Constitutionalism, legitimacy and modernity

in the of

Eric Voegelin, and

[Draft – please do not cite]

Noël O’Sullivan Hull University UK November 2010

2

Constitutionalism, legitimacy and modernity in the political philosophy of , Leo Strauss and Michael Oakeshott,

Abstract : The principal concern of European defenders of liberal after the Second World War was to restate the case for constitutional in terms that would provide a conclusive critique of totalitarian ideology in all its forms. What united Michael Oakeshott, Leo Strauss and Eric Voegelin was their shared commitment to this task. Beneath this unity of purpose, however, lay profound disagreement about the precise meaning of constitutionalism and the nature of its relation, more generally, to Western modernity. The aim of the present paper is to suggest that Oakeshott alone develops a coherent conception of modern constitutionalism, mainly because he alone focuses systematically on the problem to which constitutionalism in its ethical and non- instrumental form is a response. This is the problem of legitimacy which first emerged at the beginning of the modern period in the form of the question: under what conditions can obligation to law exist in a non-voluntary association (i.e. the state) whose members desire a self-chosen life ? In the pre-modern era, the problem of legitimacy in this distinctively modern form could not arise due to the assumption that the power of rulers over subjects is rationally or divinely ordained by the order of the universe itself. In the modern period, however, this kind of cosmically grounded concept of legitimacy is no longer available. In its absence, the only viable modern response consists in constructing a public realm in which both rulers and ruled participate, thereby making politics more than mere power or domination. Accordingly, the main condition for political legitimacy in modern Western liberal is, in Oakeshott’s words, that a government must be ‘constituted in such a way that it can be considered as belonging to the governed and not as an alien power’. 1 In practice, representative government has been the means of achieving this outcome. When Oakeshott’s identification of the primary condition for political legitimacy is borne in mind, the principal failing of Strauss and Voegelin as defenders

1 Oakeshott, M. (200), ‘The Concept of Government in Modern Europe’, in Collingwood and British Idealism Studies, 12, 17-35. First published as ‘La Idea de Gobierno en la Europa Moderna’ (Madrid: Ateneo, 1955). This was a Spanish translation of a lecture delivered in English at the Ateneo, Madrid. 3 of constitutionalism is immediately apparent: it is their tendency to evade the problem due to their dominant concern with comprehensive cultural critiques focused on nihilism, in Strauss’s case, and on secularized forms of the Gnostic heresy, in Voegelin’s. As a result of this concern with cultural critique, both thinkers fail to disengage the conditions for political legitimacy from the intellectual and moral conditions for spiritual order. In Strauss’s case, the form of constitutionalism he favoured was the ancient kind resting on wisdom and virtue, rather than the modern procedural kind. The central problem presented by his political thought, however, is that his critique of modern constitutionalism from a classical standpoint is open to the charge of being a caricature, a charge which may be made quite regardless of the truth or falsity of his belief that classical thought has a secret or esoteric character designed to conceal a message which only the privileged scholar may penetrate. In Voegelin’s case, as in Strauss’s, a commitment to constitutionalism was at odds with his desire to protect postwar democracy from subversion by the Gnostic yearning for salvation which he believed had inspired modern radical ideologies (and continues to inspire neo-, for example). The outcome in both instances was potentially authoritarian sympathies which were more likely to subvert any modern constitution than to defend it. What distinguishes Oakeshott from both thinkers is his commitment to an essentially procedural form of constitutionalism expressed in the juridical ideal of civil association as alone appropriate to Western modernity. It will be argued that although Oakeshott’s ideal of civil association is difficult to extricate from the integrating aspects of , economic prosperity and welfare policy which have accompanied its historical development in the nation state, it nevertheless, remains the only conception of constitutionalism that offers a coherent response to the problem of legitimacy – that is, to reconciling authority with freedom.

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The principal concern of European defenders of a free after the Second World War was to mount a critique of which would ensure that it never recurred in Western liberal democracies. What united Michael Oakeshott, Leo Strauss and Eric Voegelin was the belief that this critique must take the form of a defence of 4 constitutional government. The three thinkers disagreed profoundly, however, about precisely what constitutionalism means, as well as about the crisis of modernity which they believe threatens it. Eric Voegelin’s treatment of these issues will be considered first.

Voegelin

Voegelin believed that the form of constitutionalism adopted by liberal democracies after 1945 provides no protection against the return of dictatorship because it offers no remedy for the spiritual malaise which, after inspiring the radical ideologies of the inter-war era, continues unabated into the post-war decades, after. This malaise he attributed to a secularized version of the ancient Gnostic heresy, the essence of which is the experience of the existing order as a prison from which liberation must be sought by violence if necessary. In its secularized and politicized form, the Gnostic experience consists of alienation from the established social order so profound that ideologies offering the prospect of an escape from it by are welcomed. It is not relevant in the present context to explore Voegelin’s interpretation of the stages by which he believes Gnosticism was gradually transformed from a religious heresy (as the Church labelled it) during the early centuries AD into a secularized interpretation of history from the time of Joachim of Fiore in the twelfth century. Thereafter, the process of ‘immanentizing the Christian eschaton’, as Voegelin termed it, led to a political vision of earthly salvation through revolutionary violence which eventually triumphed in the totalitarian ideologies of the twentieth century. The seven league boots worn by Voegelin in the course of his account of the two millennia during which he argues that the transformation occurred, it need hardly be said, have been criticized on the ground that his giant strides testify more to his speculative ability than to his regard for historical accuracy. What is more to the point is that, ironically, his desire to protect post-war democracy from subversion by Gnostic-inspired authoritarian political movements led him to sympathize with a potentially authoritarian solution more likely to subvert modern liberal democratic constitutions than to protect them. The tension between constitutionalism and in Voegelin’s political thought is evident above all in a crucial distinction he made in The New 5

Science of Politics (1952) between two different kinds of representation in the course of specifying the kind of reform required in order to place liberal democracy on a secure foundation. One kind is what he termed ‘elemental’ representation, and the other, ‘existential’ representation. By ‘elemental’ representation Voegelin referred to the formal system of popular elections on which modern western liberal democracies rely. Its weakness is that it leaves a society at the mercy of any Gnostic tendencies to which the masses are prone. By ‘existential’ representation, he referred to a system in which the ruler is representative in the deeper sense that the values he stands for reflect the society’s whole way of life. 2 Voegelin’s contention was that only a democracy based on the latter, existential kind of representation is secure against extremist movements like because it permits power to be placed in the hands of an élite which is free from Gnostic tendencies. As Hans Kelsen, one of Voegelin’s former doctoral supervisors, was not slow to point out, the concept of existential representation could easily sanction exactly the kind of totalitarian system Voegelin opposed, since it permitted the Soviet government, for example, to claim to be the existential representative of society. 3 More generally, the concept of existential representation provided a means of subverting any liberal democracy simply by asserting that its established legal and political institutions were not genuinely representative. Voegelin would no doubt reply that this misrepresented his intention, which was to fight the continuing influence of Gnosticism in postwar German culture. The danger, however, was that this task would require ‘de-Gnostification’ processes akin to the denazification ones that had risked reintroducing totalitarian forms of rule. Although Kelsen’s critique of Voegelin was cogent, a still more searching critique of his thought was advanced by Oakeshott, who questioned Voegelin’s claim to offer a ‘New Science of Politics’. Voegelin was right, Oakeshott maintained, to argue that the impact of positivism upon political theory since the second half of the nineteenth century has seriously undermined the ability of political thinkers to defend a constitutional commitment. Voegelin failed, however, to provide a coherent

2 E. Voegelin, The New Science of Politics (Chicago: University of Chicago Press, 1952), p.38. 3 H. Kelsen, ‘Foundations of Democracy’, Political thought since , W. J. Stankiewicz, (ed) (New York: Free Press of Glencoe, 1964), p. 73. Voegelin completed his doctorate with Hans Kelsen and Othmar Spann in 1922. On Voegelin’s subsequent relationship to the former, see B. Cooper’s introduction to E. Voegelin, Political Religions (New York: Edwin Mellen Press, 1996), pp. vi-viii. 6 alternative to positivist political theory. More precisely, his attempt to construct a ‘New Science of Politics’ turns out to offer nothing more than a caricature of the most viable modern form of constitutionalism, which is the ideal of civil association. 4 What Oakeshott meant by civil association will be considered below. For the moment it suffices to observe that Voegelin’s theory of constitutionalism is incoherent partly for the reason given by Kelsen, which is that his concept of existential representation is incompatible with constitutional democracy, and partly due to the one given by Oakeshott, which is that his new science of politics is incoherent.

Strauss

Like Voegelin, Strauss believes that the kind of constitutionalism which characterizes post Second World War liberal democracies does not provide an effective barrier against the recurrence of totalitarianism. Such a barrier will only be achieved, he maintains, by grounding constitutional democracies on the classical concept of natural right rejected by almost all modern political philosophers since Machiavelli. Strauss illustrated the fatal flaw of modern constitutionalism caused by the decline of natural right by focusing in particular on the plight of contemporary liberal democracy in the USA. Whereas the self-evident truths proclaimed in the Declaration of Independence as the basis of American constitutionalism rested on unchanging principles of natural right, he wrote in Natural Right and History , the post Second World War American intelligentsia has come to regard those self-evident truths merely ‘as an ideal, if not as an ideology, or a myth’. Such, at least, is the situation in the social sciences. With the exception of Roman Catholic social science, Strauss wrote, American social science ‘is dedicated to the proposition that all men are endowed by the evolutionary process or by a mysterious fate with many kinds of urges and aspirations, but certainly with no natural right’. 5 There is, consequently, now no higher standard available by which the ideals of any society can be judged,

4 M. Oakeshott, ‘The New Science of Politics’, in What is History ? and other essays , ed. Luke O’Sullivan (Exeter: Imprint Academic, 2004), p. 232. Oakeshott refers to civil association in his review of Voegelin as ‘neo-Augustinian politics’.

5 Natural Right and History (University of Chicago Press: Chicago and London, 1953), p. 2. 7 with the result that ‘the principles of cannibalism are as defensible or sound as those of civilized life’. 6 All that is now left as a foundation for constitutionalism is ‘our blind preferences’, which means that ‘everything a man is willing to dare will be permissible’. In a word, ‘The contemporary rejection of natural right leads to nihilism – nay, it is identical with nihilism’. 7 In short, the threat of totalitarianism did not come to an end in 1945 with the victory of Western liberal democracies: although they triumphed on the battlefield, they have been defeated at the cultural level by the historicism and relativism which their erstwhile German enemy has transmitted to the European world at large. 8 What then is required in order to provide a satisfactory philosophical foundation for modern constitutional democracy? The answer Strauss gives in What is Political Philosophy? is that ‘liberal or constitutional democracy comes closer to what the classics demanded than any alternative that is viable in our age’. 9 The contemporary need, therefore, is to recover the classical perspective in political philosophy, the essence of which is that it grounds society on the unchanging natural order within which human life is lived. For contemporary political thinkers to recover the classical perspective, however, is made almost impossible by the dualism of subject and object which the modern world has taken over from modern natural science. Echoing Heidegger’s rejection of this dualism as an accurate description of our relation to the world, Strauss writes that

The natural world, the world in which we live and act, is not the object or the product of a theoretical attitude [of the scientific kind]; it is a world not of mere objects at which we detachedly look [as passive spectators] but of ‘things’ or ‘affairs’ which we handle. . . [A]s long as we identify the natural or prescientific world with the world in which we live, we are dealing with an abstraction [because] the world in which we live is already a product of science, or at any rate is profoundly affected by the existence of science. 10

6 Natural Right and History (University of Chicago Press: Chicago and London, 1953), p. 3. 7 Natural Right and History (University of Chicago Press: Chicago and London, 1953), pp. 4-5. 8 Natural Right and History (University of Chicago Press: Chicago and London, 1953), p. 2. 9 What is Political Philosophy? (New York: The Free Press of Glencoe, 1959), chapter on ‘The Restatement of ’s Hiero’. (Quoted on p. 194 of On Tyranny .) 10 Natural Right and History (University of Chicago Press: Chicago and London, 1953), p. 79. 8

What makes the wisdom of classical philosophy difficult to recover today, however, is not only the subject-object dualism absorbed by the modern world from natural science: it is also the tendency of pre-modern philosophers in particular to mask their true thoughts in order to avoid persecution for challenging illusions necessary to legitimate the existing social order – illusions which conceal, for example, the unavoidable role of violence in the foundation of all and the untenable nature of the universalist claims which societies commonly make on behalf of their moral ideals. Understanding pre-modern philosophical texts therefore requires extraordinary historical scholarship to disclose the esoteric message which a philosopher may have carefully hidden behind his public or exoteric one. This does not mean, Strauss hastens to add, that philosophy is reduced to history, as modern relativist doctrines hold. It means, rather, that the aim of historical scholarship is what he terms a ‘nonhistoricist understanding of historicism’ that enables us ‘to understand classical philosophy exactly as it understood itself’. 11 In the face of the difficulties just indicated, how is classical knowledge of natural right to be recovered? Strauss’s answer is that, given adequate historical scholarship, ‘the information that classical philosophy supplies . . . suffices, especially if that information is supplemented by consideration of the most elementary premises of the Bible, for reconstructing the essential character of ‘‘the natural world’’.’ 12 In order to understand the precise contribution classical wisdom can make to providing a sound foundation for contemporary constitutional democracy, however, it is necessary to be clear that the knowledge it yields of the natural world is of two different but related kinds. The first kind is philosophical wisdom ‘in its original, Socratic sense’, which consists simply of ‘knowledge that one does not know’ – knowledge, that is, that what one thought was knowledge is in fact only opinion or doxa .13 What is mainly relevant in this connection is that Socratic wisdom does not consist of discovering a list of ontological or metaphysical truths which can then be applied to politics. It consists, rather, of an essentially unending quest for knowledge of ultimate problems at the heart of human existence which can never be removed, and to which the only

11 Natural Right and History , p. 33. 12 Natural Right and History (University of Chicago Press: Chicago and London, 1953), p. 80. 13 Natural Right and History , p. 32. 9 appropriate response is openness to their reality. 14 By its very nature, this Socratic quest is too critical of mass opinion to permit philosophers to be rulers. It nevertheless makes an indirect but vital political contribution by destroying the claims of politicians to possess absolute knowledge or definitive answers, thereby providing a basis for piety and modesty through appreciation of the complexity of political problems and the possibility of alternative solutions. In addition to fostering modesty and piety, classical philosophy makes a more direct contribution to politics by distinguishing between practical and theoretical wisdom. What politics requires is practical wisdom, the concern of which is with ‘principles of action’ that are known quite independently of the theoretical sciences (viz. physics and metaphysics). These principles can in fact only be experienced through actual involvement in practice itself. 15 Because they ‘are the natural ends of man toward which man is by nature inclined and of which he has by nature some awareness’, knowledge of them is not confined to an élite but is, on the contrary, fully accessible to common sense. It must immediately be added, however, that for Aristotelian political science, common sense ‘shows itself primarily . . . in public or authoritative speech [and] particularly in law and legislation, rather than in merely private speech.’ 16 Because classical political science is firmly based on the common sense of thoughtful citizens, Strauss emphasizes, it is totally different from contemporary political science, which makes a virtue of ignoring common sense on the ground that it is wholly subjective. In order to achieve objectivity, contemporary political science concentrates instead on empirical data that can be quantified. Although this approach may well yield objectivity, Strauss contends, it lacks a criterion of political relevance of the kind inherent in common sense and therefore inseparable from classical political science. Instead of political wisdom based on common sense, all that is offered by contemporary positivist political science is specialists in quantitative methods who claim to be able to predict political events but inevitably find that the world is too complex for them to do so. 17 In order to remedy this situation, it is not sufficient to restore contemporary common sense to the fundamental position classical thought assigned it in the study

14 Ancient and Modern (Chicago: University of Chicago Press, 1989) p. 14. 15 Liberalism Ancient and Modern (Chicago: University of Chicago Press, 1989) p. 205. 16 Liberalism Ancient and Modern (Chicago: University of Chicago Press, 1989) p. 206. 17 Liberalism Ancient and Modern (Chicago: University of Chicago Press, 1989), pp. 203-223. 10 of politics: it is also necessary to restore the gentleman, who is the possessor of common sense, to his proper position in the political arena. Unlike the philosopher, Strauss stresses, the gentleman is not an intrinsically subversive figure because he realizes that in political things

it is a sound rule to let sleeping dogs lie or to prefer the established to the nonestablished or to recognize the right of the first occupier. Philosophy [in contrast] stands or falls by its intransigent disregard of this rule and of anything which reminds of it. Philosophy can then live only side by side with the city . . . The city needs philosophy, but only mediately or indirectly, not to say in a diluted form . . . the city as city is more closed to philosophy than open to it. 18

The philosopher and the gentleman, then, have different standpoints. The gentleman, however, is not in conflict with the philosopher since the practical wisdom he possesses is merely ‘a reflection of the philosopher’s virtue’ at the political level. 19 But how, it must be asked, does the gentleman acquire the practical wisdom which entitles him to rule? The answer is through liberal education, which ‘consists above all in the formation of character and taste’. 20 It is his liberal education that permits the gentleman to perform his function of rescuing constitutionalism by restoring the link between wisdom, responsibility, moderation and constitutionalism which existed in classical thought. Only by diffusing liberal education, in consequence, is it possible to provide ‘the ladder by which we try to ascend from mass democracy to democracy as originally meant. Liberal education’, in short, ‘is the necessary endeavour to found a democracy within democratic mass society’. 21 The problem today, however, is that liberal education is liberal in name only, since what we have in practice is a predominantly technocratic élite committed to controlling nature rather than to shaping character and forming taste. What we see today is in fact ‘hardly more than the interplay of mass taste with high-grade but . . . unprincipled efficiency’. 22

18 Liberalism Ancient and Modern (Chicago: University of Chicago Press, 1989) pp. 14-15. 19 Liberalism Ancient and Modern (Chicago: University of Chicago Press, 1989), p. 14. 20 Liberalism Ancient and Modern (Chicago: University of Chicago Press, 1989), p. 11.

21 Liberalism Ancient and Modern (Chicago: University of Chicago Press, 1989), p. 10. 22 Liberalism Ancient and Modern (Chicago: University of Chicago Press, 1989), p. 23. 11

Although Strauss’s concern with rule by gentlemen inevitably makes his political thought élitist, he emphasizes that his vision is not a purely aristocratic one since the gentlemen must only rule with the consent and cooperation of the masses. This, he observes, is the message to be learned from classical thinkers, who

had no delusions regarding the probability of a genuine aristocracy’s ever becoming actual. For all practical purposes they were satisfied with a regime in which the gentlemen share power with the people in such a way that the people elect the magistrates and the council from among the gentlemen and demand an account of them at the end of their term in office. 23

Having made this concession to democracy, Strauss sums up his position by describing the role of gentlemen as ‘to set the tone of society in the most direct, the least ambiguous, and the most unquestionable way: by ruling in broad daylight. 24 Although this outline of Strauss’s political philosophy does not do to it, it may suffice to highlight the main question posed by it, which is whether Strauss succeeds in providing liberal democracy with a more coherent constitutional theory. I think there are three main reasons why he fails to do so. In the first place, Strauss’s starting point, which is the claim that modern liberal democracy is threatened by nihilism, is not supported by convincing evidence. The chief reason he gives is that the path to nihilism was created by the radical break with pre-modern natural right philosophy which occurred when Machiavelli and Hobbes made the ideas of will and power the starting point for all subsequent moral and political philosophy. Now Strauss is undoubtedly correct to credit Hobbes in particular as providing the framework for all later political philosophy by his insistence on will instead of law as the proper starting point. As Michael Oakeshott noted, however, Strauss is wrong to conclude that the modern period may be defined in terms of a radical break with the premodern concept of natural right. On the contrary, Oakeshott writes, natural right ‘has never died at all, but has [only] suffered transformation and […] renewal’. 25 More generally, he observes, ‘The most profound movement in modern political

23 Liberalism Ancient and Modern (Chicago: University of Chicago Press, 1989), p. 15. 24 Liberalism Ancient and Modern (Chicago: University of Chicago Press, 1989), p. 13. 25 Oakeshott, M., Hobbes on Civil Association (Blackwell: Oxford, 1975), p. 147. 12 philosophy is a revivification of the Stoic theory achieved by grafting upon it an Epicurean theory’. 26 From this point of view, the importance of Hobbes is not that he rejected premodern philosophy but that he was the first modern thinker to experiment with uniting Stoic natural law theory with the Epicurean stress on individual well-being in order to create, Oakeshott suggests, ‘something more comprehensive and coherent than either’. 27 When seen in this light, little room is left for Strauss’s vision of modernity as the story of nihilism. It may be objected, however, that Strauss’s vision of nihilism as the almost inevitable fate of modernity did not rely purely on his interpretation of intellectual history since Machiavelli, since he also points to the failure of the Weimar republic to prevent the emergence of Hitler. The advent of totalitarianism cannot be explained, however, by attributing it to nihilism. The collapse of Weimar was caused, rather, by a combination of historical factors such as the contempt with which the Weimar constitution was widely regarded in Germany from its adoption, on the ground that it represented alien values imposed upon Germany by its enemies; by the fear of class conflict following upon the Bolshevik revolution of 1917, which fuelled fears of a coup in Germany; by a multiparty system which caused political paralysis; by the German sense of national humiliation following upon defeat in the war – a sense intensified by adverse terms imposed on Germany; and by the global economic recession of the late 1920s, which paved the way for Nazi electoral success by creating a sense of insecurity amongst the middle class. So far as nihilistic ideas played any part in the collapse of the Weimar republic, they tended to characterize only a very small intellectual elite, represented by figures like Ernst Jünger and Ernst von Salomon, whose cultural despair played into Nazi hands even though they might not be Nazi supporters. In the case of Italian , nihilism was even less significant, being mainly confined to the colourful Gabriele d’Annunzio. Strauss’s assumption that totalitarianism can be equated with nihilism is open, then, to the charge of historical oversimplification. The second problem created by Strauss’s attempt to refurbish constitutionalism is that by linking that project to the issue of natural right, he risks disconnecting it from the problem of legitimacy with which constitutionalism has

26 Oakeshott, M., Hobbes on Civil Association (Blackwell: Oxford, 1975), p. 148. 27 Oakeshott, M., Hobbes on Civil Association (Blackwell: Oxford, 1975), p. 148.

13 primarily been associated since the beginning of the modern period. This danger is well illustrated by his interpretation of Hobbes in particular. For Strauss, the main interest of Hobbes’ thought is that it based political philosophy on a concept of moral opinion which is fundamentally relativist. What is problematic about this view is not that it is incorrect but that it ignores Hobbes’ broader aim, which was not merely to reject natural right as a normative standard for judging political action but to identify three fundamental aspects of Western modernity that together create the distinctively modern problem of political legitimacy. Hobbes presented the three aspects as features of the state of nature, which may be interpreted as an analysis of the moral predicament to which modern constitutionalism is a response. The first is the disintegration of consensus on spiritual and moral values following upon the decline of the religious authority of the church. The second is the emergence of a presumption of natural equality, following the challenge to social hierarchy which also marked the decline of the feudal order. The third is the preference for freedom, in the form of a self-chosen life that characterized the modern world. In an age characterized by the three features just mentioned, Hobbes maintained, the only kind of state which can provide a non-coercive, morally based mode of integration is a formal or procedural one. Only this formal conception of the state, he maintained, can accommodate the diversity which marks the newly emergent social order because it does not impose uniformity by demanding commitment to a common purpose of any kind. Instead, it merely requires acknowledgement by all citizens of the authority of a sovereign. This sovereign, Hobbes emphasized, is not a ‘natural’ but an ‘artificial’ person, by which he meant that it consists, not of a specific individual or group, but of an impersonal, legally constituted office whose occupant is authorized to make law. Law, in turn, consists not of orders or commands backed only by power, but of rules which obligate because they are acknowledged as authoritative. For Hobbes, in other words, the legitimacy of law depends neither on the acknowledgement by subjects of the virtue of rulers, nor of their rationality, nor of the desirability of the laws they make, but only of their authority. For Strauss, in contrast, it is impossible to consider seriously the formal or procedural constitutionalism which Hobbes constructs as the only way of conferring legitimacy on modern states because his own conception of legitimacy remains tied to classical political thought. This conception of legitimacy must therefore be carefully scrutinized. 14

For Strauss, it has been seen, political science must be grounded on the common sense experience of citizens, as it was by . But since ‘there is of necessity a variety of citizen perspectives’, it is necessary for the political order to accommodate diversity. Strauss’s response to the problem of diversity, however, is very different from Hobbes’. For him, unlike Hobbes, the solution does not lie in a concept of sovereign authority but in the search for a political scientist or political philosopher whose perspective ‘encompasses the partisan perspectives because he possesses a more comprehensive and a clearer grasp of man’s natural ends and their natural order than do the partisans’. 28 It is their possession of this perspective that accounts, in particular, for the political authority with which Strauss credits the gentlemen rulers. The liberal education which entitles the gentlemen to rule arises, in other words, from the fact that this education does not simply create character and taste but also gives them a special representative status due to the ‘more comprehensive and clearer grasp of man’s natural ends’ which it confers. 29 Unfortunately, however, representation of this intellectually grounded kind is impossible to reconcile with the legal representation upon which modern constitutionalism depends. By invoking it, Strauss is in fact adopting a version of Voegelin’s concept of existential representation, together with the potentially authoritarian implications already noted. His attempt to revise modern constitutionalism by linking it, like Voegelin, to existential representation means, in short, that he fails to do justice to Hobbes’ contention that only a formal constitutionalism can avoid the potential conflict with individual freedom inherent in all alternative theories. The third problem posed by Strauss’s revision of modern constitutionalism emerges in the course of his critique of ’s concept of the political. Modern liberal political theory, Schmitt maintained, is not properly political at all because it ignores the element of conflict at the heart of human relations. It fails, that is, to perceive that the concept of the political is characterized by the relationship between friend and enemy. Liberal political theory, accordingly, is best described as a depoliticization project consisting of a flight from politics into culture, in the utopian hope that the spread of enlightenment will gradually remove all major sources of conflict from the social order.

28 Liberalism Ancient and Modern (Chicago: University of Chicago Press, 1989), p. 206. 29 Liberalism Ancient and Modern (Chicago: University of Chicago Press, 1989) p. 206. 15

In response to Schmitt’s critique of liberalism, Strauss replied that Schmitt does not go far enough since, far from demolishing the liberal enemy, he remains trapped within the liberal framework of thought despite his efforts to transcend it. Schmitt remains trapped within the liberal perspective because his ‘affirmation of the political as such’ means

the affirmation of fighting as such, wholly irrespective of what is being fought for . In other words: he who affirms the political as such comports himself neutrally toward all groupings into friends and enemies. However much this neutrality may differ from the neutrality of the man [like the liberal] who denies the political as such . . ., he who affirms the political as such respects all who want to fight; he is [therefore] just as tolerant as the liberals – but with the opposite intention: whereas the liberal respects and tolerates all ‘ honest ’ convictions so long as they merely acknowledge the legal order, peace , as sacrosanct, he who affirms the political as such respects and tolerates all ‘ serious ’ convictions, that is, all decisions oriented to the real possibility of war . Thus the affirmation of the political as such proves to be [merely] a liberalism with the opposite polarity. 30

Ironically, Strauss himself fails in the end, despite his acute criticism of Schmitt, to transcend liberalism and achieve the coherent alternative standpoint he sought. Like Schmitt, he unwittingly remains trapped within it, albeit for a different reason. In Strauss’s case, this is that he shares the liberal depoliticization project attacked by Schmitt. This is evident, more precisely, in the concept of representation already examined, in so far as that concept confers a monopoly of rationality on the gentlemen rulers which eliminates the possibility of radical political conflict. What Strauss terms the ‘comprehensive’ knowledge of man’s ends possessed by the gentlemen rulers, in other words, permits them to treat those who disagree with them as benighted cave–dwellers who may properly be excluded from the political arena. In order to avoid possible misunderstanding, it must immediately be added that Strauss’s version of the depoliticization project does not mean that he foresees the end

30 H.Meir, Carl Schmitt and Leo Strauss: The Hidden Dialogue (University of Chicago Press: Chicago, 1995), pp. 116-117. This contains Strauss’s ‘Notes on Schmitt’s Concept of the Political ’, from which my quotation is taken, as well as three illuminating letters from Strauss to Schmitt. All italics in the quotation are in the original text. 16 of the state. That the contrary is true is evident, for example, from his critique of Kojève, whose sympathy for the Hegelian vision of history as the struggle for recognition had led him to envisage a final condition of universal equality in which all men will be reasonably content with the recognition they receive and history will therefore effectively be at an end. For Strauss, in contrast, it is not recognition but wisdom which is the end of man. 31 Were recognition the end, the final condition of man, should it ever be universally achieved, would in fact mean the end of man’s humanity of which Nietzsche spoke when he described the ‘last man’ – the homogenized man, that is, who seeks only petty comforts and diversions. 32 Since Strauss deeply feared the mediocrity of mass democracy, however, he had a qualified sympathy for Kojève’s vision of modern history as moving towards a universal and homogeneous state. But if that is in fact our destiny, Strauss insisted, the universal state will inevitably be a tyranny, rather than a free state. In a strikingly Orwellian description of this state, Strauss gives a portrait of the age of the ‘Final’ or ‘Universal’ Tyrant’ which is of particular interest in view of the resurgence of academic interest in recognition in recent years. It seems reasonable to assume, Strauss wrote, that in the interest of the homogeneity of his universal state the Final Tyrant must above all

forbid every teaching . . . that there are politically relevant natural differences among men which cannot be abolished or neutralized by progressing scientific technology. He must command his biologists to prove that every human being has, or will acquire, the capacity of being a philosopher or a tyrant . . . [In former ages, it was possible to go underground or leave the country in order to escape from tyrants, but from] the Universal Tyrant however there is no escape. Thanks to the conquest of nature and to the completely unabashed substitution of suspicion and terror for law, the Universal and Final Tyrant has at his disposal practically unlimited means for ferreting out, and for extinguishing, the most modern efforts in the direction of thought. 33

31 Leo Strauss, On Tyranny , ed. by Victor Gourevitch and Michael S. Roth (The Free Press: New York, 1991), pp. 209-10. 32 Leo Strauss, On Tyranny , ed. by Victor Gourevitch and Michael S. Roth (The Free Press: New York, 1991), p. 208. 33 Leo Strauss, On Tyranny , ed. by Victor Gourevitch and Michael S. Roth (The Free Press: New York, 1991), p. 211. 17

Strauss does not, then, foresee or advocate the end of the state. What has been suggested, however, is that he nevertheless shares the liberal depoliticization project in so far as his ideal of a state ruled by gentlemen links legitimacy, not to the possession of office (which Hobbes termed ‘artificial’ personality), but to the possession of wisdom, character and taste (which Hobbes ascribed to what he termed ‘natural’ personality). The achievement of Michael Oakeshott, it will now be suggested, is to have developed an essentially procedural model of civil association which avoids confusing legitimacy with the possession of wisdom, character or taste by identifying it, like Hobbes, with the possession of office in a state constituted entirely by the . What must now be considered is what Oakeshott means by civil association and why he maintains that only this ideal is appropriate to Western modernity.

Oakeshott

For Oakeshott, as for Voegelin and Strauss, the kind of constitutionalism which characterizes contemporary liberal democracies provides an inadequate foundation for freedom. In Oakeshott’s case, this inadequacy is rooted in the predominantly instrumental view of constitutionalism which has characterized Western liberal political thought since the seventeenth century. According to this view, Oakeshott writes, a constitution is merely ‘a piece of machinery for doing with the least opposition and delay whatever [] thought proper to be done’. 34 This constitutional machinery was naively thought of by liberal theorists as the product of a contract which creates a collection of ‘constitutional devices’ intended partly to reduce the menace of sovereign authority and partly to secure substantive benefits such as education, welfare and employment.35 The result, Oakeshott maintains, has been a dangerous confusion about the principal requirement of a free society, which is a concern for political legitimacy. The source of this confusion is the existence of two fundamentally different ways of thinking about the state which has made the meaning of every word in the modern Western political vocabulary ambiguous, including the concept of a

34 M. Oakeshott, On Human Conduct , p. 192. 35 M. Oakeshott, On Human Conduct , p. 245, fn. 2. 18 constitution itself. One way conceives of the state as held together by a common purpose, religion or ideology which it is the task of government to impose. Oakeshott describes this as an ‘enterprise’ or ‘managerial’ conception of the state. Within the enterprise way of thinking, a constitution is merely one tool amongst others by which to impose a substantive interpretation of the good society. An example is the Soviet constitution of 1936 which appeared on paper to be one of the most democratic constitutions ever adopted by a modern state. In reality, the constitution was merely one of a number of tools used by Stalin to implement a totalitarian ideology. The second way of thinking about the state conceives of it as held together solely by the formal bond of legal rules, which does not involve the imposition by government of a substantive vision of social order. Oakeshott describes a state of this kind as a civil association. Constitutionalism, in the context of civil association, has a very different meaning to that it possesses in an enterprise way of thinking about politics. To be precise: in civil association, a constitution is not a device for promoting the good society, however that may be understood. It determines, rather, an identity – specifically, the identity of citizenship, as well as specifying the offices necessary to implement that identity. For this reason, a constitution in civil association cannot be understood as the product of a singly contractual act by citizens prior to the political process itself, as Hobbes for example understands it. It consists, rather, of an on-going acknowledgement of the rule of law in which the acknowledgement involved cannot, strictly speaking, be theorized as an act of any kind since the acknowledgement is, in Oakeshott’s phrase, a purely ‘adverbial’ performance. By terming it adverbial, Oakeshott’s intention is to emphasis that a concern for the constitutional aspect of political life must not be narrowly understood as a commitment to adopting a written document but relates, rather, to preserving the integrity of the non-instrumental procedures, conformity with which is the primary condition for their possession of valid legal status. Since the enterprise view of the state has tended to get the upper hand over the civil perspective in the modern period, Oakeshott maintains, what are referred to as the constitutional histories of most European states have in fact been, for the most part, little more than ‘stories of somewhat confused and sordid expedients for accommodating the modern disposition to judge everything from the point of view of the desirability of its outcomes in policies and performances and to discount 19 legitimacy’. 36 Unless this instrumental view of constitutionalism is overcome, confusion about the conditions for legitimacy will continue to exist, due primarily to the lack of a clear distinction between the exercise of authority, on the one hand, and of arbitrary (albeit more or less benign) power, on the other. I will now pass over the details of Oakeshott’s analysis of civil association in order to turn immediately from this sketch of his political thought to the main problem it ultimately poses, which is whether the concept of constitutional legitimacy it embodies is viable in modern Western liberal democracies. There are three principal criticisms to be considered. The first criticism is that Oakeshott’s version of civil association is so ‘thin’ - so procedural and legalistic, that is - that it leaves him completely at odds with the enterprise state which is the dominant feature of contemporary political life. John Gray in particular has reminded us that ‘no government in any modern state can long survive if it does not preside over sustained economic growth,’ and must therefore inevitably be in a considerable degree an enterprise association. 37 In consequence, Gray adds, Oakeshott’s ‘project of denying to the modern state its character as, in significant part, an enterprise association’ is conflicts with his conservative commitment, since it could only be implemented by a revolutionary transformation of existing political arrangements. If we are realistic, Gray concludes, we must accept that for us ‘the enterprise-association state is an historical fate which we may . . . strive to temper, but which we cannot hope to overcome’. 38 In response to Gray it may be replied that it is only fair to Oakeshott to note that he never maintained that a purely formal conception of civil association could provide a complete account of politics in a free society. On the contrary, he explicitly acknowledged that all governments must make some provision for the material well- being of the population, if only for the prudential reason that it will otherwise be destabilized by disaffection. In this connection, the weakness of Oakeshott’s thought is his failure to examine what kind of welfare provision is compatible with civil association. What seems clear, however, is that in principle Oakeshott can compromise with the enterprise state provided that two conditions are satisfied. The first is that the enterprise state must not operate through central planning but only

36 M. Oakeshott, On Human Conduct , p. 193. 37 John Gray, ‘Oakeshott as a Liberal’, The Salisbury Review (Vol. 10, No. 1, Sept. 1991), p. 24. 38 John Gray, ‘Oakeshott as a Liberal’, The Salisbury Review (Vol. 10, No. 1, Sept. 1991), p. 24. 20 through fiscal and regulative methods which do not impose a unitary purpose on citizens. The second is that this compromise must not go so far as to subordinate civil association to state projects which threaten the rule of law. What this means in practice will, of course, itself be a matter for political debate within civil association. The second major difficulty created by Oakeshott’s concept of legitimacy is again eloquently stated by Gray. It concerns Oakeshott’s assumption that the authority of the modern state does not depend on its subjects having a common cultural identity. In this respect, Gray notes, Oakeshott has much in common with Kant as well as with much recent American constitutional theory. 39 The problem, however, is that recent history does not support this assumption. On the contrary, Gray maintains, ‘insofar as a policy is held together by little else than allegiance to abstract principles or procedural rules, it will be fragmented and weak.’ At the present day, he writes,

we may see this ominous development occurring in microcosm in Britain, where a minority of fundamentalist Muslims that is estranged from whatever remains of a common culture, and which rejects the tacit norms of toleration that allow a to reproduce itself peacefully, has effectively curbed freedom of expression about Islam in Britain today. 40

We may see the same development, Gray continues,

occurring on a vast scale in the United States, which appears to be sliding inexorably away from being a civil society whose institutions express a common cultural inheritance to being an enfeebled polity whose institutions are captured by a host of warring minorities, having in common only the dwindling capital of an unquestioned legalism to sustain them.

To this criticism, a partial reply is that Gray risks caricaturing Oakeshott’s position in so far as he assumes that Oakeshott makes a complete divorce between legal and cultural identity. In reality, Oakeshott assumes that there are many reasons for acknowledging the authority of a state, which will certainly include ones based on a common cultural identity both of subjects with one another and with their

39 John Gray, ‘Oakeshott as a Liberal’, The Salisbury Review (Vol. 10, No. 1, Sept. 1991), p. 24 40 John Gray, ‘Oakeshott as a Liberal’, The Salisbury Review (Vol. 10, No. 1, Sept. 1991), p. 24 21 government. What Oakeshott maintains is not that legal and cultural identity are separable, but that the basis of authority in civil society is a concept of sovereignty which permits no appeal beyond the authority to some higher authority such as reason, natural law or the teaching of Allah. This is of course a difficult requirement, as Oakeshott himself fully acknowledges, but it is at least one which can be complied with for prudential reasons which do not necessarily require cultural homogeneity. The final difficulty created by Oakeshott’s concept of legitimacy which will be considered here is one that is identified by Oakeshott himself. This third difficulty, it may be suggested, is the most serious of all. The difficult is as follows. Towards the end of his life, Oakeshott was no longer primarily worried about the tentacles of the enterprise state. What troubled him was, rather, the emergence of an all-pervasive instrumental mentality which he believed had come to pervade the whole of modern life. This was the theme of the essay on ‘The Tower of Babel’ in the last book he published. 41 For Oakeshott, this attitude was totally incompatible with the regard for human dignity which is the basis of civil association. His late pessimism about the instrumentalism of Western modernity, it may be noticed, converged with that of members of the Frankfurt School like Adorno and Horkheimer, who also identified an instrumental perspective as the source of profoundly dehumanizing tendencies in contemporary Western culture. Did Oakeshott, one may ask, see any remedy for the instrumentalism which he believed threatened the future of civil association? The only answer, he believed, lay in a sense of play without which the non-instrumental perspective upon which civil association depends cannot survive. In practice, however, Oakeshott was pessimistic about the survival of play in a modern technological society, sympathizing in this respect with the Spanish philosopher Ortega y Gasset and the Dutch historian Johan Huizinga, both of whom shared his misgivings. 42 If one sympathizes with Oakeshott’s cultural pessimism, it seems likely that for this reason alone the concern for legitimacy upon which civil association depends will simply cease to exist. This is, I think, a more plausible vision of the future than Voegelin’s prophecy of the triumph of Gnosticism or Strauss’s prophecy of nihilism. It is worth emphasizing that its plausibility should not be obscured by the survival of

41 ‘The Tower of Babel’, in On History and Other Essays . 42 See J. Ortega y Gasset, The Revolt of the Masses (Unwin: London, 1961) and Johan Huizinga, Homo Ludens (Paladin: London, 1970). 22 outward remnants of civil association. Even if power is diffused as Oakeshott required, for example, and even if the outward forms of parliamentary government survive, the reality will be only a language of power, rather than an ethical language of civil obligation. One notable vision of the likely shape of a post-ethical social order in which only a language of power exists may be found in ’s image of the iron cage created by instrumental rationality – a cage consisting of bureaucratic regulation which continues to grow quite regardless of the ideological commitment of the government in office. Although both Voegelin and Strauss are astute critics of Weber’s positivist methodology, the philosophical merits of their critique should not be allowed to conceal the continuing relevance of his Kafkasque vision of the iron cage. A more recent version of that vision is provided by Foucault’s sketch of the surveillance society. Most instructive of all, however, is de Tocqueville observation that the post-ethical social order may be a perfectly comfortable one, since the use of power by its rulers may usually be benign. He warned, however, that comfort should not conceal the absence of freedom and the arbitrary nature of the power in the post- ethical order, even if that power confers many material benefits. Oakeshott’s own misgivings towards the end of his life echo those of de Tocqueville. If they prove to be well founded, then his fate as a political thinker may ultimately be the fate Hegel suggested befalls all great political theorists when he remarked that the owl of Minerva takes wing only at dusk. Oakeshott may have clarified the constitutional requirements of legitimacy, that is to say, at the very time when the course of history has begun to turn decisively away from the model of civil association upon which they depend.

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