Ashok has posted a comment under a previous post on this website and has posted a critique of my critique of Harvey Mansfield on his own blog here. I want to respond on to three questions that I think he poses me- one methodological, one historical and the third political. Before I begin though because the tone of this argument may confuse people, I have the utmost respect for Ashok- he is a very good scholar and his writing about particular texts interests and intrigues me. He is a kind guy as well- and he definitely is someone that every single person reading this blog should also be reading- he is one of the bloggers that truly makes me think and reconsider my views- and as you'll see below, as in all good discussions, my interlocutor has influenced me.
Ok the methodological question concerns what might seem to outside observers a rather arcane debate- but actually is crucial to how you understand a text in historical thought. I rely here upon a set of essays published by Quentin Skinner- incidentally contrary to what Ashok says none of the people I'm talking about here have taught me indeed I've never met most of them. Skinner argued that if you were going to read a text like Locke's Two Treatises then you had to understand the context in which that text was written- the texts which it attempted to counter, the arguments it was seeking to have and only then could you understand what the text was saying. Resting his case upon some analytical work on language from John Austin- Skinner suggested that if you read a text in this way you understood it far better than if you abstracted it completely out of its time and attempted to read it as though it were published in 2007.
Ashok beleives that this shows disrespect for the theorists of the past. It doesn't. Professor Skinner has even in his lectures on liberty attempted to reconstruct a theory of liberty out of ideas he has retreived from Republican political thinkers. Furthermore placing ideas in the mouths of those that did not have them strikes me as more disrespectful of the past than actually trying to look at what they did say and retreive it. Locke upon whom Professor Mansfield bases a lot of his case is a key instance of this. Professor Mansfield argues that Locke's Two Treatises formed the basis in some way of the revolution of 1688. Its a pity for his thinking that Locke wrote his treatises six years before that revolution in a totally different atmosphere, wrote them to contradict a specific text, Robert Filmer's Patriacha which had been republished after sixty years. Whatever Locke was doing, he couldn't have been writing about a revolution that hadn't happened yet, and he was writing within a context where advocating a contractarian theory of sovereignty was a very unusual move- his friend William Petyt for example argued on a totally different basis for sovereignty. If you don't see where Locke was radical, where he was different from thinkers of his time, what he was doing to conventional arguments, then you don't understand what his intent was, where he was moving the debate. Its like trying to understand Hayek without having heard of Marx.
Ashok makes a historical point as well. I have to say on the history- as I hope I made clear in the article I am most confident about the 17th Century bits- those are the bits I know very well and whereas Ashok is an incredibly learned and widely read man in other historiographical landscapes I know more about a particular era- a time. My criticism is more aimed- and I have added a note to the original article where I agree with Ashok I was too confident about the Federalist Papers was about the way he had described the 17th Century. I am sorry to say this but Professor Mansfield is just wrong- and does not understand what the civil war was about or what Locke's position within contemporary political discourse was.
Lets look at Professor Mansfield's argument about Locke and subject it to some scrutiny- because I think it is completely and utterly incorrect in every particular: the key passage of his article is thus,
Locke was a careful writer, so careful that he did not care if he appeared to be a confused writer. In his "Second Treatise of Government" he announces the supremacy of the legislature, which was the slogan of the parliamentary side in the English Civil War, as the principle that should govern a well-made constitution. But as the argument proceeds, Locke gradually "fortifies" (to use James Madison's term) the executive. Locke adds other related powers to the subordinate power of executing the laws: the federative power dealing with foreign affairs, which he presents as conceptually distinct from the power of executing laws but naturally allied; the veto, a legislative function; the power to convoke the legislature and to correct its representation should it become corrupt; and above all, the prerogative, defined as "the power of doing public good without a rule." Without a rule! Even more: "sometimes too against the direct letter of the law." This is the very opposite of law and the rule of law--and "prerogative" was the slogan of the king's party in the same war.
Ok so why is this wrong. Firstly Locke in the key section of the Second Treatise on Government states the principle of his arrangement of power within the state very simply. Power in Locke's state derives as it does in most seventeenth century parallel cases- Henry Parker would be an interesting one- from the people. Consequently Locke argues that the end of the law is the public interest or public good- its worth keeping that in mind as we proceed. In his Treatise- the executor of the law, or magistrate, is authorised only to act as 'the phantom or shadow of the law'. Locke is very keen to emphasize this and again and again he does so. Within that context, the magistrate cannot act against the law- and to do so Locke argues dissolves his authority- ultimately he is only owed obedience as he executes the law. What Mansfield suggests are exceptions, are actually not so exceptional at all- every seventeenth century theorist who beleived in the rule of law- even Sir Edward Coke who beleived that there should be no new law and judges should just make the law- beleived that the executive should make foreign policy. Even a veto operates according to the law- it operates in a legal manner- and Locke doesn't say here that a magistrate should have a veto, he says he could have a veto- a different matter entirely. To turn to the issue of the public good- the real gate through which Mansfield wishes to drive. Again I know of no seventeenth century theorist who did not beleive that somebody ought to have that power of dealing with a case which the law did not deal with, but where the public good was at stake. Henry Ireton, Cromwell's son-in-law, argued that that was what the civil war was about. Henry Parker argued that Parliament should have that power, Edward Hyde that the King should have it. Noone argued that that power- the power in their language of acting in a case of neccessity should not exist. Locke is interesting here because he does say that the executive should act in the public good, but he also says that when the executive breaks the law the executive is dissolved and the public acts in its own good- I don't see those statements as contradictory, what Locke is envisaging there is say the invasion of a foreign army which the executive might resist through taking property for the public good and breaking the law, but as that's a step that the public would take anyway its justified.
That gap anyway isn't huge- it is the gap of an emergancy situation- and Locke establishes quite clearly that it is for the public not the executive to decide when such an emergancy has been reached.
Upon the Federalist Papers- I don't have a text near me. I am willing to accept Ashok's corrections on that- I am not an expert on that- I have no more knowledge than the average reader and haven't really delved too deeply into the Federalist. I agree with Ashok that Machiavelli is an incredibly complicated text to decode- I don't think I've managed it in my article but in my defence I think that Professor Mansfield is too simplistic in his discussion.
So to sum up- my real quarrel historically is with Professor Mansfield on the areas that I know well- the seventeenth century, where I think that he gets the civil war wrong and that he gets Locke wrong. Furthermore how you can read these things and not realise that the account of the executive especially in the civil war is profoundly about the religious inspiration of particular persons or a particular person, I'm not sure. Perhaps I don't show enough respect to my sources, to realise that when they say God, they don't mean it, they are really atheists. Or perhaps the last two parts of the Leviathan merely exist in my imagination or indeed the first Treatise where Locke tells us that the law of nature was a creation of God, or indeed in the second treatise where he quotes a theologian Hooker to substantiate his assumption that man is naturally equal. Obviously a discussion of Locke, seventeenth century political theory, US revolutionaries (a notably irreligious bunch- whose great awakening was only a myth) must miss out God- to include him would be insulting to them!
Ok moving on. The political point. The argument to my mind is simple. We all agree that if a nuclear bomb drops on Washington or New York, then legal nicety can wait, and the President can take what action he wishes to secure the people. We all agree that in times of war where the safety of the Republic is threatened the President can take the action he deems it right to take to protect the nation- though with the sanction of eventual review but probable exoneration on all charges. So we agree on that. The question is what the circumstances now are- that's what Mansfield offers me no discussion of. I know that there was an early modern discussion of how the state should react in matters of neccessity, when the chips were down, when there was a sudden and unforseen crisis, how should the state act. And I agree that the state should be able to act, despite the law, in the public interest in that case. But I don't know if this case is that case- and Professor Mansfield offers not one word to substantiate that argument. That's the key. Not that Locke, Ireton and Parker all agreed that such a power in such a case existed- but are we in those circumstances- I saw no evidence of that provided.
To sum up, I am willing to take Ashok's corrections on the Federalist Papers. I am unwilling to retreat however at all on my arguments about the civil war where I think he is wrong, on my arguments about Locke where I don't see the textual evidence to warrent a suspision that he was doing anything to combine royalist and Parliamentarian cases (a point Professor Mansfield made) and I am unwilling to retreat on my basic political point which is that I will acknowledge and yield to executive power in an emergeancy- but I don't know if this is such an emergancy. Curiously this was an argument had in the seventeenth century- before the civil war and not during it. Before the civil war, Charles argued that the nation faced an emergancy such that he could collect taxes without legal recourse, some Parliamentarians argued that he was wrong, it wasn't such a case and he needed a legal way through.
I have been perhaps slightly harsh here, Ashok is a friend and a good guy- I hope he takes this in the right manner as a contribution to debate and not an insult. I'm listening to politicians give speeches having won elections- please excuse any infelicities by the fact I'm listening to everyone claiming that a defeat is actually a victory!