On Thoreau, Locke, Nancy Rosenblum's Another Liberalism and the relationship of consent to trust
A few weeks ago I was in London for a little event on academic freedom. During a side conversation, one of the other participants, Robert Simpson, thought that one of my larger projects (on what I usually call the ‘Liberal Art of Government’) that may turn into a book sounded a lot like Nancy L. Rosenblum’s (1987) Another Liberalism: Romanticism and the Reconstruction of Liberal Though (Harvard). I immediately responded that Rosenblum and I share a diagnosis of what’s wrong with contemporary liberalism, but that our positive projects are distinct. I had, after all, a vague memory of reading the book in the 1990s.
When I returned to Amsterdam, I couldn’t find my copy of the book (a common occurrence—my library is divided over four locations two of them merely stored boxes), and so re-ordered it. And I have been having great fun reading it. I am pretty sure it’s not a kind of book I would have enjoyed when I was younger, but now I admire the easy erudition, the apparently effortless style, and the profound command of moral psychology at its core. Some other time I engage more thoroughly with the main set of arguments in the book.
Today’s post is prompted by an apparent side-comment in Rosenblum’s argument. In the context of discussing Thoreau, Rosenblum writes the following:
Disobedience is one way to withdraw consent. Still faithful to the fundamentals of liberal thought, Thoreau directs attention to the close connections between liberalism and civil disobedience and to the power of liberal ideas to inspire resistance, even if this power is only latent. For example, because consent is the sole source of legitimacy for liberal authority, liberal theorists define tyranny subjectively as a loss of trust rather than objectively as misgovernment. (p. 105)
Let me stipulate that disobedience may be a way to withdraw consent.
My interest is in the last quoted sentence, especially the idea that tyranny is subjectively defined as a loss of trust. I don’t deny there is a risk of this on a certain subjectivist or psychological interpretation of the nature of consent in social contract tradition within liberalism, but I would deny that the social contract tradition exhausts the liberal tradition. More important that even when consent is treated as something subjective it need not be committed to the thought that tyranny is defined subjectively as a loss of trust or defined subjectively at all.* And that’s what I will suggest below.
Before I get to all that I doubt that [A] Thoreau is either one of those “liberal theorists” or [B] Thoreau can be taken to describe how such liberal theorists reason.
As it happens, in an accompanying endnote (4), Rosenblum quotes from the final paragraph of Thoreau’s “Civil Disobedience” as follows, “There will never be a really free and enlightened State until the State comes to recognize the individual as a higher and independent power, from which all its own power and authority are derived, and treats him accordingly.” (p. 206) This only provides very indirect support for [A] or [B]. That authority is derived from the individual does not require its perversion is something subjective.
However, earlier in that paragraph Thoreau writes the following:
The authority of government, even such as I am willing to submit to—for I will cheerfully obey those who know and can do better than I, and in many things even those who neither know nor can do so well—is still an impure one; to be strictly just, it must have the sanction and consent of the governed. It can have no pure right over my person and property but what I concede to it.
So, Rosenblum is right that for Thoreau one kind of authority and justness of a government is rooted in a certain kind of sanction and consent of the governed. Let’s stipulate that Rosenblum is right that this has a subjective character, especially because it involves the anonymous many.
However, the way I read him, Thoreau allows that he is also willing to subordinate himself (‘submit’) to a natural aristocracy (“those who know and can do better”). I emphasize the latter, too, because there is no hint of subjectivity here about Thoreau’s grounds of submission. His point is not that that he submits cheerfully to those who he merely thinks of as better than himself but rather to “those who know and can do better.” This is not a matter of mere opinion.
To simplify then, Thoreau offers two routes to subordination to authority: a formal one rooted in consent of the public (‘the governed’) that is (let’s stipulate) democratic and subjective in character. And a personal one rooted in the natural authority of the virtuous and wise that is individual and objective in character. But the concluding paragraph of “Civil Disobedience” is wholly silent on tyranny.
However, earlier, Thoreau writes, the following:
“lf men recognize the right of revolution—that is, the right to refuse allegiance to (and to resist) the government when its tyranny or its inefficiency are great and unendurable. But almost all say that such is not the case now. But such was the case, they think, in the Revolution of ‘75. (Emphasis added)
Before I get to Rosenblum, it’s worth noting that here the government’s unendurable inefficiency (or misgovernment) is a kind of absence of output legitimacy. We may say that it occurs in cases where governments attempt to solve coordination problems or correct market failure. Joseph Heath has offered a liberal version of this argument [recall the three posts here; here; and here]; governments lose their authority and legitimacy if they are very bad at getting things done. In such cases the government does not gain authority through explicit (or even tacit) consent, but as it malfunctions it generates dissent that in the limit generates a right of revolution.
Even so, one may well think (with Rosenblum) that Thoreau treats the democratic many as holding that the government authority and the (Lockean) right of revolution as rooted consent and its absence. I think it’s also clear, however, that Thoreau himself holds this approach at arm’s length (“men…almost all…they think.”) So, I doubt [A] obtains, while plausibly [B] obtains.
One may defend Rosenblum that the very fact that Thoreau reports disagreement about when the conditions of the right of revolution obtain (if these are rooted in consent) supports Rosenblum’s contention that a theory rooted in consent risks subjectivity about when tyranny obtains. But as I have noted above, it’s not obvious Thoreau himself accepts this theory.
Interestingly, enough Thoreau goes on to discuss and criticize a quite different theory, which Thoreau attributes to Paley (yes that Paley), this theory is quite orthogonal to the social contract, and roots government authority in public or social interest:
Paley, a common authority with many on moral questions, in his chapter on the “Duty of Submission to Civil Government,” resolves all civil obligation into expediency, and he proceeds to say that “so long as the interest of the whole society requires it—that is, so long as the established government cannot be resisted or changed without public inconveniency—it is the will of God that the established government be obeyed, and no longer. Tis principle being admitted, the justice of every particular case of resistance is reduced to a computation of the quantity of the danger and grievance on the one side, and of the probability and expense of redressing it on the other.” Of this, he says, every man shall judge for himself.
So, it turns out whether according to Paley whether there is a ‘right’ to resist will rest on a subjective decision calculus. (Paley may be thought as a kind of proto-utilitarian, but he is no liberal.) Thoreau goes on to suggest that Paley’s account descriptively fits with how ‘nations’ behave actually.
But it’s quite clear that Thoreau himself rejects Paley’s framework in ways that suggest he wants to remove not just calculation, but subjective perceptions out of the question altogether: “Paley appears never to have contemplated those cases to which the rule of expediency does not apply, in which a people, as well as an individual, must do justice—cost what it may.” And Thoreau is absolutely clear that this is not a descriptive must, but a deontic one. And this ‘must’ is rooted in the demands of conscience.+ I had intended to end things here.
I write, ‘unfortunately,’' because I tend to read Thoreau’s conscience as tracking objective moral properties. Because rather than appealing to ‘general rules or abstract principles,’ he seems to me to appeal to ‘moral sense.’ In fact, his criticism of the many (“the mass of men”) is that with them “there is no free exercise whatever of the judgment or of the moral sense.” They are machine-like or thoughtless in their evil-doing. (This seems to anticipate Arendt on the banality of evil.) This is not wholly ad hoc on my part because elsewhere, with Andrew Corsa, I have defended the idea that Thoreau is shaped by eighteenth century moral sense theorists (but that paper does not settle the matter.)
But I doubt my interpretive disagreement with Rosenblum on Thoreau’s account is the root of our disagreement. In fact, I suspect I can explain what happened here. By treating authority as founded on consent (and so subjective) for liberals, she thinks violations of right must also be reducible to consent. But I don’t think that’s obvious: for a liberal, a (Bonapartist) despot who is consented to by the people remains a despot.
But the situation is more subtle than that. Let me explain. ‘Trust’ is not to be found in the index to Rosenblum’s book, but it happens to be an important theme in the argument to which she recurs throughout the book. At one point she writes, “Liberalism’s first objective may be impartial laws enforced without discretion, but no rule of law can prescribe for every potential set of circumstances. That is why trust is an important part of Lockeian liberalism.” (p. 38) This is most certainly true. But why trust is important for Locke has almost nothing to do with consent here.
Now, regular readers know I tend to deny that Locke is a liberal at all, but for the sake of argument I will bracket that. Locke’s view of the right of revolution as held by the many is clearly alluded to by Thoreau, and that’s what matters for present purposes.
However, the notion of trust that is central to Locke’s argument in the Second Treatise is a form of delegation of authority in the service of an end. This is the notion of ‘trust’ familiar from ‘trust funds’ and ‘trust companies’ (and anti-trust). So, for instance, in chapter 13, Locke writes, “for all power given with trust for the attaining an end, being limited by that end, whenever that end is manifestly neglected, or opposed, the trust must necessarily be forfeited, and the power devolve into the hands of those that gave it, who may place it anew where they shall think best for their safety and security.”
Notice that for Locke the violation of an end is both something manifest and that this violation automatically undercuts the trust. And that’s because the violation of a task or function or goal is not merely subjective, it’s a fact of the matter. (Consent is at most orthogonal to the issue here.
Locke’s account of tyranny is similarly factual. There are criteria for lawful government (which does involve consent!) and when these are violated we’re in the realm of tyranny: “that for any prince or potentate of what kind soever upon earth, to exercise the same of himself, and not by express commission immediately and personally received from God, or else by authority derived at the first from their consent, upon whose persons they impose laws, it is no better than mere tyranny.” (ST Chapter 11.) We see the same thing in chapter 13, “if the usurper extend his power beyond what of right belonged to the lawful princes, or governors of the commonwealth, it is tyranny added to usurpation.” And this culminates in the definition of tyranny: “tyranny is the exercise of power beyond right, which no body can have a right to.” (Ch. 18)** It is not a subjective matter, nor is it a loss of trust or misgovernment.
Okay, so it would be very nice if I could show that Thoreau’s account of tyranny is the same as Locke’s. But “Civil Disobedience” is too terse on the matter. So, let me pause here.
*Leo Strauss often argued that post-Weber modern social science lacked the vocabulary to identify tyranny. Even if that were true, I would not want to see the predicament of social science as identical to the predicament of liberal political theory.
“Others, as most legislators, politicians, lawyers, ministers, and office-holders, serve the state chiefly with their heads, and as they rarely make any moral distinctions, they are as likely to serve the devil, without intending it, as God. A very few, as heroes, patriots, martyrs, reformers in the great sense, and men, serve the state with their consciences also, and so necessarily resist it for the most part—and they are commonly treated as enemies by it.” This necessity is for Thoreau not a subjective matter.
**This is not the place to explore Locke’s account of tyranny with the classical ones.