# Crosscurrents (Vol. 5 No. 3) **URL:** **Published:** April 1, 1988 --- “As we enter the bicentennial period of the ratification debates of the United States Constitution, new scholarship is being focused on the issues that separated Federalists and Anti-Federalists.” ## Summer Seminars on Liberty \& Society The Institute for Humane Studies will sponsor two interdisciplinary seminars for students in 1988. The seminars, intended for undergraduate and graduate students, provide a thoroughgoing introduction to the foundations of classical liberal thought. The seminars include lectures and readings in law, philosophy, economics, and history. The core of the program, however, is the intensive student discussion groups, where the participants critically discuss the lectures and readings for the day. Complete information and application rules are contained in the announcement on the back page of this issue of _Humane Studies Review_. (The announcement contains a description of the required letter of application; no special form is needed to apply.) Students who have not already attended are encouraged to apply; previous graduates, faculty, and other friends of the Institute are urged to share the information with students who they believe might benefit from participation and to send the names and addresses of potential applicants to the Institute. Recommendations of candidates should be sent to Tom G. Palmer, Editor, _Humane Studies Review_, Institute for Humane Studies, George Mason University, 4400 University Drive, Fairfax, VA 22030. Letters inviting candidates to apply will be sent on receipt of the recommendations. ## Anti-Federalism and the Constitutional Ratification Debates As we enter the bicentennial period of the ratification debates of the United States Constitution, new scholarship is being focused on the issues that separated Federalists and Antifederalists. The single issue of support for or opposition to the new Constitution has divided the two camps, but a closer examination of the underlying issues reveals a more complex struggle, with very different concerns represented on each side of the issue of Constitutional ratification. While some Antifederalists were fearful of the consequences for liberty of a strengthened national state, including George Mason, Patrick Henry, and Richard Henry Lee, other Antifederalists were more concerned with federal restrictions on the power of the states to inflate the currency or to restrict trade. And similarly for the Federalists: while Alexander Hamilton sought expanded powers for the national state, James Madison saw the new Constitution as a means of checking the power of majorities to seize state power and diminish the liberties of minorities. All of these various factions contributed to the new constitutional order of the Republic, the Antifederalists most clearly through their insistence on a federal Bill of Rights. Two new collections of essays by noted historians help to shed light on this complex debate. _Beyond Confederation: Origins of the Constitution and American National Identity_ (Chapel Hill: University of North Carolina Press, 1987), ed. by Richard Beeman, Stephen Botein, and Edward C. Carter, III, contains two especially interesting essays. Ralph Lerner in his contribution questions the basis of the Classical Republican/Civic Humanist interpretation of the ideology of the Founding period (see the discussion of this issue in Richard Vernier’s “Interpreting the American Republic: Civic Humanism vs. Liberalism,” _Humane Studies Review_ \[4\] No. 3, Summer 1987). Gordon Wood argues that the Antifederalists, in pursuing special interests through the legislatures, were more “modern” than the Federalists, who sought a republic of virtue through a system of checks and balances. _The Constitution and American Life_, a special issue of the _Journal of American History_ (\[74\] 3, December 1987), also addresses these issues. Among the most interesting articles are Joyce Appleby’s “The American Heritage: The Heirs and the Disinherited” and Thomas L. Haskell’s “The Curious Persistence of Rights Talk in the ‘Age of Interpretation.’” The bicentennial of the period that concluded with ratification of the American Constititution and passage of the Bill of Rights provides the opportunity for students to explore the philosophical and political concerns that motivated the historical players. Not only students of history, but also political scientists, philosophers, sociologists, and legal scholars can take advantage of opportunities for research and writing on these issues. ## New Work on Hayek’s Thought A sign of the growth of interest in the ideas of the classical liberal thinker F. A. Hayek has been the increasing number of studies of his thought. Barbara Rowland’s _Ordered Liberty and the Constitutional Framework: The Political Thought of Friedrich A. Hayek_ (Westport, Ct.: Greenwood Press, 1987) builds on previous discussions of Hayek, such as Norman Barry’s _Hayek’s Social and Economic Philosophy_ (London: Macmillan, 1979) and John Gray’s _Hayek on Liberty_ (Oxford: Blackwell, 1984), rather than starting _de novo_. She relates problems and issues in Hayek’s thought to those in other streams of political thought, for example, in Michael Sandel’s _Liberalism and the Limits of Justice_ (Cambridge: Cambridge University Press, 1982) and Alasdair MacIntyre’s _After Virtue_ (Notre Dame, Indiana: University of Notre Dame Press, 1984). This feature makes her study particularly useful to those wishing to relate work in the classical liberal tradition to other recent work in moral or political philosophy. While appreciative of Hayek’s accomplishments, Rowland is also critical, arguing that problems in Hayek’s thought are rooted in defects in his conception of the self. This work should prove especially useful to students of moral and political philosophy and related disciplines. ## Origins of Individualism This year marks the tenth anniversary of the beginning of a most intriguing and controversial scholarly drama. Almost simultaneously, a book and an article summarizing it were published. What sparked the controversy and what keeps the dispute burning is the author’s contention that in England there was no clear cut transition from feudal-peasant society to industrial-capitalist nation, from nonmarket communalism to market-oriented rationality. If accepted, this would overturn the conventional wisdom built up over the past 150 years by no less than Macaulay, Marx, Tönnies, Tawney, Weber, and others. The book, _The Origins of English Individualism_ (Oxford: Basil Blackwell, 1978), by Alan Macfarlane, a Fellow at King’s College, Cambridge, and a Reader in Historical Anthropology at Cambridge University, was conveniently summarized in an article entitled, “The Origins of English Individualism: Some Surprises” (_Theory and Society_, September, 1978). Macfarlane’s research had truly led to some surprising results. Macfarlane holds doctorates in both anthropology and history. Until the early 1970s he was a distinguished, if somewhat middle-of-the-road, scholar. He held to all of the things accepted as verities about England’s feudal order: that the extended family, not the individual, was the basic unit of society; that land was owned communally, never by individuals; that for these reasons property was not transferable outside the family; that movement from one locale to another (labor mobility) was unusual; that wage labor also was, at best, rare; that women had no or few property rights; that the cash nexus was virtually nonexistent among country folk, and so forth. Macfarlane’s research into archives other than manorial records, which did not record as much in the way of individual relationships, either legal or ecclesiastical, revealed the possibility of an altogether different scenario. This scenario was so different that, for Macfarlane, the findings served as a cultural and intellectual shock of the first order. In his careful analysis of parish registers, wills, diaries, listings, and other such records, Macfarlane discovered a world that another British historian discussed in another context as one being “turned upside down.” Macfarlane found that every single canonical belief listed above was either vastly overstated or, in most cases, simply wrong. In short, he showed that the English peasantry, “one of the most thoroughly investigated peasantries in history turns out to be not a peasantry at all.” It is notable that Macfarlane showed that the model of the peasant used by anthropologists and many historians was entirely inappropriate to understanding the English peasantry. This model was based on the East European “peasant,” who was not a peasant at all, but a serf, and who lived under constraints different from those of the English peasant. Macfarlane’s argument was more than the orthodox British historians could take. Critical and generally unkind reviews appeared by the dozens in the major journals of thought and opinion. Citations for several of the most notable reviews (not all negative) follow: Rosamond Faith (_Journal of Peasant Studies_, April 1980, pp. 384-389); Mark Goldie, “Old Whiggery, New Battle: Macfarlane’s English Individualism” (_Cambridge Review_, 1978, pp. 111-114); R. M. Hartwell, “Freedom and Freeholders” (_Inquiry Magazine_, March 17, 1980, pp. 25-27); David Herlihy (_Journal of Family History_, Summer 1980, pp. 235-236); Donald N. McCloskey (_Journal of Political Economy_, August 1981, pp. 839-840); J.G.A. Pocock (_History and Theory_, 1980, pp. 100-105); Alan Ryan, “Yeomen, Not Peasants” (_The Listener_, December 14, 1978, pp. 790-791); and Lawrence Stone, “Goodbye to Nearly All That” (_New York Review of Books_, April 19, 1979, pp. 40-41). Seemingly undeterred by the reaction of the critics, Macfarlane continued researching, writing, and publishing his findings. His publications on this and closely related topics over the past ten years add up to an extremely impressive oeuvre. Besides _The Origins of English Individualism_, his key publications are _The Justice and the Mare’s Ale_ (Cambridge: Cambridge University Press, 1981); _A Guide to English Historical Records_ (Cambridge: Cambridge University Press, 1983); _Marriage and Love in England: Modes of Reproduction, 1300-1840_ (Oxford: Basil Blackwell, 1986); and _The Culture of Capitalism_ (Oxford: Basil Blackwell, 1987). The reception to _Marriage and Love_ was, if anything, even less hospitable than to the earlier _The Origins of English Individualism_; see especially the acrimonious review by Lawrence Stone, “Illusions of a Changeless Family” (_The Times Literary Supplement_, May 16, 1986). Macfarlane has restored classical liberal themes in historiography. In _The Culture of Capitalism_, Macfarlane’s most recent restatement of his thesis and rejoinder to his critics, he reexamines the accounts of nineteenth century legal historians such as Sir Frederick Pollock and Frederic William Maitland’s _The History of English Law_ (1898; Cambridge: Cambridge University Press, 1968), showing what legal history can tell us about economic and social history. His work represents a restoration of the flowering of the classical liberal historiography that followed World War II, as represented by such scholars as R. R. Palmer, John Hexter, and Peter Gay. The thesis advanced in _The Origins of English Individualism_ seems to have been strengthened in _The Culture of Capitalism_ by his having responded to key criticisms. Nevertheless, there remain literally dozens and dozens of research topics for dissertations and articles yet to be written—for example, the development of specific markets and institutions not only during the Middle Ages but centuries before the Black Death, as far back as at least the ninth and tenth centuries, and the specific origins of the Industrial Revolution, if in fact it can any longer even be considered a revolution in the normal historical sense of the term. There are many more. One is alluded to slightly in _The Culture of Capitalism_. Whereas in _The Origins of English Individualism_, Macfarlane seemed to be making the case that the English were _sui generis_ in their institutions and culture, and therefore came to the “Industrial Revolution” first, in _The Culture of Capitalism_ he seems to open his thesis to include Western Europe. We know that the condition of the English “peasantry” was anything but the communalistic serfdom that reigned (was imposed) in Eastern Europe, but what about the Low Countries? Was France really the same as Russia? To gain further insight into the early development of the legal institutions of capitalism throughout Europe by the eleventh and twelfth centuries, one will want to consult Harold J. Berman’s extraordinary work _Law and Revolution: The Formation of the Western Legal Tradition_ (Cambridge, Mass.: Harvard University Press, 1983). The range of investigation and research can be broadened further. Is Western Europe all that different from the rest of the world? Consider the case of Southeast Asia. Samuel L. Popkin, in his _The Rational Peasant: The Political Economy of Rural Society in Vietnam_ (Berkeley: University of California Press, 1979), demonstrates that the “peasant” in Vietnam appears to act very much like Macfarlane’s market-oriented British yeoman. Or consider Africa. Noted anthropologist Polly Hill, in her _Development Economics on Trial_ (Cambridge: Cambridge University Press, 1986), tells almost the same story about “peasants” in West Africa as Popkin and Macfarlane in their studies. Alan Macfarlane’s work is as important in its implications as any going on anywhere in the world. Will liberal scholars follow where this iconoclast has led? ## History, Rights, and Moral Community Many recent debates on moral, legal, and political philosophy have revolved around the question of whether there can be a universally valid set of moral rules. Claims on behalf of a rational and coherent foundation for morality that is valid for all rational agents are disputed in many quarters. “Communitarianism”—the idea that moral values are meaningful only within particular communities and that such communities provide the only bases for moral claims—has emerged as a powerful challenge to liberalism. (For a general review of this debate, see the essay by Chandran Kukathas, “Liberalism and Its Critics,” _Humane Studies Review_ \[4\] No. 1, Winter 1986–1987.) Liberal thinkers have responded that this view of morals is just a new kind of moral subjectivism, making communities instead of individuals the ultimate sources of validity in morals. The Stoic view that mankind is one community is replaced by a “communitarianism” for which moral values depend on local mores and traditions. “Communitarianism,” however, does not offer convincing answers to central questions in moral philosophy. How can we establish a community among different cultures and traditions? How is a dialogue about values possible among societies that do not share a common tradition? How are we to avoid infinite fragmentation of values and practices? Can we make sense of mankind as a community? These questions are not new. They were raised when the European explorers and conquerors encountered radically different societies and cultures. What may today appear as an abstract debate was a matter of tremendous importance for the societies discovered and colonized by the Europeans. Two examples reveal the relevance of these questions to actual political practice: the Spanish subjugation of the Amerindians in the sixteenth century and the discovery of Australia by the British in the late eighteenth century. In both cases, moral and legal scholars attempted to comprehend the implications of this contact of cultures without collapsing into relativism. An examination of the arguments developed in those debates may help us to gain insights into problems in modern moral and political philosophy. The crucial question posed by the Spanish discovery of America was whether the Amerindians had the same nature as Europeans, and therefore the same rights, or whether they were what Aristotle called “natural slaves.” The historian Lewis Hanke has written insightful treatments of this debate. In _Aristotle and the American Indians_ (1959; Bloomington: Indiana University Press, 1970) Hanke examined the influence of Aristotelian psychology on the conceptions that Europeans had of the Amerindians. In _The Spanish Struggle for Justice in the Conquest of America_ (Boston: Little Brown, 1965) Hanke offers an account of the debates about the just treatment of the Amerindians sparked by the missionary Bartolome de las Casas. Hanke’s _All Mankind is One: A Study of the Disputation between Bartolome de las Casas and Juan Gines de Sepulveda in 1550 on the Intellectual and Religious Capacity of the American Indians_ (DeKalb: Northern Illinois University Press, 1974) presents a well-written digest of the main arguments in the debate. Hanke’s theme has been revisited by the historian Anthony Pagden in his book, _The Fall of Natural Man: The American Indian and the Origins of Comparative Ethnology_ (Cambridge: Cambridge University Press, 1982). Pagden’s principal interest is in how the debate about the rights of the Amerindians gave rise to modern comparative ethnology. Pagden discusses the writings of Francisco de Vitoria (the founder of the School of Salamanca), Bartolome de las Casas, and the explorer Jose Acosta. Pagden has restored the debate to its proper intellectual context and provided a very close analysis of the relevant texts. However, the author opens up a number of themes that, given his focus on the origins of ethnology, are barely developed. A less-explored but important theme is the political and legal thought of the School of Salamanca, especially their theories of justice and human rights. When the question of “natural slavery” had been largely settled, other questions beset the European discoverers. When the British arrived at the Antipodes, the humanity of the Australian aboriginals was no longer at issue. Other questions, however, did not command universal agreement: did the aboriginals have property rights over the land on which they lived, or were they still in the “state of nature” and without just claims over land? In _The Law of the Land_ (New York: Viking Penguin, 1987) historian Henry Reynolds tells the intellectual and political story of this question. Reynolds shows how the initial view that Australia was no man’s land—_terra nullius_, as it is called in international law—was very rapidly replaced by the admission by legal and political authorities of the legitimacy of the claims to property of the aboriginals. Reynolds also shows how, despite the consensus about the legitimacy of the aboriginals’ claims, particular interests prevented their recognition in practice. Reynold’s book opens a line of research on the question of original appropriation of land that modern discussions of property rights should take into account. He handles well the legal sources on which the discussion relied—Grotius, Vattel and Blackstone—and shows that they did not support the argument that Australia was _terra nullius_. As Reynolds shows, the traditions of International Law and of English Common Law give ample support to the property claims of the aboriginals. The material presented in _The Law of the Land_ suggests that the legitimacy of property rights should not be settled behind a “veil of ignorance,” without reference to the actual historical evolution of property. Students of moral and legal philosophy should find concrete historical examples, such as those offered by Hanke, Pagden, and Reynolds, helpful in complementing abstract reasoning about rights claims that transcend particular communities and embrace the entire community of mankind. Students of anthropology, sociology, political and social history, and related disciplines should find these texts useful in elaborating models of moral and political development. ## Causation in the Law The role of causation in law occupies a central place in classical liberal jurisprudence. Because of the role of agency in liberal jurisprudence (see, for example, _Law and Its Presuppositions: Actions, Agents and Rules_, by S. C. Coval and Joseph C. Smith \[London: Routledge \& Kegan Paul, 1986\]), the issue of causation deserves careful examination by philosophers and legal and economic theorists working in the classical liberal tradition. Does omission of an act (e.g., failure to come to the aid of another party) cause the “result”? Should negligence or strict liability be the standards applied by judges in tort law? What role do rights have in the determination of legal causation? These and other questions are examined in the “Symposium on Causation in the Law of Torts” in the _Chicago-Kent Law Review_ (\[63\] No. 3, 1987). The foreword by symposium editor Mario Rizzo establishes a number of issues, while contributions by Ernest Weinrib, Judith Jarvis Thompson, Mark Kelman, and Richard Epstein eludicate the relationship of legal causation to rights, strict liability, efficiency, and liberty. Copies of the issue are available for $10 from the _Chicago-Kent Law Review_, 77 South Wacker Drive, Chicago, IL 60606. Students of moral philosophy, law, and jurisprudence will find this volume most helpful in making the distinctions appropriate to addressing such complex issues as pollution (“toxic torts”), “good samaritan laws,” and the foundations of legal rights. ## Noninterventionism Surveyed American noninterventionism is surveyed in a new bibliographical work by Justus Doenecke, _Anti-Interventionism: A Bibliographical Introduction to Isolationism and Pacifism from World War I to the Early Cold War_ (New York: Garland Publishing, 1987). Doenecke offers a synoptic view of the scholarship on American noninterventionism, covering movements, issues, groups, and prominent figures, including writers like Albert Jay Nock, H. L. Mencken, and Felix Morley; political leaders like Herbert Hoover and Senators William E. Borah, Burton K. Wheeler, and Robert A. Taft; and public figures like Charles Lindberg and William Randolph Hearst. This book is a valuable guide to scholarship in this area and will prove useful to students of American political, military, and diplomatic history. ## Evolutionary Theories of Society One of the main themes of recent classical liberal scholarship has been the study of spontaneous orders, those ordered systems that result from human action but not from conscious overall design. This theory has been applied to such diverse social phenomena as language, money, the price system, and even the foundations of the social order itself. Two new essays develop and expand themes from F. A. Hayek’s evolutionary theory of society and social rules. Gerard Radnitzky’s essay “An Economic Theory of the Rise of Civilization and Its Policy Implications: Hayek’s Theory Generalized” (_ORDO: Jahrbuch für die Ordnung von Wirtschaft und Gesellschaft_, Band 38, Stuttgart: Gustav Fischer Verlag, 1987) combines Hayek’s account of spontaneous orders with Karl Popper’s theory of scientific progress and with recent research in sociology and biology. Radnitzky’s essay is wide-ranging and informative. (_ORDO_ is published every year in Germany and includes both English and German articles, generally on themes of interest to classical liberals, with brief summaries in both languages. Subscription information is available from Gustav Fischer Verlag, Wollgrasweg 49, D-7000 Stuttgart 70, West Germany.) Finnish economist Martti Vihanto has also written an essay, “The Evolutionary Theory of Rules and the Spontaneous Order” (Turku, Finland: The Turku School of Economics and Business Administration, September, 1987), that provides a Hayekian theory of the spontaneous emergence of rules of order, including law. Scholars interested in reading Vihanto’s paper may write to him at the Turku School of Economics and Business Administration, Rehtorinpellonkatu 3, 20500 Turku, Finland. ## Government Growth Studied The growth of government in the twentieth century has proven one of the most serious and fruitful topics for research in political science, economic history, and related disciplines. One of the leaders in the revival of economic history in the United States, Robert Higgs, has produced a valuable overview of the various theories of government growth, carefully woven together with exacting historical scholarship. _Crisis and Leviathan: Critical Episodes in the Growth of American Government_ (Oxford: Oxford University Press, 1987) should be read by every serious student of American history and of political economy generally. The book is available for $24.95 from Laissez Faire Books, 532 Broadway, 7th Floor, New York, NY 10012 (add $1.00 for U.S. surface mail, $2.00 for United Parcel Post, and $2.50 for foreign surface mail). Orders may be made over the phone toll-free by calling 1-800-238-2200, extension 500. (When ordering be sure to state the special book code HS4597, and the Departmental code HS2R.) ## Friendship and the Foundations of Community On what is real community based? “Communitarian” critics of liberalism often charge that liberalism is based on “atomism” (see, for example, Charles Taylor’s essay, “Atomism,” in his _Philosophy and the Human Sciences: Philosophical Papers_, Vol. 2 \[Cambridge: Cambridge University Press, 1985\]) and argue that moral systems should be based on the needs of communities, rather than on the rights of individuals. But what is the foundation of community? Philosopher Stephen R. L. Clark has argued in a very provocative article, (“Slaves and Citizens,” _Philosophy_ \[63\] 1985), that true citizenship in a community rests on voluntarism, that “Freedom, of the kind which is denied in slave-societies, does not rest merely in the absence of external impediment (so that Robinson Crusoe was free before Friday), but in the form of social exchange and personal development that enables all to meet as friends.” This theme of friendship, voluntarism, and the uniqueness of the individual is also explored in philosopher Neera Badhwar’s essay, “Friends as Ends in Themselves” (_Philosophy and Phenomenological Research_ \[48\] No. 1, September 1987). Like Clark, Badhwar orients much of her argument to Aristotle’s discussion of friendship in Book VIII of the _Nicomachean Ethics_, and argues that true friendship (in the sense of “end friendship,” or loving another as an end in himself or herself) needs “an analysis of the person or self in friendship that allows us to accomodate the idea that friendship love is dependent on the qualitative identity of the friend, yet not such as to persist independently of her qualitative identity.” Another approach to the question is found in David L. Norton’s _Personal Destinies: A Philosophy of Ethical Individualism_ (Princeton: Princeton University Press, 1976), in which he discusses community as a “complementarity of excellences.” Loren Lomasky, in his _Persons, Rights, and the Moral Community_ (Oxford: Oxford University Press, 1987), also lays a foundation for moral community in the recognition of individuality and the meshing of “personal projects.” The interrelationships between friendship, individuality, community, and liberty offer a topic worthy of serious reflection by students of moral philosophy.