On Tocquevillé's and Einaudi's competing interpretations of the Physiocrats: from Libertarian Authoritarianism to Liberal Bureaucracy and its debts to China.
How Foucault fooled me into thinking I had a sufficient grasp of Eighteenth Century debates
Early in Louis Hartz’s classic (1952) The Liberal Tradition in America, Hartz (1919 – 1986) notes the following:
If we look at what happened to America's famous idea of judicial control when the physiocrats advanced it in France, we will get an insight into this whole matter. Who studies now the theory of legal guardianship with which La Rivière tried to bind down his rational and absolute sovereign? Who indeed remembers it? American students of the judicial power rarely go to Cartesian France to discover a brother of James Otis—and the reason is evident enough. When the physiocrats appealed to the courts, they were caught at once in a vise of criticism: either they were attacked for reviving the feudal idea of the parlements or they were blasted as insincere because they had originally advanced a despot to deal with the feudal problem. They had to give the idea up. (p. 45)
Except for the reference to James Otis, I found nearly every sentence in this quote odd. First, influenced by Machiavelli (and, more recently, David Stasavage), I always understood the French parlements as instruments of anti-feudal nation-building. Second, I had never associated the physiocrats with a theory of legal guardianship before.
Intrigued by this passage, I looked at the endnote to M. Einaudi (1938) The Physiocratic Doctrine of Judicial control. A few days later I owned a copy of the slender volume. This I found an exhilarating read. Mario Einaudi (1904–1994) was the son of Luigi Einaudi, the economist and also second President of the Republic of Italy (1948–55), and the older brother of the famous publisher, Giulio Einaudi. (The book is dedicated to the father.) Eventually Mario Einaudi became associated with Cornell, but it seems that when he wrote this book, he would have had an affiliation with Harvard (where a youthful Hartz may well have encountered Enaudi).
Now, Adam Smith (in book 4 of Wealth of Nations) and Tocqueville (in chapter 15 of Book 2 f The Ancien Régime and the Revolution) both treat the physiocrats as authoritarians. In fact, Smith quite explicitly treats the physiocrats as the first liberal authoritarians. And I am pretty sure that the combined authority of Smith and Tocqueville even tempted Foucault to treat them in this way in The Birth of Biopolitics. Either way the Physiocrats, if known at all, have been a foil for other liberals and critics of liberalism. (See here for my earlier view on Smith and Tocqueville on the physiocrats.)
Here’s Tocqueville on the physiocrats (in Bonner’s 19th century translation):
In wider context, Tocqueville treats the Physiocrats as lacking in historical sense, in levelling ranks, rejecting individual rights and tradition, and devoted to the common good. In fact, he treats them like proto-Benthamite radicals, who are saved from their own far-reaching republicanism by their need for a strong, despotic crown to effectuate their reforms.
Einaudi (p. 3) thinks Tocqueville treats physiocracy in this way to set up his criticism of socialism. And indeed, Tocqueville goes on to write:
Whatever one may think of the comparison between socialism and physiocracy, Einaudi’s main charge against Tocqueville’s presentation of the Physiocrats is that it is not true that public education (and so public opinion) is the only safeguard against despotism that the Physiocrats foresee. His book argues that “the physiocrats crowned their system of guarantees by entrusting to the judicial body the ultimate power of passing all legislative acts to test their compatibility with the principles of natural law.” (p. 6)
Now, while for the Physiocrats natural law is God-given, by ‘natural law’ the Physiocrats generally mean their own system of political economy (not Catholic natural law).* As Einaudi notes, after America and France got written constitutions, some physiocrats treated the constitution (and not natural law) as the baseline or “living embodiment of that code” that needed protection (53ff). That is to say, and this is key to his whole argument, Einaudi attributes to the physiocrats the idea of a constitutional court with a kind of negative/veto power over laws that deviate from the natural and fundamental order that needed protection. One can imagine that in 1938 this is an attractive idea worth reviving to a European liberal.
Einaudi argues that the embrace of such juridical, constitutional review runs through the Physiocratic school. But he does note that the two of the most widely read physiocrats (Turgot and Du Pont) either never held the position or (in the case of Du Pont) abandoned it. So, it is also no surprise that the Physiocrats are not especially known for the position. Einaudi can find no evidence that the Physiocrats influenced the American practice of juridical review or theorizing about the Supreme Court. (Keep that in mind.)
Now, Smith, Tocqueville, and Foucault all treat Mercier de la Rivière’s (1767) L'ordre naturel et essentiel des sociétés politiques as an authoritative statement of the physiocrat doctrines. (So does Marx in Capital I, chapter 3.) And Einaudi leaves no doubt that in that book, Le Mercier argues for an independent judiciary that has the obligation and power to “verify” the “compatibility” between positive laws and the “principles embodied in natural laws.” (p. 40.) I am going to leave aside the nature of such verification.
Now, Einaudi’s book has not made much impact. And seems to have gone mostly unnoticed. But more recently (1990) David McNally has quoted the same material in his Political Economy and the Rise of Capitalism: A Reinterpretation and has allowed that Einaudi’s work has been salutary in correcting the image that the Physiocrats basically embraced despotic and so arbitrary power. McNally thinks Einaudi is correct that theirs was meant to be a law-governed polity. However, for McNally, it’s also obvious “Einaudi clearly overstates his case.” (McNally, p. 127)
McNally treats Einaudi as defending the idea that [I] the “physiocratic concept of a judicial check on monarchical power constituted an appeal to the tradition of France's parlements” and [II] “that the Physiocrats were attempting to construct a system analogous to the system of checks and balances in which "magistrates were supreme and the prince had to bow before them." (McNally quoting Einaudi.) The second [II] claim by McNally is not unfair, but [I] is odd because Einaudi explicitly claims that “the physiocratic school attempted to go beyond the point reached by parliament.” (p. 52)
Now, this got me curious to read Mercier’s L’ordre. The key material is the following passage (quoted by Einaudi on p. 40-41, and McNally on p. 127):
This is brief enough that it can probably defend multiple interpretations. But the fact that Mercies calls them both “depositories” and “guardians of the law” is quite fascinating. In particular, the “guardian of the law” as a phrase has a well-known classical pedigree (and, more important, was not in common use during the eighteenth century.)
First, in The Spirit of the Laws, Montesquieu notes that in Athens in addition to the Areopagus, there were distinct guardians of mores and laws (νομοφυλακία). While the Areopagus itself was a kind of court, it is pretty clear that Montesquieu does not think of these guardians as a kind of parlement/court. Second, in book 6 of Plato’s Laws a version of the phrase is used to discuss a citizen’s council (of the elderly) that protects the laws (752ff).+
Now, the physiocrats are not exactly known for their admiration of the ancients. (Tocqueville criticizes them for this.) So, this classical connection left me a bit bewildered. I would love it if the liberal framework of judicial review originated in a kind of appropriation of classical thought. But the Physiocrats do seem an unlikely vehicle for such a transmission.
Mercier’s use of ‘magistrates’ made me think of another, more fruitful, angle. In so far as a magistrate is a judge, it is more of an administrative one that one finds in the bureaucratic state. And this reminded me of another disparaging passage in Tocqueville about the physiocrats:
Finding nothing in their neighborhood conformable to this ideal of theirs, they went to the heart of Asia in search of a model. I do not exaggerate when I affirm that every one of them wrote in some place or other an emphatic eulogium on China. One is sure to find at least that in their books; and as China is very imperfectly known even in our day, their statements on its subject are generally pure nonsense. They wanted all the nations of the world to set up exact copies of that barbarous and imbecile government, which a handful of Europeans master whenever they please. China was for them what England, and afterward America, became for all Frenchmen. They were filled with emotion and delight at the contemplation of a government wielded by an absolute but unprejudiced sovereign, who honored the useful arts by plowing once a year with his own hands; of a nation whose only religion was philosophy, whose only aristocracy were men of letters, whose public offices were awarded to the victors at literary tournaments.
Tocqueville’s civilizational (ahh) limitations are sufficiently well known that I won’t comment on them. Einaudi repeatedly notes that Quesnay (the founder of the Physiocratic school) and Le Mercier do indeed hold up China as their model (p. 43, 66-7). In fact, this was part of a more general favorable discussion of China among eighteenth century philosophers and political economists. (Go read Ryan Hanley’s (2014) APSR article; or my (2021) extension of his argument.) China does matter, but my own view is that Einaudi overstates his case for Le Mercier.
But it is undoubtedly true, as Einaudi asserts (pp. 30-1) that the founder of the movement, Quesnay, did call attention to China in a famous (1767) piece “Despotisme de la Chine.” In fact, despite the suggestion evoked by the title, Quesnay treats China as instantiating constitutional government with a constitution that is independent of the emperor (p. 607 in Oeuvres). And indeed, Quesnay describes how law requires a kind of registration with courts before they are treated as genuine law. So, there is a kind of procedural veto for the courts lurking in his analysis.
However, in checking Einaudi’s citations in Quesnay’s famous work, I noticed that Quesnay really does not describe judicial review. His real focus is, in fact, on the working of the civil service ‘mandarins’ not on judges. And when he discusses ‘remonstrances’ against the emperor he discusses this in terms of protests emanating from the civil service and conveyed by the tribunals “tribunaux” and the “grand mandarins.” From mandarin to magistrate is a small step and many civil servants were also magistrates in Mercier’s sense.
So, I regret to say that I think McNally is right to suggest that Einaudi overstates his case if he treats what Quesnay is describing as judicial review by a high/constitutional court. But also, and rather, Einaudi is not wrong to see Quesnay and Le Mercier as suggesting a kind of de facto veto of a public-spirited magistracy and higher civil service on laws that violate the underlying (spirit of the) constitution.
My interpretation has a number of benefits. First, we do not need to be mystified by the absence of American references to physiocrats when it comes to the origin and functioning of the Supreme Court’s judicial review. (This is an obvious problem for Einaudi’s interpretation.) Since America barely had a national, civil service at the Founding this material would have been irrelevant to (say) the Constitutional Convention or the Federalist Papers.
Second, as I have noticed elsewhere, Adam Smith was struck by Quesnay’s argument and did take up the question of how the public-spirited nature of the Chinese civil service could be explained; he developed an account that beyond education and acculturation/public spirit emphasized incentive compatibility of large state bureaucracies (see this draft paper). So, much to my own surprise, by trying to explain the origins of libertarian authoritarianism, we have, in fact, hit on the pre-history of a liberal theory of an independent and powerful public administration familiar from Max Weber and (say) Joseph Heath.
*Of course, during the 19th and 20th century, in France and Germany as well as Austria, Catholic liberalism became rather important on the political center and right, and one may well understand it as an uneasy fusion of physiocrat and catholic natural law tradition.
+This may well have influenced Rousseau’s Considerations on the Government of Poland. But that could not have been known to Mercier.