’s not even that their disagreement exposes the vacuity of the common good as a standard against which to measure policy (though it at least points in that direction). For my present purposes, it’s that the partisan version of the “common good” ideology, which Mr. Hammer and Ms. Roth represent, has next to nothing to do with its more cerebral namesake exemplified by Professor Vermeule’s comments to Ms Weiss. In its partisan incarnation, common good talk is nothing more than a fig-leaf meant to hide ― none too well, mind you ― the narcissism and cultural resentment that its promoters impute to a part of the electorate.

Tanstaafl

What do a libertarian society and its laws look like? Thoughts on Robert Heinlein’s The Moon Is a Harsh Mistress

I have recently ― and, needless to say, very belatedly, for a self-proclaimed science-fiction fan ― read Robert Heinlein’s The Moon Is a Harsh Mistress. I had been put off of Heinlein by Isaac Asimov’s somewhat harsh take on him in his memoir, I. Asimov, just as I’ve been forever put off Sartre by Boris Vian’s portrayal of him as Jean-Sol Partre. No regrets so far as Sartre is concerned, but I am glad I got over my aversion to Heinlein. The Moon Is a Harsh Mistress is an interesting book. Interesting enough, from a legal perspective, that I think it deserves a post here.

In a nutshell, the story is a retelling of the American Revolution, but set on the Moon, a.k.a. Luna, in 2075-76. The lunar population is oppressed by the Authority that supposedly runs the place on behalf of the Earth’s governing “Federated Nations”, but is mostly content to just plunder it by banning free trade and underpaying for the sole export ― grain (hydroponically grown) ― and overcharging for imports. Otherwise, the “Loonies”, most of whom are either transported convicts ― some actual criminals, others political undesirables ― or descendants of convicts, are largely left to their own devices, and become resentful of the Authority’s interference and exploitation. When the Authority tries to put an end to low-level grumbling, things quickly get out of control. Thanks to their courage, self-reliance, and the good fortune of having a fearsomely brilliant self-aware computer (I suppose we would now say AI) on their side, the rebels prevail, though not without considerable loss in the end.

The interest of such a book is, of course, primarily in its representation of a society very different from ours. (I am deliberately echoing the title of David Friedman’s Legal Systems Very Different from Ours, to which I will return.) The difference has little to do with technology ― indeed, on that front, The Moon Is a Harsh Mistress is just one of the many examples of science fiction Golden Age’s writers’ utter failure to anticipate the advances in computing and telecommunications that have occurred in the last 35 or so years. Heinlein’s Luna is a place of fixed (should one say moonline?) phones! What does make it different from 1960s and 2020s, Earth is its having had to adapt to an unforgiving environment, the virtual impossibility for its inhabitants to return “Earthside” where they are crushed by gravity, their lack and suspicion of organized government, and the sex imbalance that one might expect in a penal colony.

Heinlein’s lunar society is a libertarian one, and it is very odd, and unsettling in some ways ― seemingly high prevalence of illiteracy and very early marriages among others. In other ways, though, it is far ahead not only of the time of the book’s publication (1966) but even of ours, especially in its absolute intolerance of what we today might refer to as #MeToo abuses ― touching a woman without her consent, in however minor a fashion, might get a male Loonie “eliminated” at the nearest airlock. (The ready acceptance of the death penalty is another unsettling aspect of the place.) And while Heinlein’s vocabulary sometimes is antiquated, and he does fall into some annoying tropes more in tune with his times than ours, there is no question that his Loonies also have no time for, and indeed no concept of, racial bigotry ― though I suspect that they’d have no time for latter-day progressive identity politics too.

One might wonder, of course, whether Heinlein’s social prognostication is any more lucid than the technological sort. Perhaps a more or less anarchical society with a sex ratio severely out of whack will actually be a hell hole, not the creative and resilient if also deeply weird kind of place The Moon Is a Harsh Mistress depicts. But you know what? People with more conventional views get their fairy tales told to them by gaggles of politicians at every election campaign. If that has a value, then so does libertarian science-fiction. At least, we’re not about to get a Prime Minister Heinlein imposing his views on the rest of us just because we hated him a little less than the other guy. And the fundamental maxim of lunar libertarianism ― there ain’t no such thing as a free lunch, or tanstaafl for short ― is something that we would all do we well to keep in mind.

Still, I do want to pick a fight with Heinlein on one thing: his views of law and perhaps adjudication. The latter, like most everything else in Luna, is done privately, and often as a matter of improvisation. A citizen is simply asked to “go judge” and accepts, for a fee of course ― tanstaafl ― paid equally by both parties to the dispute. A few make this something like a part-time occupation, but there is no professional judiciary, just as there are no lawyers. And there are no laws. The protagonist speaks derisively of

an earthowrm [who] expects to find a law, a printed law, for every circumstance. Even have laws for private matters such as contracts. Really. If a man’s word isn’t any good, who would contract with him? Doesn’t he have reputation?

He adds that, instead of “printed laws”, Loonies

[h]ave customs [that] aren’t written and aren’t enforced ― or could say they are self-enforcing because are simply way things have to be, conditions being what they are. Could say our customs are natural laws because are way people have to behave to stay alive.

(Note that the lack of articles and pronouns in the quotations isn’t a typo or an accident: the Loonies’ English has a bit of a Russian accent. I wonder if non-Russian speakers will find it annoying, but it is mostly well done and I was rather impressed.)

Heinlein’s protagonist has a good understanding of natural law: see, for example, Randy Barnett’s explanation of natural law as a set of principles such that “[i]f we want persons to be able to pursue happiness while living in society with each other, then they had best adopt and respect a social structure that reflects these principles”. (657; emphasis removed) But he doesn’t seem to understand something that actual natural lawyers have always recognized: the natural law principles aren’t enough. To be useful, at least in a large-scale society, they need to be implemented and given relatively specific shape, which is what “printed”, or at least positive, laws are for. Natural law principles might lead us to the conclusion that we must make up for the losses we negligently cause, but not necessarily tell us what counts as negligent, or how to assess the compensation. Reputation can work to secure the performance of contracts among people who know one another, but it is of less help when we deal with strangers, nor does it necessarily assist us in figuring out what to do about a bargain that has been upended by a change of circumstances.

All that is not to say that the laws must necessarily be the work of a legislature or some other centralized, governmental institution. Perhaps, but that case must be made separately. As Bastiat pointed out in The Law, it is wrong to think that if something is not provided by the state it will not be provided at all, and this may well be as much of a mistake in relation to laws themselves as to other things. Perhaps laws can be efficiently supplied by institutions involved in a competitive marketplace ― indeed, it might not be too much of a stretch to say that the early development of the common law by royal courts competing with other kinds of courts looked a bit like that, though to be sure it wasn’t exactly a free market.

Conversely, though, thinking that there ought to be no state, or a minimal state, or a state that doesn’t seek to monopolize the law, doesn’t mean that one can do without laws ― or without lawyers and professional judges. Even among those of the “legal systems very different from ours” Professor Friedman describes that are not state-based, many rely on professionals for adjudication and sometimes legal representation. It is tempting to think, as Heinlein’s protagonist seems to think, that lawyers and professional judges are only a drain on society, but they ― like all other specialists ― are only a manifestation of the division of labour. If laws are necessary, and they are, and complicated, and they are too, then it is more efficient to let them be handled by people who specialize in this. On this point, Heinlein, or at least his character, fails to apply their own cardinal rule: one cannot have the benefits of a sophisticated legal system without some inconvenience: tanstaafl.

This critique notwithstanding, I do think that The Moon Is a Harsh Mistress is an interesting and worthwhile attempt to think through the working of a libertarian society and its (inevitable?) conflict with a statist neighbour. It might come short in dealing with any number of specific aspects of these problems, but the attempt is hardly less valuable despite this. So let me conclude by quoting the appeal of another of the principal characters to the lunar constitutional convention ― it is one that we would do well to take seriously in our own thinking about constitutions:

[I]n writing your constitution let me invite attention to the wonderful virtues of the negative! Accentuate the negative! Let your document be studded with things the government is forever forbidden to do. No conscript armies … no interference however slight with freedom of press, or speech, or travel, or assembly, or of religion, or of instruction, or communication, or occupation … no involuntary taxation. … What I fear most are affirmative actions of sober and well-intentioned men, granting to government powers to do something that appears to need doing.

Mere Liberalism

A response to a common caricature of liberal beliefs

There is a rhetorical trope in contemporary critiques of liberalism and libertarianism, especially those coming from the political right, that holds it for fundamentally flawed because it conceives of individuals as “atomized”, isolated, a- or even anti-social creatures moved by no higher emotion than crass self-interest. We have even hosted one critic who made this argument as a guest on this blog.

A recent post on Law and Liberty, in which Luma Simms “reviews” Ilya Somin’s book Free to Move: Foot Voting, Migration, and Political Freedom, encapsulates this argument very neatly. I put “review” in scare quotes because, as Professor Somin points out, it misrepresents his book. But the exact same caricature is used to attack not only Professor Somin’s work, but liberalism and libertarianism more broadly; nor is it used by Mrs. Simms alone. So I think that a general response is warranted.


Mrs. Simms writes, summarizing the worldview that ― according to her ― underpins Professor Somin’s arguments in favour of greater freedom of movement and of personal choice more generally:

Man is a rational being; his actions are based on individual choice, guided only by reason; his judgement must be independent, free of any compulsion (including obligations and constraints that come from family, country, or culture); if he acts with others it is by his choice alone; he must live by his own achievements, for his own happiness and self-interest; he has no moral duty to others. As such, man must have the political freedom to follow his self-interest to achieve his happiness. It is autonomous individualism through and through.

As a summary of the liberal worldview ― and, to repeat, many critics of liberalism use descriptions like this one in just this way ― every one of these statements is grossly exaggerated or outright false.

Man is a rational being

Liberalism ― and for that matter conservatism or socialism ― does presuppose a measure of rationality in human beings. There would be no point in advocating for, say, freedom of speech, the Rule of Law, or democracy if human beings weren’t rational in the sense of thinking, making and carrying out plans, responding to incentives, and seeking to act on their (physical and social) environment in ways calculated to produce consequences.

But liberalism doesn’t require or depend on complete rationality. Liberals and libertarians can acknowledge failures of rationality: Bryan Caplan is no less of a libertarian for having explored at length The Myth of the Rational Voter. Liberals and libertarians can recognize that human beings are emotional, too. Love of freedom is an emotion, and no less than love of God or love of hearth and home.

His actions are based on individual choice, guided only by reason

As I have just noted, liberals and libertarians know that human beings can emotional or irrational. Needless to say they also know that their choices are constrained and their actions are shaped by the circumstances ― familial, economic, cultural, environmental ― in which they find themselves. Perhaps Mrs. Simms means that liberals want, as a normative matter, to create a state of affairs where humans are free to act exactly as they choose; but they do not. On the contrary, liberals respect property rights and the autonomy of individuals, families, and voluntary associations (including businesses, churches, NGOs, etc.), which means that they will uphold private arrangements that may diminish individuals’ choices.

Now, there are difficult questions that liberals and libertarians can struggle with about private choices that radically deny individual autonomy: self-enslavement is perhaps a silly example best left to philosophy seminars, but, say, parents who refuse to provide a minimum of education or healthcare to their children are a grim reality. But of course liberals recognize that interference with the freedom of some to secure some core of autonomy to others is still interference.

His judgement must be independent, free of any compulsion (including obligations and constraints that come from family, country, or culture)

I don’t think that any liberal or libertarian believes this. Yes, liberalism values independent judgment; yes, liberalism wants individuals to be free from legal compulsions of their judgment: hence its insistence on freedoms of conscience, thought, opinion, and so on. If this is what Mrs. Simms derides as liberalism’s rejection of “obligations and constraints that come from … country”, there’s something to the charge. If the critics of liberalism want “country” to introduce indoctrination and state ideology, let them say that clearly; better yet, let them spell out what they are going to indoctrinate us in (beyond platitudes about the common good), and give us a chance to decide whether we want to drink their particular kool-aid.

But as for other kinds of duties and compulsions, not only do liberals not reject them ― on the contrary, leading liberal thinkers have specifically insisted that the point of freedom is to have the ability to do one’s duty, as one sees it. Hence Lord Acton’s definition of “liberty”, in The History of Freedom, as “the assurance that every man will be protected in doing what he believes his duty against the influence of authority and majorities, custom and opinion” (3). Hence Hayek writing, in The Road to Serfdom, that

[r]esponsibility, not to a superior, but to one’s conscience, the awareness of a duty not exacted by compulsion, the necessity to decide which of the things one values are to be sacrificed to others, and to bear the consequences of one’s own decision, are the very essence of any morals which deserve the name.

Liberals regard obligations to family and friends, to God if one so believes, and even to country and “culture”, whatever that might be, as matters of conscience. The claim they reject such obligations is preposterous calumny. What they reject is the claim of “authority and majorities, custom and opinion” to interfere with an individual’s conscience to impose obligations of this sort when they are not felt.

If he acts with others it is by his choice alone

Again, it’s a bit difficult to say whether this is supposed to represent what liberals believe is the case or what liberals believe ought to be the case. But neither representation is accurate. Liberals neither deny the existence of social ties, such as those of kin, in which individual autonomy is far from complete, nor wish to abolish them. Liberals also do not deny nor, except for anarchist libertarians, wish to rid themselves entirely of collective political action, which is also involuntary as to many individuals who are forced to go along with the decisions of the authorities.

Liberals do want to provide exit opportunities for people who may find themselves bound by social ties that are or become abusive. They also want to limit the ability of majorities to impose on dissidents through the political process. But they want to do these things precisely because they recognize that human beings belong to groups, associations, and communities which they have not freely chosen and because they have no wish to abolish such groups, associations, and communities.

He must live by his own achievements, for his own happiness and self-interest

I don’t know many, if any, flesh-and-blood liberals or even libertarians who believe this. It sounds like a paraphrase of Randian objectivism, but I must confess that I’ve never read Rand, so I don’t know if it’s an accurate representation of her views. What I think I can assert with a good deal of confidence is that these views, if indeed she held them, are not at all representative. There just isn’t anything in classical liberalism or (non-Randian?) libertarianism that says that people must be navel-gazers, hedonists, and egotists.

To be sure, liberals acknowledge the fact that human beings are generally pretty self-interested. They have their altruistic impulses too, but they are often selfish. Liberalism’s response is to try to channel self-interest through institutions that can turn it to the greater good. The market is one such institution, as Adam Smith explained by pointing out, famously, that “[i]t is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest”. And liberals try to use politics in this way too: hence Madison’s insistence that “ambition must be made to counteract ambition”.

But, to repeat, none of that precludes or condemns altruism. In trying to channel selfish behaviour for the benefit of society, liberalism certainly does not say that unselfish behaviour should somehow be disapproved of. What liberalism does insist on is that there are limits ― depending on one’s version of liberalism, perhaps very stringent limits ― on the degree to which people can be coerced into acting and living for the sake of others. But liberalism has a better opinion of human nature than those theories that apparently say that human beings will be navel-gazing hedonistic egotists (or, all manner of other unedifying things, as other critics of liberalism claim) unless forced to be virtuous by the government. (Liberalism asks: how is government going to be more virtuous than the governed?)

He has no moral duty to others

I won’t repeat what I’ve already said about Lord Acton’s and Hayek’s championing of freedom as the space in which individuals can understand and discharge their obligations ― not one where they have none. Let me, instead, remind you of the Lockean argument for the state. In a nutshell: individuals have inherent natural rights and a moral duty to respect the rights of others; unfortunately, left to their own devices, they are not very good at complying with this duty even when they earnestly try; an authority that can clarify the scope of individual rights and corresponding duties, and impartially adjudicate allegations of breach is necessary. A concern with moral duty is that at the foundation of liberal politics.

Again, what liberals deny, with greater or lesser vigour depending on their preferred flavour of liberalism or libertarianism, is the claim of the state to create moral duties incumbent on those subjects to their jurisdiction. If they subscribe to the doctrine of natural rights, they will say, with Jefferson, that governments are instituted in order to secure these rights, and that, therefore, the creation of duties not tending to secure natural rights is beyond their just powers. But it does not follow, and liberals do not believe, that moral duties to others cannot arise otherwise than through the state.


Let me make just two additional points. One, which follows directly from the foregoing is that critics of liberalism are often confused, or obfuscating, about its nature: it is a political, not a moral, philosophy; a theory of how political power should be organized, not of how to live a good life. Liberal political institutions (understood broadly, to include things like constitutions, laws, and courts) serve to preserve the space in which individuals ― either alone or in community with others ― seek to live a good life, as they understand it. Some liberal thinkers such as Adam Smith or even, to an extent, Lord Acton, had ideas about the good life. Being a liberal doesn’t mean taking no interest in moral questions. It only means renouncing the imposition of one’s own answers to such questions by force on others whose answers might be quite different.

The second point I’ll make here is that while I have responded to a critique of liberalism coming from the right, this critique would need only minimal adjustments to its language to be embraced by the illiberal left. The view that liberalism is nothing more than a smokescreen for egoism and selfishness is a staple of socialist doctrines going back a century and a half. The criticism of liberalism as denying social ties, and the limitations that community and belonging impose on individuals might seem newer. Indeed, many right-wing critics of liberalism are convinced that it is no different from socialism in this regard. But real-life socialist regimes were actually quite nationalistic themselves. More importantly in 2021, the ascending left considers human beings to be largely shaped by their intersecting identities, and bound by the resulting sums of privilege and oppression. They use a different vocabulary from the one that appeals to the right-wingers, but their message, and their critique of liberalism, is much the same. And, of course, it is wrong for much the same reasons.


Left and right alike criticise liberalism for its commitment to respecting the autonomy of individuals in ordering their own moral universe, based on their understanding of their place in the world and their relationships with family, community, and perhaps God. They think they can do better: give people a purpose in life and a morality which, left alone, they sometimes fail to find. But there is, and can be, no agreement on an all-encompassing morality that is not imposed by force, and as difficult as it may be to find one’s purpose without coercion, it is more difficult still to accept a purpose imposed on us by others. The others, after all, are still our fellows, albeit that an accident of birth, or the privilege of education, or the fortune of an election, or the force of a coup has elevated them to a higher social ― not moral ― station.

Thus the illiberal right and left alike are doomed to failure in their quest for a better world. As Hayek wrote, they have “nothing to put in … place” of the individualist, liberal virtues ― “independence, self-reliance, and the willingness to bear risks, the readiness to back one’s own conviction against a majority, and the willingness to voluntary cooperation with one’s neighbors”. In their place, they can only make a “demand for obedience and the compulsion of the individual to do what is collectively decided to be good”. And because they know that they cannot persuade people to abandon liberalism with such demands, they try to caricature and defame it. Do not believe them.

A Proclivity for Plunder

The left and the right are united in wanting to regulate the internet by taking from their enemies and giving to their friends

You might think that Steven Guilbeault, environmentalist activist turned Canadian Heritage minister, and Josh Hawley, a leader of the will-to-power faction of the American right, don’t have too much in common. But, as it happens, they do: both think that, when it comes to regulating social media, plunder is the right policy. Even by the standards of the times, their positions are unusually crude. But they have at least the merit of exposing a widespread misunderstanding of the permissible bounds of the activity of the state.

Mr. Guilbeault, as Michael Geist has noted on his blog, is promising to throw more money at the Canadian media and cultural sector and, in order to do so, to “go and get that money where that money is. Which is web giants.” The current idea, as Professor Geist explains in another post, appears to be to charge Google, Facebook, et al. for linking to news articles listed or shared on their platforms, but there may be other chicanery in the works, such as requirements that these companies, or some others, spend some amounts determined by government fiat on content deemed Canadian, or that they give such content a prominence they otherwise would not.

This brings me to Mr. Hawley who, as Christian Schneider explains at The Bulwark, is trying to induce regulatory retaliation against Twitter and Facebook for blocking or limiting the sharing of a dodgy New York Post article. This demand is only the latest in a series of claims by people who used to believe in free speech and free markets (Mr. Hawley’s Twitter biography describes him as “constitutional lawyer” first and husband, father, and senator after that) that social media companies must be made to carry their or their ideological allies’ communications, and punished in case they limit these communications’ reach or prominence.


As you can see, these plans agree in the essential principle that successful platforms must either be requisitioned directly or have their bank accounts raided for the benefit of favoured constituencies. Only the details ― namely, the identity of the beneficiaries ― differ. But then again, once the principle has been accepted, the details can and will change as the partisan make-up of governments shifts. It would be a mistake to focus on the latter rather than the former, though as Mr. Schneider notes, it is a mistake that is quite common on American right: “[t]his may come as a shock to Republican senators, but a freshly empowered Biden/Harris [administration] will not likely make content moderation determinations premised on what produces the largest font of liberal tears.”

The principle on which Messrs. Guilbeault and Hawley operate is plunder. They are not alone, of course: so do countless other politicians, not to mention people who vote for them. As Frédéric Bastiat wrote in his great essay “The Law“:

Man can live and satisfy his wants only by ceaseless labor; by the ceaseless application of his faculties to natural resources. This process is the origin of property. But it is also true that a man may live and satisfy his wants by seizing and consuming the products of the labor of others. This process is the origin of plunder.

Plunder by a single person or a small band is criminal. Plunder by a monarch and a dictator is illegitimate. But plunder under colour of law by a democratically elected government ― why, that is simply public policy:

Under the pretense of organization, regulation, protection, or encouragement, the law takes property from one person and gives it to another; the law takes the wealth of all and gives it to a few — whether farmers, manufacturers, ship owners, artists, or comedians. 

By the way, lest you think that the belief that this sort of policy immoral is some peculiarly French radicalism, here’s Justice Chase, speaking in much the same terms in Calder v Bull, 3 Dall (3 US) 386 (1798):

An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. … A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it. (388)

And lest you think that this is just American radicalism, let me also quote to your Sir William Blackstone, who wrote in his Commentaries on the Laws of England that “the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature”, (124) and which “may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty, and the right of private property”. (129) The protection of these rights is the proper object of the law, so that

the law, which restrains a man from doing mischief to his fellow-citizens, though it diminishes the natural, increases the civil liberty of mankind; but that every wanton and causeless restraint of the will of the subject, whether practised by a monarch, a nobility, or a popular assembly, is a degree of tyranny. (125-26)

Yet wanton tyranny and plunder is precisely what Messrs. Guilbeault and Hawley propose. Google, Facebook, Twitter, Netflix, and the others have laboured to create platforms and services that hundreds of millions of people want to use. Their creators started from very little ― the beauty of the internet is that barriers to entry are pretty low. But now, instead of imitating them and creating platforms and services of their own, others ― be they journalists whom too few people want to pay for the privilege of reading, artists whose work is of little interest to anyone, or conspiracy theorists ― demand to be given access to these platforms or to the revenue that they generate. And politicians are only too happy to oblige.

Why wouldn’t they be? They think it costs them nothing. They are wrong. As Bastiat points out, one odious consequence of the perversion of the law into an instrument of plunder is that, because people naturally tend to associate what is just with what is lawful, they come to think of plunder and oppression as just: “Slavery, restrictions, and monopoly find defenders not only among those who profit from them but also among those who suffer from them.”

The other danger of turning the law from protection of liberty and property to their destruction is perhaps the more dangerous because it is even more widespread:

As long as it is admitted that the law … may violate property instead of protecting it … Political questions will always be prejudicial, dominant, and all-absorbing. There will be fighting at the door of the Legislative Palace, and the struggle within will be no less furious.

This, and with increasing intensity, is what we are seeing. The stakes of politics are so high because it is admitted on all sides that the power of the winners is virtually untrammeled. The limits and restraints whose existence would in the past have been recognized, at least implicitly, such as the principle that a government shouldn’t simply raid the coffers of a particular company or handful of companies, let alone dictate what messages media ― social or otherwise ― should carry, are no longer recognized. On the one hand this is an escalation. On the other, nothing more than accepted principles being taken to their logical conclusion.

The prize of victory ― a permission to plunder ― is great. The threat of defeat is greater still. Because one expects to use power to engage in plunder oneself, one comes to expect one’s opponents to do likewise, at one’s expense. Losing an election means not simply that someone else gets to enjoy the honours of office, but that they get to despoil and silence you. Hence the desperation of the American right to hang on to power; but hence also the conviction of the Canadian left that it is entitled simply to take from those whom it does not like. These afflictions are not peculiar to countries or to parties. They proceed from the same source: the common conviction that there is no limit to political power, and in particular that plunder is part of the legitimate spoils of political office.

Now of course no one wants any of this to happen. Political schemers do not want moral decadence and civil war. But, they feel, they have no choice. If their preferred schemes do not get implemented, there will be no Canadian newspapers or no right-wing conspiracy theories on Twitter! They are convinced that if something is not done by force and the behest of a politician (preferably themselves), it will not be done at all.

And hence the state becomes the answer to all problems. Much of the right now believes this as fervently as does the left. As in Bastiat’s and in Hayek‘s time, this socialist mindset is spread across political parties. Yet as Bastiat wrote,

Socialism, like the ancient ideas from which it springs, confuses the distinction between government and society. As a result of this, every time we object to a thing being done by government, the socialists conclude that we object to its being done at all.

We disapprove of state education. Then the socialists say that we are opposed to any education. We object to a state religion. Then the socialists say that we want no religion at all. We object to a state-enforced equality. Then they say that we are against equality. And so on, and so on. It is as if the socialists were to accuse us of not wanting persons to eat because we do not want the state to raise grain.

Messrs. Guilbeault and Hawley have no faith in the ability of their fellow-citizens to take care of themselves. Cede to the siren songs of libertarianism, they think, and the sky will fall. Let the other party take power, and it will fall just as surely, if a little slower. They want to save humanity with their projects. Alas, but their preferred means of doing so is plunder. For all their undoubted differences, their commitments to civilization are no more different than those of Alaric the Goth and Attila the Hun.


Again, the projects of Messrs. Guilbeault and Hawley are only an unusually start illustration of how much ― too much ― almost all ― of our politics is done. Very little of it is about establishing general rules that protect the rights of all equally. All that matters is ― as Lenin asked ― “who, whom?”. Who is going to plunder and silence whom? Who will be the winner and who the victim? For vae victis.

This is bad policy of course, but more importantly, dangerous and immoral. No person and no party, no matter the size of their majority, have the right to behave like this to their fellow human beings. As Bastiat said: “No legal plunder: This is the principle of justice, peace, order, stability, harmony, and logic. Until the day of my death, I shall proclaim this principle with all the force of my lungs (which alas! is all too inadequate).”

The Sex Appeal of Power

I’ve noticed a disturbing trend recently, in both politics and law. The idea is what I call the “one-way ratchet fallacy” of power. It goes like this: when an institution or entity obtains power of some kind, that power will only ever be used to fulfill certain goals rather than others. That is, people might assume that power will always run in favour of the policy outcomes they like. This is, in a word, naïve—but at worst, it is a gross misunderstanding of the problems with power. The increasing tendency to think this way only reinforces the need for law and custom to limit, rather than unleash, power.

Two examples come to mind that illustrate this phenomenon. The first is an issue near and dear to my heart, and that issue is constitutional interpretation. In Canada, a major misunderstanding of the Persons Case holds that Canada’s Constitution is a “living tree”—in other words, the Constitution must “grow” to fit the emerging realities of today’s society. Under this theory, judges in a system of strong judicial review decide when and in what direction the Constitution should evolve.

Putting aside the fact that only some work has been done to actually provide rules to govern the “living tree” theory, and also putting aside the fact that the Supreme Court has never provided such guidance (and in fact does not consistently endorse this theory), there is a certain “ideological sex appeal” to living constitutionalism, as Chief Justice Rehnquist once said. That appeal is that the law and the Constitution can be used to achieve policy outcomes that one likes, ensuring that the Constitution protects certain outcomes that are consistent with “evolving standards of decency” (to borrow an American phrase). Unsurprisingly, progressives see the potential in living constitutionalism. It is a good way to ensure the Constitution keeps up with modern times and, potentially, modern progressive causes.

But, there is a major risk that should cause those who endorse living constitutionalism to pause. Living constitutionalism contains within it a dangerous assumption: that judges will always be on the side of angels. The risk was put eloquently by Justice David Stratas of the Federal Court of Appeal in a talk a few years ago. The general gist of it is this: imagine, some years from now (or maybe we do not even need to imagine) that there is some existential crisis affecting our society. Courts are asked to deal with a legal issue arising out of that crisis. Would we rather the court decide the matter according to settled doctrine, painstakingly developed over generations? Or on the personal say-so of judges? There is a risk that the personal say-so of a judge might run in a direction that progressives would not like. Basically, without rules governing the exercise of legal power by judges, it’s a coin flip in terms of result.

Lest anyone think that this is an inherent flaw of progressives, those on the right can also fall victim to the alluring sex appeal of power. A good example is the recent Trump administration move to “ban” government contracting and other relations with businesses and others that offer some critical race theory training. Now, it is more than fair to say there are major debates raging right now about critical race theory. That’s a somewhat separate issue. What is important here is that the power of the government is being used to root out certain ideas rather than others.

This is a different issue from living constitutionalism, since here it could be argued that governments have the power to implement their view of the “public good;” law, by its nature, is supposed to be governed by rules that are as close to “neutral” as possible. So those on the right might feel emboldened by Trump’s move because it implements their view of the good. But once the precedent is set that governments can police ideology by picking winners and losers in business, and ferret out views it doesn’t like from the inside, it is just as possible that a future administration could fall victim to the sex appeal of power in the opposite direction. Power can be used, in the future, to limit the spread of ideas that those on the right might find appealing: free market economics, personal liberty, whatever it is.

While the situation is admittedly slightly different than the living constitutionalism example, this situation calls for a political custom surrounding the exercise of power. As Dicey said, laws are not enough; there must be a “spirit of legality” that governs the exercise of power. This is understood as a reference to customary norms governing the exercise of power. Surely, one custom might be that governments shouldn’t pick winners and losers based on ideology (within reason).

The living constitution example and the critical race theory example illustrate the sex appeal of power. It can be exercised in a certain political direction, to be sure. And it might feel good for power to be exercised to the benefit of certain political factions. But the more power is granted to certain actors, and the more that laws and customs liberate that power, the more we might expect the one-way ratchet to keep ratcheting up. In politics, this might be one thing. But in law—especially when it comes to constitutional interpretation—the sex appeal of power is positively dangerous.

Happy Canada Day!

The anniversary of an imperfect constitution drafted by imperfect men is well worth celebrating

Canada Day, like most other days it seems, comes at a bad time this year. A time when symbols of the history ― be they flags, monuments, names of buildings ― are objects of suspicion at best, and not infrequently unqualified vitriol, seems ill-suited to a celebration of what is now more than a sesquicentennial constitution. A constitution that is stubbornly monarchical in form, politically incorrect in wording, and dependent for its existence, livelihood, and amendment on old-fashioned procedures of parliamentary democracy rather than on heady revolutionary movements.

But we do not get to choose anniversaries, and perhaps this is a useful reminder that we do not get to choose everything, that there can be no such thing as a tabula rasa, and that demands for one can only be the products of ignorance or bad faith. This is not an apology for conservatism. As I have said before, I am no no conservative. Much in the world, and in Canada, should change. But the idea that everything can change, and that everything can be just as we ― whoever “we” are ― wish it to be, is unserious; indeed it is perhaps the nec plus ultra of solipsism.

The framers of our constitution understood this, and the constitution’s existence is proof of this, as of their wisdom and humility more generally. They were no doubt flawed in various ways, as men always were, still are, and ever will be. And in some ways we can, legitimately I hope, say that we are better than they. But we are certainly no better, on the whole, if we do not practice the virtues that were theirs: humility, as I have already said, and openness to compromise; magnanimity and willingness to live and let live; above all, perhaps, determination to hope for the future more than to dwell on the past.

Let George Brown’s words, spoken on February 8, 1865, during the Confederation debates, be our inspiration in this time of acute awareness of the imperfections of our institutions and the world around us:

No constitution ever framed was without defect; no act of human wisdom was ever free from imperfection; no amount of talent and wisdom and integrity combined in preparing such a scheme could have placed it beyond the reach of criticism. And the framers of this scheme had immense special difficulties to overcome. We had the prejudices of race and language and religion to deal with; and we had to encounter all the rivalries of trade and commerce, and all the jealousies of diversified local interests. To assert, then, that our scheme is without fault, would be folly.

It was necessarily the work of concession; not one of the thirty-three framers but had, on some points, to yield his opinions; and, for myself, I freely admit that I struggled earnestly, for days together, to have portions of the scheme amended. But, Mr. Speaker, admitting all this—admitting all the difficulties that beset us—admitting frankly that defects in the measure exist …  I believe it will accomplish all, and more than all, that we, … ever hoped to see accomplished. 

Canada itself stands as the greatest monument to these framers, and they could wish for no better. We are lucky to have it as their bequest. We can and must improve it, but today, of all days, we can and must simply be grateful for it. Happy Canada Day!

Expertise in Pandemic Life

 

With the COVID-19 pandemic in full swing, many (for example, Phil Lagasse) have written about the role of experts in public life. The controversy seems to centre around a few points of contention: (1) the degree to which quintessentially political decisions should depend on expert guidance (2) the degree to which the public can and should criticize experts in the midst of a public health dilemma; and (3) the degree to which politicians should or do use experts as the public face of political initiatives.

COVID-19 is an apt phenomenon through which to analyze the role of experts in public life. The pandemic is a health crisis at its core, which invites the contribution of public health officials, doctors, and other experts. At the same time, the health crisis is interwoven with decisions of a political nature: what sorts of programs will best ameliorate the economic strife that many are facing, when and how to “re-open” the economy, and what are the rules that should govern how people interact with one another during the pandemic? In turn, those questions raise this one: what is the proper province of the experts?

Finding this line is no easy task.  But there are, at the very least, a number of important considerations we should keep in mind as we try to find the proper approach to dealing with expertise in public life.

First, we should remember that speaking generally of expertise can belie the complications associated with applying expertise to particular problems. That is, we have to be clear about what sort of expertise we are speaking about. Expertise in public health or epidemiology is not expertise in public policy or program delivery and evaluation. We are familiar with this phenomenon in the law of judicial review. For some time, the Supreme Court presumed that administrative decision-makers in government were “experts” on all matters that came before them (see Edmonton East). But this was always a logically faulty assumption. There was never any evidence offered that experts in government policy—for example, in deciding whether someone is eligible for a certain benefit—ever translated into, say, legal expertise in interpreting statutes or the Constitution. So we must be clear about what sort of “expertise” we are speaking of when we judge the role of experts. Usually, it is not expertise in all things; but rather, it is expertise in some narrow, technical area. And so long as the expert remains confined to that specialized area, there is no reason to worry about over-extending expertise as a concept.

This is not to undermine the importance of expertise in technical areas. Expertise in epidemiology, it turns out, is incredibly important at this time. But once we have narrowed down the scope of an expert’s particular knowledge, it becomes incumbent on the expert to demonstrate that her expertise somehow translates into some other field.

Secondly, and relatedly, using experts to make judgments that affect all of society could lead to certain pathologies. I am often reminded, these days, of Harold Laski’s famous piece “The Limitations of the Expert” (see also Professor Daly’s post here). In the piece, Laski outlines a number of pathologies associated with expertise, all of which are relevant today. For one, experts, even in their own fields, may “tend to neglect all evidence which does not come from those who belong to their own ranks” [4]. More generally, in relation to other fields, experts cannot claim finality for their views because “[e]very expert’s conclusion is a philosophy of the second best until it has been examined in terms of a scheme of values not special to the subject matter of which he is an exponent” [6].  That is, expertise itself in a technical area cannot be the sole means by which social problems are solved, particularly problems that are evasive of empirical analysis. Sometimes—most times—political judgment about social values or norms is required to round out an expert’s rather narrow or technical focus.

Deeper pathologies that affect the fundamental values of our constitutional order may run together with expertise. In an interesting study of the nature of expertise in decision-making, Sidney Shapiro argues: “A central reason why critical inquiry over expert decisions is necessary is that the expert rarely factors democratic liberal values into her decisions. Expertise tends to be narrowly focused and highly specialized, and the expert does not make her judgments in light of democratic liberal values” [1013].  Put differently, experts can tend to focus on their own narrow area of expertise without considering broader social norms or legal values. Health officials may suggest a particular response that maximizes health outcomes, but that does not take into account other constitutional or legal values. The two are not necessarily co-extensive, given the constitutional challenges that exist in respect of the COVID-19 response.

Third, the public has a role in evaluating the evidence, justifications, and reasoning underlying expert decisions. As Shapiro aptly notes, some “[d]ecisions within government institutions often occur within the shadows, concealed from public view” [1015]. This reality has two takeaways. First, experts should not be considered to be cloistered servants away from public scrutiny. If experts are indeed central to decision-making, those responsible for decisions should offer the public a chance to scrutinize the assumptions and reasoning underlying particular decisions. This is all a function of the theory, endorsed in Vavilov, of a “culture of justification” for administrative decision-makers in which the legitimacy of a particular decision depends on the way in which it is justified to the public. Secondly, to this end, the public should not shy away from criticizing the approach of experts when it does not jibe with common sense or experience. The public can legitimately ask, through their representatives, whether the World Health Organization adequately discharged its mandate in protecting the public; whether politicians were right to not close the border at the outset, based on expert judgment; and whether Dr. Theresa Tam’s about-face on masks was justified. These are all areas in which the public can play a role.

Finally, overreliance or trust in experts risks deflecting political responsibility.  This is a point made by Lagasse in his piece. In our system, the COVID response will be judged in political terms by the electorate at the next election(s). But if politicians stand behind experts, allowing them full rein to craft policy (and/or take responsibility for it), there is a risk that this responsibility can be deflected onto the experts. This is a worry that should be constantly guarded against. As Laski notes, experts should be on tap, but not on top. Putting them on top—allowing them to lead the charge, rather than take an assisting role in the public health crisis—undermines democratic accountability.

These are some rough-and-ready considerations to keep in mind as we think through the role of experts in this public health crisis.

 

 

 

Common Good and Evil

Removing constitutional obstacles to power in the name of the common good is a dangerous, delusional idea

Last month, I wrote about what I termed “right-wing collectivism“, an emerging political doctrine that blends support for using the power of the state to advance traditional moral values, a hostility to free markets, and nationalism. Two texts published last week have prompted me to return to this subject: Adrian Vermeule’s instantly-notorious essay in The Atlantic urging a “robust, substantively conservative approach to constitutional law and interpretation”, and Thomas Falcone’s guest post on this blog defending right-wing collectivism against my criticisms. Between them, they show this ideology’s incipient authoritarianism and incompatibility with any genuine belief in human dignity, freedom, and the Rule of Law.

Before proceeding further, I should note that one reaction people have had to Professor Vermeule’s argument has been to wonder whether he is simply trolling everyone. Sarah Isgur made this case quite forcefully on the Advisory Opinions podcast, for instance. And certainly his “response” to criticism of his article, over at Mirror of Justice, is trollish. But, as David French argued on Advisory Opinions, Professor Vermeule’s argument reflects a real, if eccentric, current of thought on the political right. Randy Barnett, in his reply to Professor Vermeule, also worries about “a disturbance in the originalist force by a few, mostly younger, socially conservative scholars and activists … disappointed in the results they are getting from a ‘conservative’ judiciary” in the United States. I too will treat the arguments of Professor Vermeule and Mr. Falcone seriously; all the more so since the rhetoric of combating epidemics of various ills, which they both employ, is, as Anne Appelbaum points out, already being used by the Hungarian dictatorship ― much admired, as Damon Linker has observed, on among American right-wing collectivists.


Professor Vermeule’s argument is, on its face, about constitutional interpretation. But he makes it clear from the outset that constitutional doctrine is, for him, only a tool in the service of politics. Addressing conservatives, he argues that they should give up on originalism, which many have supported in recent decades, because it has become “an obstacle” to the promotion of “strong rule in the interest of attaining the common good”. Mr. Falcone too defends, if less articulately, an activist government acting, supposedly, in the service of “the highest good”.

What, then, is the “common good”, the banner under which Professor Vermeule wants to make a stand against and defeat what he says as “the relentless expansion of individualistic autonomy”? Generally speaking, it consists in

respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to “legislate morality”—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority.

In terms of substantive policies, the common good involves “cop[ing] with large-scale crises of public health and well-being—reading ‘health’ in many senses, not only literal and physical but also metaphorical and social”. It means “protect[ing] the vulnerable from the ravages of pandemics, natural disasters, and climate change, and from the underlying structures of corporate power that contribute to these events”, “from the vagaries and injustices of market forces, from employers who would exploit them as atomized individuals, and from corporate exploitation and destruction of the natural environment”. It also means and “enforcing duties of community and solidarity in the use and distribution of resources”, and empowering “[u]nions, guilds and crafts, cities and localities, … as will the traditional family”. 

Mr. Falcone too suggests that “when we evaluate public policy proposals we adjudicate their desirability against whether or not they help or harm our shared social goods, like the family”. Like Professor Vermeule, he abhors the idea that the state ought to be impartial as between competing conceptions of the good life, illustrating it with the example of a “state … ‘neutral’ as to whether people choose have [sic] jobs or sit around smoking cannabis”, which he claims “would be nonsensical to the average person on the street”.

Professor Vermeule outlines a fairly detailed agenda for constitutional law, put in the service of the common good, so understood. Its “main aim” would be “certainly not to maximize individual autonomy or to minimize the abuse of power” (an idea that Professor Vermeule declares “incoherent”). Mr. Falcone does not provide detailed prescriptions for the law, but he similarly rails against the idea, which he attributes to me (only half-correctly) “that power itself is an evil and thus there should be no power”. Professor Vermeule argues that, rather than limiting power, constitutional law must “ensure that the ruler has the power needed to rule well”. So too Mr. Falcone is adamant that “power is real and always will be”. The question is who wields it, and against whom.

Indeed, the ruler needs to be able to exercise this power

for the good of subjects, if necessary even against the subjects’ own perceptions of what is best for them—perceptions that may change over time anyway, as the law teaches, habituates, and re-forms them. Subjects will come to thank the ruler whose legal strictures, possibly experienced at first as coercive, encourage subjects to form more authentic desires for the individual and common goods, better habits, and beliefs that better track and promote communal well-being.

To achieve this, constitutional language can be repurposed and read so as to suit the new agenda. More importantly, constitutional doctrine should be built not on textual provisions, but on insights into “the general structure of the constitutional order and in the nature and purposes of government”. And so, much of the existing constitutional jurisprudence ― in areas such as “free speech, abortion, sexual liberties, and related matters”, as well as “property rights and economic rights” ― will be “vulnerable”, “have to go”, “fall under the ax”, or indeed “be not only rejected but stamped as abominable, beyond the realm of the acceptable forever after”. (This latter sentence is reserved for “[t]he claim, from the notorious joint opinion in Planned Parenthood v Casey, that each individual may ‘define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life'”.)

This will enable government “to protect the public’s health and well-being … even when doing so requires overriding the selfish claims of individuals to private ‘rights'”.  Mr. Falcone echoes Professor Vermeule, denouncing what he describes as libertarians’ ” religious devotion of individual preference maximization and” desire to “ruthlessly supress [sic] any suggestion that time, tradition, community, or common sense may occasionally contain more wisdom than the proclivities of any one person”.


As noted at the outset, Professor Vermeule and Mr. Falcone are defending authoritarianism against the claims of freedom and the Rule of Law. They think that the government can identify moral objectives that deserve to be pursued, and the citizens ― or rather the subjects ― have no moral claim against conscription into this pursuit. At best, those who disagree with the objectives or with being made to serve them will come to see the error of their ways, as Professor Vermeule hopes. But if not they will simply be silenced. After all, politics is nothing more than a power struggle; to limit power is a fool’s hope ― the wise man knows that he must put himself into a position to exercise it. These disciples of Saruman are wrong at every step in their reasoning.

How are the governments to decide on their definitions of the common good, on the morality they will legislate? Professor Vermeule is coy about this ― in his essay in The Atlantic. But, as Professor Barnett notes, from his other writings, we know that he makes “an argument for the temporal power of the state to be subordinated to the spiritual power of the [Catholic] Church” (emphasis Professor Barnett’s). Mr. Falcone’s position, as best I can tell, is that moral the appropriate moral values are already widely shared. Now, these two are obviously at odds with one another: it is quite clear that, to the extent that Americans or Canadians share values, these values are certainly not those of the Vatican. This makes Professor Vermeule’s position all the more remarkable ― his understanding of the common good is rejected by an overwhelming majority of the people whose common good it purports to be. It can only be forced on them by a ruthless dictatorship. But Mr. Falcone’s position is no more attractive. If Canadians already agree on the importance of particular values, what’s stopping them from living accordingly? Why do they need to be coerced by the government into acting in accordance with what are supposedly their beliefs? If people already prefer working to “sit[ting] around smoking cannabis” ― as I agree with Mr. Falcone most probably do ―, then why does the state need to subsidize or force them to do so?

Of course, as Jonah Goldberg points out in a recent episode of his The Remnant podcast, even when people largely agree on values stated in the abstract, as they do on the proverbial motherhood and apple pie, it does not follow that they agree on any particular policies that purport to implement them. To value work may entail the sort of wage-support policies to which Mr. Falcone refers or it may, on the contrary, suggest repealing the minimum wage to avoid pricing people out of the labour market. Similarly, valuing families may well push us towards policies of which right-wing collectivists would disapprove, be they marriage equality that helps people form families in the first place, free trade that leaves more money in families’ pockets, or school choice ― even when it is exercised in favour of schools that transmit decidedly non-conservative values.

But, beyond such policy disagreements, important though they are, understandings of both the common good and of personal morality and the nature of the good life are subject to endless debate. Again, the only way to avoid this is to simply prevent the expression of all but the officially approved views, as Professor Vermeule recognizes on at least some points. If the debate is allowed to continue but the majority is empowered to impose its views on the minority, then, as Professor Barnett explains “[i]n the legislature, might will make right”. And as the price of political defeat is nothing short of one’s annihilation as a morally autonomous individual, prospective losers are unlikely to accept this outcome. As Professor Barnett further writes: “what happens to social peace as the government starts incarcerating the dissenting minority for failing to adhere to their moral duties? Religious war, anyone?”

This is why state neutrality as between the competing conceptions of the good life is both morally right and good policy. It allows people of divergent views to remain in a political community with one another, combining their efforts for those limited common purposes on which they agree, such as self-defence and the enforcement of a limited subset of universal rights, notably life, liberty, and property through of framework of stable and general laws. This framework allows individuals and freely-formed associations ― although it should certainly not allow coercive “[u]nions [and] guilds” ― to pursue their moral aims, including charitable and benevolent ones, with minimal interference on the part of the state. A liberal society is not one of “atomized” individuals with no ties to one another; but the ties that exist in it are a web spun by individuals themselves, rather than a chain forged by the state.

But is neutrality simply a delusion, as Professor Vermeule and Mr. Falcone both contend? In a sense, of course, they have a point. Not all law is based in morality ― as Lon Fuller explained, there is a very real element of fiat in law (he spoke of the common law, but the same goes for statute), in addition to reason or morality. But, to be sure, the basic norms of criminal law, and arguably contract, tort, and property law too, have moral foundations ― notably those universal and widely agreed-upon rights. Yet there is a fundamental difference between this sort of background law and legislation enacted for “the promotion of morality”, as Professor Vermeule puts it. The former, even if it has moral underpinnings, leaves individuals almost entirely free to choose the purposes to which they want to devote their lives and largely, although not fully, free to choose the means by which they pursue their purposes. The latter doesn’t ― its whole point is to shape and limit both the ends and the means available to individuals.

A related point is that neutrality as between conceptions of the good life is not a cover for the enforcement of a progressive moral orthodoxy as Mr. Falcone, in particular, claims, with his bizarre insistence that libertarians “will ruthlessly suppress” conservative ideas. (I would have thought that, if not my outspoken advocacy for freedom of expression and conscience ― including for the benefit of conservatives whom I personally find bigoted, like the Trinity Western University ― then at least the fact that Mr. Falcone is able to publish such a claim on the blog that I founded should be proof enough that this just isn’t so.) A neutral state knows and accepts that not all individuals, families, and communities will orient their lives towards self-actualization, let alone self-indulgence. Some will devote themselves to religion or to community; some may reject the value of autonomy and extol obedience. The neutral state faces some difficult questions at the margins ― notably about the limits, if any, to the capacity of such individuals, families, and communities to shape and control the lives of their children. But there is nothing paradoxical about, at least, a very strong presumption that adults get to shape their lives in ways they choose, regardless of official approval. Libertarianism is a philosophy of politics and government, not an ethical programme ― and it’s a philosophy of politics whose point is to reject the imposition of ethical programmes by the government.

Perhaps the belief that a libertarian or classically liberal neutral state will in fact impose its own values and ideology on dissenters is due to a confusion between liberalism and a progressivism that has sometimes borrowed its name but consistently rejected its ideals. This progressivism, which would impose its beliefs ― originally technocratic with an egalitarian or at least populist flavouring, more recently egalitarian with a technocratic or at least pseudoscientific streak ― is just another version of collectivism. Indeed, the right-wing collectivism promoted by Professor Vermeule and Mr. Falcone, with its deep distrust of free markets (whether in goods, services, labour, or capital) and, apparently, a rather Marxist belief in “the primacy of production over consumption”, to use Mr. Falcone’s words, is not so different from its left-wing cousin.

But the other apparent explanation is that ― once again similarly to left-wing collectivists, at least those of the Leninist persuasion ― right-wing collectivists have come to believe that “who, whom?” is the central question of politics. That is to say, they believe that politics is a race to seize power and use it to silence or eliminate opponents. If you don’t do it, then someone else will do it to you. (This strikes me, if I may say so despite not being Christian, as a rather odd view for people who supposedly believe in turning the other cheek to embrace, but what do I know?) Hence their insistence that limiting power is an absurd or pernicious idea, an insistence whose vehemence reminds me Bulgakov’s Pilate, hysterically yelling, in response to Yeshua’s statement that all power is violence and will one day vanish, that “[t]here never has been, is not, and never will be any power in this world greater or better for people than the power of the emperor Tiberius!” Hence also their rejection of or at least desire to severely curtail constitutional rights; hence their attacks even on civility in argument.

To my mind, this is a wrong and pernicious ― indeed, as Mr. Goldberg suggested, a borderline evil ― way of looking at politics. This is partly because no one is entitled to be the “who” in Lenin’s question, and partly on the prudential grounds summarized by Professor Barnett. But this is also because, as longtime readers will recall me insisting in a series of posts, power corrupts. Power is addictive, and character can only slow down, but not prevent the poisoning of a person’s heart by its exercise; power breeds fear and, as Yeshua said, violence; it also begets lies; it encourages people to cut moral corners, not asking themselves difficult questions; and it apparently damages the very brains of those unfortunate enough to exercise it. It may be that Yeshua was wrong and Pilate right, and that “the kingdom of truth and justice” where power is not needed “will never come”. But that should not stop us from acknowledging that power is an evil, if perhaps an unavoidable and even necessary one, and from recognizing that power is to be distrusted, not celebrated.

From this recognition there should proceed, as I repeatedly insisted in my posts on the corrupting effects of power, a further acknowledgement of the importance not just of moral but also of institutional and legal constraints on power. We must continue to work on what Jeremy Waldron describes as “Enlightenment constitutionalism” ― the project of structuring government so as to separate out and limit the power of those whom Professor Vermeule calls “the rulers” and empower citizens. This project recognizes the need for power but also its temptations and evils, and the fallibility of human beings in the face of these temptations and evils. As James Madison, in particular, reminds us, we should strive to so design our institutions as to make these human weaknesses work for us ― but we can only do so if we are acutely aware of them.

This project of Enlightenment constiutionalism includes, as I have argued in my comment on Professor Waldron’s article, entrenched and judicially enforceable constitutions, with their rules on federal division of powers and on individual rights. More specifically, I would argue that it must include originalism, because originalism gives such constitutions real bite ― it creates at least the possibility, although not the certainty, that they will be enforced consistently, rather than according to the subjective and mutable views of the judges who happen to be entrusted with enforcement from time to time. The alternative, “living constitutionalist” approach, which authorizes judges to re-write the constitution does not so much limit power as transfer it to the judiciary. While this may produce results that align with a liberal theory of good outcomes, this is a failure of the power-limiting Enlightenment constitutionalism project. Thus, contrary to Professor Vermeule’s claim, originalism isn’t just a rhetorical device or a rallying banner for legal conservatives, but a legal technique which, as part of the broader toolkit of the Rule of Law, all those who rightly want power to be constrained, be they conservatives, liberals, or social-democrats, should embrace.


Right-wing collectivism ― even when it tries to make itself palatable by adopting the rhetoric of the “common good” ― is an ideology of almost unfathomable hubris. Its proponents imagine themselves to be possessed of great truths and entitled to impose these truths, at gunpoint, on those who do not agree with them. They imagine that the lessons of history ― about the bitter strife that any such attempts engender, about the misery that their quasi-socialist policies always produce ― are not applicable to them. They imagine, above all, that they are immune to the corrupting effects of power. They wrong, indeed delusional. In its embrace of unfettered power, above all, their view of the common good is a recipe for untold evil.

None of that tells us much about how we, individually and within our families and freely chosen associations and networks, should live our lives. To repeat, libertarianism or liberalism are political philosophies, not personal ethics. In a very real sense, political philosophy is of secondary importance; getting it right can do no more than leave us free to get on with the stuff that really matters. But, as Mr. Goldberg argues, it is very important not to confuse these two realms. The government cannot love us (unless, of course, it is the government of Oceania). It cannot provide us with Dworkinian “concern and respect”. Right-wing collectivists are dangerously wrong to pretend otherwise.

Can We Be Friends?: A Conservative Reply to Leonid Sirota’s “Refusionism”

This post is written by Thomas Falcone

I was surprised, if a little taken aback, by Leonid Sirota’s recent declaration on Double Aspect that he is opposed to co-operation with conservatives whom he deems insufficiently committed to a rigid Hayekian philosophy. The reason for my surprise lay not in Sirota’s ideology laid bare – he is commendably transparent about his public philosophy – but more to the creeping suspicion I had that I may have played a small part in inspiring his writing.

Sirota mentions “conversations” he engaged in at the recent Runnymede Society Law and Freedom Conference in Toronto as prompting his exposition of the reason why collaboration with conservatives is indefensible. Now, Sirota is a bit of a rock star at any Runnymede Society event – and rightfully so. His contributions to Canadian jurisprudential thought surely vault him into that vogue category of “thought leader.” I myself have plastered Double Aspect articles penned by him onto slides I’ve used in graduate seminars. Sirota’s leading ideas on originalism in a Canada are extremely impressive, and (as I have told him myself!) I am mostly in firm agreement with his opinions on the administrative state.

But I am compelled to respond to his call for libertarians to reject “refusionism”, which is to say his belief that we cannot be friends, let alone political allies. Perhaps he is right.


It is unfortunate that in Sirota’s attempt to describe what he calls “right-wing collectivism” he doesn’t bother to engage with any of the thinkers he finds so frightening. To be fair, however, the very nature of conservatism makes it difficult to attribute unifying policies or ideas that form a singular coherence. Oakeshott’s old adage that conservatism “is to prefer the familiar to the unknown, to prefer the tried to the untried” is helpful only insofar as it helps to explain that what a conservatism will stand for, or against, or agree to over time and after collective consideration, will vary in different places and amongst different peoples. Roger Scuton’s refrain that the task of a conservative is to assure people that their prejudices (properly understood as a person’s gut feeling) are justified is thus perhaps more helpful than Oakeshott’s old formulation.

In a Canadian context, Ben Woodfinden’s recent long essay in C2C Journal on Red Toryism is surely the closest thing we have to a contemporary “manifesto” of the sort of reform conservatism loosely associated with the broader movement Sirota wants to pre-emptively divorce himself from. But Sirota is right that conservatives ought properly to understand the goal of politics as being attached to the promotion of the highest good. This isn’t nearly as scary as he makes it out to be.

Take the institution of private property, for instance. Conservatives rightly commit themselves to the steadfast protection of this institution. But why is private property so important? Surely it cannot be a sacrosanct institution in-and-of-itself, despite idolatrous libertarian suggestions that the primacy of private property will result in an almost supernatural “spontaneous” right ordering of society. We can find a hint of why conservatism is associated with this institution in Scruton’s invaluable The Meaning of Conservatism:

“Home is the place where private property accumulates, and so overreaches itself, becoming transformed into something shared. There is no contract of distribution: sharing is simply the essence of family life. Here everything important is ‘ours’. Private property is added to, and reinforces, the primary social relation. It is for some such reason that conservatives have seen the family and private property as institutions which stand or fall together.”

Sirota’s biblical pronouncements of Hayekian “warnings” to the contrary, I would submit rather confidently that the vast majority of Canadians – and surely universally conservatives! – would agree on a general scale that the family is an immutable social good, and ought to be defended as the primary organizing unit of our society. The rather modest suggestion that I would posit to conservatives is that when we evaluate public policy proposals we adjudicate their desirability against whether or not they help or harm our shared social goods, like the family. Devin Drover has proposed publicly-funded therapy for families to combat the mental health crisis plaguing our society. US Senator Josh Hawley has proposed cash subsidies to families as emergency relief in response to the Chinese coronavirus pandemic.

Surely another commonly held value amongst Canadians is that it is better to work than to be idle. Having a job ties us to our community, provides us with income, and fills us with a sense of purpose. The notion that the state ought to be “neutral” as to whether people choose have jobs or sit around smoking cannabis would be nonsensical to the average person on the street. But that is precisely the Hayekian proposition Sirota suggests is “the philosophically and morally right position”, whereby individuals are the sole arbiters of their own ends. It is also a position completely alien to a conservative to whom work is fundamental good.

Recognition of the importance of work – and, indeed, the primacy of production over consumption (another value Sirota rallies against in his piece) – is central to Oren Cass’ The Once and Future Worker. And yet Cass’ proposed policy response to our society’s moral devaluation of work is, characteristic for a conservative, quite modest. He proposes a direct wage subsidy to not only make work more monetarily valuable but also signal the state’s – and thus our society’s – value of work. From an excerpt of Cass’ book in The American Interest:

“The subsidy would be calculated relative to a target wage of, say, $15 per hour and make up half the difference—so someone earning a market wage of $9 per hour would receive an additional $3 per hour. Such a subsidy would have two major effects: first, a substantial raise for low-wage workers, making each hour worked more valuable and yielding more take-home pay; second, encouragement for less-skilled workers to take that initial step into the workforce and for employers to offer such jobs.”

My point here is not to provide a laundry list of bold policy ideas that combat the scourges of family decline, widespread opioid misuse, loneliness and social isolation, and widespread disengagement of young men from the workforce. My point, rather, is to suggest that these are good and fundamentally conservative ideas. They are also not the stuff of totalitarian nightmares as Sirota will have us believe.


Finally, I feel compelled to address Sirota’s concluding appeal to the Book of Hayek. Here he suggests that power itself is an evil and thus there should be no power. This is untenable and flies in the face of our contemporary political reality. Harvard law professor Adrian Vermuele has best expounded on the internal contradictions at the core of Sirota’s philosophy by coining the phrase “the liturgy of liberalism.” How is it that liberalism, supposedly so profoundly committed to principles of freedom and liberty, can so quickly turn to repress any intellectual heterodoxy? Vermuele’s work is profound and complex, but the basic problem is that a political philosophy underpinned by nothing more than the idea of “freedom” will forever look for new oppressions to dismantle.

And herein lies the crux of my departure with Sirota: while he suggests conservatism is the flip-side to the woke-ism phenomenon, it is in fact libertarianism that is a not-so-distant cousin of SJWism. Both are committed to a religious devotion of individual preference maximization and will ruthlessly supress any suggestion that time, tradition, community, or common sense may occasionally contain more wisdom than the proclivities of any one person. Power is real and always will be – and as US Attorney General Bill Barr has noted, it is currently being deployed by left-leaning liberals against conservatives. I doubt libertarians will be spared.

This all bodes poorly, perhaps, for the future of a long-term political partnership with Sirota. But it need not foreshadow the demise of any would-be friendship. To the contrary, I am confident that right-leaning politics would benefit mightily from a continued dialogue around these difficult issues – especially in these difficult times. He is also, as I mentioned, a brilliant legal thinker. The reality is also that I know libertarians in 2020 are unlikely to try to “cancel” or “deplatform” me and I would never utilize such tactics against a libertarian. The same cannot be said for progressives. This may be a thin basis for continued political co-operation but the stakes are too high to let our disagreements overwhelm us.

 

Thomas Falcone is an LLM candidate at the University of British Columbia Peter A. Allard School of Law. He holds a BA in philosophy and political science, an MA in political science, and an LLB from the University of London. He is co-president of the UBC Runnymede Society chapter. You can follow him on Twitter @thomas_falcone.

Refusionism

Conservatism is, once again, becoming a form of right-wing collectivism. Classical liberals and libertarians should stay away.

It’s not exactly a secret that classical liberals and libertarians are not very numerous. Indeed, in some quarters at least, it is our existence that has come as a surprise for some time now, and in the last few days it has been fashionable to claim that “There Are No Libertarians in an Epidemic“. In North America (and elsewhere) political parties that proclaim themselves libertarian tend to be minuscule and ineffective, even in comparison with the already small number of people who are at least broadly sympathetic with libertarian or classical liberal ideas. So it is unsurprising that, for decades now, the approach of many libertarians in the United States who have been interested in obtaining measurable political success has been to embrace “fusionism“: a convergence, if not quite literally a fusion, of ideology and political action with conservatives sympathetic to mostly free markets and to a considerable if insufficient measure of individual liberty and to the Rule of Law.

However, the nature of American ― and perhaps also Canadian ― conservatism has been changing in the last few years. If Donald Trump is the standard-bearer of an ideology, this ideology has little in common with that of William F. Buckley Jr., Barry Goldwater, or Ronald Reagan. Libertarians and classical liberals must ask themselves whether fusionism, assuming it was a defensible posture in the past, is still one now. Some conversations at the recent Runnymede Society Conference, in which I was fortunate to participate, and thereafter have prompted me to explain why I think that it is not.


Let me begin by describing what I take to be, in broad outline, the sort of conservatism with which I want to have no truck. This is no easy task, despite the proliferation of manifestos in the United States. For one thing, I have to admit that I do not keep track of them all. For another, they do not necessarily agree with one another ― that’s the point of having multiple manifestos. Besides, their authors and adherents are getting no less adept than social justice warriors at deploying what Scott Alexander once described as “motte-and-bailey” rhetorical tactics: switching between expansive-but-scary and banal-but-unobjectionable versions of their claims as suits the circumstances. More fundamentally, as Jonah Goldberg observed in a recent episode of The Remnant podcast, it seems to some substantial large extent to be reverse-engineered to justify the policies if not also the behaviour of Mr. Trump, and may yet be discarded once his political career ends.

That said, I am willing to believe that more than a few of the manifesto-writers are sincere, or will come to believe their own hype. Moreover, there is ― as I have come to realize ― a Canadian version of this ideology, presumably less beholden to Mr. Trump, but also less vocal and so, if anything, even more difficult to pin down. Still, I think one can identify three main themes in this incarnation of conservatism, and they are the ones I shall focus on.

First, there is a belief ― held especially by the Catholic, but perhaps more broadly by the religious, supporters of this doctrine ― in using the state to advance and enforce a conception of the greater good, or indeed “the highest good”. On this view, the relative neutrality of the state as between competing conceptions of the good life, or the state’s tolerance of people who drift along without such a conception are grievously wrong. The state must identify, and identify with, a particular understanding of how individuals, families, and communities ought to live, and incentivize, perhaps force, them to live in this way. The Catholic supporters of this view would, of course, wish to see the state embrace the teachings of the Catholic Church as to what the good life is like (a view known as Catholic integralism), but I suppose there are other possibilities in this regard.

Second, to a greater or lesser extent, this doctrine rejects free markets. Some of its supporters identify as anti-market; others may adopt an attitude that’s more reminiscent of Elizabeth Warren’s: ostensibly pro-market, but in reality deeply suspicious of any economic decisions people might make on their own, without the state’s intervention. (The motte-and-bailey tactic is likely to be deployed here, further confusing matters.) International trade is a particular object of suspicion, but not the only one. At least some large companies, deemed too disruptive or ideologically hostile, are also suspect and potential targets for severe or even destructive regulation. And beyond specific policies, there is a general sense that the state can and should intervene in the economy to ensure acceptable outcomes for favoured groups (such as manufacturing workers) or for a country’s citizens.

And third, there is nationalism and hostility to people and institutions deemed “globalist” in outlook. The interests of a nation ― considered as an aggregate, rather than as a collection of individuals with their own peculiar tastes, preferences, and needs ― must prevail over those of all others. There is also, to a greater or lesser extent, suspicion of or even hostility to immigration, in the name of, as Stephanie Slade (Mr. Goldberg’s interviewee in the podcast linked to above) writes in a recent Reason article, “preserv[ing] … cultural homogeneity (such as it exists) from the diluting influence of foreigners” and embracing “an anti-cosmopolitanism that seeks to throw up barriers to free markets and free trade”.

Having described its main features, I am left with the question of what this doctrine should be called. I initially thought of referring to it as a “new conservatism”, but in reality it is very old ― albeit not in North America. It is, indeed, more or less the same ideology that F.A. Hayek decries in “Why I am Not a Conservative“. A conservative, Hayek writes,

does not object to coercion or arbitrary power so long as it is used for what he regards as the right purposes. … [H]is main hope must be that the wise and the good will rule – not merely by example, as we all must wish, but by authority given to them and enforced by them. Like the socialist, he is less concerned with the problem of how the powers of government should be limited than with that of who wields them; and, like the socialist, he regards himself as entitled to force the value he holds on other people. (4)

Perhaps it is the fusionist conservatism that at least purported to care about limiting government power that was an aberration, and the phenomenon I have been describing is simply conservatism tout court. But another label, which for reasons that I shall presently explain strikes me as appropriate is right-wing collectivism.


Whatever we call it, however, this doctrine is not remotely compatible with a classical liberal or libertarian worldview. The disagreement is not just limited, as it might have been, on some views anyway, between classical liberals and fusionism-era conservatives, to divergent interpretations of rights to which both groups were committed or ideals to which they subscribed. It is fundamental. Indeed, while they might not yet be promising us five-year plans, and will certainly never be singing “The Internationale”, the right-wing collectivists are just the sort of people whom F.A. Hayek had in mind when he dedicated The Road to Serfdom “to socialists of all parties” ― not just of the admittedly socialist ones.

Ms. Slade ― who writes specifically about nationalism but whose argument easily extends to the other aspects of this ideology ― explains that

[t]oday’s nationalists think the … government has an obligation to actively pursue what they call the “national interest”. Any agenda that assumes the existence of such a thing must begin by making a variety of determinations, from who should be allowed to join the polity to whether to privilege the producer’s bottom line over the consumer’s. And in anything short of a monolithic society, that means overriding some individuals’ preferences—and often their right to make choices for themselves.

As with the “national interest”, so with the “highest good” and with the “anti-market” approach to the economy. These beliefs are inherently incompatible with the primacy and autonomy of the individual ― in the individual’s right and ability to arrange his or her priorities and to live in accordance with them rather than with the diktats of authority. They are particular instantiations of collectivism, as Hayek understood it. As I explained here in the first part of my summary of The Road to Serfdom, for Hayek,

[c]ollectivism is the organization of society by the state according to a single blueprint, such that persons and groups, insofar as they are not obliterated in the process, are entirely subordinated to it and made to serve its purposes instead of pursuing their own.

This is what the moralizing, anti-market, nationalist conservatism proposes to do. Just like the old socialists, its proponents think that they not only know what is right, who should trade with whom and at what profit, and which group of people is most deserving, but that they have the authority to organize the world on the basis of this supposed knowledge, or at least that a bare electoral majority would give them such an authority.

The right-wing collectivists are determined to ignore Hayek’s warning that there can be no agreement on a general scale of values ― not even on the highest good, let alone on the second highest, the third highest, etc. ― in a free society, and that any attempt to impose and implement such a hierarchy can only be accomplished by manipulation and force. It must result, ultimately, in the destruction of personal morality itself, because collectivism “does not leave the individual conscience free to apply its own rules and does not even know any general rules which the individual is required or allowed to observe in all circumstances”, (50th Anniversary ed., 161) the state’s fiat being paramount. This might be an ironic result for the more religiously-minded of the new right-wing collectivists, but I’m not sure they will in fact notice the irony.

In “Why I Am Not a Conservative”, Hayek argued that an adherent to conservative ideology “has no political principles which enable him to work with people whose moral values differ from his own for a political order in which both can obey their convictions”. (4) This applies also to the right-wing collectivists. Like their forbears, they lack “an intellectual commitment to a type of order in which, even on issues which to one are fundamental, others are allowed to pursue different ends”. (4) And, like socialists, they will come ― at least if they come anywhere near real political power ― to disparage the liberal view that “neither moral nor religious ideals are proper objects of coercion”. (4)


The philosophically and morally right position, now as ever (and yes, the present pandemic notwithstanding, as I shall argue in another post), is liberalism based on individualism, understood, as Hayek explained in The Road to Serfdom, as the “recognition of the individual as the ultimate judge of his ends, the belief that as far as possible his own views ought to govern his actions”. (66) This applies in the personal as well as the economic sphere ― the choices of one’s conception of a good life as well as to the choice of one’s trading partners.

The right-wing collectivism being firmly opposed to individualism, so understood, there can be no fusion of liberal or libertarian ideas with it ― no merger, certainly, not a long-term alliance, not even a presumption of co-operation. No doubt there will remain particular issues on which the right-wingers will oppose their fellow collectivists of the left, and classical liberals or libertarians can work with them in these cases. But we should be under no illusions. The right-wing collectivists will not tolerate us if they take power, all the more so since, as Hayek pointed out in The Road to Serfdom, it is “the worst” ― the most ruthless, the most unprincipled ― who “get on top” in any collectivist regime. A tolerant nationalist, “highest-good” conservatism is as much a delusion as democratic socialism.

Hayek’s prescription for our politics remains compelling too. He wrote ― as I put it the second part of my summary of The Road to Serfdom

we need … to accept that ends do not justify all means; that collectivist and a fortiori dictatorial instruments cannot be put in the service of the right ideals, or entrusted to the right people, without either corrupting them or being seized by the more ruthless and corrupt; that “power itself” is “the archdevil”, (159) and that power concentrated in the hands of the state “is … infinitely heightened” (159) in comparison with that wielded by private actors.

If standing on these principles leaves us politically isolated, so be it. There are worse things than political failure. Supporting those who would cheerfully trample on everything one stands for is one of them.