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Jacob T. Levy explains the tension between liberal political thought and rationalist suspicion of localized power.

Aaron Ross Powell
Director and Editor
Trevor Burrus
Research Fellow, Constitutional Studies

Jacob T. Levy is the Tomlinson Professor of Political Theory at McGill University. He writes on federalism, freedom of association, indigenous peoples, constitutional theory, and Enlightenment political thought.

This week Jacob T. Levy joins us to discuss his new book, Rationalism, Pluralism and Freedom (2015).

Can rationalism and pluralism be reconciled in the liberal tradition? Why not?

How much authority is proper for intermediate groups? When does pluralism shift into illiberalism? How can the balance of power between intermediate groups be used to grow the power of a central state?

Show Notes and Further Reading

Montesquieu, The Spirit of Laws (book)



Aaron Ross Powell: Welcome to Free Thoughts, a show about libertarianism and the ideas that influence it, from The Cato Institute and Lib​er​tar​i​an​ism​.org. I’m Aaron Powell.

Trevor Burrus: I’m Trevor Burrus.

Aaron Ross Powell: Joining us today is Professor Jacob T. Levy of McGill University. He’s the author of the new book Rationalism, Pluralism and Freedom. Welcome to Free Thoughts.

Jacob Levy: Thank you very much for having me.

Aaron Ross Powell: Your book is about a central tension you’ve identified within the liberal intellectual tradition and you sum that up – towards the end you write the core claim of this book is that a full liberal theory of freedom cannot do without the insights of either rationalism or pluralism. These are probably impossible to fully reconcile. So why don’t you start by having – explain to us what that sentence means.

Jacob Levy: All right. So first I will explain what rationalism and pluralism mean in that context and the book is organized around the idea that there are competing traditions within liberal thought. One of them more trusting of the modern rationalizing state form as a way of bringing equality before the law and liberation from local tyrannies and local despotisms, through centralization and uniformity, especially legalized uniformity.

The other pluralist tradition that places more confidence in the freedom that is to be found in voluntary associations, in churches, in cultural groups and in local and provincial levels of government, thinking that the variation that we find there is more the product of free people making free choices than it is a sign of local tyranny and exceptionalism from the law.

Aaron Ross Powell: So would it be an OK characterization to say that rationalism then would be focusing on the role of the state is to protect the rights of individuals and the pluralism – specifically rights to freedom from violence and freedom of expression and all the things that we talk about every day at The Cato Institute. But then the pluralist would focus more on a right to freedom of association.

Jacob Levy: Yes. The freedom of association is an individual right. It’s a way of building a kind of rights of groups out of the rights of individuals to come together and do things together. The freedom of a church is a collective corporate freedom but it’s built out of the religious freedom of individuals who wish to come worship together in the same way, in the same light, according to a common authority structure, a common set of beliefs about authoritative scripture and so on.

The rationalist tradition though would look at a church and worry about the authority and the power that a priest might hold over parishioners or that the religious tradition as such holds over say women and children within the tradition and want the state to act against the religious tradition for the sake of protecting as you say the freedom, the autonomy, the development, the individuality of the members of the organization.

Trevor Burrus: In reading your book, I was – I kept thinking of the Amish. It’s an interesting example of the tension because I have described I think a similar thing in some of my talks and saying on one level, we could try to create a system wherein from the top, roughly speaking, we try to create a floor, some sort of guarantee of rights.

On the other one, we could create a system where there’s just a bunch of little groups and we let them be pluralistically individualistically or group identity maintain – like the Amish. The Amish are not – the Amish, they’re not libertarian. They’re not democrats. They’re not socialists. They have a bunch of different things and they’re allowed to do their own thing. Are you saying basically that the fear there is whether we should go into the Amish and stop them from being oppressive if they’re being – from a top down situation if they’re being oppressive in some way or just let them flourish in their …

Aaron Ross Powell: We have a concern that the members, the individual members, the Amish from a liberal perspective might not be genuinely autonomous or free because they’ve been indoctrinated into the society that radically limits the kind of lives open to them.

Jacob Levy: That’s right. We start by asking the question whether the rules are oppressive. The Amish are constituted by their rules. That’s what it means to be Amish, to live a life according to a very elaborate set of rules and restrictions and religious beliefs. Those are expressed as chosen by the adult members of the Amish. You have to freely choose your way into baptism after you’re 18.

Routinely Amish teenagers will get some exposure to the outside world before they decide to come back. But the rules are very, very stringent. If they were the laws of the state, we would say that it was an extremely oppressive, tyrannical state. But they’re not and we can look at it through one eye and say, “This is really a very illiberal, conservative, restrictive society. These aren’t fully free people,” or we can look at it through the other eye and say, “These are people choosing a thing to do with their lives and the thing they’re choosing to do with their lives involves following norms, living according to values, and that’s one of the things that free people can do.”

That has to be right. No matter what else is true, it has to be the case that free persons can choose to live according to norms and values and rules. But then they create a community that is self‐​perpetuating. New people are born into the community who come to know fewer and fewer choices over time. The ability of someone to choose to leave well into adulthood is significantly compromised. Just one thing to say. You have a choice once when you’re 18. But what happens to the 40‐​year‐​old, the 50‐​year‐​old who comes to wish for something new and not have the resources? There’s something true in both of those. It’s part of the claim of the book.

Trevor Burrus: Now what makes them both liberal then?

Jacob Levy: They’re both concerned with the freedom of their members. The ability to choose the conservative life, to choose the religious life, that’s one of the things that the liberally‐​free person must be able to choose. It’s not the case that liberalism somehow says you’re only free if you are choosing radical libertarianism. It’s not the case that only if you recreate your life every day are you a free person. Free persons can make commitments. That means you signed up for rules.

This is true in elementary of cases as free persons can sign contracts. They can limit their freedom tomorrow for the sake of a project that they wish to be pursuing today and tomorrow. That’s a liberal vision. But the liberal vision is also genuinely concerned with oppression and domination and to put it in the affirmative light, with the development of individuality. There’s a sense in which the liberal looks at the Amish and says, “You’re not wholly free people even though you’ve created this situation freely.”

Aaron Ross Powell: How do we distinguish an intermediate group? I believe you call it like the Amish from a state, because you said if we thought of the Amish as a state, they would be a very repressive state and we would – certainly an illiberal state. But don’t people choose to participate in the state that they live in? They have the option of exit in most cases especially in the Western world. So what’s the difference? Why do we – why do liberals say the state is not allowed to be oppressive potentially in these certain ways but the Amish are?

Jacob Levy: A lot of traditional answers here have to do with the coerciveness of states’ abilities to punish. An intermediate group normally within a liberal society, when faced with a member who refuses to obey the rules, has no punishment more extreme than say expulsion and shunning. A club, a society, they can expel a member. They can excommunicate a would‐​be believer. But then the person is free to go along their way.

The church or the club or the university, they don’t have prison sentences they can hand out. That’s a distinction with some real moral weight and I do think that that does a lot of work. It doesn’t do quite as much work as people have sometimes thought because the intermediate societies gain legal personality. They gain legal rights of their own and their ability to persist as corporate bodies, as legally organized entities means that they call on the legal enforcement mechanisms of the state.

We’ve seen this a few times when dissenting members of a religious group, for example, women dissenting from the rules of an orthodox Jewish synagogue or of a mosque about where women can pray would say, “We too are orthodox Jews. We too are Muslims. We are going to move into the area of the synagogue or the mosque where we’re not supposed to be.”

Then the officials of the synagogue or the mosque as the legally authorized representatives of that corporate body, if push comes to shove, things get far enough, can call in the police to take the women away. If things get really extreme, they can arrest the women for trespassing. That is the coercive punishment isn’t entirely off the table. So in the book, I do take seriously the difference between coercive punishment and voluntary punishments like excommunication.

But I do think that states are on a continuum with other groups. They’re not morally utterly different. That’s part of what [0:10:00] generates the tension within the book, the view that says states are just morally, magically, completely other. It has sometimes gone along with saying – and therefore associations can do whatever they want. In terms of the book, that would mean only the pluralist vision is right because we can’t define anything that happens within the groups as un‐​free. I don’t think that’s true.

Moreover, I offer some reasons in the book to think that local governments and provincial governments are even closer to intermediate groups on this spectrum, which suggests that the state form isn’t morally completely alien to other kinds of groups, social organizations.

Trevor Burrus: Do these two different traditions – you call them irreconcilable and we will get into kind of the genesis of that. But it seems to me that they could be coming from the different concerns about which one – where the danger lies more, whether or not – they’re not coming from different value systems. If they’re both liberal, they can’t be to some extent just like, “Oh, sure. If you want to have your own little intermediate group that’s North Korea and you constantly just beat people, that’s not OK,” or some sort of [Indiscernible] not going to blow.

But is it really just a concern about where the slippery slope lies, if the slippery slope lies with the pluralistic tradition or the slippery slope lies with centralized power that may start doing things that you don’t want it to do? So just an emphasis about the dangers of the future.

Jacob Levy: I think that’s right and I spend a lot of part one of the book arguing that we should think of the traditions in terms of where they view dangers.

A lot of the other ways of talking about these kinds of issues in political theory, in political philosophy, have tended to treat the two views as coming from utterly different value systems. One of them is individualistic and one is collective for example and I think that that’s a serious mistake. Association is generated out of individual free choices and free persons, as I’ve said, are free to choose rules and values and norms or one of them is concerned with individual autonomy, understood as a strong commitment to the person creating themselves.

I think the really radical version of individual autonomy that people talk about in that setting is ultimately incoherent because we are – none of us creating ourselves wholly from scrap. We’re all socialized. So what happens is the idea of autonomy is wielded in very opportunistic and hypocritical ways for example to say we secular white Westerners, we are autonomous. We choose our lives whereas you brown people with your religions, you seem not to be autonomous because you’re doing what your parents – well, most of us do what our parents did most of the time.

So I’m at some pains to say there aren’t different fundamental values. These are both flowing from common liberal values and the difference is then grounded in a different kind of normative sociology on account of what groups are like and what states are like, what their patterns are, what their habits are. Under what kinds of social conditions you would expect to find really significant abuses coming from the state or under what kinds of conditions you would expect to find really significant abuses coming from intermediate groups.

Trevor Burrus: That seems like it would have something to do with voice and exit possibly in the Hirschman sense that one of these you can leave these – that should be maybe a fundamental right that the liberal order must maintain. In the other one, you should try to change essentially from within.

Jacob Levy: There’s something to that. But lots of states and lots of intermediate groups draw on both. It’s not the case that states are always smaller or it’s not the case that states are always larger that – what I’m calling intermediate groups. A lot of intermediate groups are transnational. The Roman Catholic Church is very much larger than most states in the world. Exit is hard. Exit is tremendously costly and we say that exit is hard from states, partly psychologically, partly economically, partly because it’s hard to find a place to go.

Well, exit is hard from the Catholic Church too. If you’re still a believer, but you have some real objection to some component, what do you do? Well, what you do is voice. Our relationship to intermediate groups isn’t just like our relationship to economic firms on the marketplace which was Hirschman’s standard case of – cases where we dissent using exit.

Trevor Burrus: Yeah, I don’t like Burger King. I leave Burger King. I go to McDonald’s.

Jacob Levy: That’s right.

Trevor Burrus: They don’t try to change Burger King from within and take it over and vote them out and then everything else.

Jacob Levy: But my relationship to my church isn’t really like that very much, even [Indiscernible] there’s a tremendous proliferation of Protestant denominations that are very close to one another and yes, if you don’t like something about your local church, you can find something that’s a little bit different. But still, we take it more seriously than that. We do try to exert some voice. We do try to change our intermediate organizations.

Aaron Ross Powell: So given that these definitions scale and as you said the Catholic Church is much larger than many as an intermediate group is much larger than many states, does pluralism I guess eat rationalism at some point? These countries themselves are – I mean we’re embedded in these things, these cultural groups, the – we come out of this liberal tradition but that’s just a tradition that we were a part of.

So does taking pluralism seriously at some point means saying something like – well, even these individual rights that we seem to care about, this autonomy that we seem to care about, those are just particular factors of this one intermediate group that we happen to be a part of, that maybe stretches back to the dawn of time. But it’s a tradition and it’s just like the Catholic tradition and so we should treat it the same as we would treat any other intermediate group.

Jacob Levy: I don’t quite think that. I see what you’re up to. I do think it’s important to treat the state as being continuous with other kinds of groups and as being an entity with a sociology of its own. It’s important not to treat it as a lot of philosophers often have, as being a kind of disembodied machine for the dispensing of justice and all we have to do is come up with the right tier of justice to feed into the state and then the state will do the justice.

Now states have patterns and dysfunctions of their own. They’re populated by real people and they have histories. They haven’t always existed. They share that with intermediate groups too. But there is something distinctive about this particular kind of group, the kind of mode of organization that’s developed over the course of European modernity since the 1500s or so.

It extends to significant bureaucratization and a significant push toward universalism and uniformity within it in a way that isn’t mirrored in even very large other groups. The Catholic Church is not prone to the same dysfunctions as a state is. There are other kinds of things we want to worry about. We want to worry about excessive conservatism. We want to worry about the excessive power of priest over parishioner.

But what we don’t normally find in the church that we do find in states is the trend toward radical centralization, radical uniformity and a deep determination to know everything about the members in order to make them marked in a kind of lockstep. That has to do with the kind of power that the state has as a – at its disposal. It’s a contingent matter. It’s what the state happens to turn into over the course of the 1500s, 1600s, 1700s.

But it does mean that we expect different kinds of dangers from the state than what we expect from the other kinds of intermediate groups, and therefore I think it’s still useful to treat them separately.

Trevor Burrus: As a member of the academy in Canada no less – and I don’t know if that makes it meaningfully different in terms of the political persuasions of your colleagues and the people you interact with professionally. It would seem to me based on my reading of the situation that at least in the political science and somewhat of the political philosophy realm, the preference has been over the last few years for the rationalist viewpoint, at least in the sort of sense of being very afraid of groups and being less about toleration and more about top down rules. We see that whether it’s toleration on campuses or the move to let’s say international human rights law or the UN.

We need to have a rational order that guarantees a floor for everyone. These groups are a big problem. The feminist tradition has long attacked the family as the source of the problem. The subjugation of the one within the family goes to the rest of society. So we need to be able to get inside the family and not let them. Would you agree that that’s the general trend right now in political science and political philosophy?

Jacob Levy: I think there’s something in philosophy in particular that tends to be attracted to the model of the state as a justice dispensing machine. They don’t think of it as being a statist view. What they think of it as is the articulation of right reasons and we can’t give up on the enterprise of finding the right reasons and the right rules. But then once we got the right reasons and the right rules, well, here’s this handy machine over here that we will feed the right reasons and the right rules into.

They take the state for granted as being a transparent way to get the right [0:20:00] reasons and the right rules expressed in the world. Part of what the pluralist tradition has always emphasized is when states go wrong, the existence of a plurality of groups and sites and locations and organizations within society can provide a variety of kinds of counterbalancing, a variety of kinds of experimentation to find out what better rules are. It emphasizes that we don’t know what the right laws would be and there’s an emphasis on pluralism as a discovery procedure.

I don’t think that political science has quite the same tendency. Political science is the study of the state for a living and so we’re not going to take it for granted in that same invisible transparent way. We’re plenty aware of the pathologies of states and we treat them as part of the analysis.

Trevor Burrus: Do you think that there’s any sort of transposing of the pluralist or rationalist tradition on to modern political parties or political debates or is it always kind of [Indiscernible]? Because I could see conservatives talking about the family or conservatives talking about church groups as being the ones – similarly right now, talking about the pluralist tradition and not wanting to be forced into association for baking a wedding cake for a gay wedding or things like this. It seems to be coming from more of the pluralist tradition and then the left is coming in more of the rationalist tradition or is that the state …

Aaron Ross Powell: Let me actually modify that because that was kind of – I was thinking of asking something similar and that one of the things that strikes me about modern politics and thinking about it through this tension that we talked about is groups seem to be – so interest groups, whether those are social conservatives versus progressives or union membership or whatever the interest groups and the factions that are at play. They’re rationalists when they’re winning and they’re pluralists when they’re on the defensive.

So that’s why when you talk about the conservatives, oh, we need this pluralism. We need – so that people can choose to live. Well, that’s because social conservative is losing right now and so we need the freedom to not marry gay people whereas before the argument was gay people should not be allowed to get married and we’re going to use the rationalist state to force that on them and the left wanted pluralism when they were – we wanted the choice to be beatniks or whatever in the – but now that they’re dominant, it’s – we’re going to use the rational state because it’s not – it’s no longer pluralism. Our group is right and all the other groups are wrong.

Jacob Levy: To a first approximation, I think that’s a lot closer than a mapping of the distinction on to an ongoing overtime left‐​right distinction. We can see it pretty clearly in the case of federalism which I treat as one importantly distinctive kind of pluralism.

If you think that your side controls the central government and is going to go on controlling the central government, then you tend not to be supportive of federalism. You tend to think the central government will give us the answers and the states and the provinces have to fall into line and on gay marriage we’ve seen an astonishingly quick turnaround.

Within a generation, we’ve gone from the federal Defense of Marriage Act and social conservatives who actively supported a constitutional amendment to ban same sex marriage even in states where DOMA hasn’t been passed at the state level to the reverse where now the conservative argument is well, let the last few states that haven’t legalized same sex marriage go on their way. That’s a very robust pattern. That doesn’t mean that there aren’t some other patterns. It very often is the case that conservatives will in particular be sympathetic to the claims of churches and religious groups to be able to govern themselves.

But there are other institutions in society. Universities are an important kind of intermediate group. One of my favorite messy cases to talk about these days are the laws that are passed in a few states to mandate that universities allow people with concealed harry handgun permits to carry their guns on campus.

That’s a way of saying that the university is not its own space with its own rules. That professors and students can’t come together and agree to a different setting and say in this space we think that this is appropriately not bound by the same rules.

Like the Amish agree to not exercise a variety of their liberties, we could say in the classroom, we’re not going to exercise our liberty to carry handguns. But conservative state legislators are interested in shutting down that institutional autonomy of the universities and instead mandating a rule about who can carry guns where.

Trevor Burrus: Let’s talk a little bit about the history because a significant part of the book is the genesis of these two doctrines and Montesquieu is a central figure. But where does the pluralist tradition do you think – what are the legs of the – that usually stands on the philosophers and the ideas?

Jacob Levy: The ideas come second in my telling. I’m interested in first showing that medieval Europe, late medieval Europe from about a thousand or 1100 onward generated a lot of what we now think of as intermediate institutions including institutions that are continuous with the ones we have today, the church, cities, universities above all.

And that they already had proliferated by the time the modern states started to coalesce in the 1500s or so against the vision that we get sometimes from reading just the history of political thought, especially the social contract theorists that says before the state there was nothing.

It turns out that before the state, there was quite a lot and quite a lot that we now think of as the pluralistic intermediate sphere. It wasn’t an intermediate. There wasn’t a state over it but those institutions did exist in their variety of forms with their variety of functions.

Then I tell an intellectual history that partly builds on what happens when the state shows up and when the early modern absolutist monarchs start to realize what they can do with this new organizational form.

What they want to do is to subjugate all of the other orders of society, make it all orderly and rational and taxable and conscriptable and governable and therefore eliminate the traditional rights to govern themselves that universities and cities and the church and so on had all had. Then in the fight between the absolute monarchs and their critics.

Trevor Burrus: Such as the Stuart kings.

Jacob Levy: Such as the Stuart kings and the Whigs. Then you start to get the articulation of political ideas that say we have an ancient constitutional order here.

Trevor Burrus: Those words are always used, “ancient constitution”.

Jacob Levy: That’s right. In England, the ancient constitution is the common law and in continental Europe, it is grounded obviously not in the common law but just in the traditional rights to govern themselves of the provinces and all the rest.

This brings together groups that had not seen themselves as allies before. The church and the cities had not been friends ideologically, intellectually during the high Middle Ages. But in the face of centralizing absolutist monarchs, they discovered they have common cause in defense of what they partly imagined to have been the ancient constitution. It has to be an imagination because they’re projecting an order backward when there didn’t need to be an order when there wasn’t an overarching state and there wasn’t a unified legal structure to tie it all together.

The social contract theorists, Hobbes and Locke especially, they are offering in different ways accounts of the justification of the state and of the modern state and they wipe out everything else that isn’t normatively derived from the agreement that we all make together all at once. A church or a city or a university isn’t derived from that universal national agreement. It’s built on what its members have done. Their critics, the Whigs, the common lawyers, the ancient constitutionalists …

Trevor Burrus: The critics of the social …

Jacob Levy: The critics of the social contract tradition and the critics of absolutism. They draw on a different normative language. It doesn’t have to do with the idea that we justify everything in society all at once. But rather each of these things has its own justification. Each of these things has its own history and it is the duty of kings to respect the traditional laws that have allowed each of these things to govern themselves. This comes together especially in Montesquieu who I think turns the ancient constitutionalist intellectual tradition from being partly just a political tool into being a full blown political theory.

Aaron Ross Powell: Tell us more about Montesquieu because he’s probably someone that – I mean most of our listeners probably know something about Hobbes, about Locke, about Mill. But Montesquieu …

Trevor Burrus: He’s also – The Spirit of the Laws is 1500 pages long or something like that. It’s a pretty diverse work. So yeah, so fill us in on Montesquieu.

Jacob Levy: That’s right. It’s a very big book and it’s also a book that unlike Hobbes – Hobbes is Leviathan. It doesn’t even pretend to be accessible to someone just picking it up. Hobbes thinks that he has discovered a political science that [0:30:00] anyone can master just by opening the book the same way that he thinks you could discover the geometry, that you could master just from within.

A lot of The Spirit of the Laws and history in sociology – and if you don’t know the proper nouns that he’s throwing around, if you don’t know the eras that he’s talking about, then some of it won’t make any sense and a part that do make sense, you won’t always understand why he’s talking about it at such length. Nonetheless, The Spirit of the Laws is the first really major work of political and social theory of the European Enlightenment and one of the most influential books in the history of European ideas.

More than Leviathan, more than any other modern book up to its time offered the idea and the hope of a general social science of modern political and social life. A lot of what Montesquieu is interested in is the constraints that states face in trying to govern complicated societies. He’s convinced that legislators and governors and rulers and kings, they try to make their states simpler than they are. They try to govern according to simpler laws that actually make sense.

So he’s constantly making reference to complexity. One of the most famous parts of this discussion of complexity is the two books, books four and five, about the development of commerce in modern Europe and Montesquieu is cited as the originator of the [Indiscernible] thesis that commerce tends to soften barbaric mores and encourage peace among nations.

He’s seeing that there’s an area of human activity that isn’t just the creation of deliberate decisions by state lawmakers. He says given that we’ve had these commercial revolutions in European modernity, how does that shape what the laws should be and what the laws can possibly do?

All right. To us in the 21st century, that is a little bit familiar. We can say, yes, OK, the economy might have laws of its own that constrain what an effective government can actually accomplish. But a lot of the rest of the book is about that too. A lot of the rest of the book is about how the religious habits of the people, how the cultural habits of the people, how the traditions of the people, how the geography and climate of the society, how all of these things put constraints on what it is the lawmaker can hope to create from scratch and so he’s throwing complexity after complexity from one society after another at the reader in order to say here are things that are relevant, that a lawmaker would have to take into account because the world is more complicated than the lawmaker imagines.

Trevor Burrus: Well, I see that as somewhat related although you see kind of – as a middle figure seems the way to describe them but the Scottish Enlightenment figures kind of made these claims too about the organic nature of society and the institutions that develop whether it’s Adam Ferguson or Adam Smith or Hume’s work on political thought. Will that be in the more Montesquieu tradition would you say or …

Aaron Ross Powell: Ferguson and Smith were absolutely clear about the amount of the debt that they owed to Montesquieu. Ferguson said at one important point in his essay on the history of civil society, “I’m not really sure why I should bother saying anything about this because Montesquieu has already said it.” Smith did think that he had important improvements to offer on what Montesquieu had said about commerce but Ferguson and Smith both drew a lot on Montesquieu’s theory of historical change. Part of the complexity that Montesquieu offers is to say the laws that make sense in one time won’t make sense in another time when all of these cultural and economic and other factors have changed and therefore what we think of even as justice over the course of centuries or millennia is meaningfully different. The whole legal system has to change from one century to the next.

Ferguson and Smith are fully in Montesquieu’s debt and open about that. Hume’s relationship to Montesquieu is a little bit more complicated. Hume is close to being a contemporary of Montesquieu and his thought was closer to being fully formed by the time The Spirit of the Laws came out. There was a lot that he agreed with Montesquieu about but there were gaps there that don’t exist with Ferguson and Smith relative to Montesquieu.

Aaron Ross Powell: What’s the story then post‐​Montesquieu?

Trevor Burrus: Actually before we go post‐​Montesquieu, I just want to clarify just to say – so is it Montesquieu’s position – I guess it’s very complex and it’s hard to get into. I’ve tried to read it many points in time. But is the big constraint on the state? Is he concerned with the constraints on the state? Is the big concern of the state humility? I guess humility of the rulers to understand that there’s more complexity and pluralism out there. Is that an adequate characterization or accurate …

Jacob Levy: No, there has to be more than that because rulers won’t abide by that kind of thing. Montesquieu generally thinks that modern states will be monarchies. He thinks the republics are characteristic of the ancient world and now that we have commerce and now that we have big countries like France and England, we’re going to have monarchies.

He says over and over again of monarchies that they are constituted by their intermediate bodies. If you don’t have intermediate bodies – and he names the church and the cities and the provinces and the guilds and the nobility. If you don’t have those in a monarchy, the monarchy will become a despotism. He doesn’t say this will happen when we get a bad monarch. He says it’s intrinsic.

All of those bodies stand up for their rights and in standing up for their rights, they help protect the law and they help protect the idea that there are legal limits on what the king or the lawmaker or the central government can do.

If they go away, if all you have is an absolute central state and disconnected individuals, despotism necessarily results more or less regardless of how well‐​intentioned or good‐​spirited that king is.

A lot of the spirit of the laws is barely sub‐​textually an account of how Louis the XIV had brought France to the brink of despotism. It is officially sub‐​textual. He never quite says that out loud but it’s barely sub‐​textual and Voltaire hated him for it and spent decades afterwards writing defenses of Louis the XIV against Montesquieu as he took scurrilous charges.

The claim wasn’t that Louis the XIV had been a bad man, though he does think that Louis the XIV was arrogant and a simplifier. It was more fundamentally that Louis the XIV had damaged the constitution by attacking all of the decentralized pluralistic intermediate bodies, by centralizing the nobility at Versailles, leaving them in the countryside tending to their various responsibilities. In order to get freedom in a modern constitutional monarchy, we are going to have to have pluralism.

Aaron Ross Powell: So then how did we get to where we are today, where this pluralism seems to have faded somewhat from the way that we talk about things and by – it seems like – I mean – maybe this is an accident in this country of the American founding and the focus on a social contract theory that seems to dominate the way that we think about the state and think about liberalism and think about our freedoms. But how did this ascendency of the rational approach …

Jacob Levy: So there are a couple of important steps and lurking in the background is always that the state continues to consolidate as an organizational form over the course of modernity. The state that Montesquieu is writing about 50 years before the French revolution, it was by our standards still a pretty fragmentary, disorganized, non‐​bureaucratized, non‐​professional body.

Trevor Burrus: Well, they didn’t have the technology to really be that overweening.

Jacob Levy: They didn’t have the technology and our straightforwardness but they also didn’t have the social technology. There were all kinds of sociological obstacles to the state governing the way that it wanted to govern and these were obstacles that the Jacobins and the French revolution were going to run headlong into and then try their best to break –

Trevor Burrus: Try to reform the society from the ground up by killing all the pluralists. I mean is that the ultimate rationalist endeavor of the French Revolution? Kill all the pluralistic groups, restart the calendar …

Jacob Levy: So again, since I’m trying to tell this as an understanding of views within liberalism, I don’t want it to be understood just as a story about, well, reactionaries and Jacobins because there are liberal ways of being a rationalist who worries about intermediate group power. The Jacobins were not liberals. They were extreme rationalists but I don’t talk about the Jacobins much in the book because I’m interested in rationalist liberals…


Jacob Levy: … in the way the Jacobins don’t. But the French Revolution accelerates the growth of central state power and they figure things sociologically out. They figure out new ways of governing, new mechanisms they have at their disposal. They aren’t about the invention of computers. They are about for example mass conscription and they are about how you can finance a much bigger bureaucratic state that will then have an ongoing census and an ongoing tax base. Those are kinds of technological change but they’re not in our engineering sense technological changes.

So the state keeps getting more powerful. That’s in the background. The French Revolution also changes the base of legitimation of the centralized and centralizing state. The absolute monarchs hadn’t been [0:40:00] able to say the reason why I should rule everything is that I am the whole nation. Louis the XIV didn’t say…


Jacob Levy: L’état, c’est moi but not [Indiscernible] c’est moi. He said that he was the only source of state legitimacy and state power and the provinces and the cities, they did not have autonomous state powers of their own. But the French Revolution and the nationalistic democracy that comes into being starting at about the turn of the 18th century, that generates the very powerful idea that we the people, a people should govern itself as a singular. It could govern itself all at once in a unified way. That gives the centralizing state tremendously more normative legitimacy and more popular appeal than the old absolute monarchs had had. That’s going to become the primary preoccupation of liberal political theorists in the 19th century. Alexis de Tocqueville here is the most important but I think that Benjamin Constant is extremely insightful about these things too.

Tocqueville sees the continuities between the old regime absolute monarchs and the new revolutionary state and he says, “Under democracy, how would I ever be able to resist the power of the centralizing state?” Because everyone feels that they’re a member of it and yet there’s something terrible on the horizon he thinks when the democratic majority governs itself this way. One of the things he’s looking for when he comes to America and talks about the rise of voluntary associations is how a free and equal democratic people can still be pluralists, how they can be pluralism without privilege.

He’s tremendously impressed with what the Americans have done. From his initial vantage point, he says we would have assumed that the Americans already would have fallen into despotism because there aren’t any intermediate bodies. There’s nothing really robust to stand up against the state, not in this old regime sense of having institutions whose privileges were a thousand years old.

However, the Americans have figured out ways through township government he’s very interested in and through churches and through the tendency to associate together to do things in civil society rather than directly lobbying the state to do things for us.

He doesn’t maintain tremendous optimism, that that can be a solution forever. He doubts it can be a solution forever for the Americas and he’s pretty sure that France had by that time lost the possibility of just generating it spontaneously.

Trevor Burrus: Does that seem to still be the case do you think that the new world, the lack of coming up to finding institutions as you find them and having to deal with them and coming across the ocean led the Americas or maybe just the United States to be more – less into institutions and more about the sort of rationalist theory of liberalism?

Jacob Levy: Yes, but. I mean the United States is a federation and that matters. I think the United States hasn’t maintained its federal form as well as some other federations partly because most other federations have at least one province or state that has a really robust sense of pre‐​political identity.

Trevor Burrus: Well, you live in Quebec.

Jacob Levy: I live in Quebec. It is absolutely the case and Quebec is exactly what I had in mind.

Aaron Ross Powell: Texas.

Trevor Burrus: What about Texas?

Jacob Levy: I think that Texas’ distinctiveness is mostly sublimated within the south. There certainly are Texas patriots and there are people who wave their Texas flags and talk about Texas succession.

Trevor Burrus: They don’t have their own language though, not exactly.


Jacob Levy: That’s right. It has mainly expressed itself politically just as southern white conservatism whereas Quebec or Catalonia in Spain or Scotland in the UK or Bavaria in Germany or any number of linguistically and religiously distinct states in India, these states really systematically – they don’t turn their identity into just being part of the left‐​right coalition at the national level. They say one of our most important political projects …

Trevor Burrus: Is Quebec.

Jacob Levy: Is Quebec, that’s right.

Trevor Burrus: It’s Catalonia, yes.

Jacob Levy: And that has exerted an important balancing force that helps protect federalism in Canada, in Spain and these other countries that I think the US has generally lacked to its disadvantage. But that’s not about social contract theory versus not social contract theory. That’s about the deliberation that was made in the 19th century in the United States that says no state will be admitted to the union until there’s a white English‐​speaking majority.

We are not going to let Oklahoma be a state when Oklahoma is an Indian country. We’re not going to let Hawaii be a state until there’s a white settler majority and…

Trevor Burrus: Or we’re not going to let Utah be a state under a theocratic type of …

Jacob Levy: That’s right. We’re really going to break the power of the Mormon Church in important ways. We’re going to demand the Mormon Church, abandon polygamy. We’re going to put the union army outside Salt Lake City and tell them you have to behave like a reformed Protestant denomination and not like you have traditionally behaved. You can’t be too different and have your own state within the American union.

Aaron Ross Powell: One thing I was curious about when going through the book is that – so we have – the tension is we have got this potential threat and both – and potential [Indiscernible] the liberty of the centralized power and then the individual group that we might be a part of.

But what about the threat between groups that – because the central authority – even if the central authority might be a threat to groups, it might also be supportive of them because it’s going to be prevent one religious denomination from potentially wiping out in the ways that it might prevent – some it would prevent, some others it wouldn’t.

But it’s going to act as a referee. It’s – yeah, it’s going to set the rules. It’s going to enable something that looks like Nozick’s Utopia of Utopias where we’ve got the set of rules and that allows the groups to form. So what’s the …

Jacob Levy: Absolutely. One of the things that I think is a truth of the rationalist liberal tradition is the idea that the intermediate bodies are better off and are better for us once we become genuinely intermediate. Locke was very insightful about this in talking about religious liberty and the way in which religious liberty was connected to his theory of generating the state all at once and it would be a uniform state for everyone all at once.

The religious wars were very bad for people in their religious groups and the end of the religious wars involved in part a strengthening of state power to check what the religious groups could do to each other. It’s not only that because the states were also participant in and enablers of the religious wars. But it was partly that and there are ways in which the stable uniform legal framework that the modern European state has to offer lets us make better use of what we’re going to do in our intermediate group lives. It doesn’t come for free and it doesn’t come without cost but it does come.

Trevor Burrus: I think that’s an interesting point of your book and you try to make it clear that this is a taxonomy more than a – this one is better than the other one. You seem to have a preference for the pluralism tradition but it’s not what the book is about and maybe this conversation because the libertarian fear of the rationalist state is – seems like we’re saying, oh, the pluralism one is clearly correct but the…

Aaron Ross Powell: Actually that doesn’t strike me – I mean I would argue that most of us – most libertarians tend to argue more from within the rationalist. That the government is there to protect our rights and that means protecting us that – shutting down the power of these powerful interests to dominate our lives, that it should set these hard and fast rules and it should make sure that we’re free to pick and choose in that kind of radical autonomy and self‐​authorship seems very central to modern libertarians.

Jacob Levy: I’m delighted this exchange happened this way.

Trevor Burrus: This is exactly why you wrote the book.

Jacob Levy: That’s right. I genuinely don’t think, really, really genuinely don’t think that the pluralist, rationalist distinction maps on to for example the distinction between libertarian and egalitarian kinds of liberalism. A long time before the book came out, I had an article first developing a rationalist pluralist distinction partly by arguing just this.

Among contemporary libertarians, you could say who owes a greater debt to Hayek and who to Nozick? Hayek is a pluralist. Hayek mistakenly thought that his pluralism was what market liberalism was all about and there’s an important, influential, interesting and wrong chapter in The Constitution of Liberty that treats his understanding of pluralism as being constitutive of what it is to be a classical liberal or a market liberal.

But when you start from a theory of robust individual rights and you say what we need is the fully coherent night watchman state who will protect all of our rights and to do nothing else, that is absolutely a rationalist project and it is a way of treating state as a justice dispensing machine. If only we hit it right, then the state will do what we tell it to do and nothing else.

There [0:50:00] really are significant rationalist and pluralist components of contemporary libertarian liberalism as well as other kinds of liberalism lurking way in the background of my interest in writing this book, is to express the view that libertarian liberalism is continuous with liberalism. That is, it is not the one true heir of the liberal tradition that I’ve talked about.

I think that contemporary egalitarian liberalism of the kind that’s expressed in John Rawls’ A Theory of Justice, the kind that got politically manifested in the Warren Court resolutions about the American constitutional order. that’s a genuine descendant of liberalism and the rationalist, pluralist tension is faced in more or less the same ways and in more or less – to more or less the same degree by libertarian and egalitarian liberals alike and in showing that, we can start to see some of the ways in which the difference over how much the redistributive state is going to spend on alleviating poverty is not the only or the most important difference within liberalism and it’s certainly not the difference between some who are truly the liberals and the heirs of liberalism and others who are alien to it.

Trevor Burrus: Now, there – going back to Aaron’s first question, which I think is a kind of good last question because we went off and around and whatever. We talked about the irreconcilability. So you think these two things are irreconcilable. Why is that the case and what should we learn from that if there’s a normative lesson to learn from that going forward?

Jacob Levy: The rationalist and pluralist views if I’m right are based on accounts of what can go wrong in states and intermediate social groups. They can both be correct about those things and that’s not going to free us from the need to do something in a particular case, to side with the state or the group in some particular dispute.

But unlike a theory that’s built up from first principles about individual rights, this is going to be the kind of model in which we might just be faced with a choice of bads and a weighing that is not determinant. The thing that we do to check the intermediate group from repressing its members might be justified and yet might leave us with a stronger state than we had before in ways that we genuinely want to worry about and vice versa.

Moreover, I think that the psychology and sociology of worrying about intermediate group life and the psychology and sociology about worrying about the state are really genuinely different kinds of insights. One of the pairings I talk about in the book is between John Stuart Mill who among 19th century liberals was especially important in seeing the ways that the family and the traditional culture can be oppressive. He understood that the traditional patriarchal family was a site of household despotism, robust critique of slavery, robust critique of the cultural conservatism of Victorian England and understood that that could be repressive in its own right and Lord Acton, the British Whig liberal historian who was one of the most important theorists of federalism in the liberal tradition.

He rightly saw what Mill did not see, that the emerging European nation state, to drive to nationalism and to break up the large multinational empires into democratic nation states, that that was going to be significantly oppressive because it was going to unify nation and state and therefore make states seem more legitimate than they really were and generate nationalistic fervor in supportive states that are going to be bad for minorities. All things that turned out to be true.

He was very, very good on understanding religious freedom and the freedom of churches to govern themselves. In the book I talk about a correspondence that Acton entered into after the US Civil War with Robert E. Lee. It is an extraordinary depressing set of documents. It’s obsequious. Acton says he mourns more for the stake which was lost at Richmond, that is in the crucial battle that decided that the civil war was truly going to end as it did.

I mourn more the stake which was lost at Richmond than I celebrate that which was protected at Waterloo. For 19th century Englishmen, 19th century member of the British House of the Lords, to say that. The American Civil War turned out worse than the defeat of Napoleon turned out well is mind‐​boggling.

It’s not that Acton didn’t know that slavery was wrong. It had always been clear that slavery was wrong but he thought that the protection of federalism was so important for protecting human liberty going forward in the era of mass democracy and the era of the emergence of the modern state, that he was willing to just completely swallow the concern about slavery in order to say the confederacy really needed to establish robust state rights and now that we have the triumph of the unified centralized nation state under Lincoln, now we’re all doomed.

I think the sources of his insight and his blindness are the same source and the same might well be true of Mill’s abilities. He was wrong with the family and his inability to see what’s wrong with nationalism. There’s a psychology and a sociology that you bring to the table.

If Mill and Acton who I regard as both having been great, tremendous, important, brilliant thinkers, if they could both go so far wrong, then I’m inclined to say there’s a reason to doubt that we’re going to get it right. If they couldn’t see both truths at the same time, then even though I tend to – to where the pluralists side, I’m not willing to hubristically think I’m going to be the one to get it right and to square the circle and to solve all the problems at once. My pluralism undoubtedly generates blind spots of its own.

Aaron Ross Powell: Thank you for listening. If you have any questions, you can find us on Twitter, @FreeThoughtsPod. Free Thoughts is produced by Evan Banks and Mark McDaniel. To learn more, find us on the web at www​.Lib​er​tar​i​an​ism​.org.