Afternoon Tea: “Magna Carta for the World? The Merchants’ Chapter and Foreign Capital in the Early American Republic”

This Article examines the early modern revival and subtle transformation in what is here called the merchants’ chapter of Magna Carta and then analyzes how lawyers, judges, and government officeholders invoked it in the new American federal courts and in debates over congressional power. In the U.S. Supreme Court in the early 1790s, a British creditor and an American State debated the meaning and applicability of the merchants’ chapter, which guaranteed two rights to foreign merchants: free entry and exit during peacetime, without being subjected to arbitrary taxes; and, in wartime, the promise that their persons and goods would not be harmed or confiscated, unless their own king attacked and confiscated English merchants. In other words, no harm to enemy aliens, except as retaliation. Tit for tat.

The idea that reciprocity was a fundamental mechanism of international (and interpersonal) relations became something like a social science axiom in the early modern Enlightenment. Edward Coke claimed to find that mechanism in the merchants’ chapter and publicized it to lawyers throughout the emerging British Empire and beyond. Montesquieu lauded the English for protecting foreign commerce in their fundamental law, and Blackstone basked in that praise. American lawyers derived their understanding of the merchants’ chapter from these sources and then, in the early Republic, stretched the principle behind it to protect foreign capital, not just resident merchants. The vindication of old imperial debt contracts would signal to all international creditors that, in the United States, credit was safe. Federalists then invoked the chapter outside of the courts to resist Republican attempts to embargo commerce and sequester foreign credit. For Republicans, doux commerce had become the Achilles heel of the great Atlantic empires: their reliance on American trade could be used to gain diplomatic leverage without risking war. For Federalists, economic sanctions threatened not just their fiscal policy but their entire vision of an Atlantic world that increasingly insulated international capital from national politics. They all agreed, however, that the role of foreign capital in the American constitutional system was a central issue for the new and developing nation.

This is from Daniel J. Hulsebosch, a historian at NYU’s law school. Here is the link.

Nightcap

  1. In Japan, ghost stories are not to be scoffed at Christopher Harding, Aeon
  2. Montesquieu was the ultimate revisionist Henry Clark, Law & Liberty
  3. Did British merchants cause the Opium War? Jeffrey Chen, Quillette
  4. The eclipse of Catholic fusionism Kevin Gallagher, American Affairs

Reply to ‘Classical Liberalism, Cosmopolitanism and Nationalism’

I write in reply to Edwin van de Haar’s post ‘Classical Liberalism, Cosmopolitanism and Nationalism’, which contains some generous remarks about my social media posts while putting forward a view different from my own about the role of the nation state. Edwin argues that the nation state is foundational to classical liberalism in that post. I have previously argued for the benefits of the United Kingdom staying in the European Union, just before the referendum which has put the UK on the path to leaving.

I will start with the doctrinal issues of how far classical liberalism might be considered as something that is embedded in the emergence of the nation state as we know it. It is true that classical liberalism arose as the nation state emerged and consolidated and it did not occur to classical liberals, on the whole, to question the state system as they knew it. That is a system defined in early modern natural law and contractual theory about law and state as one of a very unified system of sovereignty in a world of ‘a state of nature’, anarchy, or lawlessness between states.

We have to note at least one major deviation in the familiar list of classical liberal authors, which is Immanuel Kant, thinking of his essays ‘Idea for a Universal History with a Cosmopolitan Purpose’ (1784) and ‘Perpetual Peace: a philosophical sketch’ (1795), which do not question the internal  sovereignty of states, but does argue for a law governed set of relations between states with a global institution of some sort to prevent republics going to war with each other.

We should consider John Stuart Mill’s thoughts on federal states in Considerations on Representative Government (1861), particularly chapter XVII, ‘Or Federal Representative Governments’ which looks at the possibility of a state with decentralised decision making functions. A nation state can be federalised, at least in principle, but what are the components of the federation other then sub-nations, where the population may even regard them as nations within the state. Mill was building on the experience of the United States since the constitution of 1787, and Switzerland, particularly since the federal constitution of 1848.

The United States and Switzerland did not come out of nowhere. The US consolidated the links between thirteen colonies of Great Britain while federal Switzerland built on the Swiss Confederation and its links with places like Geneva which were associated with the confederation, but were not part of it until the restructuring of European states in the Napoleonic period. The point here is that modern states may be federal as well as unitary states and that includes continuity with pre-modern links between at last partly self-governing regions-nations. We could even say that kind of state of associated states was the Medieval norm.

The example, and even idealisation, of this Medieval structure enters classical liberalism via Montesquieu’s The Spirit of the Laws (1748), along with the work of Swiss jurists of the time, particularly in Berne. Montesquieu was building on the experience of the kind of medieval and early modern monarchy where he thought there was liberty, moderation in government, distinguishing it from tyranny. In such situations different laws and assemblies for towns and for historic regions was quite normal under the monarchy. In so far as such states, like France, were tending to evolve in states based on the absolute sovereignty of the centre, in the formation of what we call a nation state, Montesquieu saw the danger of despotism.

The historical experience that Montesquieu was drawing on was the way that Medieval monarchies were constructed through assembling  patch work of  the monarch’s personal domains, regions with their own lords and institutions, and church domains, along with increasingly self-governing towns. He also looked at the antique experiences of allying republics in a federation, which he thought was preserved in the Netherlands and Switzerland of his time. Germany, which at that time was a kind of federal/confederal empire of very varied forms of sub-imperial sovereign units including princes with lands outside the Empire, was also a form of federation for Montesquieu.

If we go back to the German history of the century before Montesquieu, the idea of the modern nation state is strongly associated with the Treaty of Westphalia (1648), which ended the Thirty Years war, focused on Germany, but drawing in most of Europe. ‘Westphalian state system’ has become a label for an internal system of states which are completely sovereign internally and face each other as equal legal personalities with no higher instance of sovereignty or collective instrument for enforcing the laws of nations, which do have some basis in the natural law doctrines of the time, and earlier.

The trouble with this understanding of Westphalia is that though it has some truth for Europe outside the German Empire (officially known as the Holy Roman Empire), it is very misleading for the Empire, and therefore for those European powers, including Sweden and Denmark, which had land within the Empire. The princes, cities and other territorial units within the Empire were under the legal authority of the Emperor, who largely served as a judge of interstate disputes though with far greater powers in the lands of the Habsburg family (consolidated as the Austrian Empire in the Napoleonic era) which always had the Emperor, though the Emperor was legally an elective office. The Habsburgs land extended outside the Empire into central Europe so the Westphalian system of Imperial authority brought in other European nations and extended outside the Empire strictly speaking.

Westphalia modified a system rooted in the Middle Ages of Germany as a middle European federation or confederation, drawing in other parts of Europe and therefore anchoring a European system of some kind. Periods of dominance by France or Spain complicate this story, but French claims always overlapped with Imperial claims and the peak of Spanish power was when the Spanish monarchy was from the same family as the German Emperors.

The Napoleonic era disrupted these arrangements severely, but we can see Napoleon as trying to revive the original Empire of the Romans under Charlemagne in the ninth century, which united France, Germany and neighbouring territories under a Frankish over-king. Charlemagne was know as ‘father of Europe’ in his time, perhaps more in connection with Europe as Christendom and his wars against Muslims in Spain, then with Europe as we might think of it now, but this is part of the story of what it is for there to be a Europe and a European system. Coronation by the Pope and recognition of the Frankish kingdom as heir to ancient Rome connects the medieval German Empire with the first great European political system, the Roman Empire.

The aftermath of the Napoleonic period in Germany was a confederation, which again included those European powers (the United Kingdom was one) which had lands in Germany. This evolved into the German Empire founded in 1871, which was itself an extraordinary mixture of Greater Prussia, federation, democracy, aristocracy, monarchy, and so on. It was more of a nation state than German predecessor systems in that it was a sovereign unified part of the international state system. The size and growing economic power of the Kaiserreich, incorporating Polish, French and Danish speaking areas, made it a destabilising force in Europe. Too big for the security of other European states, too small to anchor a European system.

The First World War and the Second World War were both consequences of this unstable system. The European Union is in large part an attempt to solve the problem by creating a European system which Germany anchors, though since unification the dominance of Germany has become an issue again. Whatever the problems, the EU provides a better framework for structuring a European system in which Germany is both contained and can exert influence in a consensual manner.

Returning to the issue of the nation state, Germany was never a nation state in the strictest sense of a very unitary state with a single language and ethnicity. France has usually been taken as the model of the nation state ‘strictly speaking’, but even so it has only been a country of speakers of standard French since the late nineteenth century. As it is now, it includes speakers of Breton, Basque, Occitan and Alsace German. Corsica has special status and Alsace-Lorraine also has some special arrangements in recognition of its specificities.

The European world before the First World War was more of a Europe of multi-national Empires than nations, with four Empires (German Hohenzollern, Austrian Habsburg, Turkish Ottoman, Russian Romanov) dominating the centre and east. Spain in practice has always been an extended Castille in which other regions-nations have played variable distinct roles. The United Kingdom never completely integrated as a nation state; even at the peak of integration in the nineteenth century, Scotland kept its own legal, state church and educational system and since then in a rather complicated way the UK has become more loosely integrated and may lose Scotland in a few years.

Even with the imminent departure of the UK from the EU, Europe continues to be a political system, not just an aggregate of nation states. The larger European states are not nation states in the strictest sense. Even without the EU, European states accept various kinds of obligation with regard to north Atlantic security and global trade which limit sovereignty. The UK will negotiate some kind of membership of the internal market of the EU and its passport union aspect, as well as participation in various EU schemes. It will therefore continue to be part of a European system anchored by Germany.

Ever since the Romans, Europe has needed a European system of some kind, and the German anchor schemes going back to 800 have recognised the Roman precedent. In reality there has never been a Europe of nation states and the periods closest to that model ended in catastrophic wars. Disaggregation of the European system as it is now may not result in war, but it has the potential to unleash trade wars, protectionism, competitive currency devaluation, erosion of chances to live, work, and study abroad, associated labour market sclerosis, destabilising struggles for political-diplomatic dominance, and an incapacity to ally in order to deal with global and strategic issues affecting Europe, including migration flows, Russian expansionism, and Middle Eastern conflict and terror.

(more on the consequences of the UK leave referendum soon)

Liberty and the Novel I (Before Austen)

I’ve been working on Jane Austen and ethics recently. These ethical investigations have overlapped with considerations of politics and liberty, with regard to the progress of such ideas in the early nineteenth century when Austen was writing, along with the immediately preceding and following periods.

There is a well known Marxist view of the history of literature, which is that the novel (and other literary genres, but mostly the novel) can be seen as developing along with the development of the bourgeoisie, so that is progressive and emancipatory until the turning point year of 1848 when the bourgeois class at least in part turns against the progressive-democratic, working class, and national revolutions of the European Springtime of the Nations.

At this point the capitalist class flees from democracy, allying with the royalist and aristocratic forces to prevent a revolution that might overturn property relations as well as pre-democratic political forms. After 1848, the novel largely becomes inward looking and alienated from social reality, because of the ties of writers and readers to a bourgeois class trying to hold back socialist working class politics, or at least fears to ally with it.

The classic exponent of this view is the Hungarian philosopher Georg Lukács who was born into the Habsburg Empire and so wrote in German, very much continuing themes from German language philosophy, literary studies, and social science. The relevant texts include The Historical Novel and Studies in European Realism.

I do not write to advocate Lukács’ literary history and of course even less do I advocate his Leninist politics. However, he undoubtedly makes an important contribution. Not many people now, Marxist or otherwise, would advocate the more schematic elements of his literary history. Nevertheless he was continuing ideas he had before his turn to Marxism, as expressed in Theory of the Novel and Soul and Form and he was onto something with regard to the heroic and less heroic phases of literature.

The novel itself has non-heroic and even anti-heroic aspects. If we take Miguel de CervantesDon Quixote (1605 and 1615) as the starting point of the modern novel, a debatable proposition but not outrageously so, then the novel is something that starts with the mockery of the heroes of medieval knightly romance through a character trying to imitate them in real life Castile. It is a crude piece of social history to say this, but nevertheless it is roughly true that Don Quixote coincides with the growth of commercial Europe, trading across the Mediterranean and the Atlantic, as there is a growth of cities along with the increase in membership of the merchant and financial classes.

This is the sweet commerce rightly advocated by Charles-Louis de Secondat, Baron Montesquieu, but also the violent consolidation of European states and the growth of their overseas empires. This is not all pleasant, but then that makes it to some degree ‘heroic’, as heroism refers to struggle and triumph with limited regard for other concerns. The ‘heroism’ of Quixote is to observe the Spain of his time in his bizarre adventures, learning from experience and awakening from his illusions, if only on the point of death. He becomes disillusioned by experience so achieving a more inner awareness freed from the illusions of romances in an idea of authenticity which has its own romance. A romance that is very visible in the subsequent development of the novel.

Other inputs into the development of the novel include John Bunyan’s The Pilgrim’s Progress (1678), a religious story from England of salvation in an allegory focused on a hero called Christian. There was nothing new about texts of salvation, but this is a novel length narrative devoted to individual struggles with externalised representations of distractions from faith. It was read very widely in the English speaking Protestant world, turning theological concerns into a popular heroic narrative of release of the self from ungodly illusions, and references to it abound in later literature of a kind less guided by strict Reformation Protestantism. (to be continued)

Also posted at Stockerblog

Flag Burning, the Bill of Rights, and Leaving America Behind: Fourth of July Special

Yes, the American Revolution was special. It’s not yet uncool to recognize facts. You are entitled to your mistaken and unsupported opinions, however; this is a free country. (Not thanks to you!)

First, there were no massacres. It may have been different if Britain had won, I don’t know. The Loyalists were treated harshly in many places. Many lost their property. Many became the English-speaking root of that milder version of ourselves, Canada. Americans were so generous-minded however that they even allowed Hessian (from Germany) mercenaries from the defeated British army to settle among them. Try to imagine any of the formerly occupied countries in Europe in 1945 allowing Russian SS from the German armed forces to stay behind and prosper! (Yes, there were Russian SS, thousands of them.)

Second, the US Constitution was and probably remains the most clear, exemplary embodiment of the healthy political idea of separating powers, a major step in uprooting the habit of despotism. (I may be wrong but I think the desirability of the separation of powers my have been enunciated earliest by the French philosopher Montesquieu. The French themselves mostly made a mess of the idea.)

Third, it took an embarrassingly long time but American constitution-builders eventually produced a wise list of specifically enunciated rights. A bill of rights is a necessity to protect political, intellectual, and religious minorities and, especially, individuals from the potential, and the very real, threat of tyranny of the majority.

The next to try a bill of rights, the French, did it only a few months later, also in 1789. With the privilege of having Ben Franklin right there in Paris to lend a hand, with Lafayette – who understood the idea well – involved, they also screwed up that one. Most of them don’t know it to this day, I think, but the insertion of one sentence in their Bill has the potential to nullify the whole: “Art. 6. La Loi est l’expression de la volonté générale.* “The Law, is the expression of the general will.” This general will, the will, the will of all, has the power to eradicate any of the individual rights carefully enunciated elsewhere in the same document. Correspondingly, today in France, there are concrete limitations on freedom of speech, for example, although freedom of speech is specifically guaranteed by the French Bill. These limitations were imposed in a carefully legal manner via acts of parliament, and signed by the president yet, they are still a form of despotism and a slippery slope. The little sentence above makes a constitutional challenge on these restrictions on speech difficult, if not impossible.

Incidentally, and going back to the US, there have been recent episodes of US flag burning by activists protesting – somehow – the Charleston church massacre. Go ahead, burn away, it’s your right so long as you don’t accidentally set afire a neighbor’s or public property! I feel forced to link this kind of petulant, childish behavior to a poll I saw recently that describes 50% of millennials as wishing to emigrate, to leave this country.** So, after voting massively for Mr Obama seven years ago, they want to escape the massive failures of his administration instead of staying put and contributing to reverse them. One the failures imputed to Mr Obama is wage stagnation. It has frozen many thirties-something in place, economically speaking. I am not sure it’s fair to blame Mr Obama but it’s done to every administration.

I know quite a bit about emigration/immigration as you might guess. So, I will presume to give potential emigrants advice: You may move to Australia, my friends. Australia will be glad to have you. The country is an admirably successful redneck project. You will enjoy the Australians’ great pubs. Of course, there is a good chance that the first night out to one of the pubs, you will open your mouths too wide. Then you may well end up beaten to a pulp in some dark alley. I don’t wish you such a fate; I disapprove of such rowdy behavior. If it comes to my attention, in the news or in the newspaper, I will not laugh openly. There will just be a little smirk on my face.  Have a good trip.

* 1789 Déclaration universelle des droits de l’homme et du citoyen

** Ordinarily, I am the first one to point out that fewer than two convergent polls from respected sources is nothing. So, take this with two grains of salt.

Myths of Sovereignty and British Isolation, V: Britain and European Models

The last post looked at how Montesquieu’s The Spirit of the Laws, the biggest classic of Enlightenment political thought, certainly in size and probably in importance, does not offer Britain as the model of liberty for Europe. Rounding off that argument, Germany produced its own important liberty oriented thought at the end of the eighteenth century in the work of Immanuel Kant and Wilhelm von Humboldt, in which they do not offer Britain as a model. Of course at this time Britain stood as an example of liberty, particularly in the exact period from 1792 when the French Revolution had turned highly violent and dictatorial, and European monarchies were tending to become more conservative-authoritarian in reaction.

Nevertheless, the opening phase of the French Revolution developed a much more complete vision of a equal citizens under laws they had made themselves through representative citizens than Britain itself. France was the home of great liberal thinkers such as Benjamin Constant (like Rousseau and Voltaire, Swiss in origin) and Germaine de Stael, who were  horrified by the descent of the French Revolution into state terror and then Bonapartist dictatorship. Switzerland and the variety of German states within the loose structure of an empire (the Holy Roman Empire of the German Nation) gave them ideas for liberty.

Going back to Germany itself, there was a strong element of aesthetic liberalism, focused on the cultivation of individuality and individuality sensibility, which drew on the growth of German culture at that time and the history of many different states and state forms, that includes Johann Wolfgang von Goethe, Friedrich Schiller, and Friedrich Schlegel that had a European wide influence, including in Britain.

On the level of what was going in European nations during the eighteenth century is should be noted that the death penalty was abolished in the state of Tuscany in northern Italy in the late eighteenth century at a time when Britain was famous for widespread use of the death penalty, not just for murder and treason but for small crimes in property. The French Revolution inspired severe attacks on civil liberties in Britain and one of many rounds of state force to keep the Irish down, when the United Irishmen revolted in 1798 for Irish self-government.

Britain was largely ahead of the rest of Europe at the end of the wars with Revolutionary and Bonapartist France, but that was in large part because Britain had worked very hard to finance and encourage autocratic monarchies to take back control of Europe. Napoleon was no friend of liberty, though some British sovereigntist-Eurosceptics nevertheless celebrate him, as in Andrew Robert’s recent biography Napoleon the Great. Not for the first time a British sovereigntist shows signs of wishing to imitate European nations at times when they seem most aggressively sovereign, while holding to British separateness and superiority.

As the nineteenth century unfolded, Britain started as a nation where the existence of an elected parliament, a limited form of monarchy in the process of becoming a purely symbolic monarchy, and strong legal institutions allows a case for saying that Britain was leading the way in liberty, at least for those belonging to the most marginal and dominated parts of the state territory. However, that picture applies less and less after 1830, when the July Revolution put in place a system in France, under the Orléanist monarchy, comparable to that in Britain for promoting law, liberty, and commerce. It must be said that the preceding system introduced after the defeat of Napoleon under the restored Bourbon monarchy was directly modeled on Britain’s, but could not work like the British system, given the different national context. A lesson in the dangers of thinking that liberty can be exported and designed from abroad.

The 1848 cross-European ‘Springtime of the Peoples’ undermined the relative advantages of the British system further as republics and monarchies limited by constitutions were proclaimed in various parts of Europe. There was a big autocratic reaction reversing most but not all of this. Denmark made the most progress, with peaceful demonstrations leading to a constitutional monarchy and an elected national assembly. France reverted to autocracy under the Second Empire of Napoleon III (nephew of the famous Napoleon). However, the Second Empire did have elected bodies and however objectionable Louis-Napoleon’s seizure of sovereign power was, he was a moderate autocrat presiding over a continuing growth of civil and commercial society. If we look at models for liberty in Europe, Britain was certainly important, but so was France. Even under Napoleon III, France was a long way ahead of most of Europe in the liberties of its people and the vibrancy of the economy.

If we look at one of the most important events in nineteenth century Europe, the Risorgimento which turned Italy from multiplicity of more or less autocratic states, including the Austrian armies more of less resting on church domination of society and Austrian armies, into a unified nation; France was important in providing a model of a relatively secular liberal catholic society and in pushing for a more modernist liberal form of government in Italy. Napoleon III’s behaviour was opportunistic and designed to revive French power in Europe, but nevertheless he seems to have had a genuine sentimental attraction  to the idea of a free and unified Italy. Camillo Benso, Count of Cavour, as chief minister of Sardinia-Piedmont was the major political architect of a unified Italy was impressed by both the French and British models. The ideological architect of the Risorgimento, Giuseppe Mazzini, largely lived in London and was impressed by the British type of constitutionalism and political culture, but nevertheless was also a republican and European federalist more influenced at the level of political thought by the French revolutionary and republican heritage. The military architect of the Risorgimento, Giuseppe Garibaldi, was popular in Britain, but belonged to the French republican revolutionary heritage, which he worked to spread in South America before returning to Italy.

Next post, Britain and Europe after the Springtime of the Peoples

Myths of Sovereignty and British Isolation, IV: Britain the Enlightenment model for a liberal Europe?

Following on from last post in this series, focused on the violent formation of the nineteenth century British state, a largely political theory post on how far Britain had a special status as a model of liberalism and then democracy in Europe. Despite all the negative aspects discussed in the last post, there was of course some overall progress in Britain in creating a society and political system based on law, tolerance, individual rights, and a commercial society with prosperity spreading to all, sooner or later, though clearly much later for the afflicted groups discussed in the last post. Now it is certainly true that in the eighteenth and nineteenth centuries, and more recently, Britain has been taken as a positive example for those wishing to promote those good things in their own political community.

The trouble with the Eurosceptic-sovereignty view is that these realities are transformed into a belief in a British legal and state community uniquely, and its very essence, prone to liberty under law and all the associated benefits, and recognised such by all Europeans gracious enough to acknowledge British superiority. Let us look at the eighteenth century discussion which is when comparisons of Britain and European states around law, liberty, civil society and so really got started. Strange as it might seem to some, earlier thinkers about liberty like Machiavelli, Grotius, and Pufendorf did not promote the idea of Britain as exemplary. The eighteenth century French Enlightenment certainly did lead to some admiring interest in Britain from that point of view. Maybe the main populariser of Enlightenment, Voltaire, was a great Anglophile. However, the really intellectually important observer in France at that time was Charles-Louis de Secondat, Baron de Montesquieu, author of The Spirit of the Laws, who did visit England (but not the rest of Britain).

Montesquieu could be said to be something of an Anglophile and he has sometimes been taken as the bearer of a British model of liberty throughout Europe, as if he recognised Britain, as superior, of course to France. Though this is a familiar story in terms of the urban myths of history of political thought, it is not really plausible for the more sophisticated reader. Questions of interpretation of Montesquieu of course arise here, but there is proper interpretation of Montesquieu based on a thorough reading which could justify the view of him as possessing a political theory based on Anglophilia.

Montesquieu recognised two kinds of state compatible with liberty and ‘moderate government’, meaning government restrained by law along with a general respect for customs and moral standards. Those two types of government are monarchy and republic. Montesquieu also regarded a republic as less compatible with commercial spirit – which he strong endorsed – than monarchy, though he recognised exceptions and transitional cases. For Montesquieu, republicanism, at least in any pure form, meant some very small homogenous community with laws adopted by the people as a whole or an aristocracy. In both cases, Montesquieu thought that wealth tended to undermine the possibility of a republic, as such a state rests on putting ‘virtue’ (largely meaning patriotism and respect for law) above wealth in a very strong way. A monarchy, he thought, rested on ‘honour’ (largely meaning the search for status through wealth or through high position in the monarchical state). So a commercial society was more likely under monarchy than a republic. Montesquieu had in mind a large modern European state, which showed that to be case, France.

For Montesquieu, Britain was a disguised republic, a quite realistic assessment since political power rested with an aristocratic-oligarchic elite under a crown, which could not raise taxes or go to war without parliamentary approval. Montesquieu recognised that Britain was a great trading and commercial country, but at that time the same could be said for France which had a much larger population and therefore was a more important example of commercial society. Anyway, though Montesquieu had some complimentary things to say about Britain, he regarded it as culturally inferior to France, a view he expressed in his own way partly through complaining that there was less enjoyable social relations between men and women, a sign of backwardness.

Montesquieu was sceptical about the relevance of republics to the modern world except as city states, like Venice, or those German cities which were self-governing, or better for reasons of strength and survival, as federations of city states (or maybe rural communities of similar population), like the Netherlands of the time (known as the United Provinces) and Switzerland. Montesquieu looks at so many perspectives and considers so many examples that there is some difficulty in saying what his model was, but the evidence is for a choice of the French monarchy, emphasising how much power in reality rested in institutions other than the monarchy, such as law courts, town governments, universities, and the church. If he was not arguing for the primacy of the French model, he must have favoured the federated republics of his time. He has more to say in detail about Britain and it had good things about it, but there is no way in which Montesquieu had an Anglophile political theory which legitimates soveriegntist-Eurosceptic assumptions of special, separate, and superior status for Britain in relation to Europe.

Next post some more political theory, but also another broad historical discussion.

More on Liberty and Homer: Tacitus, Montesquieu, and Humboldt

As I have discussed before here, there is a way of writing about liberty in a conscious focus on political thought, which finds liberty to be emulated in some respect, going back at least to the first century Roman historian Tacitus. He was referring to the condition of the ancient Britons, within the Roman Empire, but rebelling against it, and the ancient Germans who could not be incorporated into the Empire.

The latter situation may have been at least as much for economic reasons as for the German fighting spirit, but they were certainly difficult to overcome and inflicted one of the great defeats on the Roman legions, at the height of Roman power in the Battle of the Teutoburg Forest in 25CE.

The image of barbarian liberty in Tacitus was certainly in some part shaped by Homer given the deep impact of Greek culture on the Romans, and most relevantly in this instance through the continuation of Homer in the greatest latin epic, Aeneid, which links Rome with the Trojan prince Aeneas. As I pointed out before here, Tacitus’ idea of barbarian liberty strongly influenced Montesquieu’s The Spirit of the Laws (1748, a work I will be posting on in future), whose view of liberty in modern Europe, in brutal but meaningful summary, was of a combination of Roman law and Germanic individualism.

Montesquieu was of course a great part of Classical Liberalism and we can follow up his interest in barbaric liberty with reference to other classical liberals. David Hume and Adam Smith, who were writing after Montesquieu, tended to write on ‘barbarism’ and a related idea of ‘savagery’ with some anxiety regarding the possibility that such societies, or societies closer to that stage than those European nations where civil society had advanced the most, might overwhelm commercial legalistic nations with their unrestrained force.

However, some element of respect for liberty in the most simple societies does manifest itself at times, but mostly through an interest in the earliest stages of the Roman and Greek republics of antiquity, which in Montesquieu’s thinking come between the Germanic individualism and the late Roman legalism. Tacitus was thinking of the ‘virtue’ (in the sense of patriotic courage and love of law) of the early Romans when addressing the courage, rough individuality, and fierce independence of the Britons and Germans.

The most interesting way of linking back from Enlightenment liberalism of the Eighteenth century, for me at least, is via Wilhelm von Humboldt, a thinker I will address in at least one dedicated post in future. Humboldt’s major contribution to political thought, The Limits of State Action, was written in the 1790s, so another generation on from Montesquieu, just after Smith and Hume.

At this point, we might think of a movement from Enlightenment to Romanticism in European thought. While we should be very careful about such general distinctions, and amongst other things not engage in simplistic oppositions, it is appropriate to think of Humboldt as belonging to a phase of interest in the history and current meaning of aesthetics, literature, culture, and language as part of the study of political ideas.

He was in fact a major thinker about language and the infinite capacities inherent in the combinatory nature of language, which was part of his thinking about individual human capacity and the power of voluntary co-operation.

It is the interest in aesthetics, language, culture, historical existence, and the capacity of the inner human which makes him ‘Romantic’ rather than ‘Enlightened’, though again we should avoid stereotype and simple opposition here. Humboldt was very much not against Enlightenment respect for reasons, and some of these ‘Romantic’ themes are in ‘Enlightenment’ texts.

One of the earlier big classics of Enlightenment, The New Science (1725, 1744) by Giambattista Vico, is a good example and that is a book giving great importance to Homer. Vico is someone else who merits at least one dedicated post, so there will be more about him at some point. I am not aware of any evidence that Humboldt read Vico, but he certainly made an impression on German thinkers of the time.

Anyway, Humboldt was a learned classicist from a philological and literary way, which has an impact on his idea of how liberty was strengthened in antiquity, which compensated for the tendency of the ancient state to interfere in the soul, as Humboldt thinks of antique laws and institutions to promote moral and religious traditions.

What compensates for this pressure on liberty is the struggle in the lives of ancient humans, which has two main aspects. First the struggle with nature to have enough food and shelter to preserve life. Second the military struggle with rival states and communities, which was a very frequent experience in antiquity, and was an aspect of the history of the early Greek and Roman republics.

The best place to look for that in antique sources is Homer, because of the breadth of the Homeric world, as well as its poetic qualities, as well as its enormous influence on Greek and Roman culture. I had meant to address how the kind of struggle which can promote some kinds of liberty does appear in Homer, but this post is already long enough, and the best thing is to address Homer directly in the next post.

In the meantime, careful reading of any of the translations in books and post on websites, of The Iliad and The Odyssey (or indeed the original Greek for those fortunate enough to have that linguistic capacity), should I hope provide material to confirm what I’m suggesting.

Why Republican Libertarianism? II

(This text was written for the European Students for Liberty Regional Conference in Istanbul at Boğaziçi University. I did not deliver the paper, but used it to gather thoughts which I then presented in an improvised speech. As it was quite a long text, I am breaking it up for the purposes of blog presentation)

We can confirm Arendt’s sense that ancient Athenian democracy was not concerned with collective confiscation of private economic goods, by looking at the most famous political speech of ancient Greece. That is the funeral oration delivered by Pericles in the midst of the Peloponnesian War between democratic Athens and oligarchic-militaristic Sparta. Pericles states that in Athens there is no shame in poverty, only in not struggling with poverty (clearly referring to an individual struggle), and that poverty is no barrier to a place in political life. Pericles also refers to the greater tolerance of the different characteristics of other citizens in Athens compared with Sparta, and that bravery of the Athenian soldiers he mourns, so though the Athenian society does not put the military life as much at the centre as Sparta, it can show just as much courage in war.

As we can see, republicanism is the most historically situated form of political theory, aiming for continue a way of thinking about political community that goes back to Aristotle in fourth century BCE Athens. It was the tradition that runs through Aristotle, Polybius and Cicero in antiquity which informed the understanding of liberty in the classical liberals, in Locke, Hume, Smith, Montesquieu, Tocqueville, Constant, de Stael, J.S. Mill, and so on.

Their understanding also included the idea that there were differences between ancient and modern societies, particularly the greater emphasis on commerce in modern societies, which modified the understanding of liberty so that the liberty pursed by the moderns would be and should be different from the liberty pursued by the ancients, as summarised by Benjamin Constant in his speech ‘The Liberty of the Ancients Compared with that of the Moderns’ (1816).

However, Constant did not argue for a complete opposition between the two. He noted the commercial life of ancient Athens and its greater cultural openness than many ancient states. So that though Athens still shared in the tendency of ancient states to  impose conformity to officially defined religion and manners, it was less extreme than many. The republic of Carthage, defeated by Rome in the Punic Wars of the third and second centuries BCE, has also been mentioned by some as an ancient republic in which sea trade was at the centre of life, and since ships were the best means of trade in antiquity, that meant it was one of the commercial republics of antiquity. Montesquieu in particular noted that Carthage shared republican political forms with Rome, in which a citizen assembly governed the city in co-operation with an oligarchic-aristocratic council (the Senate in the case of Rome), but had a different attitude to trade and commercial life.

So though the classical liberals emphasised the differences between ancient and modern liberty, they did not simply reject ancient liberty, and did not reject the republican tradition. They found the centrality of war to ancient life, the relatively static political economy and commercial life, and the attempts of the state to enforce virtue to be different from what they hoped for from modern liberty.  The classical liberals also saw liberty growing in ancient republics and thought there was some link between the conditions of liberty and a public culture of shared concerns between citizens.

The laws and institutions necessary to liberty require some support from a feeling of citizenship and joint political enterprise. The need to replicate the solidarity of ancient societies based on preparedness for war is one of the reasons that Smith gives for advocating some public role in promoting education, though with a preference for most education to be provided by private institutions rather than the state.

It is useful to look at the views of the apparent greatest classical liberal defender of monarchy, Montesquieu, to see the importance of the ancient republican tradition for modern liberalism. Montesquieu suggests that a monarchy of the kind that existed in France in the eighteenth century is good for commerce and liberty where it rests on institutions that have some independence of the monarchy such as law courts and a land owning aristocracy.

However, the legal tradition he though guaranteed such liberty in France, is something he traced back to the German invaders of ancient Gaul during the collapse of the Roman Empire in the west. They brought the customary laws of tribes in the German forests which where essentially republics as kings existed to lead in war and relied on popular support. Montesquieu is a bit more ambiguous than this in his description of the ancient Germans, as he is generally an ambiguous thinker with regard to his views on monarchies and republics, and which are the best for liberty.

He recognised both a law governed ‘moderate’ forms of government opposed to despotism. He recognises the commercial capacities of the Athenian and Carthaginian republics. For his own time, he recognises England as a disguised republic (in the eighteenth century, Great Britain was essentially an oligarchic-aristocratic republic with a very constrained monarchy) which has a leading role in the era with regard to liberty and commerce. Montesquieu’s main criticisms of England relate to missing some aspects of a culture or honour and aristocratic courtesy, rather than any criticism of substance.

Adam Smith, Or: The More Things Change…

…the more they stay the same.

I have moved on from Montesquieu’s The Spirit of the Laws to Adam Smith’s The Wealth of Nations in my Honors course on Western thought (it is being taught by a professor who is part of this blogging consortium, in case you are curious; it is part of my daily reading).

Many, many things have stood out to me so far, but I would like to share two of them here. The first thing has to do with the back of the book (I am reading the cheap paperback published by Bantam and edited by Edwin Cannan). The back of the book plainly states:

He argues passionately in favor of free trade, yet stood up for the little guy [emphasis mine – BC].

This mischaracterization of classical liberalism (libertarianism) is not limited to the publishers of Adam Smith’s most popular work, and it frustrates me to no end that free trade and classical liberalism are somehow treated as arguments in favor of a privileged class.  The entire idea that drives classical liberalism is one that is rooted in the dignity of the individual and of the common man.  This is one fight that the libertarian should easily be winning, yet he is not.

The second passage that I would like to share is one that most of us are extremely familiar with, and can perhaps provide a chuckle rather than frustration (I know I laughed):

The annual produce of the land and labour of England […] is certainly much greater than it was, a little more than a century ago […] Though, at present, few people, I believe, doubt of this, yet during this period, five years have seldom passed away in which some book or pamphlet has not been published, written too with such abilities as to gain some authority with the public, and pretending to demonstrate that the wealth of the nation was fast declining, that the country was depopulated, agriculture neglected, manufactures decaying, and trade undone.  Nor have these publications all been party pamphlets, the wretched offspring of falsehood and venality.  Many of them have been written by very candid and very intelligent people; who wrote nothing but what they believed, and for no other reason but because they believed it.

Does this not sound awfully familiar? I could produce a number of links to a number of books and pamphlets on just this topic, but I am sure that readers had their own memories jarred when reading Smith’s keen observation. It looks as if we still have a lot of work to do.

Montesquieu Is Back!

I just finished up Montesquieu for a class on political theory. I know economists will probably roll their eyes, but I liked the readings on the whole. From yet another passage in his magisterial work The Spirit of the Laws:

It is the triumph of liberty when criminal laws draw each penalty from the particular nature of the crime.

If one were to take a step back and examine the laws of the United States today, would one find Montesquieu’s liberty? I am thinking specifically of the drug war, and how there is almost nothing so cruel and opposed to liberty than Washington’s stance on drug use (and abuse).

In another section the book, I found this to be the most compelling summation of classical liberal thought I have ever read (no really):

There are two sorts of poor peoples: some are made so by the harshness of the government, and these people are capable of almost no virtue because their poverty is part of their servitude; the others are poor only because they have disdained or because they did not know the comforts of life, and these last can do great things because this poverty is a part of their liberty.

I can’t think of a better defense of individual liberty than this.  Perhaps I am being too nuanced in my reading of this passage, but it struck a chord with me.  I’d like to hear what sort of passages you have heard in regards to liberty over the years that have a profound impact upon the way you think about the world!

Libertarianism and Republican Virtue

I am short on time and effort these days, so I apologize for bringing up my school readings on the blog. I have moved on from Locke’s Two Treatises to Montesquieu’s Spirit of the Laws.  This passage in particular has stood out to me so far:

When Sulla wanted to return liberty to Rome, it could no longer be accepted; Rome had but a weak remnant of virtue, and as it had ever less, instead of reawakening after Caesar, Tiberius […] Nero, and Domitian, it became ever more enslaved; all the blows were struck against tyrants, none against tyranny (pg. 22).

The decay of the American republic has been a worry of learned men since the agreement first took place.  My big question here is not so much about decay or liberty, but rather what virtue is.  I have some conception of it, but any sort of clarification would be great.

Montesquieu treats the desires and defenses of manufacturing, commerce, wealth, finance and luxury as the end of virtue and the beginnings of ambition, which leads to despotism and tyranny.

Given that most libertarians are also republicans (small “r”), how do we go about explaining that the freedom to pursue material goods is what is actually compatible with democratic government?  Was Montesquieu attacking a straw man?