Scepticism and Political Order

Hume, ‘Of the Original Contract’ and other essays.

Hume’s political vision has three sources: his scepticism concerning the ambitions of philosophy; his empiricism concerning the foundations of knowledge and practical wisdom; and his compendious knowledge of history. He was the first British subject of modern times to write a full history of the country (which he called England, although he was a Scot); and he wrote at a time when the Glorious Revolution of 1688 was still celebrated and debated, and when the last attempts of the Jacobites (supporters of the Stuart household which had been ousted in 1688) were being finally defeated in Scotland (the rebellion of 1745, under Bonnie Prince Charlie, defeated at Culloden in 1746). Hume’s writings make frequent reference to the issues raised by this particular conflict, and by the debates over the British Constitution following 1688. But his wide knowledge of history also reinforced his view of the incorrigible nature of human beings, and of the need to devise systems of government which would give the advantage to justice and benevolence over selfishness and cruelty. He is often thought of as one of the first systematic utilitarians in political thought, although he was by no means a utilitarian in the 19 th -century sense. It would be more accurate to say that he saw political philosophy in the way he saw moral philosophy, as part of a general science of human nature, through which to understand our condition and how to improve it.

The Politics of Imperfection.

Anthony Quinton chose that as the title of his rather thin book on conservative philosophy. His view is that it has been characteristic of a certain strain in conservatism – and especially British conservatism – to rest its case in a sombre view of human nature. The flaws in human nature make freedom dangerous, unless carefully constrained, and justice unlikely, unless enforced by some higher power. There is an immovable human need for authority in political matters, and authority demands obedience, which is, on one conservative view, the supreme political virtue. Even if we value liberty, we must recognize that political liberty is not like the liberty that prevails in a state of nature, where human life is solitary, poor, nasty, brutish and short, as Hobbes had famoulsy put it, but is a wholly artificial thing, a liberty entirely circumscribed by the institutions that protect it. Hume puts the point in this way:

‘Liberty is the perfection of civil society; but still authority must be acknowledged essential to its very existence: and in those contests, which so often take place between the one and the other, the latter may, on that account, challenge the preference.’

What he means is that, since authority is a necessary condition of liberty, there can never be an argument from liberty that challenges the authority necessary to civil order. For such an argument would be self-defeating. If we value liberty, therefore, we must value authority more. That was one tenet of the view that Hume called ‘toryism’, in honour of the political faction that commanded his sympathies. The ‘whig’ alternative emphasized freedom above authority, and wanted to see legitimate political authority as simply the result and expression of our freedom. That was what the ‘social contract’ signified, for Hume: the attempt to found political authority in the free choice of those subject to it. On the contrary, he argued, free choice in political matters comes to us only because political authority exists to hold the social order together.

The imperfectionist view has many variants. Hume and Burke share it, largely on empirical grounds; and both believe (though for rather different reasons) that when people are combined together in society the better side of human nature prevails. Burke thinks this because social combination, for him, provides the ‘stock of reason’ on which we all can draw (the epistemological argument, see last time). Hume thinks this because he believes that benevolence, though weak in each of us, tends in the same direction in all of us, so that our benevolent feelings, when joined in society, reinforce each other, while our selfish feelings cancel each other out. (This is the theme of the Treatise of Human Nature, Book III.) But both accept that the work of combining people in society is a work of history, and not of abstract philosophy.

Not all conservatives have been imperfectionists. Hegel was some kind of perfectionist, though he recognized that the dialectical process that is achieved through the state proceeds to its goal through conflict and resolution. And not all imperfectionists have taken the naturalistic line that Hume takes. De Maistre, for example, sees the imperfections of human nature in religious terms, as the signs of our ‘fallen’ condition. Still, Hegel is the odd one out here; on the whole conservatives agree in their refusal to trust human nature beyond what we can deduce from the record of history. This does not mean that conservatives are pessimists: Hume was an optimist, who saw much reason to rejoice in the way things were going. On the other hand, it is easy to rejoice in things, when you believe that the alternatives are worse.


Some utopias are advanced by people who seriously believe in their possibility, and who have a vision as to how they might be achieved: this may very well have been true of Thomas More’s original utopia, described in his book of that title. It is probably true of Marx’s ‘full communism’, despite the culpable thin-ness of his description of it. (‘Despite’, for a conservative, should be replaced by ‘because of’.) But there are utopias proposed as Weberian ‘ideal types’, or as models against which to measure actual societies, or as conceptual clarifications. Hume had his own utopia, described in his ‘Idea of a Perfect Commonwealth’, and based on his study of Harrington’s imaginary commonwealth of Oceana. Hume’s Utopia is not one that presupposes either the perfectibility of human beings, or the overcoming of any of their known and present defects. Unlike Rousseau, Hume does not suppose that people are good by nature and made bad by institutions; nor does he believe, as Marx believed, that they would become better as their fetters are removed and their alienating institutions transcended. In so far as Hume had a vision of ‘man restored to himself’, it was not that of Marx but that of Hobbes. And he did not advance his utopia as a project, or do anything to enlist people’s belief in it. His ‘perfect commonwealth’ is simply an exercise, designed to summarize the many factors that need to be regulated in a durable constitution. Hume was making a stab at describing the best that can be hoped for. Even so ‘this plan of limited monarchy, however corrected, seems liable to three great inconveniences’ – the principal one being that the king is human.

Hume’s concern was not to give a systematic alternative to current arrangements, in which original sin would find an original remedy. It was to extrapolate from tried forms of government, in the direction of an improved design. Liberty, for Hume, must always be purchased through obedience, lest it become anarchy instead. And obedience means authority, and the institutions through which authority can be accumulated and passed on. The main cause of tyranny, he argues, in various of his essays, is the breakdown of customary order, either through the death or overthrow of an existing monarch, or through some radical rebellion or revolution which puts everything in question. The first purpose of politics is to secure a peaceful succession, so that power passes without interruption from year to year. The steady obedience over generations to a single and continuous concentration of power removes the anxiety of the monarch. This anxiety, so long as it exists, gives rise to the need to take drastic measures for fear of insurrections. Only where there is a steady habit of ‘passive obedience’, are the conditions in place that will favour mild government on top and political freedom below. Hume’s utopia is designed to show what kind of institutions might promote that result.

The Social Contract.

Hume admits that there are hypothetical situations in which people might form a society by common agreement, but that these situations are rare, and in any case irrelevant to political order as we know it:

‘My intention here is not to exclude the consent of the people from being one just foundation of government where it has a place. It is surely the best and most sacred of any. I only pretend, that it has very seldom had place in any degree, and never almost in its full extent. And that therefore some other foundation of government must also be admitted.’

Not only does government seldom arise in this way. All the normal emergencies of human life require leadership, command, and risk-taking of a kind that will automatically mark a particular person out as the one in charge. Authority is a natural acquisition – though there is a distinction between power and authority that Hume, because of his peculiar method in the philosophy of mind, does not seem to get clear about. Furthermore Hume has a view about the normal way in which sovereignty of any kind emerges – namely by usurpation. Someone takes charge, and from that moment on there is sovereignty. A mild and liberal social order may emerge from this; but it emerges only over time and by virtue of the steady softening of human manners and aggression, under the influence of custom and routine. Because of this softening, rulers can afford to relax their vigilance, to refrain from executing their rivals and to allow free criticism and institutionalised opposition to their rule. (Hume was very impressed by that last fact, which seemed to be a novel achievement of the British constitution. There is an interesting thought here, very relevant to the times in which we live: the thought that opposition, not acquiescence, is the mark of legitimacy. This is not incompatible with the theory of ‘passive obedience’, and indeed is part of it.)

This softening of manners is the consequence of government, not the precondition. Hume suggests that, were men possessed of an inflexible regard to justice, so as to abstain from the property of others, government would not be necessary, and men could enjoy full liberty in a state of nature. And were they completely rational and entirely apprised of the facts, then self-interest alone would lead them to enter into a social contract of the kind defended by the Lockeans. However, the knowledge required for the latter is not widely available, and not available at all outside society, while the sense of justice is itself the product of society (an ‘artificial virtue’, as explained in the Treatise ). Hence the social contract fails to offer a foundation for the legitimacy of government. It is only in the conditions of political order secured from above, that people could possibly understand the obligations laid down in the Lockean social contract.

To that argument, Hume adds two others, one psychological, one logical. The psychological argues that their consent is not regarded by people as the foundation for the legitimacy of their government but that, on the contrary, their belief in the legitimacy of their government is the foundation of their consent to it.:

‘They imagine not, that their consent gives their prince a title: But they willingly consent, because they think, that, from long possession, he has acquired a title, independent of their choice or inclination…’

This argument is backed up with observations concerning the spuriousness of the Lockean idea of ‘tacit consent’. How can the mass of mankind be supposed to have given even tacit consent to the arrangement into which they were born, when they have no ability to survive outside that arrangement? ‘We may as well assert, that a man, by remaining in a vessel, freely consents to the dominion of the master, though he was carried on board while asleep, and must leap into the ocean, and perish, the moment he leaves her.’

Utility and Allegiance.

The second argument is more philosophical. Hume is of the view that the obligation to uphold agreements is in need of further proof. It is not enough to say that you have agreed to do something: there is still the question, why honour that agreement? And to this the only conceivable answer must be framed in terms of utility. If we admit this, however, we find that the social contract theory provides no independent criterion of legitimacy, since the very same utility is invoked to justify the contract as is invoked in establishing the prior legitimacy of government:

‘We are bound to obey our sovereign, it is said, because we have given a tacit promise to that purpose. But why are we bound to observe our promise?…’ Answer: because there can be no security unless people uphold agreements. So the foundation of allegiance (utility), and the foundation of the social contract are one and the same:

‘If the reason be asked of that obedience, which we are bound to pay to the government, I readily answer, because society could not otherwise subsist: And this answer is clear and intelligible to all mankind. Your (i.e. Locke’s) answer is, because we should keep our word. But besides, that no body, till trained in a philosophical system can either comprehend or relish this answer: Besides this, I say, you find yourself embarrassed, when it is asked, why are we boud to keep our word? Nor can you give any answer, but that would, immediately, without any circuit, have accounted for our obligation to allegiance.’

This refers to the argument already developed in the Treatise, that places allegiance (in other words the disposition to obey the sovereign, or to acquiesce in some inherited political order) among the artificial virtues, and which gives a utilitarian justification for its cultivation. In the essay on Passive Obedience Hume amplifies the argument, suggesting that the woes attendant on rebellion are so great and so uncontrollable, that only the most overwhelming argument could ever justify a breach in the inherited allegiance (or passive obedience) of the subject.

‘..I must confess, that I shall always incline to their side, who draw the bond of allegiance very close, and consider an infringement of it, as the last refuge in desperate cases, when the public is in the highest danger, from violence and tyranny. For besides the mischiefs of civil war, which commonly attends insurrection; it is certain, that, where a disposition to rebellion appears among any people, it is one chief cause of tyranny in the rulers, and forces them into many violent measures which they would never have embraced, had every one been inclined to submission and obedience.’

This is an interesting (empirical) argument, but one clearly capable of much abuse. Hume would have seen the French Revolution as confirming his observations, just as Hobbes saw the English civil war as confirming his vision of the need for sovereignty at all costs. But of course the American revolution, which was a bid for independence without bloodshed or any desire to rebel against the rule of law, was a novel precedent, and one that changed people’s perception of rebellion.

Hume’s utilitarian approach leads him to emphasize the fact of allegiance over any particular title to it. Indeed, there is nothing to title, in his view, save the long-standing acquiescence in a particular family’s rule, or a particular rule of offices. (Hume is eschewing all normative ideas, and replacing them with external descriptions of normative ideas: he is the archetypical anthropologist.)

‘The general obligation, which binds us to government, is the interest and necessities of society; and this obligation is very strong. The determination of it to this or that prince or form of government is frequently more uncertain or dubious’.

He allows, however, the happiness of people who have no doubts about the title of their prince, and see it as the legitimate inheritance of the present sovereign from a long line of ancestors with whom a long-standing accomodation has been reached. Nevertheless, just as there is ‘no property in durable objects, such as land and houses, but must, in some period, have been founded on fraud and injustice’, so too is there no present sovereignty, that has not come down to its tenant from some originating act of usurpation. So what? is Hume’s response. Why, for the sake of a philosophical justification that in any case can never be obtained, and which will always remain an abstract speculation of no relevance to the real feelings of ordinary mortals, put a question-mark over the peaceable forms of government in which people uncomplainingly acquiesce, under the habitual belief (a belief that they could never justify in philosophical terms) in their long-standing legitimacy?

Some Problems.

Of course, there is something eminently common-sensical about that, especially when backed up by the kind of historical analysis that appealed to Hume. However, someone might reply as follows:

The question has been begged in favour of utilitarianism. Throughout Hume simply assumes that no other ground can be presented for obedience, than its general utility – in other words that obligations have no independent force. The argument behind the social contract view is that succinctly expressed by Hobbes, that ‘there is no obligation on any man, that ariseth not from some action of his own’. In other words, that real obligations are voluntarily undertaken, and cannot be imposed. Moreover promising is the explicit undertaking of an obligation, and (to parody Searle’s argument about ‘is’ and ‘ought’), how can you undertake an obligation and not, as a result, be under and obligation? The purpose of the social contract is to show that our political obligations are real, in just the way that our obligations under any of our promises are real. If we take the utilitarian approach, this doesn’t really solve the problem of political obligation. I can admit that the necessities of society require that people in general uphold their agreements, without conceding that this is a reason for me to do likewise. Utilitarianism is far more troubled by free riders than contractarianism.

There is a deeper worry, however, which is that Hume mistakes the focus of the social contract theory. What the theory is, or ought to be, saying, is not that there is a tacit contract contained in our social arrangements – this is far-fetched, for all the reasons that Hume elaborates. It is saying, rather, that we can test those arrangements for their legitimacy, by comparing them against a hypothetical contract. Would we, as rational beings, assent to them, in those circumstances which are modelled by a ‘state of nature’? The point of this is not to say that we are actually bound by a contractual obligation: it is to say that there could be contractual obligations which exactly correspond to the relations in which we are historically implicated, and that this is the best test we have of the legitimacy of those relations. For it shows that they could have arisen from freely chosen obligations of our own – and without the demands of a usurping power. In which case they are legitimate as the obligations established by such a contract.

Here is where Hume’s failure to make a distinction between power and authority is also a weakness. Usurpers have power, but not authority. Authority means legitimate power, and Hume is resolutely refusing to give a test of legitimacy, other than people’s more or less comfortable belief in it.

Of course, the social contract may end up modelling exactly the kind of passive obedience that Hume wishes to advocate. That is, it may be that we would, in some hypothetical state of nature (though with all our powers of rational choice intact) opt for a condition in which sovereignty endures unquestioned, and is vested in some family or offices that lie beyond the reach of questioning. That is what Burke would say. But Hume refuses this kind of argument, as mere philosophy, involving normative ideas that have no grounding in fact.

Interestingly, we should compare Rawls’s version of the ‘hypothetical contract’, with that given by Kant. Rawls looks for some pattern of distribution that we would choose as ideally rational, and therefore something that we could all agree about when guided only by the principles of rational choice under risk and uncertainty. Kant says that the test of legitimacy is a negative one. Like Hume, he does not believe that we should disturb stable and customary arrangements unduly, and that the consequences of doing so are likely to be disastrous. So he proposes a social contract by way of testing their legitimacy. Legitimacy becomes a defeasible notion: arrangements are legitimate provided rational beings could assent to them, given everything. Maybe they wouldn’t have chosen them, in some original position or state of nature. But if they can see their way to assenting to them nevertheless, they fall within the range of legitimate alternatives.

Hume will have no truck with any of those normative ideas. For him politics is a science of the actual, whose aim is the well-being of people. There is no way of deriving an a priori test of legitimacy. But we can distinguish those societies in which people think that the established order is legitimate, from those in which they do not think so. The first kind of society is happier, and it is that kind of society that we should aim to produce.

Authority and Power.

Hume’s discussion raises a question of great importance for the conservative worldview, which is that of the relation between authority and power. The simple suggestion is that authority is legitimate power, an idea that the social contract theory was trying to explicate. But the social contract theory is fraught with difficulties, not the least being that pointed out by Hegel (and in a way adumbrated by Hume), that people can make promises, undertake obligations, engage in contracts, only if they are already fully fledged members of society, with all the inherited obligations that are implied by that.

Nevertheless, we all of us make a distinction between brute force and authority. The power of the mafia, or the armed robber is genuine power: but it has no authority. Conversely, someone with great authority may, in this or that situation, find himself without power: the captive judge etc. ‘Naked power’ is a phenomenon that greatly interested Shakespeare, and many of his history plays are concerned with the difficulty of ‘clothing’ power in a mantle of authority. Sociologists, when they speak of authority, take the third-person view: they refer simply to the things that inspire the belief in authority, and often follow Weber (Economy and Society) in distinguishing ‘charismatic’ from ‘legal-rational’ forms of authority. Power clothed in either of these ways ceases to be a threat and instead commands the assent of those who so perceive it. This is an interesting sociological thesis, and it may be the best that can be said by way of making the distinction between power and authority; but of course it remains compatible with the view that there is no reality to authority, other than our belief in it. That, I guess, would have been Hume’s view too. But it is emphatically not the view of the social contract tradition, which attempts to give a rational justification of the belief in authority, by distinguishing powers that possess authority from powers that do not. Can it be done?

The most plausible route for conservatism to take is (a) to argue against Hobbes’s thesis, that all obligations are ultimately self-chosen, and (b) to argue that there are obligations to obey (or rights to command) which are created by offices or magistracies, which are essential to political order. It is at this point that you see the strength of Hume’s utilitarianism. Granted that an office defines rights and duties of the office-holder and also of those who are subject to his jurisdiction, we then have the question of what justifies that office. To this question there are two possible answers: the Hegelian and the Humean. The Hegelian will say that the office is part of, or essential to, the process whereby freedom is actualized in the arena of politics. We don’t freely choose the office or freely choose to be subject to its jurisdiction; it is through belonging to a body politic with offices of this kind that our freedom becomes a reality for us. The Humean will say that an office is justified by its utility to society as a whole – for example, its utility in preserving order in the midst of conflict, in deterring anti-social behaviour, and so on.

On one understanding these are not so very different: the Hegelian account can be given a quasi-utilitarian flavour which approximates it to the Humean account. However, in intention the Hegelian theory is very different from the usual forms of utlitarianism. It is immune to the free-rider problem, for a start. Obedience to authoritative institutions, on the Hegelian account, is not just part of making political freedom into a reality: it is part of making my freedom into a reality. I need to learn the ways of obedience if I am to be truly free. The free-rider is losing one of the benefits – maybe the principal benefit – of political order: namely, personal autonomy, freedom in the full-blooded sense that implies mastery over one’s own life and the recognition bestowed by others.

Freedom and Allegiance.

At the back of the conservative mind lies the thought – often explicit in Hume – that allegiance is the sine qua non of political order. Without it no social contract has any real motivating force, since we will all be as disposed to break the deal as to keep it, if self-interest points in that direction. Allegiance defines the first-person plural from which politics begins. It is the thing that is both the motive and the goal of our military endeavours. Moreover, political freedom is the gift of allegiance and not a commodity that can be secured in any other way. Until there is a general habit of obedience, the ‘war of all against all’ could break out at any time, and the pursuit of ‘rights’ will have no real guarantee in the day-to-day workings of the state.

But that raises the question ‘obedience to what?’ There is a tension here in conservative thought which we can witness in Hume and many others. On the one hand there is the desire to cut the cackle (the philosophy, as Hume contemptuously calls it) and reply ‘obedience to anything that works’. On the other hand, there is a real sense that a habit of obedience might work, in the sense of producing a law-governed civil order, while being inferior to some other and rival habit in respect of securing acknowledged political goods. Conservatives are ‘realists’ in believing that any allegiance is better than none; but they make concessions to the ‘idealists’ in looking for some test that the resulting political order should pass.

There is a great difference, in this respect, between a positive and a negative test. On the one hand we might require that the political order achieve something – say that it establish an ideal distribution of property and advantage, provide a proper guarantee of individual rights, maximize freedom, or whatever. This positive test is more characteristic of liberalism than conservatism, and corresponds to the kind of thought experiment advanced by Rawls.

On the other hand, we might affirm that any political order (and therefore any habit of obedience) is legitimate, unless it violates some basic requirement. ‘Legitimate until proven otherwise’ seems to be the Humean approach, and we prove otherwise only by showing that the disadvantages, whatever they may be, of the political order are so great as to outweigh the single mighty advantage of being order rather than anarchy.

This negative approach doesn’t rule out the social contract. Indeed, it corresponds to Kant’s version of the contract as noted above, which says ‘legitimate if the citizens could agree to it’ – in other words if it does not contain some element that they could not accept. However, the underlying assumption behind the contractarian view is that, in the end, freedom is a higher value than order, and order a value only because it is a necessary condition of freedom. Allegiance likewise is not a value in itself, but a means to securing order, which is a means to securing freedom. This is the opposite of the Islamic view of society, of course: freedom is a value for the Muslim only because it is the necessary condition of obedience, and obedience is demanded of us by the law of God.

How to develop a balanced doctrine in this area is one of the perennial problems for conservatism. Rhetorical invocations of freedom give way almost instantly to similar invocations of ‘law and order’, which in their turn give way to invocations of the first-person plural that defines out allegiance. If the shift between these is only rhetorical, then it tells us little of what is fundamental. But it is hard to spell out the philosophical relation between the three ideas, without adopting the liberal alternative, which tells us that allegiance is legitimate when freely contracted, that law and order is the expression of the social contract, and that, in obeying the contract, we are obeying a law that we have freely chosen, and which is therefore the expression of our freedom and not the limitation of it.

One possible way out of this is the adoption of a real but negative test of legitimacy in the form of a list of rights that must be guaranteed. The Kantian theory would hold that they must be guaranteed, since no rational being could consent to an arrangement that denied them. Yet of course, in Hume’s sense of ‘passive obedience’ we do consent to many such arrangements.

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