Can we instill classical liberal principles in administrative law?
The transition from one year to the next prompts reflections on how our relation to the past constitutes the politics of the present. Before the 1700s politics was wholly oriented toward the past. As Robert Tombs puts it in his brilliant new book, The English and Their History: “Legitimacy came from the past: rights, status, property, laws—all were inherited. So desirable changes were conceptualized as a return to a pristine past. The idea was of a stable ordered hierarchy in which all knew and accepted their place.” In that world the culture made political arguments naturally conservative. Public ideals had to be put in the categories created by past practices.
The hierarchy described by Tombs started to break down with the rise of capitalism. But the nature of political legitimacy persisted, as the memory of the people still preserved an idealized past. Thus, even in the eighteenth and early nineteenth century political arguments were almost entirely founded on continuity with past political settlements, real or imagined. The American Revolution was fought on the basis that the British government was violating what they understood as the ancient prerogatives of Englishmen, which were then codified as the Bill of Rights.
But as technology created one new revolutionary invention after another and the market broadly delivered these benefits, the culture necessarily became focused on the future. And as technology has accelerated, future-oriented culture has become more encompassing and even more uninterested in the past. Our heroes tend be the innovators who will bring the next new thing that will change the tempo of our lives until that new thing is itself replaced. As the Star War movies show, even our folk myths are set in the future. And the old are less revered, because our culture values those who are closest to the future, not those who can best remember the past. In such a culture legitimacy does not come from a defined past but an undefined, but presumably more glorious future.
The future orientation of culture has a profound effect on political and legal arguments. For instance, it is not enough to defend an institution, like traditional marriage, to say that is been part of Western culture for hundreds of years. Historical prescription tends to fall as a matter of fact to claims that we can make the world anew with the latest moral intuitions.
Thus, while classical liberalism had a bad year in 2015, true conservatism has had a bad couple of centuries. To be sure, periodically conservative movements resist change in attempt to recover past political ideals and settlements, but they have been by their nature reactionary without the resources in our future-oriented politics to make a sustained case for return to the previously established order.
One might think that classical liberalism faces less danger from the future orientation of politics, because it depends on enduring principles of liberty that best deliver a prosperous future. But this is not so clear. For most, these principles are themselves not intuitive nor are they a matter easily capable of derivation by utilitarian calculation. They too are a legacy of the Western tradition which helps uphold them. As a result classical liberalism also may be imperiled by modernity’s fundamental political break with our past.