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.