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A Victorian Case for Ordered Liberty

“Classic” works of political philosophy can be challenging to 21st century readers for the same reason they are rewarding — timeless concepts are presented in a sometimes-unfamiliar manner. In Liberty, Equality, Fraternity, first published in book form in 1873 (and reprinted by Liberty Fund in 1993, edited by Stuart D. Warner), James Fitzjames Stephen offered a rebuttal to John Stuart Mill’s On Liberty (1859).

Ideological labels and alignments were different 150 years ago, as were prevailing intellectual attitudes. Stephen was a classical liberal, not a “conservative,” and Mill — often thought of as a libertarian — more closely resembled a modern liberal, and late in life, a contemporary European social democrat. Stephen’s arguments go beyond the conventional conservative versus liberal dialectic, and focus on the often-overlooked concept of “ordered liberty,” once thought to be indispensable to a free society.

Stephen was obviously influenced by the tumultuous forces of his day — now largely forgotten: industrialization, urbanization, colonialism, the campaign for universal suffrage, and the nascent women’s rights movement. One can almost imagine the patrician Stephen, an English lawyer (and later a judge), pondering the “state of nature” amidst the upheaval, poverty, and chaos of 19th century London. Stephen’s world in the Victorian era was quite different than ours, but the perennial debates between “libertinism” and “ordered liberty,” and between egalitarianism and free-market exchanges, continue. The underlying ideas remain vital.

What emerges from Liberty, Equality, Fraternity is a bracing — if at times jarring — reflection on what Warner refers to in his Foreword as the “triptych” of political values that comprise the title of Stephen’s book (and the creed of the French Revolution, against which Stephen’s polemic rails).

Stephen and Mill both embraced utilitarianism, but advocated dramatically different views of liberty, owing in substantial part to their disparate conceptions of human nature. Stephen believed that Mill — who espoused unfettered individual liberty in matters of conscience, speech, and morality — had “formed too favourable an estimate of human nature.” Unbridled liberty, Stephen complained, “would condemn every existing system of morals” (which ultimately rest on compulsion). Stephen insisted that Mill was naïve in presupposing that man’s self-control, guided by customs and reason, would protect him from his baser instincts — passion, wickedness, and weakness.

Stephen, in contrast, was a devotee of Thomas Hobbes (and especially his magnum opus, Leviathan), and had a deeply pessimistic vision of mankind, whom he regarded as prone to conflict and overwhelmingly “selfish, sensual, frivolous, idle, … and wrapped up in the smallest of petty routines.” Accordingly, Stephen felt that goodness had to be inculcated externally, by society’s promotion of virtue and religion. Left to its own devices (as envisioned by Mill’s harm principle), humanity would resemble a “stagnant marsh … putrefying and breeding fever, frogs, and gnats.” Stephen saw laws promoting morality as a desirable form of coercion, constituting (in a hydraulic metaphor that he frequently turned to) pipes, channels, and pumps, directing the “water” (humanity) to a useful purpose — “a proper water-works.”

If Stephen’s reasoning at times seems anachronistic to the modern reader, it is because we have become accustomed to the Pollyannaish view of human nature held by Mill — a utopian fallacy of modernity. If man is basically good, as modern liberals and radical individualists assume, he will independently make sound decisions and can realize his potential greatness of character entirely on his own. Stephen sharply disagreed.

Stephen defended the Calvinist notion that man is a flawed creature who struggles in choosing between good and evil. Man’s inherent vices can be overcome only by appealing to his better nature, liberating him to enjoy ordered liberty — the “freedom to be good and wise.” To this end, Stephen supported the propagation of morality, culture, tradition — and even religion — through law. To Stephen, the restraint of antisocial conduct builds character and makes liberty within civil society possible. In Stephen’s words, “Liberty means not the bare absence of restraint, but the absence of injurious restraint” (emphasis added).

By providing a context of culture and morality, and discouraging his baser instincts, civilized society allows man to exercise virtuous (i.e., true) choice. This is the essence of “ordered liberty.” Because morality is reinforced externally, through government and other institutions, Stephens believed—paradoxically to some modern readers – that “liberty…is dependent upon power.”

Stephen was a brutal realist, and an energetic instrumentalist. He believed that society can and should legislate morality; the failure to do so would lead to intemperance, debauchery, torpor, and anarchy. Stephen was anxious about the envious gaze of political majorities when it came to matters of economics (which he analyzed under the rubric of “equality”), but he felt that it was essential for a bourgeois society to reinforce its cultural norms through the apparatus of the state. Other than supporting the enforcement of morals, Stephens hewed to what is now regarded as the libertarian (or free-market) position, whereas Mill — the storied defender of liberty — advocated egalitarianism, and eventually even socialism. Ironically, Mill’s notion of laissez-faire did not extend to economic relations.

Stephen realized that the prevalence of indolence, imprudence, hedonism, and ignorance among mankind would — absent intervention — ineluctably lead to inequality of results. Left to their own devices, some people would become more prosperous than others, and Stephen felt strongly that such unequal outcomes were essential in a free society. “Human beings are not equal,” he recognized. Eschewing Mill’s egalitarianism, Stephen maintained that “Of all items of liberty, none is either so important or so universally recognized as the liberty of acquiring property. It is difficult to see what liberty you leave to a man at all if you restrict him in this matter.” Thus, to Stephen equality of results was antithetical to equality under the law (or liberty, properly understood), and to the rule of law.

Stephen emphatically rejected Mill’s view of women’s rights. Mill advocated complete equality between men and women, meaning the elimination of all privileges and disabilities based on sex. In the 19th century, this was a radical notion, which Stephen vehemently opposed. What Mill regarded as the subjugation (or “subjection”) of women Stephen (ever the instrumentalist) saw instead as arrangements necessary to preserve the bourgeois social order vital to the promotion of morality. Distinctions between the sexes, Stephen argued, are not only justified by physical differences (explaining why only men are conscripted for military service), but also to protect the institution of marriage and to foster women’s vital role as mothers and homemakers. Stephen’s views on this subject — a mixture of paternalism and pragmatism — generally mirror those of modern social conservatives.

Stephen’s view of “fraternity” — the relations among members of civil society — is misanthropic. Stephen expressed a negative view of mankind, which he regarded as being engaged in a Darwinian conflict, owing to the Hobbesian human condition:

I believe that many men are bad, a vast majority of men indifferent, and many good, and that the great mass of indifferent people sway this way or that according to circumstances…. [B]etween all classes of men there are and always will be real occasions of enmity and strife, and that even good men may be and often are compelled to treat each other as enemies either by the existence of conflicting interests which bring them into collision, or by their different ways of conceiving goodness. (Emphasis added.)

In his editor’s Foreword, Warner describes Stephen’s vigorous defense of Victorian England against the challenges it faced by saying that he “lovingly cradles the high culture” of his era as the culmination of western civilization — the apogee of human progress. This state of affairs had been arrived at without universal suffrage, and Stephen was quite apprehensive about the threat that expanding democracy posed to the status quo he cherished. The threats of demagoguery and class envy — implicit in democracy — had to be resisted to preserve liberty.

Stephen did not embrace the ideal of brotherly love. Hence, in politics there will rarely be consensus, as Mill supposed, but democratic governance consists of the dominant group imposing its will on the rest. Political power flows to “the man who can sweep the greatest number of [votes] into one heap…. The strongest man in some form or another will always rule.” Stephen, although not enthusiastic about universal suffrage, was resigned to it.

Alas, skepticism regarding the human condition, and advocacy of the concept of “ordered liberty,” have largely fallen out of favor.  A century of increasing affluence and material comfort amid tremendous social change have made us complacent regarding the fragility of the myriad structures — morality, culture, and religion — that foster prosperity and liberty.

Although Stephen makes the better case, Mill remains better known. Modernism favors Mill’s exaltation of individuality over the interests of society — the celebration of the maverick — even if it rests on a utopian conception of human nature. Writing in The New Criterion, Roger Kimball concluded that “Intellectually, Stephen made mincemeat of Mill. But that has hardly mattered. Mill’s doctrines have taken the world by storm, while Stephen has receded to become a footnote in intellectual history.”

Fortunately, the debate is not over. This “footnote” is preserved for posterity in Liberty Fund’s catalog of essential books, to be re-discovered by succeeding generations of readers. In the pages of Liberty, Equality, Fraternity, a timeless classic, the debate continues.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on May 17, 2018 at 08:29:20 am

Mark:

Thanks for this piece and your efforts to promote these fine works. You are quite right - it is still timely.

To the Editors in general.

I notice that comments on the LF books are sparse. please do not take that as a sign that there is insufficient interest. It may simply be that some of us feel at a loss to critique the writings of those now long gone. But Mark is right - these issues remain important, ought to be discussed / reviewed and do illumine many current matters.

Keep 'em coming!

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gabe
on May 17, 2018 at 10:16:14 am

and advocacy of the concept of “ordered liberty,” have largely fallen out of favor

This is patently untrue. Though not called "ordered liberty," the coercive imposition of a public morality is precisely what constitutes the programme of the progressive Left. A a moral code, it may not be as coherent as more traditional codes grounded in Greek, Jewish and Christian precepts, but it is an attempt at a moral code all the same, equally based on a pessimistic view of human nature. It was Nietzsche who said, rightly, that secular morality is far more imperative than Christian morality.

The concept is also known as "positive liberty" and is thoroughly analyzed by Isaiah Berlin.

What neither Mill, Stephen ( I am assuming, not having read him) nor any other European political thinker of the 19th or 20th centuries pays sufficient attention to (usually they pay no attention to it whatever) is the version of liberal democratic republicanism institutionalized in the US by the Constitution. The Framers created a government without creating a state, something not true of England. Europeans, being historically conditioned to state administration of their lives, merely contest control of the state for purposes of imposing whatever version of "ordered liberty" the party in control favors. This is as true of liberalism as of any other political theory (see Hobhouse). And apparently Stephen was Hobhousian in this regard.

The Founders wisely removed the legislation of morality from the reach of the new national government they instituted. The work of the last 150 years of the progressive Left has been to transmute that government into a state, complete with all the apparatus any European is intimately familiar with. And now that apparatus is become the perfect instrument for the progressive Left's legislation and imposition of its ideas of morality. And lest anyone think the danger is all from the Left, I can demonstrate the danger of the religious Right in one phrase: Griswold v. Connecticut.

So Stephen's wish has come true right here in this country, another fine example of "be careful what you wish for."

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QET
on May 17, 2018 at 11:49:49 am

QET-

That is an insightful comment.

For Others-

Suggested reading: Isaiah Berlin's "Four Essays on Liberty" (Oxford 1969) [there are many subsequent paperback reprints by Oxford] In the most cited "Two Concepts of Liberty" Berlin outlines the opposition (citing Sir James Stephens) to Mill's positions. Berlin's distinctions of positive and negative liberty are scoped in Part II of his Introduction (which is worth the price admission).

Here we can see how Liberty Classics can take one deeper into the ranges of thinking on individual liberty.

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R Richard Schweitzer
on May 17, 2018 at 13:13:13 pm

Interesting read.

I would say the problem with Stephen (and Hobbes) is that they fall victim to the same delusion as progressives. Their "pessimistic vision of mankind” somehow dissipates when members of mankind join government. They assume that the very same humans that are too fallen to make proper moral and religious decisions on their own, are somehow qualified, when acting through government, to make those decisions for others. But people do not lose their fallen nature when they join government. If anything power corrupts that nature further.

The classical liberalism of Locke and many of the Founders (rightly understood) was not a rejection of morality. They were wholly aware that limited government and liberty will fail in the absence of a moral populace. The question is whether government is the proper tool for achieving that end?

I would argue that many classical liberals (many of our Founders included) rightly recognized the folly of assuming a government entrusted with the power to make men moral, religious, citizens would use that power wisely. They recognized the failure of the Greek notion that the purpose of government was to make men good. They chose the more humble notion that government should focus on preventing individuals from hurting one another. As Jefferson and Maddison noted in the Virginia statute of religious freedom:

"Almighty God hath created the mind free; that all attempts to influence it by temporal punishment or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was his Almighty power to do."

The more secular French revolution, and Mill’s bastardized utilitarian version of that concept are deeply problematic. But I believe the Lockean view of government is more sound and conducive to liberty, virtue, and flourishing than the statism of Hobbes.

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Chance
on May 17, 2018 at 14:37:02 pm

I second Richard's comment:

the distinction between a "government" and a *state* is quite insightful and apropos. Regrettably, it appears that we too have been lately *blessed* with all the benefits provided by a *state* and may now be said to be without need of the moral and cultural supports previously supplied by religious sentiments and cultural traditions, these psychic, social and political supports now being provided, quite prodigiously I may add, by the minions populating the new American State.

I would differ in one respect, however:
"The Founders wisely removed the legislation of morality from the reach of the new national government they instituted"

while it is certainly true that the Founders "removed" the national government, or more specifically, removed one *mechanism*, i.e. the Legislative from the imposition and codification of morality, it is also true that the founders, indeed both Jefferson and Madison, (cited above) believed and argued that a) the American regime must be comprised of citizens with a religious / moral predisposition and b) were not at all averse to advocating and or permitting (encouraging) STATE governments from legislating moral precepts and conduct. See any of a number of State constitutions.
While the danger of a "religiously affiliated *national government* was a distinct possibility, it must also be observed that the "absence" of any countering religious (if you will) or moral proselytizing / inducements at (first) the national level and (now) the State level has made it possible for the *alternative morality* of the Progressives to achieve its present level of dominance over the Common Mind of both the people and the countless "State-ists" populating the Federal (AND State) appendages.

When there is no acceptable or recognized counter narrative, quite simply, the debate is over. The consequence of this is Progressive dominion.

But I really like the Government - State dichotomy. It says so much in one simple phrase.

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gabe
on August 11, 2018 at 12:15:54 pm

So are you saying that the right has no interest or use for a public morality, other then more and more purchases? Law, whatever it addresses, is morality; i.e. wrong vs. right and, ultimately, good vs bad.

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Rocky Mountain

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.