The Prudential Path of Natural Rights

Edmund Burke’s defense of political parties is also a defense of conservatism. It remains true that the “respectability of party”—Harvey C. Mansfield’s perfect phrase from Statesmanship and Party Government: A Study of Burke and Bolingbroke—continues to depend on the respectability of conservatism.

Professor Blitz suggests this also, asking in his Liberty Forum essay what we can learn “from Mansfield’s Burke that helps with our current predicaments.” Among the most valuable lessons, says Blitz, are the meaning of natural rights, the centrality of virtue, and the importance of “attachment to particular institutions.” I would emphasize what connects these. The point of partisan contestation is to moderate our enthusiasm for restructuring the world according to what natural rights seem to demand.

In short, our partisanship should inject prudence into our pursuit of progress (and happiness). But in this respect, the conservatism that Burke tries to make room for does not look very much like the conservatism—or the liberalism, for that matter—we see today.

As Mansfield’s unrivalled book shows, Burke was the first to defend partisan contestation as a permanent, “respectable,” and therefore open feature of modern politics. In the absence of Burke’s defense, one might have defended a single party, perhaps one that aims to end the corruption of the regime and return it to its original purity. Depending on the particular circumstances, such a party-as-restorative-coup might be justified. But once this party had done its work, the occasion for partisan contestation would have passed. And this party—Mansfield calls it the “last party,” since its success would eclipse the need for any further partisan contestation—may need to carry out its work in secret, since it seeks to overthrow those in power.[1] Even the one defensible party is not “respectable,” in that it cannot show itself in public.

Bolingbroke saw his party, the party of the patriot king, as such a onetime necessity. In Mansfield’s telling, Bolingbroke’s men saw themselves as the bearers of the political truths discovered by John Locke and activated by the Glorious Revolution of 1688. Based on first principles of political morality, any opposition to Bolingbroke’s party would be in a sense undeserved. What legitimate party could oppose the party of truth?

As Blitz says, Bolingbroke was in this respect akin to those who would later call themselves “liberals,” or “Progressives,” insofar as later liberals too would see themselves as carriers of true first principles of political morality. Bolingbroke’s ideal of a nonpartisan Patriot King anticipates, as Blitz observes, “the fantasies of the first American Progressives and their contemporary heirs.”

One can see this self-understanding in certain liberals today, at least those who see their own programs as uniquely grounded in principles of justice, their policies uniquely well-supported by evidence. They see their opponents’ programs, by contrast, as tailored to serve the parochial interests of the few and the moneyed, and their opponents’ policies as relying on a distorted depiction of social facts and causes. One side stands for reason; the other side stands for, as former Vice President Al Gore put it in his 2007 bestseller, “the assault on reason.”[2] What else could those who oppose the party of reason be? If liberalism is reason brought to the political world in the form of abstract first principles of political morality, supported by a clear and scientific account of social facts, then the liberal party must see itself as a version of the last party.

This is how Jefferson saw his party’s victory of 1800, the first peaceful and constitutional change of government. Jefferson’s party had accused the Federalists of abdicating the principles of the Revolution and the Constitution, of seeking to replace popular government with an aristocracy, perhaps even a monarchy. The Federalists, charged Jefferson’s ally James Madison, have “debauched themselves into a persuasion that mankind are incapable of governing themselves,” and by intimidating the people through “the pageantry of rank” and buying allies via “the influence of money,” sought to direct the government “less to the interest of the many than of a few” and appeal “less to the reason of the many than to their weaknesses.”[3]

In this light, Jefferson’s party was not merely a party, but was the party. Its victory would restore the regime to its true and right foundations, and foreclose on  any need for partisanship, respectable or otherwise.  Hence at his 1801 Inauguration, Jefferson could announce the end of partisan contestation: “We are all Federalists, we are all Republicans.” The party of progress, in this view, is not merely a part of the whole with its own particular interest; it is the party of reason, the party of the rights of man, the party with a cause to which “all eyes are opened, or opening.” Opposed to it is the party that sides with “monkish ignorance and superstition.”[4]

Today’s liberals sometimes incline to explain (away) their opponents in such terms. Resisting the universal reasons that justify the Progressive program are those who “cling to their guns and their religion,” whose prejudices and attachments blind them to their true interest. If this is not the best understanding of liberalism (and it is not), it is only because Burke showed the rationalists of his day a more effective and more humane way of securing their own goals—which were also his goals—of peace, prosperity, and the protection of individual rights. He did this by founding modern conservatism, a political orientation that contested what would come to be called liberalism by offering liberals a different understanding of themselves and a more humane understanding of their own cause.

Burke did not oppose Bolingbroke’s party and program with a traditional conservatism grounded in Aristotle or Aquinas. “Burke’s own view,” as Blitz writes, “also begins from or accepts natural rights, equal liberty, and free commerce.” And Burke agreed, as Mansfield argues in the book, that “society can be founded on truth.” Burke rather objected to the possibility of founding society on an “abstract truth,” revealed by speculative reasoning about man in the state of nature. Burke’s truth relies on an appraisal of how things are instead of speculation; he opposes Bolingbroke’s rationalism with empiricism.[5] Our rights are not metaphysical abstractions to which the whole social and political world must be made to conform; they are supported by a particular institutional inheritance, and are attached to concrete subjects (like taxation).

Modern conservatism does not reject rights, equality, or freedom, but sees them differently. As such, it invites liberals to see their own cause in a superior way; in particular it invites liberals to understand that securing their own goals requires not revolution but prudence. The full victory of Burke’s party, says Mansfield, would not end party contestation, but would make every party a kind of conservative party: The prudent path to progress is not certain, and politics should make plenty of room for rival (if equally prudential) programs and rival (though all prudential) leaders.

Mansfield notes, of course, that in this respect, Burke did not succeed. Instead of a variety of conservative parties, each contending for rule, party government “alternates today between rationalism and empiricism, between liberalism and conservatism.”[6] Burke’s doctrine of respectable partisanship came to be applied to the parties of liberal rationalism that Burke hoped to extinguish and thought would need to be extinguished if rights, equality, and liberty were to be made secure.

The true meaning of natural rights is that securing rights requires prudence, where prudence means understanding natural rights as implying self-restraint (virtue); that their good exercise makes government both necessary and limited; and that they are realized and sustained by the inherited institutions and habituated practices of a particular political community. This, Professor Blitz says persuasively and elegantly, but he does not emphasize the understanding of natural rights that Burke would have us reject, or forget: rights as abstract axioms discerned by rationally inquiring into the original contract by which people exited the state of nature.

Freedom may be “God’s gift to humanity,”[7] but it is not self-actuating, nor is political order spontaneous, as a cursory reading of Locke’s Second Treatise (1689) might suggest. Many conservatives in the United States today seem more ready to understand rights as fixed abstract axioms, grasped by reasoning about human nature (as it is revealed outside of political community)—just as Burke argued we should not understand them. They seem less likely to say “Go slow!” in an effort to make liberal progress more cautious and humane, than to say “Go back!” to the axioms of political morality that show contemporary Progressive programs wholly mistaken because they violate individual rights.

They are loath to concede that any part of the governmental purposes (or administration) that were inaugurated 80 years ago by the New Deal now constitutes part of our political inheritance—an inheritance that prudential reform ought to treat cautiously, even respectfully. Much of today’s conservatism today betrays the kind of radicalism (and rationalism) that Burke’s doctrine of prudence was meant not only to temper but to extinguish.

It might be said that today’s conservatives are the way they are because liberals are the way they are. Because liberals reject the possibility of rational first principles of political morality (and instead see rights as “anything one wishes to do”), conservatives today have to take the liberal position of old, in order to conserve the rights that liberals once cherished.

To be sure, by the 20th century, Progressives tended to dispute the idea that individual rights, especially the right of property, should limit what government might do for the sake of the common good. “No doubt a great deal of nonsense has been talked about the inalienable rights of the individual rights of the individual, and a great deal that was mere vague sentiment and pleasing principle has been put forward as fundamental principle,” Woodrow Wilson wrote in  Constitutional Government in the United States.[8]

At about the same time (1909), Herbert Croly sounded a more threatening note in his The Promise of American Life, the book that became the intellectual foundation of Progressivism. Croly basically said it’s time to relax the doctrine of natural rights—or else. He wrote:

The time may come when the fulfillment of a justifiable democratic purpose may demand the limitation of certain rights, to which the Constitution affords such absolute guarantees; and in that case the American democracy might be forced to seek by revolutionary means the accomplishment of a result which should be attainable under the law.

Property was the right that Croly had in his sights. Teddy Roosevelt (Croly’s hero) shared the view that property rights must give way to “human” rights, declaring in his famous “New Nationalism” speech after leaving the presidency (and reading Croly’s book) that:

The man who wrongly holds that every human right is secondary to his profit must now give way to the advocate of human welfare, who rightly maintains that every man holds his property subject to the general right of the community to regulate its use to whatever degree the public welfare may require it.

So natural rights, especially the natural right to property, did not survive, at least in the liberal mind, through the 20th century. But liberals found their way back to rights, even if they do not call them “natural.” The liberal love of rights was renewed in 1954, with the Supreme Court’s decision in Brown v. Board of Education, and was deepened by the civil rights movement of the 1960s.

By the latter decades of the 20th century, “liberal intellectuals” like John Rawls and Ronald Dworkin championed individual rights as fundamental to a just society. True, they did not use the vocabulary of “natural rights,” which Dworkin for his part doubted could find a place in a “respectably empirical metaphysics.”[9] They may be founded in an idea of equal citizenship instead of nature, but rights remain far more absolute for contemporary liberals like Dworkin—for whom they should trump legislation aimed at the common good—than they were for earlier Progressives. For liberals like Dworkin, rights trump prudence—exactly Burke’s fear.

If our liberals are insisting that the social world be restructured (perhaps by judges who don’t have to sully themselves by appealing to majorities) to accord with rights founded in an idea of equality, whereas our conservatives are insisting that natural rights are fixed, easy to ascertain and secure, and uncomplicated to establish (such that, with a bit of shock and awe, the world can be remade so that all enjoy their natural freedom and equality), where is the prudence?

We seem to need a new conservatism, or maybe a true conservatism. Perhaps the Burkean task is not complete, and a new defense of party is needed for a new age—one that makes room, again, for prudence.

[1] Harvey C. Mansfield, Statesmanship and Party Government: A Study of Burke and Bolingbroke (University of Chicago Press, 1965), p. 113.

[2] Al Gore, The Assault on Reason (Penguin Press, 1997).

[3] James Madison, “A Candid State of Parties,” National Gazette, September 26, 1792.

[4] Thomas Jefferson, “Letter to Roger Weightman,” June 24, 1826.

[5] Mansfield, Statesmanship and Party Government, pp. 85, 245.

[6] Ibid., p. 245.

[7] George W. Bush, State of the Union address, January 28, 2003.

[8] Woodrow Wilson, Constitutional Government in the United States (Columbia University Press, 1908), p. 16. Wilson in this section was making a Burkean point: “Only that is ‘law’ which can be executed, and the abstract rights of man are singularly difficult of execution.”

[9] Ronald Dworkin, Taking Rights Seriously (Gerald Duckworth and Company, 1977), p. 6.

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 October 16, 2015 at 09:48:25 am

One should defer (somewhat) to the scholars and teachers in this field (such as Kevin Hardwick, who comments here) and yet there seems to be some oversight in failing to distinguish "Parties" or "Factions" formed within Parliaments or the Legislatures and those which came later into existence as part of the electoral process (whatever its form) to determine membership in those bodies.

It is quite a different thing to observe, comment on and even structure ethics and principles for the actions of members of an organization from dealing with the same for those seeking such membership from an electorate.

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R Richard Schweitzer
on October 16, 2015 at 20:02:32 pm

I'm constantly amazed at the quality of conversation the Law and Liberty allows the general public to read. It's like switching from McBurgers to five star meals. Brilliant, professor. Thank you for taking the time.

This is a very dense essay, but after reading this three times, I finally got it.

My one question about this essay has to do with the closing. It presupposes that the problem with our government is a problem with philosophy, not architecture. I am a software engineer. A systems guy. When I look at government I see a system that was originally designed to have a generally moral and rationalist Senate filtering the mercurial and sometimes infatuous governmental desires of the populist House. Yet, we don't have that so we have government going predictably the way of all populist government--towards fascio-socialist democracy.

The focus at the closing is only on philosophy of government. Can't incorrect architecture also create problems, even when the general philosophy is correct?

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Scott Amorian
on October 17, 2015 at 20:22:27 pm

Thank you for the astute comments.

Mr. Schweitzer is right to point out that Burke was talking about legislative parties, or what we now call caucuses. As he says, the legislative caucuses he was discussing did not yet have an elaborate set of institutions to rally the "party-in-the-electorate" to their side. So there is going to be some slippage in moving between the 18th century Parliamentary party and today's parties. (Professor Blitz notes this in his essay as well). Some of the points I want to make may not hold if the slippage is too great--if the 18th century party Burke defended is *too* different from the modern party. My hunch is that the likeness (between the 18th century parties and todays) shows not when we look to the institutions, but when we look to the logic of disagreement. Burke's argument for making principled disagreement "respectable" holds, I think, when applied to the principled disagreement of partisans today.

Mr. Amorian notes that institutional design matters--not only the ideas and philosophy--if we are to understand what to do about the predicaments we face today. I very much agree. So, I presume, would James Madison. Institutional design matter a great deal--often more than moral and philosophic ideals. Madison's constitutional design was meant to get the best from citizens and officials. Perhaps new "systems designers," alive to the inclinations of modern democracy, could discover institutional reforms that more reliably elicit the best from people?

Thank you for the thoughtful comments.

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Russell Muirhead
on October 18, 2015 at 13:42:28 pm

"Burke’s argument for making principled disagreement “respectable” holds, I think, when applied to the principled disagreement of partisans today. "

As a mere reader of Burke, and deferring to the more recent studies of Yuval Levin and Greg Weiner, amongst others, one may still offer the value of considering the differences (in affiliations based on principles -as a suggested basis for parties and factions) between those forms of "partisanship" expressed **within** the functions of a legislative (or parliamentary) process from those expressed in the electoral actions to form and empower that legislative process.

It may bear consideration that some "constituencies," in expressing their partisan "principles" presume to delegate powers beyond their capacities to convey; and thus the "disagreements" turn on capacities to delegate rather than amongst principles.

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R Richard Schweitzer

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.