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Burke on Law, Revolution and Constitution / Burke Su Diritto, Rivoluzione E Costituzione

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Burke on Law, Revolution and Constitution / Burke Su Diritto, Rivoluzione E Costituzione Martin Loughlin Burke on law, revolution and constitution / Burke su diritto, rivoluzione e costituzione Article (Accepted version) (Refereed) Original citation: Loughlin, Martin (2015) Burke on law, revolution and constitution / Burke su diritto, rivoluzione e costituzione. Journal of Constitutional History/ Giornale di Storia Costituzionale , N. 29 (1). pp. 49-60. ISSN 1593-0793 ©2015 Eum Edizioni Università di Macerata This version available at: http://eprints.lse.ac.uk/62782/ Available in LSE Research Online: July 2015 LSE has developed LSE Research Online so that users may access research output of the School. Copyright © and Moral Rights for the papers on this site are retained by the individual authors and/or other copyright owners. Users may download and/or print one copy of any article(s) in LSE Research Online to facilitate their private study or for non-commercial research. You may not engage in further distribution of the material or use it for any profit-making activities or any commercial gain. You may freely distribute the URL (http://eprints.lse.ac.uk) of the LSE Research Online website. This document is the author’s final accepted version of the journal article. There may be differences between this version and the published version. You are advised to consult the publisher’s version if you wish to cite from it. Burke on Law, Revolution and Constitution martin loughlin Introduction of his singular grasp of the character of the practical engagement of politics. Edmund Burke occupies an ambiguous po- In this paper, I outline the main themes sition in legal, political and constitutional of his political writing. These themes are thought. A lawyer by training, he gained distilled from the position Burke takes on his reputation primarily as a man of letters the four great issues that most occupied his and skilled parliamentarian. Possessed of attention: the revolutions in North Ameri- great intellectual and literary talents, many ca and France and the status of, and treat- have nonetheless questioned whether he ment within the British Empire, of Ireland was able to elaborate a coherent political and India. A question immediately pre- philosophy. One difficulty is that although sents itself. Does he maintain a consistent Burke excelled at the essay form, these vary position over these controversies? He sup- considerably in tone and mood, revealing ports the claims of the American colonists ambiguities about his political convictions, for independence, advocates an extension his philosophical beliefs and his jurispru- of English legal and political privileges to dential thought. Depending on context, the Irish, and opposes the harsh govern- Burke is capable of appearing in the guise mental regime instituted by the East India of conservative, liberal, and radical. Is he, Company in India. His arguments on these we might ask, a realist, a historicist and a issues are decidedly liberal. And yet, when consequentialist thinker? Or is he an ide- it comes to the revolutionary overthrow of alist or even a Romantic? The sheer range the Ancien Régime in France, his denuncia- and variety of his political writings might tion is vehement. The work for which he is cause us to conclude that his genius is most famous, Reflections on the Revolution in founded not on his political philosophy but France, acquires a classic status in modern political thought as the epitome of conserv- giornale di storia costituzionale / journal of constitutional history 29 / I 2015 49 Ricerche ative thought. Can his positions on these is- My objective in this short paper, then, sues be reconciled? is to sketch the main themes that emerge Burke himself thought so, though not all in Burke’s works. I take these to be those of commentators are convinced. He evidently law, revolution and constitution. In com- changed his view on particular questions, as mon with many thinkers of his time, Burke is illustrated with respect to his treatment was strongly influenced by Montesquieu, of the Glorious Revolution. In Thoughts on with whom he shared a belief that the com- the Cause of the Present Discontents, written plex relationship between law and society in 1770, he recognized that that Revolution is formed by the cultural and historical life had brought about certain fundamental of a nation. His ideas were also shaped by changes to the English system of govern- the works of Bacon, Locke and Hume, from ment; he accepted, for example, that the whom he acquired a belief in the impor- Revolution had deprived the Crown and the tance of the experience. But alongside the government of many useful prerogatives1. practical, evolutionary mode of thought But in a late work, An Appeal from the New Burke retained a Christian belief in the to the Old Whigs (1791), he denies this to be workings of natural law. Burke therefore the case. Instead, we find him maintaining blends historical sensibility and moral that the Revolution was justified only on the principle in a manner opposed to the Car- basis that «the people, who have inherited tesians of his day4, projecting a compel- its freedom … are bound in duty to trans- ling account of the proper relation between mit the same constitution to their posteri- thought and action, theory and practice. ty»2. Such discrepancies might cause us to These underlying influences have a defin- think that perhaps there are, in reality, two ing impact on his views on law, revolution Burkes: the liberal youth and the conserva- and constitution. tive man. I suggest, however, that although his essays present differences of emphasis, there is a consistency of thought. This consistency has been clouded by 1. Constitution the subsequent reception and reworking of his ideas. Burke is best known to us today We should first consider Burke’s arguments as a conservative who stoutly defended the on how governments acquire authority. virtues of traditional hierarchical ordering. His basic stance is that government is to be This was not the case during the 19th cen- evaluated according to the degree to which it tury. Then, especially under the influence is able properly to attend to the needs of its of his biographer, John Morley, he was re- people. Authority flows not from the man- fashioned as a liberal and a positivist whose ner of its constitution, but from the ends it thought helped shape the ideas of John Stu- is able to realize. All governmental power is art Mill and his disciples3. To get to the core acquired by artifice. Since it is a derogation of Burke’s distinctive contribution, these from the principle of the natural equality of layers of accretion must be stripped away mankind, it can be justified only by demon- and his work examined in the context of his strating how it works to the benefit of its times. people5. This is Burke’s cardinal rule. It is 50 Loughlin clearly outlined in An Appeal from the New to its own arrangements of government. Any the Old Whigs, where he states that: claim based on natural rights is abandoned at the moment humans enter into civil so- The practical consequences of any political tenet go a great way in deciding upon its value. Polit- ciety and form governing arrangements. ical problems do not primarily concern truth or Thereafter, the justification of government falsehood. They relate to good or evil. What in rests only on the benefits it bestows. the result is likely to produce evil, is politically The existence of a long-standing consti- false: that which is productive of good, politically is true6. tution does not therefore end all discussion of its rightness or authority. Such a consti- This provides the bedrock of princi- tution has proven its value over many gen- ple running through all Burke’s works. On erations and, given the fickleness of human this foundation he argues for reforms to reason, the fact that this arrangement is the the government of Ireland, defends the consequence of the work of «many minds, claims of the American colonists, criticizes in many ages» makes it intrinsically wor- the East India Company’s regime in India, thy of respect8. Of the British constitution, and vehemently opposes the revolution in which is taken as the epitome of a prescrip- France. «I cannot think that what is done in tive constitution, he states: France», he declares in 1792, «is beneficial to the human race». But if that did prove to It is no simple, no superficial thing, nor to be es- timated by superficial understandings. An igno- be the case, then neither the British consti- rant man, who is not fool enough to meddle with tution nor any other should prevail against his clock, is however sufficiently confident to it7. think he can safely take to pieces, and put togeth- This suggests that Burke’s views about er at his pleasure, a moral machine of another constitutional ordering are not as conserv- guise, importance and complexity, composed of ative as some have imagined. He does not far other wheels, and springs, and balances, and counteracting and co-operating powers. Men lit- believe, as some imply, that the authority tle think how immorally they act in rashly med- of a constitution rests on its ancient line- dling with what they do not understand9. age. Rather, his argument is that the pre- scriptive constitution proves its worth not The criterion of a good constitution, by virtue of its longevity but from the good then, is the goodness of the results it pro- outcomes it produces. The existence of a duces. But Burke is also saying that ‘good long-established constitution does not results’ in the treacherous field of the po- therefore render irrelevant any discussion litical are not easily calibrated and it is for of a government’s legitimacy.
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