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Burke, Historical Experience, and Change

At the Federalist Society national student symposium, my colleague Josh Kleinfeld was the deserving recipient of the Paul Bator Award given to an outstanding law professor under 40. His beautiful acceptance speech focused on the importance of Burkean conservativism.  And Kleinfeld is correct: the right owes an enduring debt to Burke’s skepticism of ordering society according to the abstractions of the kind advocated by the French philosophes. That debt is all the greater, now that these types of philosophes have gone global.

But I do wonder whether one aspect of Burkean conservatism—deference to past historical experience—deserves quite as much weight today as it once did.  Burke had both religious and more instrumental reasons for valuing that experience. For Burke, history was “the known march of the ordinary providence of God.” More secularly, it was also the best repository of human prudence and wisdom and thus the best guide to policy in an uncertain world.

But the value of historical experience as a guide for policy depends on the technological and social rate of change and on the availability of alternative methods of sifting experience. First, if the rate of technological and social change has speeded up, historical experience  provides less clear signposts than it did previously. The experience of the ancient Sumerians and the hunter gatherers they replaced did not illuminate the issues of late eighteenth century parliamentary democracy even for Burke. Today, technological acceleration distances our own era from previous ones at an ever faster rate. And, while human nature does not change, policy depends on the intersection of our nature and the environment. Or to put it in an economic way, people’s fundamental goals may not change drastically, but their constraints may,  if technology changes quickly.  Inferences about present policy become harder to draw from the past.

Second, while historical experience is one way to get the benefit of many minds in their evaluation of a social issue, there are other methods of gathering dispersed information in the modern era. Today we can use crowdsourcing and prediction markets to project the results of policy. Empiricism becomes an ever better method to test the effects of policies as we have more data and more powerful computers to run the analysis. And data sets capture more proximate experience than the kind of historical prescriptions Burke invoked. (Parenthetically, I would note that the rise of computation is one of the reasons that the study of law’s historical course is losing out to empirical legal studies as a method of assessing the efficacy of contemporary law).

The faster pace of change emphatically does not mean that we should use the abstract reasoning of the philosophes to resolve social policy. That approach still has aridity, rigidity, and isolation from lived experience that Burke brilliantly identified, But it does suggest that our focus should be less on institutions that try to reflect historical experience or preserve the status quo than on those that allow us to evaluate new policies for new situations based on evidence. Federalism in particular and decentralization in general are examples of such structures, because they allow for experimentation and evaluation. Unfortunately, many of our Supreme Court justices are descendants of the philosophes in their enthusiasm for the abstracting reasoning of national rights creation.  They thus undermine federalism, a venerable structure still well designed for modernity.

Reader Discussion

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on February 25, 2015 at 14:15:37 pm

So let's see if I have this right:

We will use crowdsourcing to determine, say, whether or not the Commerce Clause has been oversubscribed?
Or if the 14th Amendment really did incorporate the BOR?

It appears that you may be unknowingly falling into the company of those who value the efforts of "experts" over and above the value of historical lessons.

Use your data sets for municipal statutes - fine - but please leave it out of Constitutional adjudication. It is fine to use such data when determining the proper speed limit for a school zone - probably not so much as to whether we should provide aid to charter schools!

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gabe
on February 25, 2015 at 14:23:18 pm

Gabe--I think you misunderstand my post. We should interpret constitutional provisions according to their original meaning or amend the Constitution. As you know, Mike and I have written a whole book defending this proposition. Here I am suggesting that historical experience might not be as good a guide to policy as it was in Burke's time.

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John O. McGinnis
on February 25, 2015 at 15:33:18 pm

Wow.

It's tempting to read philosophies as if they strung from Zeus's brow, unaided by their environment; it's generally instructive to consider the circumstances under which a philosophy was formed. Malthus's arguments were not so much right or wrong, but reasonable given the circumstances under which Malthus lived. I do not embrace Malthus's arguments (at least in the near term) not because I'm so much smarter than he, but because I live under different circumstances.

And so it is with Burke's views about the relative merits of experience and abstraction.

McGinnis is often reasonable and persuasive. But this thesis is brilliant and, as far as I know, entirely original. No disrespect to this blog, but McGinnis should be penning an op-ed for the Wall Street Journal or the New York Times.

We just need a hook to make it topical. Who is breaking from historical practice? Or alternatively, who is sticking with some convention perhaps too long?

"Obama's immigration policies are one more step along the path to open borders. While many have argued the merits of open borders, embracing their arguments would require pursuing a theoretical benefit at the expense of the age-old wisdom of controlling access. Nevertheless...."

"Many regard Bitcoin as a reckless experiment in currency, a topic much too important to leave to chance...."

"Once again the Academy Awards depicted beautiful people in beautiful clothes -- although, for some many of the women, and even for the evening's host, the amount of clothing was scandalously small. While Western culture has long discouraged public nudity...."

Think big, McGinnis! Your ideas are too good for their current level of distribution.

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nobody.really
on February 25, 2015 at 17:19:27 pm

John:

I was just being my usual silly self. I did not (nor do not) suppose that you were advocating the abandonment of an originalist approach to interpretation but was only suggesting that there are some pitfalls one may encounter in dispensing with the benefits of tradition and historical meaning. As I indicated, certainly there is a space for *new data* and new data sources. However, I feel that this new data may best be utilized when confronting civic / political behavior / policy aspects of positive law; there remains to my mind a far greater difficulty in reconciling *original* intent / meaning / method with the new data absent some measure of historical understanding.

On the good side, it reminds me that in my next order from amazon, I will get your (and Rappaport's) book so that I am not talking out of my hat regarding your approach. (Of course, nobody really believes that I am doing so, ha!).

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gabe
on February 25, 2015 at 17:37:44 pm

Nobody:

Ah, you seem back on track now - good!

A serious question:

"..... but because I live under different circumstances. And so it is with Burke’s views about the relative merits of experience and abstraction"

In what way may it be said that we do so live. Certainly, the speed with which information is shared / communicated is far greater as is the amount of data available to any one with a minimal interest in learning / assimilating such data.
Clearly, we may be able to make better determinations in the areas of the technical sciences, marketing, medicine, etc. I think we both would (and do) applaud this new found freedom / capability.

Yet, human nature has not, to my mind, changed so considerably as to be able to allow us to dispense with the countless centuries of human learning with respect to our civil intercourse and obligations. Yes, on some superficial level we may have made some alterations (not necessarily for the good sometimes) in how we perceive others and in our behavior. Yet, it is not clear to me that new data and new attitudes are sufficient to alter some of the more problematic aspects of human social intercourse. Yes, it may be possible to more accurately gauge the *effects* of some policy prescription while still not illuminating the "rightness" of such policy.
In some ways, it seems as if we are proposing to replace a morals or ethos based formulation of civil society with Mills utilitarianism.

I suppose for a positivist, this would be acceptable but how about we ancient dinosaurs - what are we to do?

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gabe
on February 26, 2015 at 12:42:41 pm

Perhaps I’m overly influenced by my recent review of David Christian’s 24-hr long Big History. There can be no doubt that change has accelerated enormously. That said, the change in “human nature” has not. Thus, when it comes to making predictions about human nature, presumably the past remains as good a guide as we’ve got.

With respect to other issues, however, the past may prove a less reliable guide than more abstract reasoning. This is pretty much the theme of Black Swans: We are prone to discount the risk of entirely foreseeable and monumental events merely because they are so rare as to be beyond the realm of our experience, or the experience of anyone with whom we identify.

“Sure, military exercises show that the Japanese could inflict crippling harm on Pearl Harbor before we knew what had hit us. But they’ve never done that in the past, right?”

“Sure, studies show that a hurricane would flatten New Orleans. But when was the last time that happened?”

"Housing values -- fall? Yeah, right. I think all those 1930s movies are going to you head...."'

"A nuclear meltdown in Japan? Hello, it's the 1970s calling; they'd like their plot lines back...."

“Mt. Vesuvius? Seriously? What century are you living in?”

Only by relying on our abstract reasoning rather than our human nature can we bring ourselves to plan for such contingencies. So perhaps McGinnis is simply noting how the widely –admired conservatism of Burke balances the widely-admired radicalism of Black Swans, and noting how changing circumstances tip the balance in favor of Black Swans day by day.

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nobody.really
on February 26, 2015 at 12:54:54 pm

Yeah, but McGinnis seems to imply (at least in my reading) that this new data is applicable to some of the more fundamental political / creedal issues.

all of your points above are certainly valid AND correct. I think we both agree that in these spheres, one need not (ought not, perhaps, in terms of military planning) be overly reliant on the past. Yet, if one takes something as fundamental as , say, separation of powers / federalism, can one say that our current confusion is a better guide than the *ancient* wisdom of the good old founders.
I think not.
And I think this is especially true for Supreme court adjudications.
But I am an old dinosaur and prone to be fearful of volcanoes!!!

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gabe
on March 01, 2015 at 18:04:53 pm

There are two kinds of historical experience to keep in mind here. Burke is usually associated with the kind we call "tradition." A given country should stick with what it has been doing. As we are creatures of habit, and habits combine to form cultures, rapid and radical change is unlikely to succeed. That is still true, but the particular habits about which we are talking are rather different than those Burke dealt with, in many cases. Indeed, many of the traditions are connected with things he fought against.

There is also history as the record of human behavior--think of it as the ultimate social science date set. As there is a human nature, by studying history we can learn to infer what causes will produce what effects in the affairs of men. That is still true also. The trouble is that students of history tend to want to draw more rigid conclusions than the date allow. Why? History demonstrates that human beings, historians among them, tend to exaggerate the importance of their own field.

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Richard S

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