Jacob T. Levy, the Tomlinson Professor of Political Theory at McGill University, argues in his recent book, Rationalism, Pluralism, and Freedom (OUP 2014), that there is a deep and recurring tension within liberal theories of freedom, between on the one hand a family of views concerned with the risk of tyranny posed by the modern, centralized and centralizing, Weberian state, and on the other a family of views that see the graver threats to liberty as arising from customary, local, religious, traditional, and decentralized authority. He describes these views as “competing liberal social theories of power” and explores their deep origins within the classical liberal tradition which goes back several centuries. Levy believes that the tradition known as “ancient constitutionalism” has been unjustly neglected my modern classical liberals and he attempts to resurrect aspects of it to make modern classical liberal theory more robust. He is joined in this month’s discussion by Gary Chartier, Professor of Law and Business Ethics at La Sierra University in Riverside, California; Jeremy Jennings, Professor of Political Theory at King's College London; and Chandran Kukathas, the Chair in Political Theory at the London School of Economics.

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Jacob T. Levy, "Rationalism, Pluralism, and the History of Liberal Ideas" (May, 2016)

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The Debate

Lead Essay: Jacob T. Levy, "Rationalism, Pluralism, and the History of Liberal Ideas" [Posted: May 2, 2016]

Responses and Critiques

The Conversation

About the Authors

Jacob T. Levy is Tomlinson Professor of Political Theory, professor of political science, and associated faculty in the department of philosophy at McGill University. He is the coordinator of McGill’s Research Group on Constitutional Studies and Montreal’s Groupe de Recherche Interuniversitaire en Philosophie Politique, and the founding director of McGill’s Yan P. Lin Centre for the Study of Freedom and Global Orders in the Ancient and Modern Worlds. He was previously assistant professor of Political Science and the College at the University of Chicago. He is the author of The Multiculturalism of Fear (Oxford 2000) and Rationalism, Pluralism, and Freedom (Oxford 2014), and editor or coeditor of Colonialism and Its Legacies (with Iris Marion Young), Nomos LV: Federalism and Subsidiarity (with James Fleming), and the forthcoming Oxford Handbook of Classics in Contemporary Political Theory. He holds a B.A. in political science from Brown University, an M.A. and Ph.D. in politics from Princeton University, and an LL.M. from the University of Chicago Law School. He blogs at Bleeding Heart Libertarians <http://bleedingheartlibertarians.com/>, is an adjunct scholar at the Cato Institute, and is a member of the Advisory Board of the Niskanen Center.

Gary Chartier is an American legal scholar who currently serves as Distinguished Professor of Law and Business Ethics and Associate Dean of the Tom and Vi Zapara School of Business at La Sierra University in Riverside, California. He is the author, editor, or coeditor of 10 books, including Public Practice, Private Law (Cambridge, 2016), Anarchy and Legal Order (Cambridge, 2013), Radicalizing Rawls (Palgrave, 2014), and Economic Justice and Natural Law (Cambridge, 2009). A proud southern California native who wishes he had attended UC Sunnydale, he received a BA (magna cum laude, 1987) in history and political science from La Sierra before proceeding to the University of Cambridge, where he studied ethics, the philosophy of religion, theology, Christian origins, and political philosophy and earned a PhD (1991) with a dissertation on the idea of friendship. He studied legal philosophy and public law at the UCLA School of Law (JD, 2001, Order of the Coif). The University of Cambridge presented him with an earned LLD in 2015 for his work in legal theory.

Jeremy Jennings is an English political theorist and Professor of Political Theory at King's College London. He received his doctorate from the University of Oxford, and then taught at the University of Swansea (1979-1995), the University of Birmingham (1995-2005), and Queen Mary University of London (2005-2013). He served as Head of Department in Birmingham and at Queen Mary, was Vincent Wright Professor at the Fondation Nationale des Sciences Politiques in Paris in 2006 and was also a visiting fellow at the University of Columbia Research Centre in Paris. Jeremy holds a visiting professorship with the Fondation Nationale des Sciences Politiques. He edited Liberty Fund’s edition of Destutt de Tracy's Treatise on Political Economy (2011), edited with Aurelian Craiutu a volume of Alexis de Tocqueville's writings on America after 1840 (CUP, 2009), and Revolution and the Republic: A History of Political Thought in France since the Eighteenth Century (2011).

Chandran Kukathas has the Chair in Political Theory and Head of Department at the London School of Economics. He completed his BA in History and Political Science at the Australian National University and his MA in Politics at the University of New South Wales before going on to a DPhil in Politics at Oxford University. He has taught at the Royal Military College, Canberra; Oxford; the Australian National University; the University of New South Wales at the Australian Defence Force Academy; and the University of Utah, where he held the Neal Maxwell Chair in Political Theory in the Department of Political Science. He is the author of The Liberal Archipelago: A Theory of Diversity and Freedom (Oxford University Press, 2003).

David M. Hart received a Ph.D. in history from King's College, Cambridge on the work of two French classical liberals of the early 19th century, Charles Comte and Charles Dunoyer. He then taught for 15 years in the Department of History at the University of Adelaide in South Australia before joining the Liberty Fund as Director of the Online Library of Liberty Project in 2001. He is currently the Academic Editor of Liberty Fund's six volume translation of the Collected Works of Frédéric Bastiat. He is also editing for Liberty Fund a translation of Molinari's Conversations on Saint Lazarus Street: Discussions on Economic Laws and the Defence of Property (1849). Recent works include co-editing with Robert Leroux two anthologies of 19th century French classical liberal thought: French Liberalism in the 19th Century: An Anthology (London and New York: Routledge, 2011) and in French, L'Âge d'or du libéralisme français. Anthologie. XIXe siècle (The Golden Age of French Liberalism) (Paris: Ellipses, 2014). On his personal website <http://davidmhart.com/liberty> David has a considerable number of resources on 19th century classical liberal thought.

Additional Reading

LEAD ESSAY: Jacob T. Levy, "Rationalism, Pluralism, and the History of Liberal Ideas" [Posted: May 2, 2016]↩

In Rationalism, Pluralism, and Freedom I argue for the existenceof a deep and recurring tension within liberal theories of freedom, between on the one hand a family of views concerned with the risk of tyranny posed by the modern, centralized and centralizing, Weberian state, and on the other a family of views that see the graver threats to liberty as arising from customary, local, religious, traditional, and decentralized authority. To put it another way, the first approach sees intermediate groups—from the family through churches and voluntary associations to local and provincial government—as sites of freedom, wherein free persons live their various lives according to their various choices, and as bulwarks protecting us against state power. The second, by contrast, sees such groups as real or potential sites of local despotism, and trusts to the rationalizing force of the modern state to check the power of local and internal elites, of personalistic domination, and of the obscure and conservative rules associated with group life. I refer to the first view as pluralist liberalism and the second as rationalist liberalism: both liberal, because both concerned with the protection of freedom, but divided by competing analyses of where the greater social threat to it lays.

I describe these as competing liberal social theories of power. I don’t think that they necessarily differ on basic moral questions; in particular, I don’t think that they genuinely differ on any question like “are individuals morally primary?” or “do groups have rights?” Those, I argue, are red herring debates. On the liberal concept of the free person, much of what a person is free to do is to associate with other free persons. In their association, they are free to have (explicit or implicit) norms of belonging, rules of membership, standards of behaviour, and so on—and so taking the freedom of persons seriously entails taking the freedom of their groups seriously.

As the late historian of political thought Istvan Hont said, in a passage I use as the epigraph of Part II of the book:

History cannot be expected to solve the core analytical puzzles of political or economic theory. But it has its hour when the long-expected solutions of social and political science fail to materialize. History is the tool of skeptics. It helps us to ask better questions. More precisely, it can help us avoid repeating some questions again and again, running in circles unproductively.

The individual rights/ group rights debate is an unproductive circle; and one of my strategies in the book is to turn to the history of political thought to find richer intellectual resources than might be available in contemporary philosophical debates about rights. I trace rationalist and pluralist liberalisms to traditions as old as liberalism itself, and indeed older. In response to the truth about the world that human freedom was imperilled both by the early modern centralizing state of absolute kings and by the variety of authorities the state competed with and gradually displaced—the Church, feudal nobles, provinces, cities, guilds, universities, and so on—the liberal concern with freedom manifested as rival political sociologies from the beginning.

I discuss these medieval and post-medieval institutions in order to emphasize that, by the time European states began to solidify in the fifteenth and sixteenth centuries, they came into a social world that was already thickly populated with organizations and institutions. The importance of this is twofold. First, the state as an organizational form was constitutively hostile to them. State actors competed with these other institutions for resources, authority, and power. Just insofar as the state form succeeded and took hold, it did so by displacing, expropriating, or crushing them. As monarchs turned to absolutism, they did their best to centralize authority and bring intermediate bodies to heel.

Second, one of the most important bodies of thought in early modern political philosophy tends to erase this fact, the fact that the European state was preceded by other social institutions. Social contract theory imagines an all-at-once transition from a world of normatively isolated individuals, the state of nature, into a coherent and unified society with coherent and unified structures of political and legal authority. In the real world, states built their legitimacy piecemeal out of juridical traditions that preceded it: canon law, Roman law, feudalism. But in social contract theory, the idea of pre-state social organization makes little sense, and the idea of pre-state juridical traditions makes none. Contractarianism can only do its work if the contractors would agree on a unique and determinate rule, whether that be absolute sovereignty in Hobbes, a modified majoritarianism in Locke, or democratic absolutism in Rousseau. There must be one coherent authority structure that we all would have willed in common, so that we may now all be treated as if we had consented to it. In that system there is no room for competing, pluralistic, or pre-contractarian organizations and rules. And so social contract theory provided a legitimation for the Weberian state. To the degree that contractarians acknowledged the existence of intermediate groups at all, they either sought to normatively break them up into their individual members, as Locke did with churches, or treated them with deep suspicion, as Hobbes did in thinking of them as “lesser commonwealths in the bowels of a greater, like worms in the entrails of a natural man.” Social contract theory was not as such a liberal theory; it came too early for that, and was compatible with great authoritarianism. But of course John Locke in particular reframed contractarianism in terms of the defense of individual liberty, and made it an important resource for later liberalism.

Indeed, I think Locke, and then Kant, made contractarianism such an influential source of liberalism that it has sometimes been easy to mistake social contract theory for the whole of liberal thought. This has been especially true since the resurgence in contractarianism among liberal theorists and philosophers in the 1960s and 70s: Buchanan and Tullock, Gauthier, Narveson, and especially Rawls. (Although Nozick was in a special sense not a contractarian, Locke and Kant were his key forbears; such resources as he drew from the liberal tradition came from the rights theories of social contract thinkers.) And so modern liberal political philosophy has inherited the idea of a social world made up of free individual persons and a legitimate unitary sovereign state above them, a rationalist vision in which other social organizations must either be delegated authority from the state or have no legitimate authority at all.

In order to overcome this, I work to articulate and bring to light an intellectual tradition that was importantly opposed to contractarianism, and that eventually formed a key source for pluralist liberalism as contract theory did for its rationalist counterpart.

Ancient constitutionalism—“ancient” here meaning “old” in the same sense as the ancien in ancien régime, not referring to classical antiquity—refers to a range of works and thinkers from early modern Europe, united by their opposition to centralizing royal absolutism, and by their conviction that, as Germaine de Staël famously put it, liberty was ancient, despotism modern. With varying degrees of historical accuracy, they reconstructed and imagined a coherentpluralism out of the complex jurisdictional world of the Middle Ages. They held that the rights and privileges of the Estates and of the corps intermédiaires had jointly made up a constitution for a kingdom such as France, a constitution now threatened by monarchical ambition. They routinely characterized this ancient constitution as being animated by a spirit of egalitarian collective self-determination that they might trace to Gothic or otherwise Germanic ancestors—an original liberty that was meant as historical description, not as hypothetical device.

Within this category I would place the Calvinist French theorists known as the monarchomachs: Francois Hotman, author of Francogallia (1573); Theodore de Beza, author of On the Rights of Magistrates (1574); and the pseudonymous Junius Brutus who wrote Vindiciae Contra Tyrannos (1579). Confronted with the combination of royal absolutism and Catholic power, they sought to justify resistance in terms of a constitutional order now being upset and defied by kings. In the authority of the Estates and the self-government of cities and provinces they found the remaining vestiges of this legitimate older order; and it was the duty of those who led such corps to organize resistance when tyranny threatened. The nobility and magistrates of the cities and provinces—as well as local religious officials—owed a duty to the traditional constitution to protect it against royalist innovation. They saw in the radically decentralized Holy Roman Empire the truth of the old Frankish order out of which the French monarchy had emerged. In so doing, they articulated a theory of institutionalized resistance to monarchical overreach: not the inchoate right of “the people” to resist, a right that is always plagued with indeterminacy because “the people” lack an institutional identity and a corporate voice, but a determinate right of intermediate officials to defend the constitution that defines their offices, privileges, and local liberty.

The theorist Johannes Althussius was a self-conscious follower of the monarchomachs: a Calvinist like them, and a defender of both Protestant resistance in France and of the Dutch provinces’ war for independence against Spain. Althussius is sometimes identified as a founder of federalist theory, and for good reason; but his federalism was decidedly ancient-constitutional. His Politica (1603) holds that a commonwealth is created when "many cities and provinces obligate themselves to hold, organize, use, and defend, through their common energies and expenditures, the right of the realm..." It is a "mixed society, constituted partly from private, natural, necessary, and voluntary societies, partly from public societies [i.e. cities and provinces]." The state does not create those bodies; rather, "families, cities, and provinces existed by nature prior to realms, and gave birth to them." This was of course literally true in the Dutch case; the provinces had political existence prior to their decision to unite, abjure the Spanish monarchy, and create a new state. But it is true "by nature," not just contingently in the Dutch case; private associations are prior to cities and provinces, which are prior to commonwealths or realms. Althusius uses contractual language—but the contract is not one entered into by individuals in a prior state of nature. Indeed Althusius denies that individuals as such are members of the commonwealth at all. They are parts of it in the same way that boards and nails are part of a house; but "cities, urban, communities, and provinces are members of a realm, just as... roof, walls, and floor are essential parts of a house." And, like the monarchomachs, he places the right and duty of resistance to tyranny in the officials of those intermediate bodies, defending their members’ liberty.

The Anglo-Irish Whig theorist Robert Molesworth a century later explicitly linked the ancient constitutionalist cause on the continent with resistance to the would-be absolutist Stuart Kings in England, and, after the Glorious Revolution, with opposition to Tory royalism. He created a diplomatic scandal when, upon his return from a term as ambassador to Denmark, he published a blistering attack on emerging Danish absolutism, An Account of Denmark As It Was In The Year 1692. He distinguished, more sharply than the monarchomachs or Althussius had done, ancient constitutionalism from Protestantism; indeed, he argued that Catholic independence from the state might bolster liberty, and that Lutheran subservience to the state had in Denmark, and could elsewhere, worsen the modern turn toward despotism. And, unlike his near-contemporary and political ally John Locke, he grounded the alternative to absolute monarchy in a gradually evolved history with a plurality of intermediate institutions, not in an imagined world of individuals creating a sovereign state.

Molesworth’s work of connecting the English Whig tradition to continental ancient constitutionalism was cemented with his 1711 translation into English of Francogallia under the telling title Franco-Gallia, or, an account of the ancient free state of France, and most other parts of Europe, before the loss of their liberties, and with a lengthy 1721 preface enunciating the principles of “True” (Country) Whiggism, explicitly linking Whiggism with the “Gothick” constitutionalism defended by Hotman. The True Whig sought to protect “our just Rights and Liberties, together with the solid Foundations of our Constitution: Which, in truth, is not ours only, but that of almost all Europe besides.” That pamphlet continued to be reprinted as a freestanding defense of Whig theory throughout the 18th century.

While ancient constitutionalists spoke the language of liberty, that is not enough to identify them as liberal. The opposition to royal centralization had sometimes been a defense of one kind or another of local domination, such as the power of the feudal nobility. I suggest that we see the ancient constitutionalists, like the early social contractarians, not as liberals, but as generating resources on which liberalism would later draw. At a minimum, I think that a liberal view must include a reasonably capacious idea of religious liberty, a supportive attitude toward commerce and the emergence of commercial society, and a strong commitment to the rule of law and procedural protection against lawless executive power. On this understanding, we should see ancient constitutionalism as having been fully developed into a liberal theory of pluralism in the work of the Baron de Montesquieu, who transformed the medieval past and the early modern memory of it into a vision of a tolerant, commercial, and free modern society.

Indeed Montesquieu himself notes the difference between the ancient constitution’s roots in privilege and its emergence as something far freer:

It was at first a mixture of aristocracy and monarchy. Its drawback was that the common people were slaves; it was a good government that had within itself the capacity to become better. Giving letters of emancipation became the custom, and soon the civil liberty of the people, the prerogatives of the nobility and of the clergy, and the power of the kings, were in such concert that there has never been, I believe, a government on earth as well tempered as that of each part of Europe during the time that this government continued to exist; and it is remarkable that the corruption of the government of a conquering people [the Franks in France, Gothic and Germanic tribes generally] should have formed the best kind of government men have been able to devise. [see the different OLL online version]

It nonetheless is controversial to see Montesquieu as an ancient constitutionalist, despite his robust defense of corps intermédiaires as constituting and preserving a moderate monarchical constitution as distinct from a despotic one. Some admirers insist on seeing Montesquieu as a crypto-republican, and this idea of a modern monarchy reformed along ancient constitutionalist lines as a disguise for his true ideas. This is in part, I think, because of the prejudice that rationalist and contractarian liberalism is the whole tradition; it is hard to deny the force of Montesquieu’s liberalism, and so when confronted with his pluralism, these interpreters are tempted to rationalize it away. But it is also because his ancient constitutionalism is partly expressed in the final third of The Spirit of the Laws in a dense legal and constitutional history of France that is difficult to understand without an appreciation of the debates about that history in the previous two centuries.

I argue in RPF and elsewhere that Montesquieu offers a novel reconstruction of the fundamental law of France—one that is even more radically pluralist than the monarchomachs, because the law of the kingdom was always polycentric and diverse. There was no original contract or founding moment that could legitimize royal absolutism, or noble domination, or for that matter popular sovereignty. Legal diversity and political diversity were the fundamental law, and any claimant to the whole of legitimate power had his history wrong. To put it another way, the rejection of founding principles in the quotation above—the idea that the constitution was at its best in a kind of corruption, not when it was truest to its origins—sat as poorly with theories of primeval liberty in real historical forests as it did with contractarianism (or, for that matter, with civic republicans’ Machiavellian obsession with virtuous foundings, though that dispute is beyond the scope of this essay). And ancient constitutionalism, in order to remain relevant, would have to be adapted again, now to a world of commerce, religious pluralism, and central state military power that dwarfed what was known in the Middle Ages. In turning the pluralist ancient constitution into an inspiration for the reform of modern states, rather than a vain attempt to turn back the clock, Montesquieu reshaped ancient constitutionalism and made it available for later liberals on both sides of the Atlantic. These included, in qualified ways, both Adam Smith and Benjamin Constant, and in a particularly forceful way Alexis de Tocqueville, whose celebrated defense of freedom of association and township self-government in America drew inspiration from the same sources as his ancient constitutionalist, and Montesquieuian, The Old Regime and the Revolution.

In this essay I have emphasized RPF’s account of ancient constitutionalism, partly because developing it is a central part of the work I try to do in the book of reconstructing the liberal tradition in a way that decenters social contractarianism and thereby makes pluralist liberalism more intellectually available today. I have also done so partly in order to emphasize the connections between my book and the works made available through the Online Library of Liberty that hosts this exchange. In the subsequent exchange, I would of course be happy to discuss any other issues in the book the commentators would like to raise.

Endnotes

Jacob T. Levy, Rationalism, Pluralism, and Freedom (Oxford: Oxford University Press, 2014).

Istvan Hont, Jealousy of Trade (Cambridge, MA: Harvard University Press, 2005), p. 156

Germaine de Staël, Considerations on the Principal Events of the French Revolution, Aurelian Craiutu, ed. (Indianapolis, IN: Liberty Fund Press, 2008).

Johannes Althusius, Politica, Frederick S. Carney, ed. (Indianapolis, IN: Liberty Fund, 1995), p. 66.

Ibid., p. 67.

Molesworth, “ An Account of Denmark” in An Account of Denmark, With Francogallia and Some Considerations for the Promoting of Agriculture and Employing the Poor, Justin Champion, ed. (Indianapolis, IN: Liberty Fund, 2011).

. Molesworth writes that the preface was meant for inclusion in the first edition, but the publisher declined to do so; this seems to be true on the basis of events referred to, and not referred to, in it. Most conspicuously, Molesworth grudgingly accepts the Triennial Act of 1694, until such time as annual elections can be obtained; by 1721, it had been superseded by the—far worse from his perspective—Septennial Act, which goes unmentioned.

Molesworth, Francogallia, translator’s preface 3.

Montesquieu, Spirit of the Laws, Anne M. Cohler, Basia Carolyn Miller, and Harold Samuel Stone, eds. (Cambridge: Cambridge University Press, 1989), 167-68

“Not so Novus an Ordo: Constitutions Without Social Contracts,” 37(2) Political Theory 191-217, 2009; “Montesquieu’s Constitutional Legacies,” in Rebecca Kingston, ed., Modernity in Question: Montesquieu and His Legacy, (Albany, NY: SUNY Press, 2009).

Alexis de Tocqueville, Democracy in America, Eduardo Nolla ed., James T. Schleifer trans. (Indianapolis, IN: Liberty Fund 2010 [1835-40]).

Alexis de Tocqueville, The Old Regime and the Revolution, vol 1, François Furet and Françoise Mélonio, eds., Alan S. Kahan, trans. (Chicago: University of Chicago, 1998).

RESPONSES AND CRITIQUES↩

1. Gary Chartier, "One and a Half Cheers for Pluralism" [Posted: May 4, 2016]↩

Jacob Levy paints a rich and fascinating picture of “ancient constitutionalism” as a crucial foundation for a “pluralist” liberalism he regards as a valuable alternative to the social-contract tradition he associates with “rationalist” liberalism. I believe we ought to welcome pluralist liberalism, but doing so need not mean abandoning important features of rationalist liberalism.

For Levy, if I understand him correctly, the pluralism represented by the “ancient constitution” features a variety of competing, overlapping institutions—“legal regimes,” in my terms—that are simply accepted as givens, or, at any rate, that don’t need to be grounded in consent. They can doubtless be critiqued or reformed in various ways, but they don’t need any deep justification. These institutions foster liberty because they compete with one another, thus restraining efforts on the part of any to achieve absolute authority, and because the entrepreneurially minded can engage in a kind of legal arbitrage, taking advantage of the opportunities offered by differences in the rules upheld by different regimes to realize greater freedom in particular instances.

Ancient constitutionalism provides a particular sort of ground for pluralism. For the proponent of this approach, different institutions rest on different sorts of justifications or else don’t need to be justified at all. They may present themselves as authoritative, and people may simply accept them as such. And of course a broadly Humean account of political authority might treat this as sufficient: because they secure order and foster liberty, they should be accepted, left undisturbed.

“Rationalist” liberalism in this context seems to feature a set of diverse elements. It includes (i) the idea that political authority requires justification, (ii) the idea that this sort of justification can be provided by a social contract, and (iii) the idea that a centralized state can, should, and will “rationalize” social institutions by subjecting them to uniform laws.

It seems clear to me that (iii) is a nonstarter. This is both because states are dangerous, so that centralizing power in the hands of state authorities is an invitation to mischief of all kinds, and because (ii) is false, given that no state does, and arguably no realistically conceivable state could, derive its authority from a Lockean social contract, with the result that the state could not have consent-based authority to engage in the rationalizing activity contemplated in (iii).

As I understand Hobbes’s view, a Hobbesian social contract is primarily an imaginative device designed to make clear how it makes sense to reason about submission to the state. Locke, by contrast, really seems to have assumed that actual consent really does matter and that at least some states were established on the basis of actual agreements on the part of the citizenry. While I am doubtful that individual states really did come into being this way (the hypothesis that kings and other tyrants begin as “stationary bandits” or tribal warlords strikes me as more plausible), the notion that consent is ordinarily needed to justify the exercise of authority seems attractive and defensible.

In brief, this idea might make sense for more than one reason. For instance, (i) autonomous moral agents begin as equal in authority and moral value, so no one has any natural entitlement to exercise authority over anyone else; consent, however, could, it seems, confer such an entitlement. Further, (ii) since I wouldn’t want to be ruled without my consent, it’s unreasonable for me to attempt to rule others without their consent. Similarly, (iii) requiring consent contributes to the welfare of those over whom authority is exercised, since self-dealing rules won’t be able to retain consensual support. And (iv) violating consent in the course of imposing authority on someone may involve acts that are wrong on independent grounds—instances of presumptively unjustifiable interference with people’s bodies and justly acquired possessions.

The kind of rationalist reconstruction of pluralism I would favor need not depend on any “original contract or founding moment.” That sort of contractualism is, surely, historically most implausible. The point, rather, is that the kind of authority claimed by a legal regime, the authority to use force against people’s bodies and justly acquired possessions, requires, at least presumptively, consensual legitimation.

That there are multiple reasons to regard consent as important does not show that nonconsensual authority is never justified. One might imagine a variety of emergency situations in which there could be temporary justifications for the exercise of nonconsensual authority (though even in emergency situations it would be important to take seriously the possibility that those treated as legitimately exercising such authority might seek, and perhaps seek successfully, to exercise it after the emergencies had ended, with predictably problematic consequences). But, despite this possibility, there seems to be a strong general presumption in favor of requiring consent as a prerequisite to the exercise of authority.

If this is so, there will certainly be reason to critique the claims of some actual traditional institutions like those endorsed by ancient constitutionalists. But the pluralist model of which ancient constitutionalism provides one example will remain more attractive than the alternative, to which a rationalizing, and putatively rational and rationally justified, state is central. This is so for at least two reasons.

(i) While rationalist liberalism sees state authority as rooted in a social contract, it is not clear that any actual state has ever been established on the basis of such a social contract. Even if there had been such a social contract in the past, a contract made by the members of one generation cannot bind the members of another generation. And attempts to maintain that new members of a society governed by a given state can be understood to give tacit, even if not explicit, consent to that state’s authority on an ongoing basis seem strained and unpersuasive. (ii) The uniformity characteristic of state-based legal regimes (and characteristically celebrated by proponents of such regimes) tends to stifle diversity and experimentation as regards substantive and procedural legal standards. It is also likely to deny people legal options—and ready opportunities to influence legal regimes by means of low-cost exit decisions.

These considerations give us good reason to prefer pluralism to rationalism. But they leave open the question of the kind of pluralism we ought to prefer. For the reasons I’ve already noted, I believe pluralistic institutions ought to be consensual. That is to say, legal authority should be vested in institutions the jurisdiction of which people ought to be able to choose to accept.

That is, in principle, quite compatible with endorsing many institutions that were not created consensually from scratch or formed on the basis of any sort of rational planning. Institutions can be consensual without being deliberate creations of the rational, or rationalizing, will. People might choose to be subject to rabbinical law or Catholic canon law, for instance (in general or with regard to a particular dispute), without anyone’s supposing that either legal regime was the product of democratic deliberation or ground-up formulation by experts. Perfectly defensible institutions may have developed in Burkean fashion—in the manner of Harriet Beecher Stowe’s Topsy, just growing. What matters, on the view I’m defending, is that they not impose authority on the unconsenting.

Realistically, then, an attractive pluralism will feature a combination of institutions, some given and some intentionally crafted from scratch (though even these will, of course, tend to develop in unplanned and frequently unexpected ways). This sort of pluralism will embrace the consensualism of rationalist liberalism without supposing that centralized territorial monopolists are legitimate or are essential guardians of liberty. And it will embrace the diversity treasured by adherents of ancient constitutionalism without regarding nonstate institutions as legitimately authoritative if they lack the consent of those they are intended to serve.

The right of exit from these consensual institutions, rather than the authority of the state, could be expected to reduce the likelihood and the seriousness of local tyranny. Institutional competition could winnow out undesirable legal norms and practices and encourage the adoption of ones calculated to foster the flourishing and fulfillment of participants. Obviously, the absence of an ideal liberal state would mean that this sort of societal structure could not (as it seems it would be, for instance, in Nozick’s Anarchy, State, and Utopia ) be enforced from above. Its viability would depend in large part on widespread acceptance of social norms treating the pluralist institutional framework and the bedrock pre-institutional rights of persons as valuable and worth respecting—and as legitimate. But that would not render this sort of structure any less secure than that of any currently extant liberal society, since all such societies depend, similarly, on the widely shared conviction that their institutions are legitimate.

Levy seems to me to be completely right to emphasize the merits of pluralism as a defender of liberty. Where I think I disagree with his position, if I understand it correctly, is in thinking that pluralistic institutions themselves need to be justified on the basis of consent. If the social contract tradition is understood as positing a direct relationship between individuals and states that renders all small-scale institutions secondary to states, then we have every reason to reject the idea of the social contract. This is so not only because small-scale, often nonterritorial, institutions offer important safeguards for liberty that states do not, but also because states lack precisely the kind of justification the social contract-tradition suggests they need. States do not enjoy consensual legitimacy. By contrast, small-scale, nonterritorial institutions can enjoy this kind of legitimacy, and, arguably, do so in some cases.

Endnotes

Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974).

2. David Hart, "Pluralism May or May Not Advance Liberty" [Posted: May 9, 2016]↩

Jacob Levy has provided us with an important new way to analyze the classical-liberal tradition by, firstly, arguing, in a way reminiscent of Larry Siedentop’s effort 25 years ago, that there have been two traditions (or what I would call theoretical binaries) within classical liberalism, namely, the “rationalist” and the “pluralist,” which have produced tensions that need to be addressed and if possible resolved; and secondly, reminding us in a neo-Pocockian fashion of the historical importance of the so-called “ancient constitution” and its intermediate institutions (also known as “civil society”) as a bulwark against tyranny. Let me begin my comments with some reflections on the former.

I would like to suggest that there have been several other important theoretical binaries that have deeply divided the classical-liberal tradition which should not be forgotten. To mention only a handful, these are differences over the very foundation of the principles of liberty and property in either natural law or some utilitarian social calculation; the proper role of violence in bringing about radical change in a pro-liberty direction, either by revolutionary violence (the English Revolution in the 1640s, the American and French revolutions of the late 18th century, and the European revolutions of 1848-49) or by slow incremental, parliamentary reforms such as those introduced in England throughout the 19th century; the role of religion and the Church, with some classical liberals arguing that religion provides the moral bedrock upon which any free and civilized society must be based (Constant and Tocqueville), and others arguing that religion itself is a threat to reason and that organized religion in particular is a threat to liberty, since “religionists” (whether “Christianists” or “Islamists”) cannot help but get involved in politics and impose their beliefs and practices on others, as history has repeatedly shown; and the fundamental divide which exists between the advocates of a “limited state,” who believe that some form of a state is necessary for liberty to flourish and that a “liberal state” can be limited and kept limited (Bastiat), and those other classical liberals (Herbert Spencer and Gustave de Molinari) who believe that it is naive and utopian to think that a state, even a liberal state, can be kept limited for very long before the forces described by the Public Choice school of economics inevitably reassert themselves (self-interest, rent-seeking). There are other binaries which I will not mention for reasons of space, but I have listed what I think are the most important ones. The question I ask of Jacob is why he thinks the “rationalist” vs. “pluralist” binary is the most important one for understanding both the history and theory of classical liberalism?

In attempting to understand what Jacob means by his “rationalist” vs. “pluralist” binary I thought I could hear the breath of Hayek on his shoulders. (He does mention Hayek five times in the book.) By this I mean that he seems to regard “rationalism” as a “top down” process, much like some kind of a societal “central planner” or lawmaker who knows what is in society’s best interest; and “pluralism” as a “bottom up” process, much like Hayek’s notion of “spontaneous order,” where a multiplicity of private associations with dispersed local knowledge emerge “spontaneously” to solve social problems. The historical example that comes to my mind when thinking along these lines is the “top down” rationalist abolition of the guilds and corporations (also known as “feudalism”) which took place in France on 4 August, 1789. This was accomplished by a revolutionary seizure of power by various groups (including a strong classical-liberal faction such as the Girondins) and the immediate and “top down” abolition of centuries of legal and economic practice by many private associations which made up the French “ancient constitution.” Some of these ancient bodies were guilds and corporations which might at one time have served the needs of their members and society at large but which, over time, had become ossified by rent-seeking and monopoly privileges granted by the state and had thus had become hated institutions by 1789 which deserved to be abolished.

I can hear Jacob replying in the voice of Montesquieu that a key source of opposition to the encroaching power of King Louis XVI were some of the intermediate associations, such as the regional Parlements, and this is true. But what makes the French Revolution so complex, both from an historical as well as a classical-liberal perspective, is that these regional competing associations and sources of authority had also become ossified and monopolistic, and those individuals who were excluded from membership and participation eventually turned against these intermediate institutions in turn. Thus, the revolution quickly turned into this cascading escalation of revolt which got out of control (at least from a classical-liberal point of view, if not from Robespierre’s or eventually Napoléon’s point of view, both of whom benefited from the ensuing chaos). The question, then, for the French liberals of the revolutionary period, as well as for us today, is to find the correct balance between “top down” rationalist reform and the preservation of strong liberty-protecting “pluralist” intermediate associations.

A second historical example I would like to bring up is the abolition of slavery, especially in the problematic case of the United States (the only slave society which fought a civil war to abolish slavery, if one ignores the failed revolution of Spartacus in the ancient Roman world). Given the power of the local institutions in the British Caribbean and their representatives in the House of Commons in England, it is hard to imagine how slavery might have been abolished there without external, “top down”, “rationalist” intervention against the entrenched power of the “intermediate powers” in the colonies. (Interestingly, a similar argument was made by Gustave de Beaumont about land reform in Ireland in 1840, which he thought required English intervention to destroy the power of local Irish elites.) As a result of the spread of enlightened political values over a period of several decades, there emerged a lobby group in British society which had representatives in the House of Commons (headed by William Wilberforce) that pushed for the abolition first of the slave trade (achieved in 1808), then of slavery itself in the British colonies (achieved in 1833). Had the North American colonies remained part of the British Empire, the southern slave-owning states might have been forced to abolish slavery, just like their Caribbean colleagues were forced to do in 1833 -- some three decades before the Civil War -- but this is an exercise in counterfactual history, which is beyond the scope of this essay.

However, it does raise the important question of what to do with local autonomous associations which continue to practice very illiberal policies such as slavery. The advocate of “pluralism” might argue that competition with outside bodies (rivalrous associations) might lead to the mitigation of slavery without outside interference over time. Classical political economists of the period, such as Jean-Baptiste Say and his followers, argued that this would happen only once the metropole stopped supporting the slave colonies with guaranteed home markets for their products, such as sugar, and state (i.e., taxpayer-subsidised) protection from internal slave revolts by the local police, the French Army, and the Navy. However, it took another top-down “rationalist” reform during the 1848 Revolution to finally destroy (for the second time) slavery in the French colonies.

Had the Articles of Confederation prevailed in the United States (and the “Philadelphia coup of 1787” not imposed a more highly centralized and powerful national government on the ex-North American colonies ), it is possible to imagine a group of highly autonomous and competitive “mini-states” competing in a very rivalrous fashion amongst themselves to create a “Jonesian” system of competing jurisdictions across the eastern seaboard of America. In such a system, without a powerful central government (“empire”) to enforce a fugitive-slave act nationwide, the pressures to abolish slavery would have intensified to the point where the local jurisdictions (the Southern slave states) might have been forced to adapt by reforming their “peculiar institution” or face collapse from the economic bleeding produced by runaway slaves and the constant outbreak of slave revolts funded and armed by Northern abolitionists (like Harriet Tubman, John Brown, and Lysander Spooner). One can only speculate.

However, it seems that slavery was a highly adaptable system which might have survived for decades (spontaneously evolved?) without outside intervention to bring it to an end. In Russia and in some of the Southern cities in the 1850s, serfdom and slavery were adapting to economic forces as serf/slave owners granted their property some autonomy to set up workshops which they would run on condition of sending their masters a “cut” of the profits they made, much like the present income-tax system. One could say that we can see here a premonition of what the modern state based upon the income tax would look like some hundred years later.

Let me conclude by saying that “pluralism” in the form of intermediate institutions may or may not be conducive to liberty. Intermediate institutions may be a necessary condition for liberty, but not a sufficient condition. As Gary Chartier notes in his post, we must not forget the importance of the widespread belief in liberty held by the people who make up a society. Without that belief in liberty, no amount of intermediate associations will produce a truly free society.

Endnotes

Larry Siednetop, “The Two Liberal Traditions,” in The Idea of Freedom: Essays in Honor of Isaiah Berlin, ed. Alan Ryan (Oxford: Oxford University Press, 1979).

J.G.A. Pocock, The Ancient Constitution and the Feudal Law; a Study of English Historical Thought in the Seventeenth Century (Camridge: Cambridge University Press, 1957).

See François Furet, "Night of August 4," in François Furet, and Mona Ozouf, eds. A Critical Dictionary of the French Revolution (Harvard University Press, 1989), pp. 107-114; and John Mackrell, The Attack on Feudalism in Eighteenth-century France (London: Routledge & Kegan Paul, 1973).

Gustave de Beaumont, Ireland: Social, Political, and Religious, ed. W.C. Taylor (London: Richard Bentley, 1839). 2 vols. </titles/2430>.

Sheldon Richman, America’s Counter-Revolution: The Constitution Revisited (Ann Arbor, Michigan: Griffin & Lash, 2016).

Eric Jones, The European Miracle: Environments, Economies and Geopolitics in the History of Europe and Asia (Cambridge; Cambridge University Press, 1981).

The pressure for reform caused by the constant threat of slave revolts has been underestimated by historians. See the older but still classic accounts by Marxist historians such as Herbert Aptheker, American Negro Slave Revolts (New York: International Publishers, 1943, 1974) and Eugene D. Genevese, From Rebellion to Revoltuion: Afro-American Slave Revolts in the Making of the Modern World (Baton Rouge: Louisiana State University Press, 1979). See also two modern accounts by Scot French, The Rebellious Slave: Nat Turner in American Memory (Boston: Houghton Mifflin, 2004) and The World of the Haitian Revolution, ed. David Patrick Geggus and Norman Fiering (Bloomington: Indiana University Press, 2009).

3. Chandran Kukathas, "Liberal Theory’s Essential Tension: On Jacob Levy on Rationalism, Pluralism and Freedom" [Posted: May 11, 2016]↩

Political theory has both a descriptive and a normative aspect. As theory, it aims at consistency and coherence, for no description of the world has any point if it is unable to recognize and account for apparent oddities and aberrations. As politics, it advances a view of how things ought to be, or at least, ought to be changed, revised, or improved. Theory implies consistency; but in politics there is rarely such a thing in any deep sense, for politics is about reconciling differences—most of all when they are too deep, or too entrenched (which is not the same thing), to admit of principled (or philosophical) rapprochement.

The political theorists of the liberal tradition, most noticeably when they have come in contractarian guise, have aspired to the development of a normative philosophical position that reconciles the differences among actual people and groups or communities not only in theory but also in practice. The key to the solution is rationality. We would all, surely, agree to live according to arrangements that reason revealed to be good, or just, or secure, or consistent with living freely. And if we would, the intransigence of dissenters can without hesitation be brought to practical reconciliation with the reasonable majority by the wholly justifiable enforcement of right. Implicit in this move is the thought, first, that practice must bow to reason—which is perhaps not so difficult a thing to accept—and, second, that that reason to which all must yield is not anyone’s particular reason but reason itself—which is a tougher proposition to swallow. There is, after all, no shortage of claims to possession of the one true understanding of the nature of things. Indeed, there is a great plurality of such claims. If politics yields to philosophy, it is only through violence.

It is one of the great merits of Jacob Levy’s study, Rationalism, Pluralism, and Freedom, that it recognizes this essential tension between politics and philosophy. Yet its insightfulness does not end here. If politics and philosophy may not be reconciled except by violence, cannot the answer be that we seek a higher philosophy that recognizes the wrongness of violence—that recognizes that what must govern human affairs is not power but something else. Freedom, perhaps. The answer could be simply to let people be, that their many and various ways and convictions might lead them wherever they wish to go, to live however they see fit, in communities or groups or gatherings of whatever sort within which they might find meaning.

If one strain of the liberal tradition emphasized the importance of political power deriving its authority from the willing agreement of the governed, the other emphasized its corollary: that those unwilling to agree or acquiesce be left in peace or permitted to depart—freely to form their own ways of governing themselves. The problem, however, is that those who repudiate the authority of one group and strike out on their own cannot avoid replicating the original problem of politics. To fulfil the desire to flourish, human beings are inclined to cooperate; but as their numbers increase, so will the possibility of agreement diminish, and laws—as well as the power to enforce them—will be established to deal with dissent. Inescapably, some dissenters will long for the freedom to escape the communities that so confine them, though others will wish only to remain and seek wherever they can find it the power to reassert their freedom within the collective—if necessary, by an act not of secession but of irredentism. These are the people within a group who prefer the rationality of the powers beyond to the rationality of those within. Their freedom, in their own eyes, is congruent with their freedom from their group, rather than with the freedom of their group from the outside powers that would govern it.

This tension is a permanent feature of the human condition. No less enduring is the philosophical quest for a resolution—since the answer to this conundrum is for many political theorists the holy grail they have been trained to seek. The discipline of political theory is therefore as replete with explanations of why others have failed as it is with attempts to find the answer, or to convince others who cannot or will not see it.

Political theorists, on the whole, have very little capacity to shape or change the political world. That is not to say that ideas have no effect—only that the influence of theorists is limited. When they do have that capacity, all too often it is because their ideas are taken up by those willing to exercise power to implement them. This is no less the case when those ideas are about freedom. And those who are forced to be free will enjoy one kind of freedom even as they forgo—or forsake—another.

The conclusion of Jacob Levy’s book is a sobering one. He writes in its final paragraph: “If we are concerned with liberal freedom we are … left with no choice but to reject synthesis—whether of intermediate groups’ ethos with the state, or of rationalism and pluralism. This means living with a degree of disharmony in our social lives, our moral psychologies, and our political theory.”

What can we take from this ultimate assessment? To my mind what it points to is a form of political philosophical skepticism. It is not a counsel of despair, or a suggestion that nothing matters, or least of all that freedom is not worth pursuing. It is rather that there is a great need to be wary of those theorists and those theories that promise something that cannot be delivered: a way of reconciling all liberal values.

4. Jeremy Jennings, "A Response to Levy" [Posted: May 16, 2016]↩

First, I wish to congratulate Jacob Levy on the excellence of Rationalism, Pluralism, and Freedom (RPF). I have long been an admirer of his work, and his latest contribution confirms his place as a political theorist of the first rank.

There are so many things in RPF to comment on that it is difficult to know where to start. However, I might begin by suggesting that it is a very good example of how the study of history can make for better political theory. And in this endeavour Jacob Levy is probably far too modest than he should be about his achievements. At the beginning of his account of the ancient constitutionalism, he suggests that much of what follows will be familiar to historians although probably not to political theorists and philosophers. If this is undoubtedly true of the latter I suspect that such unfamiliarity holds true for much of the history profession. It might be worth reminding ourselves that Quentin Skinner’s much-read and widely admired Liberty before Liberalism makes no mention of this tradition, preferring rather to contrast the Hobbesian and what he sees as the liberal and hegemonic view of liberty only with the neo-Roman theory of free states. Note that Skinner speaks only of “the liberal understanding of freedom” whereas it might be said that Jacob Levy’s entire project is underpinned by the aspiration to make his readers understand that there are liberal understandings of freedom and ones moreover that defy synthesis.

Here too Jacob Levy neatly brings out the contrasts between Skinner’s favoured neo-Roman republicanism and ancient constitutionalism. If one looks to Roman precedents, the other looks admiringly to the Gothic Middle Ages. If Machiavelli and his followers saw a life of freedom as only being possible in a sovereign city-state, for the ancient constitutionalists free cities were located within a complex web of often competing jurisdictions. Perhaps most significantly of all, and despite seeming overlap, both traditions had very different readings of the idea of a mixed constitution. As Jacob Levy correctly remarks, “participation by clergy … belonged distinctively to the institutions of the ancient constitution, finding no equivalent in mixed-constitutional republicanism.” Indeed, to the humanistic neo-Romans of the past and the present the very idea of such participation would be anathema.

Similarly Jacob Levy does well to dislodge Hobbes and contract theory from the central place they all too often play in histories of liberalism and in contemporary liberal theorizing. As Levy observes, the ancient constitutionalists were quite happy to make use of the language of contractarianism, but for them the contract was literal and historical and not hypothetical. More fundamentally, the ancient constitutionalists used the idea of contract as a way of defending the freedom of groups and associations against the “increasingly rationalist modern state.” Contractarian theories, on the other hand, were specifically designed to justify that modern state and not to provide grounds of resistance to it. Here it is interesting to note that the theorist that Benjamin Constant probably took most exception to was Thomas Hobbes. Hobbes, Constant wrote at the beginning of his Principles of Politics Applicable to All Governments, was “the man who reduced despotism to a theoretical system most cleverly.” He was, Constant continued, “quick to support unlimited political power, in order to declare thereby in favour of the legitimacy of absolute government by a single person.” The error of the modern democratic age had been to transfer that unlimited power to the people. As Constant observed, whether that power was entrusted to one man, to several, or to all, “it is still equally an evil.” Sovereignty, therefore, had only a limited and relative existence, and, as Constant wrote, “at the point where independence and individual existence begin, the jurisdiction of sovereignty ends. If society oversteps this line, it is as guilty as the despot who has, as his only title, his exterminating sword.” Here the word “sovereignty” could just as easily be “reason.”

Moreover, by developing this argument Jacob Levy demonstrates convincingly that liberalism cannot be reduced to a doctrine concerned only with individuals and states; that its origins are distinctly premodern, and, contra the late Brian Barry, that it is a nonsense to narrow liberalism down to an Enlightenment doctrine that “stood for equality before a uniform law and the abolition of group-based legal distinctions.” Unfortunately, both its friends and foes have tended precisely to see liberalism in this way, thereby opening it up to a series of largely unfounded criticisms, not the least of which have been that it ignores the social constitution of mankind, idealizes homoeconomicus, and, of course, displays an excessive faith in reason.

In his undermining of this dominant narrative, it is hard not to draw parallels between Levy’s RPF and Larry Siedentop’s equally subversive Inventing the Individual. The theses are very different – Siedentop argues that our understanding of the freedom of the individual has deep roots in the moral intuitions of Christianity – but both, like Germaine de Staël, see liberty as being ancient, not modern, and both marginalize the contribution of the writers of the Renaissance and their rediscovery of classical humanism in favor of giving a greater prominence to the canon lawyers and philosophers of medieval Europe. Crucially, both reject Western liberalism’s usual account of itself as a doctrine that, in the name of autonomy, is fundamentally and irreconcilably antipathetic to religion and all its works.

Again, with undue modesty, Levy characterises RPF as “stylized history,” suggesting that his ambition is only to provide an alternative to other stylized histories of the emergence of liberalism. Here we can concede that all histories of ideas are to an extent stylized in the sense that they need to impose order upon complex patterns of thinking and all too often this is done through the use of a set of antinomies (collectivism versus libertarianism, revolution versus reform, and so on). But to view Levy’s text solely in this limited light would be a grave injustice, as one of its greatest achievements is to provide a rich, insightful and wide-ranging reading of a series of writers who have often been unduly ignored. Levy himself draws attention to some of these thinkers in his contribution to this discussion. Yes, many of us will be familiar with the French monarchomachs, but can we say the same of Althussius and the Anglo-Irish Robert Molesworth? One of the most welcome chapters concerns the British Pluralists – Acton, above all, but also Figgis and Maitland – thinkers of whom it is good to be reminded of their importance. Can it be true, as Levy suggests, that David Runciman entirely ignores Acton in his own recent study of the Pluralists? If so, it is a startling omission. Especially rewarding are Levy’s analyses of the opposed accounts of how freedom might be protected to be found in the writings of Montesquieu and Voltaire and, later, Tocqueville and J.S. Mill. And of course these contrasting positions skillfully illustrate Levy’s central thesis.

That thesis, as we know from this discussion, is that within liberal thought there are two mindsets – the rationalist and the pluralist – and that the existence of these two mindsets is not only long-standing but also “to a large degree” irresolvable. If Levy’s historical narrative amply proves the existence of these two mindsets, I suspect that many of us who regard ourselves as liberals have felt the existence of them within ourselves. For example, I am pretty sure what I think about what we in the United Kingdom call faith, or denominational, schools. I am in favor of them and am happy for them to receive financial aid from the state. This, it seems to me, denotes more than a recognition of religious toleration: it is to affirm the value of cultural difference and the contribution that this can make to the broader well-being – the social capital – of the community in which I live. But these schools are undoubtedly a source of inequality in our society and some of the things that are apparently taught in such establishments leave me feeling decidedly uneasy. I am a practicing Anglican (as we say in Britain) and somehow or other I have had to reconcile my faith with a Church that has discriminated against both women and homosexual men. Fortunately there has been progress here of late, but I can fully understand why some liberal friends question my attachment to such an institution.

Jacob Levy himself makes reference to the debate about the wearing of the hijab, or veil, by Muslim women. Cécile Laborde, in her Critical Republicanism: The Hijab Controversy and Political Philosophy, has done sterling work in setting out the arguments that might make possible a compromise on this issue, but it is well worth remembering that this public debate has waged pretty furiously for the past 20 years and shows little sign of abating. For the rationalist liberal, banning the wearing of the veil sets Muslim women free from group/male oppression; for the pluralist such an act is to criminalize a legitimate form of cultural/religious expression. It is hard to see how these two liberal positions can be reconciled.

But Jacob Levy also points us to some of the difficulties of the pluralist position. These are mostly addressed in the final part of RPF. However, we get a clear glimpse of these issues simply by referring to one of Levy’s dramatis personae : Lord Acton. As we know, the Catholic Acton never got around to finishing his projected history of liberty, but we know enough about his opinions to be sure of his opposition to the centralizing tendencies of the nation-state. Yet such was his commitment to national and religious plurality that he found himself siding with the causes of State Rights and the slave owners in the American Civil War. Pluralist liberal endorsements of multiculturalism have undoubtedly produced similar troubling outcomes in recent years.

Of course, Jacob Levy makes clear that his text should not be read as a defence of pluralist liberalism, except in so far as it is corrective to rationalist liberal claims that it should be ignored altogether. Nevertheless, as he states unambiguously, he does not stand above the fray, and he “generally” sympathizes with “the pluralist tradition.” So where exactly does he stand? Not for the egalitarian liberalism described by Charles Taylor. Nor for some fuzzy Rawlsian consensus or – the best contender of all – for Hegel’s account of ethical life. Rather, as Chandran Kukathas observes in this conversation, he leaves us only – if “only” is the right word – with the prospect of living with a degree of social disharmony. David Hart suggests that he can hear the breath of Hayek on Levy’s shoulders. I wonder if it might rather be Michael Oakeshott (mentioned four times in the text) who is sitting there. Oakeshott too claimed that he was only engaged in the activity of description, but his readers then and now always have felt that beneath the mellifluous prose lay a series of normative conclusions. What, we might ask, are those of Jacob Levy?

Endnotes

Quentin Skinner, Liberty before Liberalism (Cambridge University Press, 1998).

Benjamin Constant, Principles of Politics Applicable to a all Governments, trans. Dennis O’Keeffe, ed. Etienne Hofmann, Introduction by Nicholas Capaldi (Indianapolis: Liberty Fund, 2003). </titles/861>.

Larry Siedentop, Inventing the Individual: The Origins of Western Liberalism (Harvard University Press, 2014).

David Runciman, Pluralism and the Personality of the State (Ideas in Context) (Cambridge University Press, 1997).

Cécile Laborde, Critical Republicanism: The Hijab Controversy and Political Philosophy (Oxford University Press, 2008).

Michael Oakeshott, “Rationalism in Politics,” in Rationalism in Politics and Other Essays. New and expanded edition. Foreword by Timothy Fuller (Indianapolis: Liberty Fund, 1991. First edition 1962.), pp. 5-42.

THE CONVERSATION↩

1. Jacob T. Levy, "Pluralism against a Backdrop of the Weberian State: A Rejoinder" [Posted: May 23, 2016]↩

My thanks to all four commentators in this symposium. My initial essay offered a summary of one set of claims from Rationalism, Pluralism, and Freedom: that we should think of the history of liberal thought as encompassing two very different strands, one rationalist and the other pluralist; and that we should think of the prehistory of liberal thought as offering two different sets of resources for the ideas that would later crystallize as liberal, one the relatively familiar idea of the social contract and the other the relatively forgotten idea of the ancient constitution. These are of course not the only ideas in the book. Some of the essays engaged directly with Rationalism, Pluralism, and Freedom as a whole, while others (quite reasonably!) engaged with the essay. I’m afraid that my replies to the latter will in part consist of the boring answer, “I talk about that in the book.” But both David Hart and Gary Chartier raise important and serious points, and any attempt to deal with them in a few sentences would fail to do them justice. In both cases, my best efforts are, well, in the book. In this first response I’ll accordingly talk about David’s and Gary’s questions; in the second I’ll turn to Chandran Kukathas’s and Jeremy Jennings’s.

David notes that pluralism is not always conducive toward liberty, and notes cases ranging from the corps of ancien régime France to slavery in the American South. With this I entirely agree, and I take the liberty of quoting here from the book’s Introduction.

There is a deep, recurring tension within liberal political thought between seeing those groups that stand between the person and the central state as sites where free people live their diverse lives, and seeing them as sites of local tyranny that the liberal state must be strong enough to keep in check. One strand of liberalism emphasizes freedom for persons as they are, living the lives that they already lead, lives that are embedded in particular communities and partly shaped by particular cultural and religious traditions. The other looks to the importance of free persons’ ability to transform or transcend those current lives. On one side of this divide lies a liberalism I will call “pluralist”: skeptical of the central state and friendly toward local, customary, voluntary, or intermediate bodies, communities, and associations. On the other we see a liberalism I will call “rationalist”: committed to intellectual progress, universalism, and equality before a unified law, opposed to arbitrary and irrational distinctions and inequalities, and determined to disrupt local tyrannies in religious and ethnic groups, closed associations, families, plantations, the feudal countryside, and so on. While I will suggest that liberalism as such necessarily faces a tension between these two strands, particular liberal thinkers or theories do not necessarily sit balanced between them. The moral, social, and political truths in the two strands are difficult to fully respect simultaneously, and so theorists who consider these questions tend to incline in one direction or the other. I illustrate this with a survey of disputes among proto-liberal or liberal theorists across this intellectual divide, some stressing the threats to freedom posed by the state, some those posed by intermediate groups. A clear difference of emphasis emerges: John Stuart Mill saw the threat to freedom posed by the structure of the Victorian family, and by conformist intellectual cultures, but not by an enlightened state governing imperially over neighboring nationalities or distant lands. Tocqueville meanwhile saw the importance for freedom of voluntary associations in America and of corps intermédiares in ancien régime France, but thought the authority of men over women within the family “natural.” These contemporaries and mutual admirers, among the most profound thinkers in the liberal tradition, shared a deep attachment to freedom and a fear that it would be swamped in a democratic age, but their basic sensibilities about where to find threats to it and how to defend it often pointed them in opposite directions. Each view brings with it both insights and blind spots. Just to the degree that each one illuminates some genuine threats to freedom, it obscures others. Another example of that, from the same era, is provided by the liberal historian Lord Acton. His pluralistic commitment to checking state power, his opposition to centralization, allowed him to see more deeply than his contemporaries the danger posed by the growing identification of nation and state, to argue forcefully for multinational states as well as federalism and religious liberty. It also allowed him to believe that the most important threat to liberty at stake in the American Civil War was Lincoln’s assertion of central supremacy over the states, and not the Southern states’ own commitment to human slavery. He understood that slavery was evil, yet protecting federalism and decentralization seemed to him more urgent. The ideas that Tocqueville was right about associations but wrong about the family, that Mill was right about the family but wrong about imperialism, that Acton was right about nationalism but wrong about the American Civil War, and that in each case the right and the wrong are very hard to disentangle inspire the central claim of this book. I argue not only that the tension between rationalism and pluralism within liberal thought is longstanding, but also that it is to a large degree irresolvable. We can try to be open to reasons and arguments of both sorts; we can try to reach case-by-case judgments in particular times and places. But there is no systematic way to combine all of the virtues and none of the vices of the two mindsets, and no secure middle way that would allow us to know for sure which are virtues and which are vices. I generally favor pluralist liberalism; I also think that it is the more neglected and unfamiliar of the two strands. The book therefore does much more reconstructive work with pluralist than with rationalist ideas and traditions. But the book is not a defense of pluralist liberalism, except as against the pretensions of some rationalist liberals that it should be ignored altogether. It is rather, ultimately, an argument for that claim of irresolvability. A full understanding of liberal freedom would draw on truths from both the rationalist and pluralist traditions; it would recognize that states and intermediate groups alike can oppress. And yet we cannot compromise between or combine the two accounts in a wholly satisfactory manner.

Gary Chartier, I think, likewise takes me to be entirely an advocate of the decentralized institutions, associations, and legal orders which ancient constitutionalism and modern pluralist liberalism defend. This isn’t so, for two reasons. One, noted above, is that I am not uncritically an advocate of pluralist liberalism, and I don’t think it can contain the whole truth of a theory of freedom. The second, which I think I didn’t emphasize clearly enough in the book, is that neither ancient constitutionalism nor its modern pluralist-liberal descendant is simply a call to abolish central authority in favor of smaller units. Both ancient constitutionalism and modern pluralist liberalism are usually theories of multilevel systems, in which there are possibilities of local and central authorities balancing and checking each other. Think of the difference between being a federalist—that is, an advocate of a system that has both state/provincial and central levels of authority—and simply advocating the breakup of a place like the United States or Canada into its component states or provinces. Ancient constitutionalists were, and most pluralist liberals are, advocates of pluralistic systems.

This means that I agree with Gary in part, but only in part. As I write early in the book, Nozick’s utopia of self-contained utopias is not the best vision of pluralist liberalism, for reasons that overlap with Gary’s interest in consent to associational membership. In the Nozickean world, the various thick communities seemingly exhaust the social landscape, dividing it up neatly among themselves. But liberal freedom depends in part on the existence of a social space in between, a place where dissenters can go, new associations can be formed, and members of the various communities can meet on relatively neutral terms. This requires literal space; I’ve argued elsewhere that cities are a characteristic locale. And it in part requires normative space: arenas like the market in which governing rules are impersonal even if the rules governing other aspects of life depend on who one is, Gesellschaft space between Gemeinschaft communities. Gary emphasizes consent, of which I think too much can be made, but it’s true that we can’t impute consent (or even acquiescence) to membership in local, communal, or customary groups if there’s no social place they could go if they chose to leave. Philosophical writings on the right of exit often treat it exclusively as something recognized or not by the group’s own norms, but it’s really in part something that arises out of the interaction between the group’s norms and those of this in-between space.

Where I suspect I disagree with Gary is in linking that in-between space governed by Gesellschaft norms and serving to limit the power of intermediate groups with the Weberian modern state. That is, I think that ancient constitutionalism was a theory for how to limit—not how to abolish—the early modern absolute state, and I think that pluralist liberalism is probably best understood as a theory concerned with intermediate bodies in an order in which they are genuinely intermediate—that is, in a hybrid order that includes the modern state. Gary argues in his important book Anarchy and Legal Order that this connection isn’t a necessary one, and that there are reasons to think it undesirable and unjust; that stateless orders can include appropriately abstract systems of law.

I don’t disagree with his diagnoses of the many evils associated with the state form; but I treat the state as a social fact, a given in our current historical and technological circumstances. As a pluralist and an anti-contractarian, I’m uninterested in the mythology that seeks to dress up the state in moral legitimacy all the way down, grounded in individual consent; but that also means that I deny the anarchist contrapositive, that the absence of such consent or moral legitimacy all the way down much matters for how we live with states. And so my approach to thinking about pluralist liberalism treats associations against the background of the Weberian state. While I don’t moralize the state or treat it as automatically likely to promote the freedom of those subject to it—quite the contrary—I do think its rationalizing, centralizing, and bureaucratic tendencies can provide a counterbalance to the sometimes personalistic, conservative, and hierarchical character of associational and group life.

As far as the (entirely true) claim that the corps intermèdiaires of the ancient constitution were often involuntary and internally unjust: I think that part of the gradual evolution of ancient constitutionalism into modern pluralist liberalism was the work by theorists after Montesquieu to think about pluralism without privilege and to understand how voluntary associations could perform the work that the privileged and involuntary corps had performed in the past. But such thinkers as Tocqueville and Acton, and even the usually less-gloomy Benjamin Constant, were doubtful. Pluralist liberalism is not only interested in associational freedom; against the background that states exist, it is interested in how intermediate groups can effectively limit and counterbalance the state. I think the 19th-century liberals had, and we have, good reason to think that sometimes such balance will be most effectively provided by groups that do not themselves fully satisfy at the bar of justice—groups that are semi-voluntary in membership, groups that have a strong claim on their members’ identity and loyalty.

Now, it’s entirely possible that the combination of a Weberian state and intermediate associations will give us the worst of both worlds—state power captured by large groups or powerful group elites to enforce both internal power and the suppression of other groups. (Something like this has often been true of the relationship between states and patriarchal male power, for example.) But given the existence of states, the pluralist liberal hope is to be able to provide some kind of balancing and mutual constraint, so that we can have access to some impersonal and rationalist rules that limit group power, while also preserving enough meaningful group social power to be able to hold the state’s centralizing and anti-associational tendencies in check.

Endnotes

Levy, Rationalism, Pluralism, and Freedom, "Introduction,"" pp. 2-3.

“Sexual Orientation, Exit, and Refuge,” in Avigail Eisenberg and Jeff Spinner-Halev, eds., Minorities Within Minorities: Equality, Rights, and Diversity (Cambridge: Cambridge University Press, 2005).

Gary Chartier, Anarchy and Legal Order, (Cambridge: Cambridge University Press, 2012).

Jacob T. Levy, “Corps Intermédiaires, Civil Society, and the Art of Association,” NBER Working Paper No. 21254, June 2015. <http://www.nber.org/papers/w21254>.

Jacob T. Levy, “Federalism, Liberalism, and the Separation of Loyalties,” American Political Science Review, August 2007, pp. 459-77. <journals.cambridge.org/article_S0003055407070268>.

2. Jacob T. Levy, "Response to Kukathas and Jennings" [Posted: May 24, 20163]↩

I am very gratified by the posts from Chandran Kukathas and Jeremy Jennings—very possibly the leading scholars in the English-speaking world of the issues treated in (respectively) the normative and the historical portions of Rationalism, Pluralism, and Freedom. If they both think I’m onto something—and they seem to—then that’s about the best vote of confidence I could have hoped for.

Chandran, typically, puts ideas with which I agree into words more elegant than any I could hope to write. I call the reader’s attention to this passage in particular:

If one strain of the liberal tradition emphasized the importance of political power deriving its authority from the willing agreement of the governed, the other emphasized its corollary: that those unwilling to agree or acquiesce be left in peace or permitted to depart—freely to form their own ways of governing themselves. The problem, however, is that those who repudiate the authority of one group and strike out on their own cannot avoid replicating the original problem of politics. To fulfil the desire to flourish, human beings are inclined to cooperate; but as their numbers increase, so will the possibility of agreement diminish, and laws—as well as the power to enforce them—will be established to deal with dissent. Inescapably, some dissenters will long for the freedom to escape the communities that so confine them, though others will wish only to remain and seek wherever they can find it the power to reassert their freedom within the collective—if necessary, by an act not of secession but of irredentism. These are the people within a group who prefer the rationality of the powers beyond to the rationality of those within. Their freedom, in their own eyes, is congruent with their freedom from their group, rather than with the freedom of their group from the outside powers that would govern it. This tension is a permanent feature of the human condition.

Notice that he makes no reference here to states or associations—or indeed to centralization or decentralization, or rationalism or pluralism. The account is perfectly general, in Oakeshottian style, and it makes clear that the complex relations between states and intermediate groups I try to parse in the book are a species of a broader genus. Moreover it makes clear how much states and associations have in common. In the book I explicitly aim to set associations and groups off as a category phenomenologically and morally distinct from both individuals and states, while also trying to recognize that states are a special case of group life. Chandran here emphasizes the latter, I think.

What I draw from this is that even in the absence of states, the tensions would endure. Indeed, as I argue briefly in the book, nonstate complex associations take on state-like features relative to the groups within, as the higher-order association (a university, the Catholic Church) becomes legalistic, bureaucratic, and institutionalized, and enthusiastic commitment to causes starts to manifest in subordinate associations (student clubs, religious orders). I do think that states have some very particular sociological and moral features, and I ultimately argue that we should insist on a kind of liberal neutrality from states while acknowledging the purposive character of even large and bureaucratic complex institutions. But the uneasy relationship among bureaucratic centralization, thick meaningful association, and liberty is evident in complex nonstate associations even when there is a state in the background, and matters would become uneasier still if the complex associations were called upon to be top-level providers of dispute resolution in a stateless order.

As Chandran says, this is not a counsel of despair. The unavailability of a perfect resolution, of being securely free in just the right ways from local personalistic despotism and from distant bureaucratic tyranny all at the same time, in no way diminishes the real choices we often face between better and worse. It just warns us against confident visions of the best, visions that lack any sense of conflict and trade-off.

This brings me to Jeremy’s questions:

Of course, Jacob Levy makes clear that his text should not be read as a defence of pluralist liberalism, except in so far as it is corrective to rationalist liberal claims that it should be ignored altogether. Nevertheless, as he states unambiguously, he does not stand above the fray, and he “generally” sympathizes with “the pluralist tradition.” So where exactly does he stand? Not for the egalitarian liberalism described by Charles Taylor. Nor for some fuzzy Rawlsian consensus or – the best contender of all – for Hegel’s account of ethical life. Rather, as Chandran Kukathas observes in this conversation, he leaves us only – if “only” is the right word – with the prospect of living with a degree of social disharmony. David Hart suggests that he can hear the breath of Hayek on Levy’s shoulders. I wonder if it might rather be Michael Oakeshott (mentioned four times in the text) who is sitting there. Oakeshott too claimed that he was only engaged in the activity of description, but his readers then and now always have felt that beneath the mellifluous prose lay a series of normative conclusions. What, we might ask, are those of Jacob Levy?

I’ve faced this question from others too, and I admit that it bemuses me, since I think of myself as … not shy with my normative judgments. The Multiculturalism of Fear (Oxford University Press 2000) and my subsequent work on ethnic politics, indigenous rights, and federalism were full of them. Two of my reasons for writing Rationalism, Pluralism, and Freedom the way I did were to chasten myself as a normative theorist, and to situate the kinds of normative arguments I will go on making for many years to come. I wanted to make myself see the limits of the kinds of claims I’m predisposed to make (and in some cases, as with the pure theory of freedom of association, I argued myself out of such claims altogether), but having done so, to be able to make directly normative arguments in the future without surrounding them every time with the various qualifications they call for. If, as I argue in the book, neither Tocqueville nor Mill nor Acton could avoid crucial blind spots that related directly to their areas of insight, well, then, I’m unlikely to do so either. That I’ve managed to invite this question surprises me; I generally assume that my problem is that the normative arguments sit too close to the surface, not too far. I’m happy to learn that I’ve held them in some check in this book, but I did so partly in order to let them loose in the future.

I’ll very happily admit the importance of what I’ve learned from Hayek; while I’m critical of the way he understands the history of the liberal tradition in The Constitution of Liberty (University of Chicago Press, 1960), I also say that I’m trying to fulfill a call he issued a half-century ago for a full study of the problem of rationalism in that tradition. I push back against his conception of what that problem is, but I think that really I’m working on the same problem that he was. (He just didn’t see it quite clearly.) I’m never quite as sure what to say about Oakeshott, not least because, as Jeremy notes, Oakeshott’s normative views are often hidden within his idiosyncratic kind of descriptive philosophy. I find his categories useful, and there’s something in his intellectual sense of “rationalism in politics” that I put to work in my sociological understanding of rationalist liberalism. But I don’t mean to bury my normative commitments, just to keep them in check for purposes of the argument of this book. I believe in very robust freedom of association, religious freedom, and cultural freedom; a more robust federalism and governmental decentralization than is popular among American left-liberals; a diversity among intermediate institutions—religious and nonreligious, internally strict and internally loose, local and global, and so on—rather than a strict insistence on mirroring social diversity with each of them. I think that intermediate group power, real though it is, is often limited by the availability of an open and pluralistic society and rights of exit, while state power in general and state power in large democratic nation-states in particular tends to grow dangerously if not checked by intermediate bodies. And I think that our individual liberties are, very often, most meaningfully and powerfully exercised in association with others: freedom of religion in a church, freedom of speech in an activist group, freedom of thought in a university, and so on. This means that oftenwhen the state purports to be protecting our liberties against local oppression, it is doing nothing of the sort.

The thesis of the book is what it is because all of those oftens in the previous paragraph really are oftens not alwayses. For a lot of purposes in political and social theory we need to make do with tendencies and generalizations and institutional approximations. “Get all the answers right, in every case” isn’t useful action-guiding political advice. I have my views about which arrangements will get more answers right more of the time. But that doesn’t allow me to shrug off the times when those arrangements get things wrong.

3. David M. Hart, "Men of System, Busybodies, and Predators" [Posted: May 25, 2016]↩

I would like to raise a couple of points which came out of my reading of the very interesting Chapter 3, “Reunderstanding Intermediate Groups,” where Jacob asks himself what kind of people rise up the ranks of intermediate groups and centralized states to reach positions of power and authority over others. His answer is, respectively, “busybodies” and “men of system.” A cynical Hayekian response, which is closer to my own jaundiced view of the world, would be to add “the worst.” An even more cynical Bastiat-like response would be to say that Jacob seriously underestimates the kinds of people who are attracted to institutions with power and that a realist would have to add a third category, namely, “the plunderer,” or what I prefer to call “the predator.” And since a predator cannot come to power and exercise it efficiently on his own, he needs a substantial body of what I call “henchmen” to carry out his orders, to eliminate his enemies, to maintain “law and order,” and to gather resources to carry out his policies. If the 20th-century experience has taught us one thing, it is that the modern centralized state has attracted the worst kinds of predators to seek, gain, and wield massive power over others. The names Hitler, Stalin, Mao, and Pol Pot immediately come to mind, but I would also have to say that “Western democracies” have also had their own share of ruthless political predators, such as Lyndon Johnson and Richard Nixon.

In smaller and more local intermediate associations, there is less opportunity for predators to be successful because of the limitations imposed upon them by the local scale of the organization and by the existence of local opposition, such as other groups and associations in their vicinity, or even by their own groups’ memberships. However, when one studies the careers of successful political predators, one can see that smaller local intermediate bodies have provided stepping stones to higher orders of power. They might even be seen as incubators of power. On the Left in many European and Commonwealth countries, trade unions are one way in which aspiring politicians (often starting their careers as union lawyers) can gain experience, political contacts, and a political reputation before breaking into national politics. Of course, the perversion here is that what had once been voluntary and private associations formed to promote the legitimate interests of their members, such as by providing insurance, health care, and vacation and savings opportunities, became over time rent-seeking monopolies protected by the state. On the Right, the equivalent conduit for aspiring political predators has been Chambers of Commerce, banks, large law firms, and so on.

The perennial question is: how does one prevent intermediate associations from overstepping their bounds (regarding their own members and the local people around them who are not members) and becoming threats to liberty in their own right? One answer is to have as much competition between rivalrous associations as possible, as well as to have some opportunity for exit (admittedly often costly for individuals), that is to say, to have as many “interstices,” or “jurisdictional gaps,” as possible into which dissidents and nonconformists can escape. One could then see how there might be a continuous tug of war among the busybodies who rise to the top of associations, members who resent the activities of the busybodies, and the individuals and competing associations around them who have their own different ideas about how to arrange their lives. A modus vivendi among the various groups and their leaders might evolve over time which might be quite stable.

My rather sad conclusion is that the very existence of a powerful centralized bureaucratic state which “encloses,” as it were, the myriad private associations within its seamless jurisdiction creates the possibility, or, I would say, even the inevitability of intermediate institutions like unions, business groups, single-interest groups, and even churches turning into stepping stones for ambitious political predators toward the higher stages the centralized state has created for them. The busybodies will be left behind to continue to pester the local membership while the predators will move on to greener political and economic pastures.

Endnotes

Levy, RPF, pp. 56-83, especially p. 82.

“X. Why the Worst get on Top,” in Friedrich A. Hayek, The Road to Serfdom (The University of Chicago Press, 1944), pp. 134-52.

E.L. Jones uses the wonderful term “interstices” in The European Miracle (2nd ed. 1987), p. 91.

4. Gary Chartier, "Levy on the Varieties of Association" [Posted: May 26, 2016]↩

Jacob Levy’s replies to his interlocutors are predictably gracious and good-natured. He appropriately emphasizes at considerable length the inescapable ambiguity of judgment and the unavoidability of trade-offs.

Jacob takes me to have read him as an unqualified defender of pluralism, rather than merely a sympathizer. So I hasten to emphasize that I very much recognize the degree to which what makes his project especially interesting is not only its explicit awareness of the tension between the rationalist and pluralist strands of liberal thought, but also its self-conscious embrace of that tension. And I agree entirely with him, too, that the tension on which he focuses is a feature of group dynamics generally, and not only of the relationships between states and intermediate associations. The use of force against people’s bodies and justly acquired possessions is a particularly serious and troubling form of interference with freedom, one I take to be categorically different from others; and associations that make people’s lives awful in nonforcible ways seem to me to be in a different moral category from those that employ force. But it would be thoroughly naïve to imagine that, provided force was off the table, an association’s capacity to interfere in serious ways with its members’ flourishing was morally and politically uninteresting.

I don’t doubt for an instant that Levy is correct that the state’s “rationalizing, centralizing, and bureaucratic tendencies can provide a counterbalance to the sometimes personalistic, conservative, and hierarchical character of associational and group life.” I’m sure, in practical terms, that many people have at multiple points had cause to celebrate the state’s restraint of the abuses perpetrated by associations. And, while I do believe consent matters, for the reasons I sought briefly to sketch in my initial response, I also believe that the considerations I adduce in support of grounding authority in consent ground a presumption, not an unqualified absolute. It’s just that the presumption seems to me to be very strong indeed and that the moral limits on the use of force seem to me sufficiently robust to rule out the things states do in ordinary circumstances.

That is one reason—hardly the only one, given the distinctive temptations and liabilities to which state actors are likely to be subject—why I am willing to live with the uneasiness Jacob understandably notes that we ought to feel “if complex associations were called upon to be top-level providers of dispute resolution in a stateless order.” My hope would be that, in such an order, dispute resolution might be particularly the province of associations marked by some of those features the statist pluralist might see as valuable in a state equipped to weigh in against oppressive intermediate institutions. It strikes me as at least possible that, despite their obvious limitations, narrowly commercial entities might be rather better at playing the needed role than other, more richly textured, associations, precisely because of their narrowness of focus. Such entities would seem more likely to focus on disputants as customers, perhaps as rights-be