sign in sign up
<<
Home , Edmund Burke, Montesquieu

Martin Loughlin Burke on , and / 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 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 . 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 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 in North Ameri- great and literary talents, many ca and and the status of, and treat- have nonetheless questioned whether he ment within the , 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 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 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 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 , of the . In Thoughts on with whom he shared a belief that the com- the Cause of the Present Discontents, written plex relationship between law and 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 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 . 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 … 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 acquire . 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, , 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 , 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 ’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. His point is this reason that the inherited arrangements that it eliminates allegations that govern- of government should not lightly be tam- ment is illegitimate simply because it has pered with. This does not require blind not been authorized by its present gener- adherence to the existing constitution, al- ation of subjects. Burke’s argument about though it would appear to rule out radical the prescription of the constitution is di- change. Sensitive incremental reform of rected in particular against radical natural the constitution is fine: we should get rid of rights claims, specifically, the claim that the accretions that no longer deliver good each generation has the right to determine government. But we must never lose sight

51 Ricerche of the fundamentals: we must always work contend that the existing regime – in which with the grain. Catholics were barred from participation Consequently, the principle of pre- in political affairs and Irish Protestant rule scription in government – of adherence to was sustained by bargaining with the Eng- the inherited constitution – does not en- lish government – was in the best interests tail stasis. «A state without the means of of the Irish people. Reform was required not some change», he maintains, «is without because of a Romantic notion of self-gov- 10 the means of its conservation» . But does ernment, but because needed the this suggest that the type of revolutionary support of the Irish to ensure their own se- change embodied by the curity. Basic political reforms – including on the foundation on natural rights claims that of – were need- should be opposed? Burke answers in the ed to ensure that Ireland remained within affirmative, reasoning that a constitution the British Empire12. His position on Irish is not created by a political pact through affairs conformed to his general political which a people, at a particular moment in philosophy. In Thoughts on the Cause of the time, agree the fundamental principles of Present Discontents (1770), he noted that its government. The constitution is a pact «the people have no interest in disorder» that subsists through time: the constitution and that «where popular discontents have «is a partnership not only between those who are living, but between those who are been very prevalent, it may well be affirmed living, those who are dead, and those who and supported that there has been generally are to be born»11. undoubt- something found amiss in the constitution, 13 edly change through time, but these chang- or in the conduct of government» . es must be gradual, evolutionary, and they Burke’s views with respect to the dis- must remain fixed on the objective of pro- putes that arose in the American colonies moting the public good. are similarly consistent with his general political convictions. He had initially been in favour of the Declaratory Act, which de- clared the right of to tax the 2. Rights, Reform and Revolution colonies – indeed, he may even have been responsible for its drafting14. But he soon That Burke’s view on the authority of the came to recognize that taxation of the col- constitution provides the basis for under- onists was not prudent politics. A nation standing many of the contentious political is not governed, he explained, «which is 15 issues of his times is most clearly illustrated perpetually to be conquered» . He there- with respect to his position on Ireland and fore argued that the situation demanded re- America. straint on the part of the British Parliament. He consistently promoted the cause of The question is «not whether you have a reform in Ireland. Seventeenth century right to render your people miserable, but upheavals in Ireland had entrenched Prot- whether it is not in your interest to make estant rule in an overwhelmingly Catholic them happy». Expanding the point, he adds country. Burke argued that no one could that it «is not what a lawyer tells me I may

52 Loughlin do, but what humanity, reason, and This stance on the American conflict tell me I ought to do»16. poses a more general question: in what cir- For Burke, such questions could not be cumstances might the overthrow of the es- resolved purely by legal formalities of right tablished government be justified? When and duty; they were determined accord- might the abuse of governmental authority ing to the political logic of prudence and lead to the establishment of a right of rebel- the maintenance of . Once it is es- lion? The explanation he provides is based tablished that prudence dictates restraint, on the doctrine of necessity. The clearest however, he is not slow to convert the mat- evidence that he accepts such a doctrine of ter into an issue of principle. The liber- necessity – that of reason of state – can be ty-loving settler colonists who carried their found in his account of the Revolution of common law rights with them were not pre- 168817. Burke believes that necessity could pared to submit to taxation by an institution be invoked only in the most extreme case, in which they had no representation. So far when action is clearly needed and would as Burke is concerned, the Americans were redound to the benefit to the entire socie- justified in claiming that by being sub- ty. On these grounds, he maintains that the jected to taxation without representation Glorious Revolution of 1688 was entirely they were reduced to the status of slavery justifiable. (though the ironic dimension of the claim Burke therefore accepts the revolution- being made by the colonists seems to have ary character of the events of 1688 but argues escaped them). that the overthrow of James II amounted This right of rebellion, Burke implies, is only to «a small and a temporary deviation established only when prudential require- from the strict order of a regular hereditary ments can be converted into a general po- succession»18. He accepts that the adop- litical principle. The starting point is the tion of William of Orange as king «was not right to enshrined in the common properly a choice» but «was an act of neces- law and from which the constitutional sity, in the strictest moral sense in which of England derive. These rights are not necessity can be taken»19. The crown was bequeathed by statute law; rather they are therefore «carried somewhat out of the line rights on which the foundation of govern- in which it had before moved; but the new mental authority rests. Only if governments line was derived from the same stock» and ignore these conditions and subvert basic «it was still a line of hereditary descent»20. without any evident utility, might Consequently, the «principles of the Revo- the people be justified in rebelling. Burke’s lution did not authorize them to elect kings argument has the doctrine of Parliamentary at their pleasure, and without attention to – and especially a parliament the antient fundamental principles of our stuffed with the King’s placemen – directly government»21. And neither was the over- in his sights. Yet we must also acknowledge throw the result of mere misconduct. «No that his argument comes close to upholding government could stand a moment», he those natural rights that elsewhere he de- claims, «if it could be blown down with any cries as abstract metaphysical nonsense. thing so loose and indefinite as an opinion of misconduct»22. On the contrary, only a

53 Ricerche

«grave and overruling necessity obliged tion they are invariably right26. The tone in them to take the step they took»23. Reflections is decidedly different. Here he For Burke, such a revolutionary act will places the initial blame for the revolution always amount to «an extraordinary ques- on the king’s advisers, but thereafter on the tion of state» and be «wholly out of the cabal that expresses its revolutionary spirit. law». It is «a case of war and not of consti- Most striking is his characterization of the tution». And it is therefore a question «of role of ‘the people’, which deviates consid- dispositions, and of means, and of proba- erably from earlier formulations. ble consequences, rather than of positive Burke first rails against the perfidy of rights». But he was keen to emphasize the king’s advisers who informed him that that this type of remedy «was not made for by convening the «he had common abuses» and it therefore «is not nothing to fear but the prodigal excess of to be agitated by common minds»24. Gov- their zeal in providing for the support of ernments «must be abused and deranged» the throne»27. These counsellors are held before revolution can be contemplated: «a responsible for having seen «the medicine revolution will be the very last resource of of the state corrupted into its poison»28. the thinking and the good»25. Burke was Through their ineptitude in promoting the here at pains to emphasize the point that «perilous adventures of untried policy» revolutionary action is not generated from the French people have been motivated to general theories of government and consti- «rebel against a mild and lawful monarch, tution, nor from abstract concepts of right. with more fury, outrage, and insult than The legitimacy of such action must be as- ever any people has been known to rise sessed by reference to the specific political against the most illegal usurper, or the most circumstances. And the relevant criteria are sanguinary tyrant»29. whether it is driven by necessity and under- His immediate target with respect to taken with a minimal degree of disruption failures of statecraft may be right: it was in- to the established order. deed a failure of «rash and ignorant coun- sel»30. But one cannot help but feel that his views on the people are exaggerated. Was this really a mob of unprecedented fury 3. The Revolution in France and outrage? We must bear in mind the fact that his essay was written in 1790, a period Can Burke’s account of revolutionary ac- still in the early stages of revolution dur- tion driven by necessity be reconciled ing which the French king remained un- with his infamous views about the nature touched. And we should note the fact that and significance of the French revolution? although spending a significant portion His tone in Reflections undoubtedly differs of the Reflections explaining and justifying from that of earlier works. With respect to the achievements of the Glorious Revolu- earlier political conflicts, he had expressed tion, he entirely overlooks the precedent of understanding for popular insurrection on the English civil war of the 1640s, a bloody the grounds that the people are not easily conflict that led to the execution of a king. roused but that when motivated into ac- Ignoring that precedent, he complains

54 Loughlin only of the great destruction effected by the and the tyranny of the multitude. His pre- French mob and of learning «cast into the diction that such a destruction of consti- mire and trodden down under the hoofs of a tutional order could lead only to the estab- swinish multitude»31. lishment of a ruthless dictatorship has been But Burke’s most vehement outrage is widely admired. Whether it is attributable reserved for those who have misguided the to Burke’s practical insight and wisdom in people: the «literary cabal» that forged a the arts of government or to his thoroughly plan «for the destruction of the Christian jaundiced view of the revolution remains an »32, otherwise referred to as «a open question. cabal calling itself philosophic» which has generated the «true actuating spirit» of the people’s actions33. These are, at best, «only men of theory», who lack «any practical 4. Revolutions Contrasted experience in the state»34. A great pro- portion of the National Assembly may have The French Revolution, Burke contends, been , but they were not juriscon- arose from a combination of forces: the sults experienced in affairs of state. Rather, weakness of the forces of conservation and they were only «the inferior, unlearned, the strength of those of revolution. But if it mechanical, merely instrumental members was due to the ineptitude of counsellors to- 35 of the profession» . These «could not be gether with a conspiracy of the professional expected to bear with moderation … a pow- and intellectual elites, surely a similar ar- er which they themselves, more than any gument could be made with respect to the others, must be surprised to find in their . Why did he take a hands»36. These were «men formed to be radically different position with respect to instruments, not controls»37. Once they these two events? had acquired the reins of power, their natu- Burke believed he pursued a consistent ral tendency was towards centralization and line on these revolutions. The explanation standardization, with the result that «every he offered in his Appeal from the New to the landmark of the country» was abolished Old Whigs is that he has «always firmly be- «in favour of a geometrical and arithmeti- lieved that they [the Americans] were pure- cal constitution»38. The power of the city of ly on the defensive… standing… in the became «one great spring of all their same relation to England as England did to politics»; it became «the centre and focus King James the Second in 1688»41. In this of jobbing», through which «the leaders of essay, an attempt to persuade his fellow this faction direct, or rather command, the Whigs that they should not be sympathet- whole legislative and the whole ic to the ideals of the French Revolution, government»39. he maintains that the American colonists Burke maintains that this group – «the stood up against encroachments upon their politicians of metaphysics» – had «opened established rights. In France, by contrast, it schools for sophistry and made establish- is «not the people, but the monarch [who] ments for anarchy»40. The French nation was wholly on the defensive… to preserve had thereby been delivered over to anarchy some fragments of the royal authority

55 Ricerche

This point signals a further reason for his contrasting positions on these two rev- olutionary movements. It might well be the case that it was only by the time of the later revolution that Burke had come to realize the full significance of the American Revo- lution, that it was not simply a revolution to preserve the common law rights of the free- born Englishman. Only later did he realize that the American Revolution lit a beacon for the Enlightenment claim that legitimate government must be founded on the natu- ral and inalienable . Only by 1790 were these implications plain to see. Burke’s essay, it should be stressed, concerns ‘the revolution in France’ rather than ‘the French Revolution’. The revolu- tionary zeal exhibited by the French was not confined to any particular nation-state: the missionary creed of the Rights of Man was “The of the woeful countenance going to ex- explicitly designed for export. As Thom- tirpate the National Assembly”: Burke come il Don Quixote della controrivoluzione, stampa ad opera as Paine proclaimed, America had taken a di Frederick Byron, 1790 stand not only for herself but on behalf of the modern world: the American Revolu- tion was the moment and the place «where the principles of universal reformation against a determined and desperate body could begin»43. The earlier revolution of conspirators, whose object it was… to marks the beginning of the end of regimes annihilate the whole of that authority»42. of monarchical government based on mil- In other words, Burke was arguing that the itary objectives44, and replacement by gov- American Revolution had been caused by ernment «founded on a moral theory, on a the British Crown’s attempt to subvert the system of universal peace, on the indefea- principles of the constitution, whereas the sible hereditary Rights of Man»45. Where- French Revolution was an attempt by the as monarchical government is founded on self-styled National Assembly to subvert hierarchy, the legitimating principle of the the principles of the French Constitution. newly emerging regimes is that of equality. There is something to this claim, but it Government legitimated by divine will or overlooks the important point that, if this sacred custom was now challenged by gov- is so clear, one might have expected that, ernment authorized by the consent of free while expressing sympathy for the Ameri- and equal citizens. can cause, Burke would have objected to the The three main principles underpin- natural rights terminology deployed in the ning this ‘universal reformation’ are that American Declaration of Independence.

56 Loughlin the individual possesses inherent natu- Peace, «France, on her new system, means ral rights, that the office of government is to form a universal empire, by producing instituted to ensure the maintenance and a universal revolution»49. Consequently, full enjoyment of these rights, and that the Britain was not at war «with an ordinary best method of safeguarding these rights community which is hostile or friendly as in the civil state is through the device of a passion or as interest may veer about; not written constitution specifying the funda- with a State that makes war through wanton- mental terms of the bargain between rulers ness, and abandons it through lassitude». and ruled. «Man did not enter into society Rather, we «are at war with a system, which to become worse than he was before, nor to by its essence is inimical to all other Gov- have fewer rights than he had before», ar- ernments». We are, in short, at war «with gues Paine, «but to have those rights better an armed doctrine»50. He claims, further, secured»46. The modern regime of govern- that if a war to prevent Louis XIV from im- ment Paine proclaims is firmly founded on posing his religion was just, similarly «a the ‘rights of man’. war to prevent the murderers of Louis XVI The explanation for Burke’s shrill as- from imposing their irreligion upon us sessment of the situation in France in 1790 is just; a war to prevent the operation of a is more clearly revealed by the full title to system… is a just war»51. His opposition his essay: Reflections on the Revolution in to the French Revolution is an opposition France, and on the proceedings in certain soci- to a fanatical sect spouting a revolutionary eties in London relative to that event. Burke’s doctrine. Only in later life did he come to oratory is directed primarily to the Brit- realize that, far from being simply a dis- ish. In part it is addressed to the governing pute over the common law inheritance, the class, as a warning on the consequences of American Revolution could also be count- an utter failure of statecraft. But primarily ed as the first wave of a new type of political it is aimed at the agitators at home. This is doctrine. most clearly signalled at the end of Reflec- tions. The improvements achieved by the French National Assembly, he claimed, «are superficial, their errors fundamen- 5. Law tal»47. Rather than taking models from them for the improvement of our own con- Government rests ultimately on the con- stitution, we should be recommending to sent of the people, and for Burke so too our neighbours the example of the British does law. The people are presumed to con- constitution. «Standing on the firm ground sent to the laws laid down by the legisla- of the British constitution, let us be satis- ture, but they cannot be assumed to consent fied to admire, rather than attempt to fol- to laws that do not operate for the overall low their desperate flights, the aeronauts of 48 good. This much Burke makes clear in his France» . views on Ireland. To contend otherwise is Burke later referred to the French Rev- to connive in oppression. His argument is olution as the world’s first «total revolu- underpinned by natural law doctrine. The tion». As he notes in his Letters on a Regicide laws enacted by are, in the final

57 Ricerche analysis, declaratory: they must ultimate- Can these beliefs be reconciled with his ly be seen to be devised with the object of views on the prescriptive authority of gov- promoting human flourishing. The office of ernment and of the primary importance of government exists to secure and conserve prudence in politics? A strict natural rights these human values. doctrine would maintain that any claim to Burke’s convictions about the founda- legal title must have some foundation in tion of lawful authority are most clearly re- right and a possession acquired through vealed in his speech on the force or fraud could never be valid. Yet of over his conduct of Burke’s position is more ambiguous and government in India in his role as Gover- nuanced. He maintains that «Time» must nor-General of Bengal. Burke here argues be permitted to «draw his oblivious veil that the natural rights of a people are uni- over the unpleasant modes by which lord- versal and not subject to geography52. All ships and demesnes have been acquired law and all sovereignty is derived from God: in theirs, and in almost all other countries «if the laws of every nation, from the most upon earth»55. He accepts in effect that an simple and of the most barbarous original evil is transformed into good by people, up to the wisest and most salutary virtue of a higher natural necessity – the laws of the most refined and enlightened need for order and the security of the state , from the Divine laws handed and its citizens. Burke considered it «pru- down to us in Holy Writ, down to the mean- dent to relativize at least part of what clas- est forms of earthly institution, were at- sical and Christian natural-law theory had tentively examined, they would be found to held to be absolute and immutable»56. breathe but one spirit, one principle, equal Prudence, we might recall, is «not only distributive justice between man and man, the first in rank of the virtues political and and the protection of one individual from moral, but… the director, the regulator, the encroachments of the rest»53. It is only and standard of them all»57. This sug- on the basis of this universal principle that gests that principle must remain subser- sovereignty itself is established. vient to prudence. But Burke recognizes The universal and natural foundation of that «without the guide and light of sound, law that he expounds in his arguments with well-understood principles, all reasonings respect to Irish and American affairs are in in politics, as in everything else, would be his speech on the Hastings impeachment only a confused jumble of particular facts explicitly tied to the authority of a divine and details, without the means of drawing creator. Burke here draws his speech to out any sort of theoretical or practical con- a close by pleading with the Lords to im- clusion»58. There is, then, a crucial ambi- peach Hastings «in the name and by vir- guity in his thought on law and authority. tue of those eternal laws of justice which he Burke refuses to make a purely convention- has violated». «I impeach him», he states, alist or historicist argument and inveighs «in the name of human nature itself, which principles in aid of his position, but he is, he has cruelly outraged, injured, and op- in the end, unable to offer anything other pressed, in both sexes, in every age, rank, than a rhetorical account of the basis of his situations, and condition of life»54. universal principles.

58 Loughlin

Conclusion the East India Company’s regime in India, where he defends the emerging liberal val- Burke distills his political ues of a disciplined, rational commercial- from a variety of sources. Most fundamen- ism against the vices of monopolistic abuse. tally, he regards society as an organic uni- These tensions in Burke’s writing re- ty, maintaining that this sense of unity has flect the tensions within modern liberal- through time shaped the distinctive char- ism itself. Burke was conflicted because he acter and situation of a people. He accepts could see that the movement of progressive the power of reason, but only when it works societies was not simply a movement from within this historical frame. And he rejects status to contract. Contractual relations altogether the type of metaphysical rea- could work well only when commercial son exhibited in natural rights doctrines. principles were set to work within a social «Nothing universal», he suggests, «can order founded on status and hierarchy. The be rationally affirmed on any moral, or any political pact invoked by liberal theorists political subject». The lines of morality in on a principle of equality for the purpose of the sphere of the political «admit of excep- creating an image of unity also establishes tions» and «demand modifications». For a system of government founded on hier- this reason, prudence is the highest vir- archy. Burke recognized that this pact is tue in political jurisprudence59. Prudence not created at some mythical constitutional – artifices officiorum – «requires a very moment: it is intergenerational. In doing solid and discriminating judgment, great so, he exposed a profound, if rather am- modesty and caution, and much sobriety of bivalent, principle: political equality would mind in the handling». It can be reckoned become acceptable to liberals only once it only in the context of a particular situation, is set to work within a status-derived social «else there is a danger that it may totally order. subvert those offices which it is its object only to methodize and reconcile»60. If there is consistency in Burke’s meth- od, there nonetheless remains a deep-seat- ed tension in his political orientation be- tween and . In one interpretation, he is the defender of the old order of nobility, of the ‘age of chival- ry’, and of necessity of retaining ‘the decent drapery of life’ that bolsters the hierarchi- cal ordering of society through the power of myth and superstition. Yet there is also considerable ambivalence in Burke’s view of the historical role of the , and this reveals a liberalism that comes to the fore primarily in his writings on political economy. This is illustrated by his attack on

59 Ricerche

1 See E. Burke, Thoughts on the 13 Burke, Thoughts on the Present Dis- 40 Ivi, p. 348. Cause of the Present Discontents, in contents, cit., p. 255. 41 Burke, An Appeal from the New to P. Langford (ed.), The Writings and 14 See R.M. Hutchins, The Theory of the Old Whigs, cit., p. 39. Speeches of Edmund Burke, vol. II: the State: Edmund Burke, in «Re- 42 Ivi, pp. 41-42. Party, Parliament and the American view of Politics», n. 5, 1943, pp. 43 Th. Paine, Rights of Man (1791- Crisis, 1776-1774, Oxford, Claren- 139-155, at p. 142. 1792), in Mark Philp (ed.), Rights don Press, 1981, pp. 241-323, at 15 E. Burke, Speech on Conciliation of Man, and other pp. 262-3, pp. 299-300. with America, 22 March 1775, in Political Writings, Oxford, Oxford 2 E. Burke, An Appeal from the New to W.M. Elofson, J.A. Woods (eds.), Press, 1995, pp. 83- the Old Whigs, J.M. Robson ed., In- The Writings and Speeches of Ed- 331, at p. 210. dianapolis, Bobbs-Merrill, 1962, mund Burke, vol. III: Party, Parlia- 44 Of monarchical government, p. 59. ment, and the American War 1774- Paine noted: «War is their trade, 3 J. Morley, Edmund Burke: A His- 1780, Oxford, Clarendon Press, plunder and revenue their ob- torical Study, London, Macmillan, 1996, pp. 106-169, at p. 119. jects», ivi, p. 212. 1879. 16 Ivi, p. 135. 45 Ivi, p. 213. 4 See, eg, Burke, Speech on Ameri- 17 D. Armitage, Edmund Burke and 46 Ivi, p. 119. can Taxation, 19 April 1774, in The Reason of State, in «Journal of the 47 Burke, Reflections cit., p. 375. Writings and Speeches of Edmund History of Ideas», n. 61, 2000, 48 Ivi, p. 376. Burke, vol. II cit., pp. 406-501 at pp. 617-634; W.H. Greenleaf, 49 E. Burke, Third Letter on a Regicide p. 458: «I do not enter into these Burke and State Necessity: The Case Peace, in Selected Works of Edmund metaphysical distinctions; I hate of Warren Hastings, in R. Schnur Burke, vol. III: Letters on a Regicide the very sound of them». (hrsg.), Staatsräson: Studien zur Peace, Indianapolis, Liberty Fund, 5 See, eg, E. Burke, Speech on Fox’s Geschichte eines politischen Begriffs, 1999, pp. 191-306, at p. 248. India Bill, 1 December 1783, in P. Berlin, Duncker & Humblot, 50 Burke, First Letter on a Regicide Langford (ed.), The Writings and 1975, pp. 549-567. Peace, in Selected Works, cit., pp. Speeches of Edmund Burke, vol. V: 18 Burke, Reflections cit., p. 101. 59-152, at p. 76. India: Madras and Bengal 1774- 19 Ivi, pp. 101-102. 51 Ivi, p. 122. 1785, Oxford, Clarendon Press, 20 Ivi, p. 106. 52 E. Burke, Speech on the Opening of 1981, pp. 378-451 at p. 385: «all 21 Ivi, p. 110. Impeachment, 15-19 February, 1788, political power which is set over 22 Ivi, p. 112. in P.J. Marshall (ed.), The Writings men… being wholly artificial, and 23 Ivi, p. 113. and Speeches of Edmund Burke, for so much a derogation from 24 Ivi, p. 116. vol. VI: India, Oxford, Clarendon the natural equality of mankind 25 Ivi, pp. 116-117. Press, 1991, pp. 264-471, at p. at large, ought to be some way or 26 Burke, Speech on Conciliation with 353. other exercised ultimately for America, 22 March 1775, cit., p. 120; 53 Ivi, pp. 363-364. their benefit». Burke, Thoughts on the Present Dis- 54 Ivi, p. 459. 6 Burke, An Appeal from the New to contents, cit., at pp. 252-253. 55 Letter to Richard Burke, post 19 the Old Whigs, cit., p. 99. 27 Burke, Reflections cit., p. 125. February 1792’ in R.B. McDowell 7 E. Burke, Heads for Consideration 28 Ivi, p. 126. (ed.), The Writings and Speeches of on the Present State of Affairs, No- 29 Ivi, p. 125, p. 126. Edmund Burke, vol. IX: The Revo- vember 1792, in L.G. Mitchell (ed.), 30 Ivi, p. 127. lutionary War 1794-97 and Ireland, The Writings and Speeches of Ed- 31 Ivi, p. 173. Conor Cruise O’Brien, Oxford, Clarendon Press, 1991, mund Burke, vol. VIII: The French Burke’s editor, notes, howev- pp. 640-658 at p. 653. Revolution 1790-1794, Oxford, Ox- er, that Burke’s opponents were 56 R.W. Kilcup, Burke’s , ford University Press, 1998, pp. quick to quote him as referring to in «Journal of Modern History», 386-402, at p. 402. ‘the swinish multitude’. The in- n. 49, 1977, pp. 394-410, at p. 8 Burke, An Appeal from the New to definite article is important since 401. the Old Whigs, cit., p. 134. Burke may have been referring to 57 Burke, An Appeal from the New to 9 Ibidem. a specific event: ivi, p. 385, n. 66. the Old Whigs, cit., p. 20. 10 E. Burke, Reflections on the Revo- 32 Ivi, p. 211. 58 Cited in D. Herzog, Puzzling lution in France (1790), London, 33 Ivi, p. 185. through Burke, in «Political Theo- Penguin, 1968, p. 106. 34 Ivi, p. 128. ry», n. 19, 1991, pp. 336-363, at 11 Ivi, pp. 194-195. 35 Ivi, p. 130. p. 345. 12 See J. Conniff, Edmund Burke’s Re- 36 Ibidem. 59 Burke, An Appeal from the New to flections on the Coming Revolution in 37 Ivi, p. 132. the Old Whigs, cit., p. 20. Ireland, in «Journal of the History 38 Ivi, p. 144. 60 Ivi, p. 99. of Ideas», n. 47, 1986, pp. 37-59. 39 Ivi, p. 314.

60