How Liberalism Neither Created Nor Defended English Liberty
By Sean Gabb
Libertarian Heritage No. 9
ISBN 1 85637 134 4
© 1992: Libertarian Alliance; Sean Gabb.
Sean Gabb was formerly an economic and political adviser to the Prime Minister of the Slovak Republic, and now lectures in economics.
The views expressed in this publication
are those of its author, and
LA Director: Chris R. Tame
FOR LIFE, LIBERTY AND PROPERTY
Passing from his survey of universal history to the England of his own day, William Winwood Reade felt able to assert in 1872 that
Trade was free. Taxes were low. The Government, watched by the courts and by public opinion, confined itself largely to protecting life and property.
Today, most of this is gone. I was born into a welfare state. I live increasingly in a police state. In either case, I have a government that takes and spends about half the national wealth, and gives detailed instructions on how the rest may be spent.
I have long wondered how the England of Reade's day could have become the England of my day. Is it that liberalism was found a defective doctrine? Was it suitable only to one stage of social evolution, now long past? Was it overcome by a conspiracy of special interests? If so, why did it prove so feeble in the contest?
I still have no complete answer. But the longer I think about the question, the more I suspect that there never was any strictly liberal ascendency in England. What freedom was once enjoyed here owed far less to liberalism than to separate, if related, circumstances. I suspect also that the great diminution of freedom since Reade's day was set in motion by people like him.
Now, this is one of the most extreme liberal statements ever made. Translated from his natural law terminology, Locke is saying: How we make and dispose of our money, and under what conditions; where we settle and live; what clothes we wear; what information we receive or impart, how and with whom we associate, what things we eat, or drink, or otherwise ingest - these, within the limits set by the equal rights of others, are matters solely for us to decide.
While his own model of the best government bears a strong and perhaps unnecessary resemblance to an idealised English Constitution of his own day, Locke is clear that the main, if not the sole, function of government is the protection of life and property. If it goes substantially beyond that function, only on the grounds of convenience can an objection be raised to its remodelling or overthrow.
Yet, for all he may appeal to us, Locke neither conquered the English mind of his day, nor can be taken as spokesman for its liberalism. During the seventeenth and eighteenth centuries, "the rights of Englishmen" was a phrase as much on the lips of politicians as "democracy" is in the twentieth. It pleased the public. But, then as now, there was a difference between lip-service and genuine belief. Nor among those who did believe was there much reason or desire to expand the phrase until it was co-extensive with Locke's "State of perfect Freedom". To show this, I move to the the coalition that opposed the absolutist claims of the Stuart Kings, and was to dominate English thought into the nineteenth century. The chief members of this were the common lawyers and the religious dissenters. These were not entirely distinct groups, but are most usefully considered in isolation.
The first were always strongly conservative. For them, freedom meant the enjoyment of certain rights inherited from the past. The lawyers believed, or maintained, that the English Constitution had continued exactly the same in every age since "time immemorial". Except for a cycle of decay and restoration, nothing was claimed ever to have changed. Torture and ship money had been illegal in the reign of Henry II. Edward the Confessor had governed with the advice of a Parliament summoned in the usual way. Some appeal was made to natural or Divine law. But the main grounds of defence were historical. Indeed, they were considered its best grounds; and the lawyers defended them with fanatical zeal. For, lacking any real theory of prescription, the common lawyers accepted that a right granted, however anciently, was revokable by its grantor or by his representative. If they allowed that William I had governed by right of conquest, and that Parliament and the common law derived from the gift of one of his successors, these had no security in the present. It would be open to Charles I to abolish them.
The doctrine was useful. It allowed a defence of the declared rights of individuals and corporations and the powers of the House of Commons against Royal encroachments. It stressed that government should act only by due process. It was even quietly expansive, since many of the rights claimed as ancient were actually modern or not yet existent. But its test of whether a law was good or bad was not in itself liberal. A modern law could be judged on how well it harmonised with the others; and this in practice applied a liberal test to many Stuart measures. But an old law could be at best only reinterpreted. Otherwise, no matter how illiberal, it was regarded by the defenders of freedom as no less valid than Magna Carta.
All this suited the more radical dissenters. It allowed quite as much freedom as they wanted. Their complaint against the House of Stuart was that it maintained the supremacy of a church that they abhorred, and that it persecuted them. What they meant by freedom was the right to go about speaking in tongues and imposing a grim theocracy on everyone else. They hated Roman Catholics, and Anglicans, and pleasure. Their hatred of this last can hardly be conceived. Every pleasure, no matter how modest, that was not immediately joined with the contemplation of God and His Awful Day of Judgment, was to them abominable. They "hated bearbaiting" says Macaulay,
For the truth of this epigram, they stand condemned by their own statements. "The more you please yourselves and the world" said one preacher to his flock, "the further you are from pleasing God.... Amity to ourselves is enmity to God." "Pleasures are most carefully to be auoided" wrote another: "because they both harme and deceiue." "Christ did never laugh on earth that we read of" wrote yet another, "but he wept."
During their brief triumph, after 1649, they set about enacting their prejudices into law. They harried the Catholics and Anglicans. They closed the theatres. They cut down the Maypoles and abolished Christmas. They made all sex outside marriage a misdemeanour on first offence: on second offence, it was made a felony, punishable by death. To be sure, many dissenters became Lockeans; but the main dissenting creeds were anything but Lockean.
The defects of the common law defence slowly became apparent. The central decades of the 17th century had seen all the threads of legal continuity snapped. The men who saw the Monarchy restored, in 1660, had lived through two civil wars, a regicide, two military coups and four written constitutions, To them, inherited custom in itself no longer seemed so binding. There was the further unsettling influence of the Royalist antiquarians and absolutist philosophers. The first were showing how the Constitution had not remained fixed, but had evolved over hundreds of years. The second were asking what relevance in any case the past could have to the present. Law, they declared, was nothing but the expressed will of a sovereign law-giver.
The anti-Stuarts were forced to choose. They could continue insisting, against all the evidence, that there had been no Norman Conquest; or they could find another support. Those who looked for another drew on various traditions - on the Greek and Roman stoics, on the mediaeval schoolmen, on the Jesuit controversialists. The classic expression of the resulting synthesis can be found in Locke's Second Treatise.
But, still, this was not a typical expression. The pure theory of natural liberty was unsuited to the age. It was too geometrical. It went too far. More congenial were the Discourses Concerning Government of Algernon Sidney, published in 1698. These cover roughly the same ground as Locke, but every point is supported at least in part by the usual appeals to history and Scripture. Sidney differs also from Locke in his more restrictive view of freedom. Sometimes, he falls into the ancient trap of confusing it with national independence. Thus, he heaps the most lavish praise on Sparta and Republican Rome, neither of which could be considered free countries in the Lockean sense. This was certain to please anyone who wanted another Puritan Commonwealth.
More importantly, he fails to conceive how freedom limited only by the equal rights of others can be combined with stability. He is like those modern conservatives, who stand so nearly on the border with liberalism, and make such nearly liberal statements, that to a casual glance they can pass as other than they really are. Freedom is glorious, he proclaims - but requires moral supervision. For, without this, people will fall into vice; and private actions have public consequences. Therefore,
Not surprisingly, the Glorious Revolution of 1688 produced few radical changes. The legal position of women improved only slowly. All through the eighteenth century, minority groups were persecuted by the authorities. Men who engaged in homosexual acts, for example, were hunted down more ferociously than in any of the absolutist monarchies of Europe - even if with less venomous persistence and fewer prohibitory laws than was later the case in England. Of more general importance, perhaps, the English criminal law was, as Gibbon said of the Roman, "written in characters of blood": by 1760, 160 offences carried the death penalty; and one could be hanged for stealing a loaf of bread, and for cutting down a cherry tree.
Yet, for all its intellectual limitations, the anti-Stuart coalition did produce an immense diminution of governmental power.
Though never on the Continental scale, the Tudor and early Stuart monarchs had developed a centralised and fairly efficient administration. The counties might be ruled by the justices of the peace, and the towns by the municipal corporations - and both therefore by the leading local families. But these were in turn closely supervised by the Privy Council and the Councils of Wales and of the North. The Church was supervised by the High Commission, and the legal system by the Court of Star Chamber. Through these bodies, a mass of moral and economic regulation was imposed. Religious dissent was punished. Monopolies and wage and price controls were enforced.
Then, in 1641, excepting the Privy Council, which was greatly weakened, the whole central administration was either abolished outright or made impotent. It had been used too extensively to usurp the authority of Parliament and the common law. It was not reconstituted after 1660, and the devolution of most government into local hands was quietly accepted.
Hereafter, whether local or national, the tendency of government was to atrophy. Even had anything been desired of it, what remained of the central administration was too modest and too corrupt to interfere. Funds were embezzled or unaccounted for during years on end. An actual civil service barely existed. The two Secretaries of State, who directed most Government business, had a total working staff, including caretakers, of about two dozen. As for the local justices and corporations, with the supervisory Councils abolished, these could govern as much or as little as they pleased. Since they had to raise their own funds, they generally preferred the latter.
The courts limited government still further. The whole concept of administration was narrowed to the fulfilment of duties imposed by the common or statute law. Any Minister or official who exceeded his legal authority could - and sometimes did - have to stand in court like any other trespasser. Reason of State was accounted no defence.
It was the lawyers, indeed, who did most ultimately to limit the Government. The devolution of its remaining powers had, obviously, been welcomed by those into whose hands they passed. It had also been accepted by the nation as a whole. Those who had not minded the despotism of Charles I had suffered under that of Cromwell. Both Whigs and Tories inherited a fear of centralised power from their fathers; and this was renewed by the impartial despotism of James II. But, during the 18th century, while the relevant interests continued to benefit, the practical fear of centralisation diminished.
It was preserved in the dominant legal philosophy. Their old fictions abandoned, the lawyers now admitted a long evolutionary growth of rules and institutions, in which the test of legitimacy was not age but utility in its broadest sense. The Constitution of 1750 was not the same as that of 1550, and still less that of 1350 or 1150. Between each of these dates, innovations had been made. Which were good and which bad had been shown by experience. Innovations would continue to be made in the future, either because needs would arise that were not yet provided for, or because earlier innovations would turn out to be defective.
Yet, while the 18th century Constitution allowed more freedom than any other in the world, the lawyers remained an essentially conservative force. They defended such freedoms as existed. They often approved modest extensions as and when these were demanded. But their chief practical doctrine was that all change should be piecemeal, avoiding breaks in continuity. That for them was the surest way to keep England free. For they saw a psychological value in age. They believed that institutions that were, or appeared to be, ancient could shelter within a ring of associations powerful enough to deter all but the most determined tyrant or democratic mob. They believed also that abstract reason was weaker than experience. It might well seem on first inspection that a particular law or public custom had no use. But the fact of its survival indicated that it had once been, and might still be, useful - or that, even if useless or harmful in isolation, it was needed for the survival of the whole system. Thus, a presumption was accepted in favour of whatever was old and established.
By itself, then, English liberalism was too weak or timid to explain all the freedom that was actually enjoyed during the 18th century. Its effect was magnified by the administrative collapse of 1641. This had in turn been brought about, and was in part maintained, by adherence to conservative ideologies that justified only a limited freedom. At first, this strange circumstance was wholly beneficial. Except after a foreign invasion, or some immense public calamity, no other country has come so close to administrative anarchy as England did. The restraints that held the rest of mankind back were broken down; and the way was cleared for the development of free market capitalism.
Once we move forward to the 19th century, however, we enter not Reade's age of almost perfect liberalism, but the age in which the protections of freedom were eroded to the point of collapse. Writing in 1905, A.V. Dicey dates the beginning of this decline to around 1870, just as Reade was celebrating England's good fortune. In fact, it had begun 90 years earlier, with the publication in 1780 of Jeremy Bentham's Introduction to the Principles of Morals and Legislation.
This is not intended to be an illiberal work. It is a scathing attack on the deficiencies of English law as Bentham found it. He states three principles. First, legislation is a science. Second, its purpose is to allow "the greatest happiness of the greatest number". Third, since individuals are the best judges of what can make them happy, legislation should clear away all those barriers to free action not required to protect the equal freedom of others. Applying these principles, Bentham claimed that the lawyers' wonderful "organic" Constitution was in fact a sham.
Leading a growing school of "philosophic radicals", he spent the rest of his life arguing for a total recasting of English law on scientific principles. Claims about overall harmony were rejected as self-interested sophisms. Instead, every specific law and legal practice was examined, and the question was asked - "what use does this serve?" What need, he asked, to pay two fees for one appearance before a Chancery Master? Why had an action to establish title to land to begin with a mass of fictions about John Doe and Richard Roe? Why was a man denied cousel when charged with a felony, but not when charged with treason or a misdemeanour? Why, in short, was everything so slow, so expensive, so disorderly, so often grossly unjust?
It was now, unfortunately, that the timidly liberal consensus of the eighteenth century collapsed. The French Revolution tore English opinion in two. On the one hand was the emergence of a radicalism that, in its demands for reform, came close to rejecting the established order. Had the new radicals been only Bentham and his middle class followers, it would still have been impossible to overlook their break with the past. But there was also the emergence for the first time in our modern history of an autonomous working class movement. The minimal demand within this movement was manhood suffrage. Beyond this, some extremists were demanding a copying of the French example - even to the point of regicide and collectivist dictatorship.
On the other hand, the authorities came quickly to associate any reform with revolutionary violence. Instead of concluding that France was showing what happens when a regime resists all change for long periods, and then concedes it all at once out of weakness, they took events there as a warning to stop their own indulgence. Edmund Burke is the standard example of the liberal turned reactionary. In the 1770s, he had supported the American rebels. In the late 1780s, he had made a nuisance of himself to the authorities though his part in the impeachment of Warren Hastings for misgovernment in India. After 1790, he was known as the supreme philosopher of reaction, his old friends now his bitter enemies, and his old enemies now his adoring friends.
The resulting debate was won by the extreme conservatives. They did not entirely get their way. The press remained free. Juries were often unreliable at returning guilty verdicts even in cases of high treason. The Parliamentary opposition functioned unchecked regardless of the country's domestic and foreign crises. But there was a consistent drive to limit the liberties which had been secured in 1688 and widened during the next century.
When the great revolutionary panic at last subsided, after 1822, the spirit of the Consititution had been entirely altered. Before 1789, its development had been broadly in line with public opinion. By the 1820s, it seemed somewhat behind. In the 1780s, Parliamentary reform had been on the political agenda; and its only real impediment had been how far to go and how much to pay to buy off the vested interests. Even William Pitt the Younger, while Prime Minister, had introduced a Reform Bill. Forty years later, the unreformed representation was an artical of faith among most conservatives. To lose on that issue was to signal a surrender on all the others. Accordingly, it took two years of repeated political crisis to secure the passage of the Great Reform Act in 1832: and the passage of that Act was an overwhelming psychological defeat for the conservatives.
Though complaining, the conservatives were pushed aside on almost every other issue; and English law was reformed in the 19th century on Benthamite lines. Certainly, government became as a result far more humane. But it also became capable of being more than the modest umpire of the laissez-faire society that the liberals wanted. By reforming government, they endowed it with a body of honest and efficient administrators. Whatever might be wished, no one expected anything of the old jumble of corporations and magistrates. But the new civil service could do - or was believed capable - of any number of things.
Naturally, the administrators themselves had an interest in expanding their functions, and every confidence in their ability to discharge them. Increasingly, their potential was realised for illiberal ends. The posts and telecommunications, where not already monopolised, were taken into public hands. The provision of drains and clean water became a public concern. Hours and other conditions of work were regulated. Laws were made and enforced about the cleanliness of food. At the end of the century, voices were raised against the unrestricted purchase of firearms and recreational drugs. Modern England was taking shape.
The State grew not according to any single scheme, but in response to specific demands made by the advocates of different and often mutually hostile ideologies. There were the Tory paternalists, wanting a return to a past golden age of deference and protection. There were the militant imperialists, deeply impressed by German collectivism. There were the eugenicists, with their scheme of a master race - in the creation of which the State would stand to its citizens as a breeder stands to his pigs. There were the Christian activists, crying out for the suppression of sin. There were the professional bodies, willing to combine with any movement whatever for the sake of increasing the status and earnings of their members. Finally, there were the socialists, in such company almost benign.
The liberals were powerless to resist these collectivist assaults. They never seem fully to have realised the degree to which the defence of freedom in England rested on the conservative foundations which they had done most to undermine. Even Macaulay and the other Whig intellectuals, who did understand the risks inherent in reform, never saw the near impossibility of combining reform with the maintenance of the old bias against State power.
This failure of understanding might have meant little in practice had they been able to advance a consistent argument for freedom that stood by itself. But this they largely failed to do. They did have a political economy that showed the benefits of leaving trade to the uncoordinated efforts of individuals. This was a powerful weapon against all restraints justified on economic grounds, and only its most famous victory was the repeal of the Corn Laws in 1846.
Yet, as a defence of freedom, the arguments from economic efficiency were of little psychological value. Their advocates tended far too often, by ignoring the wider issues of human liberation, to reduce liberalism to a set of prudential warnings about the rate of industrial growth. Worse, defects in the early theories of value and distribution played straight into collectivist hands. Even otherwise, the opposing doctrines were all so pleasantly utopian, all so appealing to the special interest groups, that economic logic was repeatedly overcome by sneering dismissals of "economic man" and "philistine Manchesterism".
Nor, it should be said, were the arguments presented at all consistently. Not one of the major classical economists gave an unqualified endorsement to laissez-faire. McCulloch, for example, supposedly the most doctrinaire of his school, wrote:
As for Benthamism, this was always an unstable blend of liberalism and collectivism. Bentham himself was not wholly opposed to certain socialist measures - such as the regulation of wages. Many of his followers, such as Edwin Chadwick, took a leading part in the growth of public health regulation, and stand in a line of development leading straight to Fabian socialism.
Even those liberals least affected by Benthamism, or who rejected its darker tendencies, often put forward arguments that were riddled with inconsistency. John Stuart Mill, for example, the "apostle of liberalism", almost drives me to despair. Take the statement in On Liberty that everyone must sometime have read:
This is wonderfully eloquent. Read when I was seventeen, it turned me on the spot into a liberal. Paid any close attention, it falls immediately apart. Mill's distinction between "self-regarding" and "other-regarding" acts - a distinction seized on by every one of his critics, from James Fitzjames Stephen all the way down to Mary Whitehouse - is an absurd formulation. It even destroys the case for freedom of speech, which is normally supposed to be the one freedom on which he is consistent.
The breach in his argument opens at commercial freedom of speech. His distinction of acts lets him proceed to the conclusion that
This in turn lets him flirt with socialism without having to admit its incompatibility with freedom in any normal sense. The flirtation, though, does not end in itself. If I incite or procure you to commit a murder, I can be punished as a principal to the act. There is no difficulty here, and Mill admits none. But suppose I persuade you to drink yourself into alcoholism. You ought not to be punished, for you are harming only yourself. Ought I to be punished, for having advised you to harm yourself? No, he says, for that is a self-regarding act:
But suppose I am a publican, or have some other financial interest in the sale of alcoholic beverages - does this defence cover advertising? That is an activity intimately connected with trade, and "trade is a social act". Mill continues, with evident perplexity:
He devotes a page and a half to equivocation, giving no clear answer. He plainly hates the thought on any limitation on his arguments for freedom of speech, but also wants to leave the way open to some public control of economic activity. But, whatever Mill may have thought of advertising, his chosen distinction between acts has allowed a potential distinction between kinds of speech that can be exploited by anyone who cares to read him.
Small wonder, then, that with so little real defence by its decared advocates, and so little left of the intellectual habits that held it stable, English freedom evaporated. The real wonder is how the process was made to take so long that, even today, I live in a semi-free country.
Now, I can think of no simple lesson to draw from this. I do not generally accept the conservative claim, that liberalism is so corrosive that it destroys even freedom in the end. Something like this did happen in England. But our conservatism was uniquely good, and our liberalism was not. I would never encourage my friends in Eastern Europe to read Burke instead of von Mises, and go grubbing through their collectivist heritage for some hidden wisdom.
Still, it is worth noting that if there is currently a reaction against collectivism, it is not the effect of liberal ideas, but of collectivist failure. And, though liberalism today - especially the Hayekian synthesis - is much improved on what it was, we have yet to see how useful it is for securing any of the freedom that circumstances may bring us.