Uprooted Liberalism and Its Discontents

Abstract. Liberalism is rooted historically in the stateless civilization of the Middle Ages and its opposition to the rise of the modern State in 16th century. Although its principal theoreticians (e.g Locke, Rousseau, Mill) opposed the "modern" Hobbesian theory of the Leviathan State, they all too uncritically accepted the anthropological and theological premises of the Renaissance (with its adulation of the Roman Empire, a civilization built on conquest), the Reformation (with its reduction of the human conscience to a politically irrelevant "private" conviction) and the Enlightenment (with its unreasoned contempt for all things medieval). Forgetting the medieval institutions that made a stateless civilization possible, liberals became intellectual hostages to the belief that faith in force needs to be institutionalized in the State, if the world is to be held together. They fell prey to the illusion that they could preserve liberty by taming the State or even control and use it to liberate and empower individuals.

In England and France, the label ‘liberalism’ was originally used by those who had scored significant victories in bringing down the modern Absolutist State of the 17th and the 18th century, which had done away with many medieval rights, liberties and institutions. As medieval kingdoms were transformed into States, their kings ceased to be first-among-equals-under-the-law and became absolute-monarchs-above-the-law. A modern monarch fancied himself legibus solutus — not only above the medieval customary folk laws but also above the Natural Moral Law that the Roman Catholic Church and her theologians had painstakingly developed over the course of many centuries in a persistent effort to Christianize the great diversity of local (originally tribal) folk laws in Latin Christendom.

In the 16th century, political and cultural elites began to think of themselves as direct heirs of Ancient Rome and Athens. They felt no need to pay more than occasional lip service to the Natural Moral Law. For them, the Roman Law[1] was the model of true Law. To emphasize their ancient lineage they rechristened Latin Christendom ‘Europa’, a name that evoked ancient myths of the birth of a new civilization on a Mediterranean island (Crete) and of the destination of history — for ‘Europa’ could be explained etymologically as ‘where the sun sets’. Moreover, from the mid-17th century onward, the elites wanted to forget about the bloodshed (especially the Thirty Years War) the first modern States had unleashed in their efforts to expand their territorial domains. To soothe their consciences they rechristened the bloody dynastic wars of the 16th and the 17th century ‘Wars of Religion’, so that the blame would fall not on modern political but on medieval religious motives.

Thus, the word ‘liberalism’ began its career in Europe, a world of sovereign States. However, the ideas to which it referred had their roots in [memories of] the stateless world of Latin Christendom — a world with little or no taxation, no standing armies, permanent police forces or bureaucracies, without devastating continent-wide wars, yet with plenty of representative institutions and thriving networks of religious, intellectual, artistic and commercial activities that spanned the whole area of Latin Christendom. Most importantly, the medieval world had a framework of law that rested on two pillars: a great diversity of local communities, each with its customary folk law, and the Catholic Church, whose teaching of the Natural Moral Law imbued the whole structure with a Christian conscience, to which everybody could appeal, regardless of his position, power or wealth. The Natural Moral Law consisted of principles and precepts for appealing to the conscience of litigants and deciding cases with the least possible disruption of other people's lives (avoiding scandal, etc.). It was not a given collection of prescriptive rules or general commands that could be followed or applied robotically, as it were, by a functionary of a large organization, e.g. a State or even the Church. It was not a legal system — not even a superior, let alone an ideal legal system. It did not call for specialist technicians or legal experts (lawyers, judges, etc.) but for people of sound human judgment, capable of distinguishing between right and wrong even in complex concrete cases. Medieval law severely restricted the abilities of any local ruler to rise above the status of a first-among-equals. Rulers ruled, but they did not govern anything other than their personal households. Le Roi règne mais ne gouverne pas. If liberals had not fallen for the illusions that the State was “necessary” and that they could control it, they would have found few medieval arrangements that they could not like.

Liberal theory and the State

Just as it had been for Imperial Rome, the underlying principle of post-medieval monarchy was “Might is Right — indeed, the only right”. Thomas Hobbes's theory of the Leviathan State[2] was a deduction from that principle, which modern States, borrowing heavily from the Imperial Roman Law, elaborated into the enormously complex legal systems that we know today. Indeed, it implied that legislation and regulation as well as taxation were absolute rights of the State, not founded in any State-independent order of law but in the power of the State itself.

Hobbes's theory suggested two ways in which the primacy of power politics, hence of the State, could be legitimized: 1) conquest by the strong and its corollary, the as good as unconditional surrender of those who had been defeated in the struggle for power; and 2) institution, the collective act of setting up a Sovereign Governor, to whom the members of the relevant collective pledged nearly unconditional obedience. In both cases, the subjects were legally bound by their submission to do what the Sovereign commanded them to do: “Whatever you may will, I shall will too.” The Sovereign's commands could then be construed as an expression of the will of his subjects, as if the Sovereign were merely the plenipotentiary agent of his subjects; as if they were his authorizing principal. As the subjects of their own political agent, people would be citizens of the State. Accordingly, any act of legislation, regulation or taxation was something “the citizens do to themselves” — and it is a maxim of modern legal thought that no one can suffer injustice from his own act. Thus, absolute political power was legitimized by being dressed up in the lawyers' language of contracts and principal-agent relationships. Legal fiction trumps political reality. Moreover, Hobbes, an atheist, had no qualms about using the essentially Protestant notion of Almighty God's inscrutable and, from a human perspective, arbitrary will to sanctify his concept of the political Sovereign as his subjects' mortal God, the plenipotentiary vicar of the immortal God. On Earth as in Heaven, superior force is the mark of rightness, even though it turns everybody it overpowers into an impersonal object.[3] Modern political thought generally followed Hobbes in dismissing the medieval notion of the Natural Moral Law, which is the participation of man's conscientious mind in divine reason.[4] Human nature was thereby reduced to the physics and biology of individual human organisms, engaged in a never-ending struggle for life and comfort against other organisms. It no longer connoted the potential of human persons to perfect their common humanity.

Not surprisingly, many objected to Hobbes's proposal to legitimize the State founded on conquest. Two forms of the objection became particularly influential: 1) John Locke's Commonwealth,[5] the institution collectively agreed to by a set of individuals to provide for their public good without restricting their “natural rights” (life, liberty and property) more than was absolutely necessary, and 2) Jean-Jacques Rousseau's Republic,[6] which would provide for the public interest of an already instituted corporation of individuals according to laws they themselves would enact. The principal difference between the two concerned the locus of legislative sovereignty in the State. For Locke, it was an elected parliament (assuming the voters elected only representatives who respected people's “natural rights”). For Rousseau, it was the people themselves (assuming they only enacted laws that served the public interest of their corporation). Both Locke and Rousseau did away with aspects of Hobbes's principle of plenipotentiary or absolute government. Locke did so by allocating the legislative and the executive or governing functions to the separate interests of the Common People and the Crown, each represented by a separate organ of the State (Parliament, resp. the Government) and making it illegal for the government to act without legislative authorization. Rousseau distributed the legislative power of the State equally among all citizens and made it illegal for them to organize into factions, parties or voting blocs to promote regional, economic or other particular group-interests or even visions of the public interest. However, neither Locke nor Rousseau challenged Hobbes's thesis that the State is the agent of its subjects and the collective citizenry its principal.

Already by the end of the 17th century, the liberal impulse to resist the State had been transmogrified into an impulse to conquer it, to use it to limit itself and to restore at least some of the old rights and liberties by incorporating them into the State's legal system as fundamental legal rights, dressed up in Locke's language of natural rights. That language was superficially reminiscent of the medieval theology of the Natural Law, but it merely masked the deep impact of the State's recuperation of the Roman Law (as a model of administrative practice and order in the world) and its enthusiastic embrace of the political implications of the Protestant Reformation. Rousseau's influence on liberal opinion manifested itself in the 19th century, when the separation of powers had become (as Benjamin Constant had predicted it would[7]) a merely formal method for organizing the State's monopolistic apparatus of power rather than a way of ensuring a balance of power among the main organized interests in the country. With a twist here and a tweak there, it was possible to present both Locke and Rousseau as godfathers of the emerging democratic State. Later in the century, Hobbes made a forceful comeback, when democracy threatened to unleash a new war of all against all. The original Absolute Monarchy had been justified as the politique solution to religious conflicts within Latin Christendom. The new Absolute Democracy was to be the political solution to the ideological conflicts among conservatives, liberals and socialists that were engulfing much of Europe.  

From the stateless Middle Ages to State-dominated Modernity

In the space of a thousand years, Latin Christendom refashioned a world of wandering tribes of hunters and gatherers into a civilization of farmers, traders, craftsmen and learned doctors, living in impressive fortresses and monasteries and in thriving towns, cities and ports connected by long-distance trade routes over land and sea.[8] It left behind huge stores of accumulated capital that the princes of the 16th-century Renaissance could and did confiscate or borrow from to restore the majesty, splendour and power of Imperial Rome in the territories under their control.

Territorial states were difficult to establish in the medieval period because of the principle that political (essentially military) power rested on personal allegiances between freemen. Thus, the feudal lord-vassal relationship was not a transitive relation: A vassal of a vassal of a lord was not the lord's vassal, unless he had made himself a vassal of that lord. Even when a vassal was bound in law to provide armed assistance to the king, his vassals were not under an obligation to do so. This arrangement severely limited a king's ability to raise large armies, if the majority of his subjects did not perceive his cause as just or in their own interests. These intransitive lord-vassal relations prevented the rise of territorial states in places where the threat of invading hordes of infidels and heathen (Vikings, Muslims, Magyars, Mongols) was not as great as it was in the more exposed border regions of England, Bohemia, Poland and Southern Italy. Nevertheless, strong territorial kingdoms did arise in the heartland of Latin Christendom, notably in England and France. The territorial principle had been introduced in England already at the time of the Viking and Norman Conquests of the 11th century. Both King Cnute and the Duke of Normandy, William the Conqueror, ruled England as conquerors of the land after defeating the kings of the people who lived there. In France, Philip II (r.1180-1223) rebranded himself King of France (instead of King of the Franks), after expanding his possessions far beyond his base in Paris. Because of this feat, he was called Philip Augustus, after the first Roman Emperor. Consequently, the Hundred Years' War (1337-1453) between England and France was about the question, whether the whole of France would be ruled from London or from Paris. That question could not be resolved in the usual medieval way by a negotiated re-alignment of the allegiances of local magnates.

Meanwhile, Philip IV the Fair of France (r.1268-1314) had successfully defied the Pope by moving the Papal See from Rome to Avignon, in 1309. Taking advantage of the resulting confusion, many local rulers began to interfere with the flow of funds from monasteries and bishoprics to Rome. The crisis of papal authority lasted until 1417 and left the Church and the Papal Estates in and around the city of Rome in an impoverished condition. Strapped for cash at a time they needed to rebuild Rome and to restore their position, the popes turned to condoning controversial techniques of raising money, most notably the abusive “selling” of indulgences.[9] Men like Martin Luther and Ulrich Zwingli protested angrily and before long left the Church, in the process starting the Protestant Reformation that splintered the unity of Latin Christendom.

Re-focussing its interests on the city of Rome, the Papacy became deeply involved with the richest of the rich families that ran the Italian duchies and cities and had mastered the art of promoting trade and commerce to the great benefit of themselves and their cronies. Several 16th-century popes were chosen from their circles. They made Rome a capital of Renaissance splendour, but the Church never recovered the ability to act as the restraint of conscience on the lust for power and wealth or to convince the high and mighty to observe the Peace and Truce of God.[10] In one country after another, she was either banned or forced into unholy Alliances of Throne and Altar to secure her survival. The unarmed Church was no longer able to offer effective resistance to the power grabs of mighty kings. There had been times in the medieval past when she could not prevail against would-be emperors (notably Charlemagne), but even then, she had remained influential enough to browbeat them into public acts of penitence or to substitute the rule of law of her own regular legal procedures and tribunals for their brutal methods of conquest and repression.[11] From the 16th century onward, the Church had to learn to live with rulers who had a distinctly Machiavellian attitude toward religion: “Use it where you can; otherwise ignore or suppress it.”

Christianity was being fragmented into a multitude of national churches as Protestant and Catholic kings vigorously applied the ancient pagan maxim “Cuius regio, eius religio” (The ruler of the land determines its religion).[12] They incorporated it into another emerging novelty, the so-called “international law”, which was based on the absolute, quasi-property rights of Sovereigns over the territories under their control. This Protestant conception of international law[13] rapidly displaced the medieval Catholic notion of the law of peoples (ius gentium), which extended the protections of the Natural Law to all persons, wherever they lived, whether they were Christians or not.[14]

Medieval kingship had originated in a relationship of trust between the king and his people, but that trust was exploited by the kings when they discovered that power could be bought. They enthusiastically embraced Julius Caesar's maxim, “With men take money; with money buy men.” Whenever trade expanded, the Crown moved to get a piece of the action. Imperial Rome was back, albeit on the much smaller scale of what would soon be called ‘the nation-state’.[15] By the 16th century, kings were deeply involved in economic life by offering to commute feudal duties into money payments; and by selling exemptions from feudal duties, monopoly licenses and other privileges, honorary and vacant titles, and even offices, and attests of creditworthiness for use in foreign trade. Alongside the old medieval nobility, which continued to resent the growing power of the monarch, new aristocrats appeared who owed their titles and estates to his favours. Eventually, the kings succeeded in enforcing systems of regular taxation, occasionally auctioning off tax-farming licenses to private companies. They discovered that they could use their rapidly expanding power to tax as collateral in negotiating loans with well-connected financiers, able and willing to divert savings from productive into political investments: expensive state-of-the-art weaponry such as heavy cannons and battleships; standing armies and police forces; and permanent bureaucratic, technocratic, military and police departments of the State with offices, garrisons and, at a later date, prisons throughout their kingdoms. If that was not enough, monarchs could, and many did, debauch the currency by abusing their traditional prerogative of minting coins.

Roman Law and Protestantism

When the delicate balances of traditional and feudal rights and obligations were disturbed, a new class of politicians and lawyers emerged. Politicians were experts at brokering deals between the ruling elite or its officers and wealthy subjects (cities, landowners, entrepreneurs, traders, adventurers, pirates). Lawyers, trained at the universities in the formal techniques of the Roman Law, were experts at exploiting the weaknesses of the unwritten customary laws in confrontations with formally attested documents, especially those issued by or attributed to one or other king, duke or city government. The lawyers were always eager to prompt rulers, parliaments and courts of law to favour the class interests of their clients by downplaying their largely unwritten customary or feudal duties and obligations as owners of large estates and highlighting their usually well-documented property rights to the estates they had bought (often at bargain prices, because many estates had been ruined or vacated in the plagues and wars that devastated the continent between the mid-14th and the mid-17th century). In this way, the lawyers invented “absolute rights”, i.e. rights without obligations, other than those which were owed to the monarch. Such rights could be fitted easily into the conceptual schemes of the academic Roman Law. Just as the Roman pater familias was supposed to have had absolute rights over his household against everybody else, except against the Emperor, just so the modern owner's estate should be supposed his absolute right, subject only to the State's authority.

Politicians and lawyers came to dominate in what remained of the medieval representative bodies. There they represented the urban bourgeoisie and the new aristocracy, who shared an interest in forcing land and labour power onto the market. What they obtained on the market they were legally entitled to own and treat according to the formal categories of the revamped Roman Law, unencumbered by the reciprocities of customary and feudal duties and obligations. Against the principle of medieval law, “Old law trumps new law”, the lawyers proclaimed the Roman principle, “New law trumps old law” — which was an implication of the fact that the Emperor is above the law. The lawyers' re-interpretation of the concept of law was a recipe for replacing the traditional rule of law with the arbitrary rule of men as well as for delegitimizing the experiences and memories of the common people as a principal source of law.

The so-called Protestant Reformation added the notion that everything that had to do with the Catholic Church was part of a past that could not be forgotten soon enough. It was not a reformation so much as it was a cultural revolution. Specifically in its early Lutheran manifestation, the Reformation extended man's biological individuality into the spheres of his spiritual and intellectual life, and from there, into all his economic, social, political and cultural activities. The extension made the laws of physical force the only Laws of Nature. By implication, only modern empirical “natural science” could constitute the human conscience (“knowledge shared in common”). Everything else was contingent and incidental, merely subjective or conventional fluff. Elaborated in the Enlightenment, those implications rose to prominence in the scientistic and technocratic cults of the 19th and the 20th century.[16]

At first, Protestants had clung to the idea that the Bible provides sufficient normative guidance to individuals to allow them to live together in a common Christian culture. However, because Protestants — Lutherans specifically — also insisted that individuals were free to interpret Biblical texts according to their own “private” conscience, without having to answer to each other or any external authority, least of all the Roman Catholic Church, they ended up splintering the common religion of the medieval period into a mosaic of a private beliefs that needed to be checked by political authority, lest they become causes of strife and conflict. With the Church and her secular priesthood out of the way, only organized political power remained as a centre of secular authority. Consequently, whatever the Bible might mean to one or other individual, its public authority was subject to the verdict of the political powers-that-be. Religious and other ideological differences could be resolved only by appealing to the territorial rights of political rulers, just as had been the case in the Roman Empire. Politics trumps religion. Thus, the Reformation consecrated the absurd idea that religion (“that which connects everything”) and conscience (“knowledge shared with others”) are private things, the exclusive property of each and every individual human being. It carried the germs of a culture of pervasive relativism, in which only the “language” of force is understood by all (i.e. has “objective” meaning).

English liberty and Enlightenment

In England, after the Civil War (1642-1652) between royalists and supporters of Parliament, aristocratic opponents of royal absolutism who accepted the lawyers' Romanized view of property rights became known as Whigs. They were the progressive wing of the nobility. They urged the State and its Anglican Church to tolerate Protestant dissenters and worked hard to strengthen the legislative authority of Parliament to the detriment of the Crown. Their opponents were the Tories, the staunchly Anglican, royalist and traditionalist party of “God, King and Country”. The Whigs could claim as their greatest achievement the Glorious Revolution of 1688, when — after the last Stuart King, the very Catholic James II, had fled to France — a Protestant monarchy was restored on the condition that it would recognize the autonomy of Parliament and respect the Bill of Rights, issued as an Act of Parliament in December 1689.

The Whigs often found common interests with merchants and the well-to-do urban intelligentsia. In the 19th century these groups united to form the Liberal Party, which made “the liberty of the individual” an influential political argument. Between 1860 and 1920, the Liberal Party dominated much of the English political scene. Under the Whigs and the Liberals, England rapidly increased its military, naval, industrial, commercial and financial power; succeeded in assembling a vast colonial empire, and witnessed a dramatic improvement of the living conditions of the common people as economic growth kept outpacing the population growth which it made possible. Those achievements stimulated the formation of similar Liberal parties on the European Continent. The period was the high tide of liberalism.

However, most members and sympathizers of those parties were also beholden to the Enlightenment and its conviction that between the collapse of the Western Roman Empire and the 17th century, Europe had been a stagnating pool of barbarism and religious obscurantism. Worshipping the so-called Scientific Revolution of the 1600s, most 19th-century Liberals could not believe that the method of science, viz. open and public criticism of theories, observations and opinions, had been systematically developed and applied in medieval universities, councils and synods, even though the theologians lacked the technology for making accurate tools of observation and measurement and therefore had little use for mathematics. Referring to the same idea of natural order upon which they had built their theory of the Natural Law, the medieval theologians introduced the West to the idea of a scientific investigation of nature, i.e. the search for objective truth in all of creation — the search for the principles of order that reflected the divine mind in what were otherwise no more than seemingly unconnected phenomena, difficult to reconcile with a literal reading of Holy Scripture. They had not forgotten Saint Augustine's admonition, “In matters that are obscure and far beyond our vision ... we should not rush in headlong and so firmly take our stand on one side that, if further progress in the search of truth justly undermines this position, we too fall with it.”[17] The natural sciences (physics, chemistry) and mathematics continued to develop under the rigorous discipline of open criticism of conjectures and refutations. So did economic analysis, which had its roots in the medieval doctrine that the just price of a commercial good is the price freely agreed to by buyers and sellers — a doctrine that led to restrict the application of usury laws as far as commercial credit was concerned,[18] and eventually to the explanation of the value of money in terms of its supply and demand relative to the supply and demand of other goods.[19] Thus, the idea of science-for-the-sake-of-truth preceded, by several centuries, the promises with which modern secular science charmed its way into the favours and the treasuries of the mighty — promises of more powerful weaponry; superior navigation and time-keeping instruments; optimized outlays of fortifications and garrisons; maps and statistics for fiscal, police and military use; and ambitious (often utopian) schemes for controlling the entire economic and social life of the nation, including the minds of the citizenry. The concept “scientific method” was re-defined in terms of technologically enhanced observation and measurement. What could not be observed and measured or presented as a mathematical speculation was of no scientific interest. The underlying theme was distinctly Hobbesian: Knowledge is power — power over Nature and eventually over Man.

Libertarian versus liberationist theories of the State

Early 19th-century liberals (and the original Liberal parties and movements) embraced the Lockean proposal for taming the Leviathan State. That proposal was at the heart of what became known as ‘classical liberalism’. Its medieval roots in the opposition to the rise of the State were all but forgotten. Nevertheless, among classical liberals, the medieval distrust of the State and aversion to taxes and coercive regulation of the daily life of private households lingered on. A century later, even those traces of the origins of liberalism began to fade into oblivion as liberals and others had become enamoured of Rousseau's concept of the people's collective autonomy, albeit modified to accommodate the Lockean idea of entrusting legislation to a representative body. The new rage was “democracy”. Its stated intention was to use the State not to maintain a traditional order of liberty but to empower individuals by liberating them from the burdens and responsibilities of life other than those imposed or condoned by the State. Thus, by the beginning of the 20th century, the older libertarian liberalism got buried under an avalanche of liberationism, fed by enthusiasts from all over the political spectrum, eventually even within the Catholic Church. Libertarianism stands for man's capacity as a person to free his will, his thinking and his conscience from error and sin by conscientiously seeking truth in all things — the medieval conception of free will. In contrast, liberationism stands for the State's (or organized society's) capacity to shield individuals from the consequences of their imperfections, errors and sins. By the end of the century, one could well ask “Who needs old-style rights, freedoms and liberties, when everybody has ‘human rights’, i.e. desires that the State will try to satisfy, if it has the means to do so and deems them politically correct?”[20]

Liberationism goes back, on the one hand, to late-medieval, early-modern millenarian movements that sought to create the Kingdom of God (the New Jerusalem of the Bible's Book of Revelation) here on Earth, and on the other hand, to 18th- and 19th-century socialist proposals to undo history and to re-form human society on entirely new foundations.[21] Appearances notwithstanding, socialism did not include the classical liberal promise of ending historical class-privileges. Instead, it promised their universalization: Everyone should be able to live the privileged life of the old-time aristocrats, in particular, to consume regardless of one's contribution to production. Tout le monde rentier ! That was Marx's promise of communism as a liberationist regime, which would enable all individuals to do what they want, while organized society takes care of general production.[22] The classical liberal Frédéric Bastiat ridiculed the proposal as “the grand fiction that everybody can live at the expense of everybody else”,[23] but at the same time the modern, progressive liberal John Stuart Mill[24] began peddling the essentially Marxian notion that liberal capitalism would perfect the art of producing wealth, which could then be distributed by “society” to the benefit of all.[25] For Mill (probably the most famous liberal of the 19th century), the obvious question was whether liberalism should resign itself to being a fiscally prudent and economically savvy advisor to the leaders of the long march to a Marxist, liberationist regime of plenty. Does liberalism fully agree with socialism on the final destination, differing only on the means and methods for getting there — a view shared even by Ludwig von Mises and Friedrich von Hayek, the best-known classical-liberal economists of the twentieth century? What would remain of the original liberal promise of a free and prosperous commonwealth, if the socialists were right in claiming that wealth is freedom — indeed, the only freedom worth having? Where does one draw the line between democratic equalization of the political power to take what one wants and democratic equalization of economic power to buy what one wants?

While Mill became the poster boy of late-19th-century and 20th-century liberalism, Bastiat was forgotten (even in France) and Mises and Hayek became little more than footnotes in the academic literature, until they were rediscovered by the so-called Libertarian Movement, launched in the 1970s by Murray Rothbard, who together with Hayek succeeded in putting classical liberalism back on the intellectual map. Mises and Hayek were famous above all for their unflinching opposition to Soviet-style totalitarian socialism and central economic planning, but they did not succeed in weaning many economists from the teat of Keynesian economics, which was an elaborate variation on Mill's theme of combining capitalist market-driven production with socialist planned distribution implying State-management of aggregate demand, credit and investment. With the establishment of the Welfare State after WWII, its principal architects, John Maynard Keynes and William Beveridge,[26] were hailed as new heroes of liberalism. After all, they had been members of the moribund English Liberal Party.

Although liberationist movements can be traced back to the Middle Ages, they were opposed (often violently) to the medieval order in ways and on principles which no 18th- or 19th-century liberal would have condoned — even though most liberals at the time had been swept up in the intellectual currents unleashed by the Renaissance, the Protestant Reformation and, especially, the Enlightenment. In retrospect, the Enlightenment did more harm than good to the ideas of those early liberals, if only because of its promotion of free-and-compulsory “education”, which fostered the notion that it was the State's task to replace all traditional moral authorities (family, local community, and especially the Church) in order to make people fit to function in the modern world by emancipating them from the ballast of history and traditional culture. Indeed, it made culture the battleground of a Kulturkampf between “progressives” and “conservatives” (or “revolutionaries” and “reactionaries”).

Once denigrating the Middle Ages had become a commonplace of “enlightened education”, modern liberals had little to look back to, and so large numbers of them became progressives by default. They lost the sense of how it would be possible to have a world without States, standing armies or sitting bureaucracies, and ubiquitous politicians and lawyers — a world with no or low taxes, and with a constitution that gave assurance that even the high and mighty would be held to account, if they ignored the principle that all men and women, as “children of God” and ‘freemen in Christ”, are equal under the Natural Law. Of course, there were exceptions, but they were generally relegated to the margins of the history of modern liberalism, if not to the ranks of the conservative enemy. The most famous of them were Edmund Burke and Alexis de Tocqueville, whose liberal impulses were rooted in their cultural conservatism and knowledge of the medieval status quo ante.[27] They sensed that the Enlightenment had replaced the medieval concept of reason as the search for truth and justice with the modern concept of reason as the search for power.

The rise and fall of utilitarian liberalism

Almost everywhere in 19th-century Europe, liberals accepted the idea that the successes of the Liberal Party in England vindicated the claims made by Adam Smith in his celebrated The Wealth of Nations (1776): Liberty is the mother of national prosperity and greatness; its legal form (“the system of natural liberty”) is the invisible hand that leads self-interested, profit-seeking men to promote the interest of society.[28] However, they were no longer interested in the old rights, freedoms and liberties of the stateless medieval world and its adherence to the Natural Law. Rather, they became interested primarily in the legal empowerment of individuals and counted on the State to achieve it. Man would be emancipated not by faith but by enlightened policy. For John Stuart Mill, the traditional conservatism of the common people was at least as dangerous to “individual liberty” as the self-serving conservatism of the ruling classes of the Ancien Régime had been.[29] Following a familiar progressivist (or leftist) path, Mill sought to liberate the common people from economic hardship, while denying them their cultural way of life. From then on, progressives presented conservatism as an attempt to appeal to people’s cultural attachments, while denying them their “fair share” of the fruits of economic progress. After Mill, liberals no longer knew which way to turn. Should they opt for the progressive or the conservative side?

Taking their inspiration from the founders of modern philosophy, Descartes, Hobbes and Hume, and following the lead of writers such as Helvétius, La Mettrie and Bentham, progressive liberal intellectuals adopted a materialistic “utilitarian” programme of reforming man and society. It highlighted the possibility of manipulating and engineering human behaviour and attitudes through the skilful use of incentives and disincentives — an idea that had been of central importance in 18th-century doctrines of Enlightened Despotism. Quoting the French abbé Nicholas Baudeau as saying “The State makes men exactly what it wishes them to be”,[30] a horrified Alexis de Tocqueville pointed out that this utilitarian mentality spelled doom for all traditional rights and liberties. Indeed, for the utilitarians, a person's life or freedom was not an absolute or natural right, which the State ought not to violate under any circumstances. Rather, as Jeremy Bentham put it, “natural rights are nonsense on stilts”[31] — and nonsense should not stand in the way of policy. Instead, the rights of persons were re-conceptualized as policy-variables, means to further the Enlightened State's desired end of more control over a wealthier nation. The utilitarians accepted only one extra-legal restraint on policy making: Each human being's utility should carry the same weight in the calculation of social wellbeing as the utility of every other human being. However, they did not bother to explain why only this postulated extra-legal right to equal consideration (or equal treatment) should not be dismissed as nonsense on stilts.

Soon the full implications of Hobbes's postulate that man is driven by “the restless desire of power after power, that ceases only in death”[32] burst through the weak moral stricture of equal consideration, which the utilitarian liberals of the 19th century had inherited from their 18th-eighteenth-century precursors. Separated from the Natural Law, Adam Smith's ‘system of natural liberty’ was a meaningless label, and David Hume's improvised notion of “rule utilitarianism” turned into nothing more than an arbitrary theoretical construct. It could be used to legitimize any established, actual economic or social condition — after all, according to the utilitarian philosophy, what exists must be efficient for as long as it exists, otherwise it would not exist at all. Moreover, if, as Hume had maintained, reason is and cannot but be the slave of the passions[33] then the Hobbesian conclusion was inescapable: Reason is and ought to be the slave of the desire for power. Consequently, the compelling force of one's reason is a function of the relative strength of the power it serves. There could be no doubt about the place of intellectuals and scientists in the world. If they were not satisfied with being counsellors of the State, they should resign themselves to their well-deserved political and social irrelevance.

When the label ‘liberalism’ crossed the Atlantic in the late 19th century, utilitarian liberalism got a big boost. Wealthy Americans — most of them White Anglo-Saxon Protestants or descendants of Dutch Calvinists — chose to send their sons to the modern, progressive, science-and-technology-oriented universities in Protestant Germany rather than to Oxford or Cambridge, let alone Paris, where the academic curricula still preponderantly reflected the medieval and Catholic origin of the university. By then, Prussia, the erstwhile model of Enlightened Despotism,[34] had unified Germany and was leading the world in the Second Industrial Revolution. American liberalism was born of that influx of modernist, progressivist and technocratic-managerial ideas. It soon eclipsed what remained of Jeffersonian Republicanism, a close cousin of British Whiggism and European rights-based classical liberalism and a major influence on the constitutional debates that followed in the wake of the American struggle for independence from the British Crown (1765-1783).

In Europe, after the First World War, liberalism ceased to be an ideological force of note. Politics was no longer concerned with defining and upholding constitutional limits on the State (including the State's legislative power). Instead, politics was about parties trying to gain and to remain in power, and to pass legislation that would direct the State to implement their favoured policies. Classical liberalism virtually disappeared. Progressive liberalism lost its identity when its utilitarian programme of reforming society from the top down was adopted, adapted and radicalized by revolutionary ideologies of the Left (socialism, communism, fascism, Nazism) and by supposedly non-ideological doctrines of opportunistic interventionism and piecemeal social engineering. In contrast, American liberalism continued to thrive. It never had an obvious connection to the European tradition of classical liberalism. From the start, it was animated by an anti-Jeffersonian impulse.

Despite Germany's defeat in the Great War (1914-1918), the Prussian model of the technocratic-managerial State became the norm in the 20th-century West. It came with a thin veneer of liberal-democratic rituals and symbols, but it was generally understood that — as was pointed out by Edward Bernays[35] — a “liberal” technocratic-managerial democracy can work only if public opinion is thoroughly and systematically manipulated to habituate people to submission to the authority of officially recognized experts. Hence, state-control of schooling and the new broadcasting mass-media (radio, television) became a necessary feature of a “liberal” democratic society. Being indoctrinated at the taxpayers' expense was proclaimed a fundamental civil right.

In the wake of those developments, some people began to use the term ‘classical liberalism’ to refer nostalgically to the constitutionally limited State, beloved by 18th-century Whiggs and 19th-century liberals, irrespective of their attitudes toward natural rights or utilitarian reform. This usage of the term helped to distinguish 19th-century European liberalism from the 20th-century Prussianized, progressivist American liberalism and its addiction to the technocratic-managerial State. However, the result was that the label ‘classical liberalism’ itself came to cover markedly different trains of thought, quite a few of which had carried the germs of managerial technocracy from their very beginnings.

In the final decades of the 19th century, the West witnessed the triumph of Zweckrationalität (utilitarian, instrumental rationality, measured by its success in determining the most efficient means to an end) over the last holdouts of Wertrationalität (value-oriented rationality, measured by its ability to distinguish between right and wrong). As a result, the West — at least, its progressive intelligentsia — experienced what became known as the ‘Umwertung aller Werte’ (re-valuation of all values), which made right what until then was considered wrong, and wrong what had been deemed right. Apart from giving progressive intellectuals ample opportunity for épater le bourgeois, it threw the door to the Brave New World wide open and habituated people to Orwellian politically correct Newspeak,[36] which treats every word according to Humpty Dumpty's prescription.[37] Inversion of all values and unmooring of all meanings implied a rejection of philosophical realism and an embrace of anti-philosophical nominalism. Do not say, “All things, including you and me, are what they are, regardless of how anybody calls them.” Instead, repeat after me: “All things, including you and me, are what I say they are.”[38] Taken literally, nominalism is a symptom of madness. It might be hallowed as an implication of the individual's freedom of speech, but it destroys the very possibility of using language for the purpose of meaningful communication. However, to many it seems quite commonsensical, if one replaces ‘what I say’ with ‘what the authorities say’, ‘what the majority of certified experts say’, or even ‘what the newspapers say’. The substitution does not remove the madness, but it does make it possible to distinguish between the powerful madmen who run the asylum and its powerless inmates. After all, if only power matters then the difference between sense and nonsense must reflect the difference between power and weakness. That is the ultimate realization and, at the same time, definitive reductio ad absurdum of Hobbes's utilitarian anthropology of man as the power-desiring animal. It also explains why European liberalism lost its identity, when people began to see it in a Hobbesian light, as a means to an end, rather than as a commitment to freedom as a natural right under the Natural Law. Unfortunately, it was no longer clear what freedom-as-a-natural-right amounted to. For most 20th-century liberals, it belonged to what they knew of as the old Whiggish liberalism, about which they no longer knew much.

Locke's natural rights of the individual

A canonical statement of Whiggish liberalism can be found in John Locke's Second Treatise of Government (1690), which opposed every individual's absolute rights, viz. life, liberty and property, to the absolute sovereignty of the monarch over everything and everybody within the territory of his political estate (the State). Of peculiar importance was its presentation of the individual's absolute rights as natural rights, which suggested that they were vindicated by the Natural Law, properly understood — ‘properly’ meaning “in a modern, not a medieval way”.

The Second Treatise was an argument for a mixed form of government, committed to the Rule of Law and restrained by an institutionalized separation of the legislative, the executive and the “federative”[39] powers of the State. It did not mention the judiciary as a separate power of the State because of the peculiar status of the Common-Law courts in English history. From early on, these courts were the King's courts, set up to counteract and eventually to displace the judicial pluralism of separate, occasionally overlapping and competing jurisdictions that Norman England had inherited from pre-Conquest times. The Whigs were satisfied to note that the Common Law had been “the law of the land” from before the rise of royal absolutism. They thought of it as a bastion against absolute royal power, even though it was a creation of royal power. They had no objection to the monopolization of judicial functions in the royal system of the Common-Law courts, provided it remained “independent” from active interference by the Crown and was not superseded by “special” royal courts.

The State's judicial monopoly was at the heart of Locke's political theory, which assumed that the basic raison d'être of the State was to remedy the lack of a “common magistrate” in a stateless order. In France, the trias politica included the judiciary as the third power and relegated diplomacy to the State's executive power. Even so, the judiciary was a strange State power. As Montesquieu characterized it, it was “invisible et presque nulle”,[40] because it rested on people being judged by their peers, not by State officials. It became an effective monopoly of the State only in the aftermath of the French Revolution, when the revolutionaries discovered that permitting the local people to elect their own local judges did not work, because the people kept electing the wrong judges.[41]

Locke's book was immediately appreciated as a theoretical justification of the Glorious Revolution of 1688. Thus, in Europe, Locke's name became virtually synonymous with ‘English liberty’, ‘the English Constitution’ and ‘the key to prosperity’. However, except in Jeffersonian circles in America, his theory of natural rights was quickly forgotten. Neither in England nor on the European Continent did his discussion of property rights based on original acquisition (removing things “out of the State that Nature hath provided and left [them] in”) ring a bell. Whatever act of first acquisition there may have been was hidden in the mists of history, which also covered up most of the acts of robbery and fraud that had transferred property out of one man's into another's control. It was practically impossible to verify the justice of anyone's claim to be the rightful owner of a piece of land or a sum of money. Thus, Lockean liberalism came to accept one's current property as “a natural right”, regardless of how, or from whom, one had acquired it. What was one's current property could be determined only by the current legal system, the product of the State's monopolies of legislation and adjudication. For all practical purposes, property was a natural right without foundations, built on the quicksand of legislative authority, lawyerly ingenuity and the assumption that the academic Roman law was the true model of law.

In America, until the closing of the Frontier, original acquisition (“homesteading”) was a common way of gaining legal title to land — provided one paid no attention to its first users (the American Indians) or accepted Locke's argument that they had not used the land to improve it. With that argument Locke had pretended to justify the English Enclosure Acts which instituted privatization of “common” and “waste” lands and expropriation of the rights of usus and ususfructus of the people who had depended on them to sustain themselves. Apparently, it was a proper function of the State to use its power of eminent domain to ensure that land ended up in the hands of those who most increased its economic, marketable value. Locke presented it as a “teaching of Reason”, consonant with God's will: “God, who has given the world to men in common, has also given them reason to make use of it to the best advantage of life, and convenience.”[42] Who decides which or whose advantage is “best”? Where there was a functioning market, it could be relied on to allocate resources efficiently; but where there was not, the Sovereign, the sole judge of “the Public Good”, would have to intervene. Locke's addition of the improvement-clause to his original-acquisition doctrine was the crack in the wall through which utilitarian policy entered into his seemingly impregnable fortress of natural rights. The contrast with the Hobbesian State was not as stark as Lockean liberals imagined.

Locke endeared himself to later classical liberals with his doctrine that, even if there were no political legislation or administration, there would still be the Law of the State of Nature, “the State all men are naturally in... a State of Perfect freedom to order their actions, and dispose of their possessions, and persons as they think fit, within the bounds of the Law of Nature, without asking leave, or depending upon the will of any other man”?[43] As the maker and therefore the owner of every human being, God had instituted that natural State and laid down its fundamental law. “Reason, which is that Law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty or possession.”[44] Nice, but what else did Reason teach all mankind? How do the no-harm and equal-independence principles relate to whichever state men are actually in, which no one would describe as a condition of perfect freedom? The answer to the last question was, again, that he final word on harms and dependences rests with the political magistrate.

Locke's statement of the principles of no-harm and equal independence and his concept of “the individual” were too reminiscent of Protestantism to be readily acceptable in the Catholic regions of the Continent. There the Church and the common good, not the State and the public good, were (at least in theory) still at the top of the secular hierarchy in all matters touching upon the fundamental, natural rights of man. On the one hand, Lockean liberalism seemed to require a clean break with Europe's past and its Catholic heritage. On the other hand, one might well wonder what Locke's “Law of Nature” was, if it was not the Natural Law of the medieval theologians, parts of which had been borrowed by his main source, Dr Richard Hooker, the principal theologian of the Elizabethan Protestant Settlement and its Anglican Church. Specifically, what did God's ownership of all men imply? Was it a medieval kind of ownership, qualified by reciprocal duties and obligations, which God, but not men, could be counted on to respect? Or was it unqualified modern ownership in the style of the academic Roman Law?

In truth, Locke's goal was a theory not of law and justice but of political power, which he defined as “a Right of making laws with penalties of death... and of employing the force of the community... only for the public good”. As it turned out later in the Second Treatise, it was also a right of forcing people to obey rules and to pay taxes consented to by the majority of their political representatives. His Treatise was the work of a partisan Whiggish advocate, not a philosopher. The same can be said of his famous Letter on Toleration (1689), which pleaded for religious tolerance for Protestant dissenters, but not for Catholics. The latter were to be excluded not for their religious beliefs but because they were alleged agents of “a foreign prince” (the Pope). To be tolerated, a religious movement should not pose a threat to the political Sovereign, be it a Monarch or a Parliament. Lockean toleration trivialized not only religion and morality. If it were generalized (as it was bound to be) then it would also trivialize all forms of reasoned speech: Only politically innocuous speech is to be tolerated. With his call for toleration, Locke prefigured the later culture of relativism — a culture in which nothing really matters, except the verdict of the established political authority. Politics trumps everything.

The clearest evidence of Locke's partisan advocacy is his treatment of slavery. In the Second Treatise, Locke labelled it ‘vile and miserable’, but in other writings, notably his draft of the Constitution of Carolina, he had no objection to slavery in the American colonies, if the Sovereign had no objection. In fact, Locke was financially invested in the slave trade. Assuredly, slavery is morally wrong on Christian grounds, but for Locke, as for all “modern” thinkers, moral no less than religious beliefs are and ought to be essentially private opinions. They are to be tolerated as long as they remain private; the moment they enter the public sphere, they become political issues, to be dealt with and decided by the political Sovereign. When Methodist agitation, led by William Wilberforce, forced Parliament to end the slave trade (in 1807) and slavery itself (in 1833), the Lockean conception of property as a natural right still ensured that the slaveholders were amply compensated at the taxpayers' expense.[45] The lawyers stood their ground. Current property (even of slaves) was a natural right regardless of its origin. This position was antithetical to the medieval Natural Law. Medieval property rights, no less than other rights, had to pass the test of conformity with the Natural Law. That Law was indeed Reason. However, it was reason inspired by God's Goodness, not a lawyerly deduction from God's ownership of everything and everyone. Nor was it a policy inferred from God's supposed concern that His property be allocated to and managed by those who most increase its market value.

Adherence to the theological conception of the Natural Law had succeeded in eradicating almost the last trace of slavery in the Middle Ages. In Modern Times, which began in the Renaissance with the adulation of the long-gone Roman civilization, not the least its Roman Law, slavery was reinstituted with a vengeance.[46] One might deem it vile and miserable, but that opinion is irrelevant in answering questions about its legality. Some classical-liberal economists added that the vileness and misery of slavery were also irrelevant from an economic point of view. Ludwig von Mises argued that slavery had been wiped out by market forces because free labour is more productive and profitable than slave labour.[47] The argument was obviously fallacious. It might apply to some but it certainly did not apply to all conditions of supply and demand on the markets for slaves, the products they helped to produce or the mechanical devices that could be used instead of human labour. If it had not been considered vile, slavery would undoubtedly have continued to thrive as it had done in Ancient Rome and elsewhere.

Sovereign individuals

In the 1960s, Murray N. Rothbard, a historian, economist and Mises's most prolific student, tried to revive Lockean natural rights within his so-called libertarian theory.[48] To avoid Lockean conclusions about the necessity and the sovereignty of the State, Rothbard cut out all attempts to provide a justification of political power as a right. Instead, he argued that the combination of the Lockean natural rights of individuals and free markets would prove the State to be not only superfluous but also bad for man's wellbeing. Anarchocapitalism, not a liberal State, was the solution to the problem of assuring freedom and prosperity. To squeeze an anarchist solution out of the Lockean stew of Protestantism and Romanized conceptions of law and rights, Rothbard ignored Locke's reference to God's ownership of all men. He stipulated instead that each person owns himself and that all rights are property rights, i.e. logical implications of self-ownership and “homesteading”. Thus, he ended up proposing what was essentially the modern Western system of private law, with no other basis for a public law than actual contracts stipulating the statutes of consent-based associations, including those that are intended to provide defence against criminals and invaders. Formally, Rothbard's anarchocapitalist order was akin to the anarchical international order of free and equal Sovereign States envisaged by the seventeenth-century “classical” theory of international law, with one major material difference: the Rothbardian sovereigns were individuals, not States. Thus, if national self-defence and defensive international alliances are the only legitimate means of law-enforcement in international law then the same goes for individual self-defence and voluntary or contract-based defensive organizations in the anarchocapitalist order. And, just as the classical system of international law had implied the maxim “Cuius regio, eius religio”, just so the Rothbardian system implied that every individual is the sole judge of all expressions of opinion that he would tolerate on his property.[49]

Rothbard thought of defensive organizations as suppliers of police and judicial services competing on an open, free anarchocapitalist market, defined by the laws of private property and freedom of contract. It was an ingenious proposal, but it begged one important question: Who would guarantee that those suppliers compete on an open and free market?  Surely, competition by itself does not guarantee that there is only a market for justice and not also a market for injustice; or that the former market is more profitable than the latter. Moreover, Rothbard saw no objection to the free formation of limited-liability companies, which can grow to any size. He had no answer to the question, who or what would restrain them to stay within the boundaries of anarchocapitalist law, if they became the dominant purveyors of armed services for “defence” and, as property owners, were entitled to use their resources according to their own rules or judgments for determining what is “defence” and what is “aggression” or “fraud”.  Quis custodiet ipsos custodes? Did Rothbard not remember Adam Smith's warnings, “I have never known much good done by those who affected to trade for the public good” and “People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public or in some contrivance to raise prices”?[50]  Surely, such warnings are as pertinent with respect to the trade in armed defence or law enforcement as they are with respect to any other trade. Besides, were States not the original, prototypical limited-liability corporations[51] that destroyed the stateless medieval order? Rothbard answered that it had taken States hundreds of years to extricate themselves from pre-modern political anarchy, but he did not mention that it was a time of primitive weapons technology and few, if any, markets for corporate bonds and stocks. Today, it would not take a corporation a long time to raise money in London and New York with which to buy strategic locations and sophisticated weaponry and to hire an army of mercenaries in order to provide effective “defence”, say, for the copper-mining regions in Katanga or Chile. Who would stop it?

Rothbard was aware of the medieval Catholic roots of the European liberal tradition. In The Ethics of Liberty (1982), he explicitly referred to medieval Natural Law theories, assuming that they would provide philosophical justifications for his own theses. Moreover, in his historical writings, he often helped debunk Weber's famous but notoriously false theory that capitalism was a product of the Protestant Reformation by drawing attention to pre-Reformation capitalist practices. However, he did not see the elephant in the medieval room: the Catholic Church, which provided and stood up for a common religious and moral framework that made political anarchy possible and compatible with astounding cultural and economic progress. Maybe he did not want to see it, because no such framework has any authority in a world of individuals, equipped with “absolute” rights and “private” consciences.

At the same time but following a Humean rather than a Lockean path, the aging Friedrich Hayek also appealed to the stateless medieval period without paying much attention to either the Church or its Natural Law (about which he claimed to be agnostic). What interested him was the “spontaneous” evolution of its customary folk laws.[52] Unfortunately, he misrepresented it as “judge-made law”, thereby obfuscating the ways in which it differed from the cumulative jurisprudence of the court monopolies of modern States.

It is wrong to blame the discontents of modernity on liberalism,[53] if only because liberalism is rooted historically in the distinctly pre-modern opposition to the rise of the modern State in the period of the Renaissance (with its adulation of a civilization built on conquest) and the Reformation (with its reduction of the human person-among-persons to the individual human organism, shielded by its “private conscience” from having to answer to anything other than a superior force than can make it answer). Nevertheless, one may justly reproach liberal theoreticians for having all too uncritically accepted the anthropological and theological premises of those two pillars of modernity,[54] and liberal activists for having all too enthusiastically embraced every intellectual fad that claimed to empower individuals.

How many liberals are willing to concede that it is wrong to believe that individuals can be emancipated by the State or the Market (or both), only if they are liberated from the ballast of religion — any religion? Some institutionalized faith must hold a civilized world together. Which serves the liberal temper best? Is it a “modern” faith in a religion of force seeking power, institutionalized in the political mechanisms of the State or State-funded international organizations? Or is it a “pre-modern” faith in a religion of reason seeking truth and justice that “says no to the absoluteness of political power and to the worship of the might of the mighty in general... has shattered the political principle's claim to totality once and for all... forms the only definitive protection against the power of the collective and at the same time implies the complete abolition of any idea of exclusiveness in humanity as a whole”?[55]

 

Footnotes

  1. ^ The Law Books of the 6th-century emperor, Justinian, were rediscovered in Bologna toward the end of the 11th century and studied religiously at the medieval universities. However, in medieval times, this academic Roman Law was nowhere “the law of the land”. Its principal use was in improving the efficiency of the chancelleries of the Church, royal houses and city governments and in raising their prestige and authority relative to the prevailing folk laws and traditional manners of adjudication (which appealed to the conscience of the parties to a conflict and not at all to books which only a few academics were able to read). 
  2. ^ Thomas Hobbes, "Leviathan, or The Matter, Form and Power of a Common-Wealth Ecclesiastical and Civil" (1651) 
  3. ^ Simone Weil, "L’Iliade, ou le poème de la force" (1940), « La force, c'est ce qui fait de quiconque lui est soumis une chose. »
  4. ^ Thomas Aquinas, "Summa Theologiae" (1265-1274), IaIIae, Question 91, Article 2: “[T]he natural law is nothing else than the rational creature's participation of the eternal law.”
  5. ^ John Locke, "Second Treatise of Civil Government" (1688) 
  6. ^ Jean-Jaques Rousseau, "Du Contrat Social" (1762) 
  7. ^ Benjamin Constant, "Principes de politique applicables à tous les gouvernements" (1815)
  8. ^ Over the past half-century, many studies have debunked the knee-jerk anti-medievalism of most post-Enlightenment Western intellectuals. Good places to start are Régine Pernoud, "Pour en finir avec le Moyen Âge" (1977), Rodney Stark, "The Victory of Reason: How Christianity led to Freedom, Capitalism, and Western Success" (2005) and his easier-to-read "Bearing False Witness — Debunking Centuries of Anti-Catholic Thought" (2016), and Michael Pye, "The Edge of the World, A Cultural History of the North Sea and the Transformation of Europe" (2015) 
  9. ^ An indulgence lifts a secular punishment that remains valid in secular Church law after the convicted person, by doing penitence, removes the cause of his sacramental punishment. Under Canon Law, the grant of an indulgence is abusive if its objective is to enrich the purveyor of the indulgence. A non-ecclesiastical analogy would be granting early release from jail to a common criminal who, after he has fully compensated his victims, makes a large contribution to the Red Cross. Obviously, the official authorizing the early release would abuse his authority if he insisted on a donation to himself. 
  10. ^ Pax Dei movements became prominent around 1000 A.D. and started the demographic, cultural and economic flourishing of the High Middle Ages (which ended with a series of bad harvests in 1315-1322, followed from1346 onward by recurrent plagues).  
  11. ^ The popes' diplomatic influence definitively disappeared in WWI, when Benedict XV’s 1916 call for a Peace Conference was ignored by all belligerents.
  12. ^ This was included in the Peace of Augsburg (1555) between the Catholic and the Protestant German princes, the first important treaty that broke with the medieval tradition of resolving political conflicts by appealing to the common Christian Natural Law. 
  13. ^ Hugo Grotius, "De iure belli ac pacis" (1625). Grotius owed much to Alberico Gentili, "De Jure Belli Libri Tres" (1589) 
  14. ^ E.g. Francisco de Vitoria, "De Indis" (1532)
  15. ^ See, for example, Charles Tilly (ed.), "The Formation of National States in Western Europe" (1975)
  16. ^ F.A. Hayek, "The Counter-Revolution of Science—Studies on the Abuse of Science" (1952)
  17. ^ Saint. Augustine, "The Literal Meaning of Genesis" (ca. 415?), translated and annotated by J.H. Taylor (1982), Vol. I, p. 41 
  18. ^ See M.N. Rothbard, "Economic Thought before Adam Smith" (1995), Chapters 2-3, for an overview of those discussions. 
  19. ^ Nicholas Oresme, "De Moneta" (first printed in 1484 but written ca. 1370) 
  20. ^ Universal Declaration of Human Rights (1948), art.22 
  21. ^ Norman Cohn, "The Pursuit of the Millennium" (1957, 1970); James H. Billington, "Fire in the Minds of Men" (1980) 
  22. ^ Karl Marx, "Die Deutsche Ideologie" (1845), Part I, Chapter 1, Section C.
  23. ^ Frédéric Bastiat, "L’État" (1848) 
  24. ^ J.S. Mill, "Principles of Political Economy with some of their Applications to Social Philosophy" (1848) 
  25. ^ Maybe Marx and Mill will have the last laugh, now that capitalism seems intent on replacing workers with robots, and Say's law (“supply creates demand”) may soon become obsolete, as supply is increasingly produced by robots, and few people, apart from investors in and engineers of robotic production receive exchangeable income with which to demand goods and services on the market. 
  26. ^ J.M. Keynes, "General Theory of Employment, Interest and Money" (1936); W. Beveridge, "Full Employment in a Free Society" (1944) 
  27. ^ Edmund Burke is best known for his "Reflections on the Revolution in France" (1790), Tocqueville for "De la démocratie en Amérique", Volume I (1835) and "L’Ancien Régime et la Révolution" (1856)
  28. ^ Adam Smith, "An Inquiry into the Nature and Causes of the Wealth of Nations" (1776), Book IV, Chapter 2, §9 
  29. ^ J.S. Mill, "On Liberty" (1859) 
  30. ^ Tocqueville, "L’Ancien Régime et la Révolution" (1856), Part 3, Chapter 3 
  31. ^ Jeremy Bentham, "Anarchical Fallacies" (1796). A critique of the French Declaration of the Rights of Man and Citizen (1789), this ranting screed demonstrates Bentham's lack of knowledge of the medieval concept of the Natural Law  
  32. ^ Thomas Hobbes, "Leviathan" (1651), Part I, Chapter 11
  33. ^ David Hume, "A Treatise of Human Nature" (1740), Book II, Part 3, section 3: .”Reason is and ought only to be the slave of the passions, and can never pretend to any other office than to serve and obey them.” 
  34. ^ See Immanuel Kant's essay “What is Enlightenment?” (1784), which is as much an indictment of those who say “Don't argue!” as it is a paean to “the one ruler [King Frederic the Great of Prussia, who] says: ‘Argue as much as you please, but obey!’” 
  35. ^ See Edward Bernays, "Propaganda" (1928). Bernays, a nephew of Sigmund Freud, developed the art of commercial and political propaganda into a lucrative business as well as a respected fixture of academic studies in Business Administration and Political Science. 
  36. ^ Aldous Huxley, "Brave New World" (1932); George Orwell, "1984" (1948) 
  37. ^ Lewis Carroll, "Through the Looking Glass" (1871): “When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less.” 
  38. ^ Today's infatuation with the politics of gender identity illustrates the point, e.g. in statements such as “The white man says ‘I'm a black woman’, and therefore, s/he is a black woman.”
  39. ^ The Lockean federative power concerns diplomatic relations, treaty making, waging war and making peace. 
  40. ^ Montesquieu, "De L'Esprit des Lois" (1748), Book XI, chapter 6
  41. ^ Émile Faguet, "Le Libéralisme" (1903), Chapter 13. “La magistrature a toujours été indépendante sous l’ancien régime. La subordination de la magistrature au gouvernement est une des conquêtes de la Révolution. En même temps qu'elle proclamait les Droits de l’homme, elle en supprimait le dépositaire et elle en paralysait le défenseur.” 
  42. ^ Locke, op. cit., chapter 5 (§26 in Peter Laslett’s edition, Cambridge Texts in the History of Political Thought)
  43. ^ John Locke, op cit, Chapter 2 ($4), emphasis added.
  44. ^ John Locke, "Second Treatise of Civil Government" (1688), Chapter 2 (§6)
  45. ^ See the website of the Legacies of British Slave-ownership Centre (University College of London). Despite President Abraham Lincoln's support for the idea, massive protests by abolitionists prevented a similar policy of compensation in the Unites States. 
  46. ^ Cf. Bastiat's complaint in his pamphlet “L'État”, “Il est triste de penser que la science du Droit, chez nous, en est encore aux idées que la présence de l'Esclavage avait dû susciter dans l'antiquité... [L']éducation universitaire... nous plonge tous... dans cette atmosphère de guerre et d’esclavage qui enveloppait et pénétrait la société romaine. » 
  47. ^ Ludwig von Mises, "Human Action" (1966), Chapter XXI, Section 9 
  48. ^ Murray N. Rothbard, "For a New Liberty — The Libertarian Manifesto" (1973, rev. 1978).
  49. ^ The uncanny similarity of modern “property” and “sovereignty” was noted by Morris Cohen in “Property and Sovereignty”, Cornell Law Revue XIII, n°8 (1927) and even earlier by Sir Henry Maine in his "International Law" (1888). Many Rothbardians came to prefer the label ‘propertyism’ or ‘propertarianism’ (to ‘libertarianism’) because for Rothbard, “private property” appeared to be not just a supporting but the necessary and sufficient condition of freedom. 
  50. ^ Adam Smith, "Wealth of Nations", I, 10, §86 and IV, 2, §9 
  51. ^ Martin van Creveld, "The Rise and Decline of the State" (1999)
  52. ^ F.A. Hayek, "Law, Legislation and Liberty", Vol. I (1974) 
  53. ^ As does, for example, J.-C. Michéa, "L’Empire du moindre mal — Essai sur la civilisation libérale" (2007)
  54. ^ See Michael A. Gillespie, "The Theological Roots of Modernity" (2009)
  55. ^ Joseph Ratzinger, "Introduction to Christianity" (1968, English edition, 2004, p.113)
A propos de l’auteur Frank van Dun Ph.D., Dr.Jur. — Senior lecturer Philosophy of Law. To quote as: Frank van Dun, "Uprooted Liberalism and Its Discontents", Arguments — Revue européenne de science, vol. 2, n°1, printemps 2017, http://revue-arguments.com/articles/index.php?id=31