It is risky to make pronouncements in a field that one is far from mastering. I hope that the little knowledge of legal theory I learned from Friedrich Hayek, from some Law & Economics writings, and from the French classical liberal tradition mitigate my ignorance. I trust my readers to tell me if I err, hopefully with specific citations, remembering that the hyperlinks in the previous sentence are only examples.
Here is the problem as I see it. Legal theorists and especially practicing lawyers who know little about economics or who have been philosophically indoctrinated in legal positivism (the very contemporary idea that law is what the state decrees) confuse law and liberty. Not all of them, of course, but I would say most of them.
In Democracy in America (Vol. 1, Chap. 16), Alexis de Tocqueville was right to criticize lawyers somewhat along those lines:
Lawyers are attached to public order beyond every other consideration, and the best security of public order is authority. It must not be forgotten, also, that if they prize freedom much, they generally value legality still more: they are less afraid of tyranny than of arbitrary power; and, provided the legislature undertakes of itself to deprive men of their independence, they are not dissatisfied.
[French original] Ce que les légistes aiment par-dessus toutes choses, c’est la vie de l’ordre, et la plus grande garantie de l’ordre est l’autorité. Il ne faut d’ailleurs oublier que, s’ils prisent la liberté, ils placent en général la légalité bien au-dessus d’elle ; ils craignent moins la tyrannie que l’arbitraire, et, pourvu que le législateur se charge lui-même d’enlever aux hommes leur indépendance, ils sont à peu près contents.
Note in passing the questionable second clause of the first sentence in the quote. Had he been an economist, Tocqueville would have doubted that “the best security of public order is authority.” Both theory and history suggest that an autoregulated liberal social order is more secure than a society dominated by an authoritarian political regime. Russia and China provide current examples.
READER COMMENTS
Brandon
Nov 27 2022 at 3:55pm
You’re conflating “authority” with “authoritarian.” These are vastly different.
Pierre Lemieux
Nov 27 2022 at 7:29pm
Brandon: That’s a good point, but it has to be circumscribed. Authority, to be non-authoritarian, must either be private (say, a university where students choose to go, or an “authority” on a topic on which you trust him to know more than you do); or perhaps otherwise be very decentralized like the “social authorities” Bertrand de Jouvenel talks about. But certainly, in a (classical) liberal perspective, any authority that is not voluntarily accepted by all individuals under it is authoritarian toward the ones who don’t accept it: it is to convey this idea of illegitimacy for some of the subjects that the term “authoritarian” has the root it has. For example, a numerical majority that “deprives men of their independence,” as Tocqueville says, is authoritarian. The question of what it means to accept, consent to, an authority is an important question that automatically follows and on which James Buchanan had much to say: see my Econlib review of his The Limits of Liberty. (If you can bear the suspense, I will soon publish on Econlib a review of Brennan and Buchanan’s The Reason of Rules that bears directly on this topic.)
Mactoul
Nov 28 2022 at 2:01am
This again bears upon my previous question to you– how is the limit of social compact defined.
You say people come together and form a social compact but what defines these people? Geography?
And if I don’t want to belong to a social compact or vice-versa– if other people in the compact don’t want me?
Pierre Lemieux
Nov 28 2022 at 11:01am
Mactoul: These are valid questions about contractarianism. There are two strands or answer: liberal (mainly represented by Buchanan today) and Rousseauist. A large part of Buchanan’s (and my essays on his books) has been trying to answer them. See notably his The Limits of Liberty or, with Geoffrey Brennan, The Reason of Rules (which I will soon review on Econlib). The classic work, more technical, is Buchanan and Tullock’s The Calculus of Consent. In these writings, you will also meet the ambiguous figure of Rawls
Brandon
Nov 28 2022 at 5:44am
Even if you and I agree that anti-authoritarian authority must be private or social-decentralized (and I do agree with you), that’s certainly not how Tocqueville understood authority.
Tocqueville’s authority was vested in God.
I look forward to your review but, more importantly, I look forward to you grappling with Tocqueville’s authority!
Pierre Lemieux
Nov 28 2022 at 11:06am
Brandon: Thanks for your comment. Any reference on the concept of “authority” in Tocqueville would be welcome. Mind you, many theorists in the 18th and 19th century (or 17th, cf. Locke) sourced authority in God.
Craig
Nov 27 2022 at 6:19pm
The problem with attorneys is a bias for law making itself. But to be fair the partners in white shoe firms suffer from a similar hubris that infects ivory tower academics.
Mactoul
Nov 27 2022 at 6:45pm
Where in history we can find a spontaneous order that was not supported by an authoritative political order?
Capitalism arose in precisely those states that had greatest evolution and refinement of the political order itself. Where the political order could engage in removing traditional pre-liberal economic order. Witness the success of French Revolution in destroying local privileges, tariffs etc and replacing them by a uniform economic order in a vast territory.
Pierre Lemieux
Nov 27 2022 at 7:38pm
Mactoul: Your example is the best answer to your question. As Tocqueville showed in L’Ancien Régime et la Révolution (The Old Regime and the Revolution), what 1789 did was to replace a hereditary king by a democratic despot. This is a generally accepted idea by students of the French Revolution (modern Jacobins excepted). Bertrand de Jouvenel is only one of the political theorists who learned the lesson of history.
Mactoul
Nov 28 2022 at 1:56am
My point was the spontaneous order needed political order.
Capitalism arose in England, in America and in Europe where the state was strong and orderly in a way it was not elsewhere (like India).
These states prepared way for capitalism by sweeping away the pre-liberal economic order. That order was based upon ancient privileges and local customs.
So the spontaneous order of capitalism wasn’t that spontaneous and was essentially helped into being by a congenial political order.
Pierre Lemieux
Nov 28 2022 at 11:23am
Mactoul: Don’t forget that there was much political order in the Roman Empire (not to speak of China!), but little liberalism; cf. Walter Scheidel’s Escape from Rome. The French or Prussian (and most other) governments in Europe were much more organized (in the Hayekian sense) than the British or Dutch; you will find an interesting view on the Industrial Revolution and the Enlightenment in Joel Mokyr’s A Culture of Growth. As Jean Baechler (quoted by Scheidel) said,
Mactoul
Nov 29 2022 at 3:50am
But is the political anarchy of Baechler an anarchy in libertarian sense?
Otherwise in what sense of the term England or other European countries political anarchies?
nobody.really
Dec 2 2022 at 3:52pm
Looking forward to Lemieux’s impending discussion of this matter. (It’s the advent season, after all!)
But to briefly clarify, could we list historical examples of autoregulated liberal social orders that best secured the public order? Just to put some flesh on these bones.
Pierre Lemieux
Dec 4 2022 at 11:21am
Nobody: Aren’t there many examples, especially if we qualify unregulated social order with “more or less”? Compare China and Hong Kong after WWII, Russia and the United States since the end of the 19th century, China and the UK over a couple of centuries, Germany and Switzerland and since the mid-19th century, even France and the United States since 1788. One could argue that authoritarian empires (think China for a couple of millennia) are more externally secure than freer countries but we must include the security of the average citizen and not only the security of the political rulers.
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