Constitutionalism, legitimacy and modernity

in the political philosophy of

Eric Voegelin, Leo Strauss and Michael Oakeshott

[Draft – please do not cite]

Noël O’Sullivan

Hull University

UK

November 2010

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Constitutionalism, legitimacy and modernity in the political philosophy of

Eric Voegelin, Leo Strauss and Michael Oakeshott,

Abstract: The principal concern of European defenders of liberal democracy after the

Second World War was to restate the case for constitutional government in terms that

would provide a conclusive critique of totalitarian ideology in all its forms. What

united Michael Oakeshott, Leo Strauss and Eric Voegelin was their shared

commitment to this task. Beneath this unity of purpose, however, lay profound

disagreement about the precise meaning of constitutionalism and the nature of its

relation, more generally, to Western modernity.

The aim of the present paper is to suggest that Oakeshott alone develops a

coherent conception of modern constitutionalism, mainly because he alone focuses

systematically on the problem to which constitutionalism in its ethical and non-

instrumental form is a response. This is the problem of legitimacy which first emerged

at the beginning of the modern period in the form of the question: under what

conditions can obligation to law exist in a non-voluntary association (i.e. the state)

whose members desire a self-chosen life?

In the pre-modern era, the problem of legitimacy in this distinctively modern

form could not arise due to the assumption that the power of rulers over subjects is

rationally or divinely ordained by the order of the universe itself. In the modern

period, however, this kind of cosmically grounded concept of legitimacy is no longer

available. In its absence, the only viable modern response consists in constructing a

public realm in which both rulers and ruled participate, thereby making politics more

than mere power or domination. Accordingly, the main condition for political

legitimacy in modern Western liberal democracies is, in Oakeshott’s words, that a

government must be ‘constituted in such a way that it can be considered as belonging

to the governed and not as an alien power’.1 In practice, representative government

has been the means of achieving this outcome.

When Oakeshott’s identification of the primary condition for political

legitimacy is borne in mind, the principal failing of Strauss and Voegelin as defenders

1 Oakeshott, M. (200), ‘The Concept of Government in Modern Europe’, in Collingwood and British Idealism Studies, 12, 17-35. First published as ‘La Idea de Gobierno en la Europa Moderna’ (Madrid: Ateneo, 1955). This was a Spanish translation of a lecture delivered in English at the Ateneo, Madrid.

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of constitutionalism is immediately apparent: it is their tendency to evade the problem

due to their dominant concern with comprehensive cultural critiques focused on

nihilism, in Strauss’s case, and on secularized forms of the Gnostic heresy, in

Voegelin’s. As a result of this concern with cultural critique, both thinkers fail to

disengage the conditions for political legitimacy from the intellectual and moral

conditions for spiritual order.

In Strauss’s case, the form of constitutionalism he favoured was the ancient

kind resting on wisdom and virtue, rather than the modern procedural kind. The

central problem presented by his political thought, however, is that his critique of

modern constitutionalism from a classical standpoint is open to the charge of being a

caricature, a charge which may be made quite regardless of the truth or falsity of his

belief that classical thought has a secret or esoteric character designed to conceal a

message which only the privileged scholar may penetrate.

In Voegelin’s case, as in Strauss’s, a commitment to constitutionalism was at

odds with his desire to protect postwar democracy from subversion by the Gnostic

yearning for salvation which he believed had inspired modern radical ideologies (and

continues to inspire neo-conservatism, for example). The outcome in both instances

was potentially authoritarian sympathies which were more likely to subvert any

modern constitution than to defend it.

What distinguishes Oakeshott from both thinkers is his commitment to an

essentially procedural form of constitutionalism expressed in the juridical ideal of

civil association as alone appropriate to Western modernity. It will be argued that

although Oakeshott’s ideal of civil association is difficult to extricate from the

integrating aspects of nationalism, economic prosperity and welfare policy which

have accompanied its historical development in the nation state, it nevertheless,

remains the only conception of constitutionalism that offers a coherent response to the

problem of legitimacy – that is, to reconciling authority with freedom.

***********

The principal concern of European defenders of a free society after the Second

World War was to mount a critique of totalitarianism which would ensure that it never

recurred in Western liberal democracies. What united Michael Oakeshott, Leo Strauss

and Eric Voegelin was the belief that this critique must take the form of a defence of

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constitutional government. The three thinkers disagreed profoundly, however, about

precisely what constitutionalism means, as well as about the crisis of modernity which

they believe threatens it. Eric Voegelin’s treatment of these issues will be considered

first.

Voegelin

Voegelin believed that the form of constitutionalism adopted by liberal

democracies after 1945 provides no protection against the return of dictatorship

because it offers no remedy for the spiritual malaise which, after inspiring the radical

ideologies of the inter-war era, continues unabated into the post-war decades, after.

This malaise he attributed to a secularized version of the ancient Gnostic heresy, the

essence of which is the experience of the existing order as a prison from which

liberation must be sought by violence if necessary. In its secularized and politicized

form, the Gnostic experience consists of alienation from the established social order

so profound that ideologies offering the prospect of an escape from it by revolution

are welcomed.

It is not relevant in the present context to explore Voegelin’s interpretation of

the stages by which he believes Gnosticism was gradually transformed from a

religious heresy (as the Church labelled it) during the early centuries AD into a

secularized interpretation of history from the time of Joachim of Fiore in the twelfth

century. Thereafter, the process of ‘immanentizing the Christian eschaton’, as

Voegelin termed it, led to a political vision of earthly salvation through revolutionary

violence which eventually triumphed in the totalitarian ideologies of the twentieth

century. The seven league boots worn by Voegelin in the course of his account of the

two millennia during which he argues that the transformation occurred, it need hardly

be said, have been criticized on the ground that his giant strides testify more to his

speculative ability than to his regard for historical accuracy. What is more to the point

is that, ironically, his desire to protect post-war democracy from subversion by

Gnostic-inspired authoritarian political movements led him to sympathize with a

potentially authoritarian solution more likely to subvert modern liberal democratic

constitutions than to protect them.

The tension between constitutionalism and authoritarianism in Voegelin’s

political thought is evident above all in a crucial distinction he made in The New

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Science of Politics (1952) between two different kinds of representation in the course

of specifying the kind of reform required in order to place liberal democracy on a

secure foundation. One kind is what he termed ‘elemental’ representation, and the

other, ‘existential’ representation. By ‘elemental’ representation Voegelin referred to

the formal system of popular elections on which modern western liberal democracies

rely. Its weakness is that it leaves a society at the mercy of any Gnostic tendencies to

which the masses are prone. By ‘existential’ representation, he referred to a system in

which the ruler is representative in the deeper sense that the values he stands for

reflect the society’s whole way of life.2 Voegelin’s contention was that only a

democracy based on the latter, existential kind of representation is secure against

extremist movements like Nazism because it permits power to be placed in the hands

of an élite which is free from Gnostic tendencies.

As Hans Kelsen, one of Voegelin’s former doctoral supervisors, was not slow

to point out, the concept of existential representation could easily sanction exactly the

kind of totalitarian system Voegelin opposed, since it permitted the Soviet

government, for example, to claim to be the existential representative of society.3

More generally, the concept of existential representation provided a means of

subverting any liberal democracy simply by asserting that its established legal and

political institutions were not genuinely representative. Voegelin would no doubt

reply that this misrepresented his intention, which was to fight the continuing

influence of Gnosticism in postwar German culture. The danger, however, was that

this task would require ‘de-Gnostification’ processes akin to the denazification ones

that had risked reintroducing totalitarian forms of rule.

Although Kelsen’s critique of Voegelin was cogent, a still more searching

critique of his thought was advanced by Oakeshott, who questioned Voegelin’s claim

to offer a ‘New Science of Politics’. Voegelin was right, Oakeshott maintained, to

argue that the impact of positivism upon political theory since the second half of the

nineteenth century has seriously undermined the ability of political thinkers to defend

a constitutional commitment. Voegelin failed, however, to provide a coherent

2 E. Voegelin, The New Science of Politics (Chicago: University of Chicago Press, 1952), p.38. 3 H. Kelsen, ‘Foundations of Democracy’, Political thought since world war I, W. J. Stankiewicz, (ed)

(New York: Free Press of Glencoe, 1964), p. 73. Voegelin completed his doctorate with Hans Kelsen

and Othmar Spann in 1922. On Voegelin’s subsequent relationship to the former, see B. Cooper’s

introduction to E. Voegelin, Political Religions (New York: Edwin Mellen Press, 1996), pp. vi-viii.

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alternative to positivist political theory. More precisely, his attempt to construct a

‘New Science of Politics’ turns out to offer nothing more than a caricature of the most

viable modern form of constitutionalism, which is the ideal of civil association.4

What Oakeshott meant by civil association will be considered below. For the moment

it suffices to observe that Voegelin’s theory of constitutionalism is incoherent partly

for the reason given by Kelsen, which is that his concept of existential representation

is incompatible with constitutional democracy, and partly due to the one given by

Oakeshott, which is that his new science of politics is incoherent.

Strauss

Like Voegelin, Strauss believes that the kind of constitutionalism which

characterizes post Second World War liberal democracies does not provide an

effective barrier against the recurrence of totalitarianism. Such a barrier will only be

achieved, he maintains, by grounding constitutional democracies on the classical

concept of natural right rejected by almost all modern political philosophers since

Machiavelli.

Strauss illustrated the fatal flaw of modern constitutionalism caused by the

decline of natural right by focusing in particular on the plight of contemporary liberal

democracy in the USA. Whereas the self-evident truths proclaimed in the Declaration

of Independence as the basis of American constitutionalism rested on unchanging

principles of natural right, he wrote in Natural Right and History, the post Second

World War American intelligentsia has come to regard those self-evident truths

merely ‘as an ideal, if not as an ideology, or a myth’. Such, at least, is the situation in

the social sciences. With the exception of Roman Catholic social science, Strauss

wrote, American social science ‘is dedicated to the proposition that all men are

endowed by the evolutionary process or by a mysterious fate with many kinds of

urges and aspirations, but certainly with no natural right’.5 There is, consequently,

now no higher standard available by which the ideals of any society can be judged,

4 M. Oakeshott, ‘The New Science of Politics’, in What is History ? and other essays, ed. Luke

O’Sullivan (Exeter: Imprint Academic, 2004), p. 232. Oakeshott refers to civil association in his review

of Voegelin as ‘neo-Augustinian politics’.

5 Natural Right and History (University of Chicago Press: Chicago and London, 1953), p. 2.

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with the result that ‘the principles of cannibalism are as defensible or sound as those

of civilized life’.6 All that is now left as a foundation for constitutionalism is ‘our

blind preferences’, which means that ‘everything a man is willing to dare will be

permissible’. In a word, ‘The contemporary rejection of natural right leads to nihilism

– nay, it is identical with nihilism’.7 In short, the threat of totalitarianism did not come

to an end in 1945 with the victory of Western liberal democracies: although they

triumphed on the battlefield, they have been defeated at the cultural level by the

historicism and relativism which their erstwhile German enemy has transmitted to the

European world at large.8

What then is required in order to provide a satisfactory philosophical

foundation for modern constitutional democracy? The answer Strauss gives in What is

Political Philosophy? is that ‘liberal or constitutional democracy comes closer to what

the classics demanded than any alternative that is viable in our age’.9 The

contemporary need, therefore, is to recover the classical perspective in political

philosophy, the essence of which is that it grounds society on the unchanging natural

order within which human life is lived. For contemporary political thinkers to recover

the classical perspective, however, is made almost impossible by the dualism of

subject and object which the modern world has taken over from modern natural

science. Echoing Heidegger’s rejection of this dualism as an accurate description of

our relation to the world, Strauss writes that

The natural world, the world in which we live and act, is not the object or

the product of a theoretical attitude [of the scientific kind]; it is a world not

of mere objects at which we detachedly look [as passive spectators] but of

‘things’ or ‘affairs’ which we handle. . . [A]s long as we identify the natural

or prescientific world with the world in which we live, we are dealing with

an abstraction [because] the world in which we live is already a product of

science, or at any rate is profoundly affected by the existence of science.10

6 Natural Right and History (University of Chicago Press: Chicago and London, 1953), p. 3. 7 Natural Right and History (University of Chicago Press: Chicago and London, 1953), pp. 4-5. 8 Natural Right and History (University of Chicago Press: Chicago and London, 1953), p. 2. 9 What is Political Philosophy? (New York: The Free Press of Glencoe, 1959), chapter on ‘The Restatement of Xenophon’s Hiero’. (Quoted on p. 194 of On Tyranny.) 10 Natural Right and History (University of Chicago Press: Chicago and London, 1953), p. 79.

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What makes the wisdom of classical philosophy difficult to recover today,

however, is not only the subject-object dualism absorbed by the modern world from

natural science: it is also the tendency of pre-modern philosophers in particular to

mask their true thoughts in order to avoid persecution for challenging illusions

necessary to legitimate the existing social order – illusions which conceal, for

example, the unavoidable role of violence in the foundation of all societies and the

untenable nature of the universalist claims which societies commonly make on behalf

of their moral ideals. Understanding pre-modern philosophical texts therefore requires

extraordinary historical scholarship to disclose the esoteric message which a

philosopher may have carefully hidden behind his public or exoteric one. This does

not mean, Strauss hastens to add, that philosophy is reduced to history, as modern

relativist doctrines hold. It means, rather, that the aim of historical scholarship is what

he terms a ‘nonhistoricist understanding of historicism’ that enables us ‘to understand

classical philosophy exactly as it understood itself’. 11

In the face of the difficulties just indicated, how is classical knowledge of

natural right to be recovered? Strauss’s answer is that, given adequate historical

scholarship, ‘the information that classical philosophy supplies . . . suffices,

especially if that information is supplemented by consideration of the most

elementary premises of the Bible, for reconstructing the essential character of ‘‘the

natural world’’.’12 In order to understand the precise contribution classical wisdom

can make to providing a sound foundation for contemporary constitutional

democracy, however, it is necessary to be clear that the knowledge it yields of the

natural world is of two different but related kinds.

The first kind is philosophical wisdom ‘in its original, Socratic sense’, which

consists simply of ‘knowledge that one does not know’ – knowledge, that is, that what

one thought was knowledge is in fact only opinion or doxa.13 What is mainly relevant

in this connection is that Socratic wisdom does not consist of discovering a list of

ontological or metaphysical truths which can then be applied to politics. It consists,

rather, of an essentially unending quest for knowledge of ultimate problems at the

heart of human existence which can never be removed, and to which the only

11 Natural Right and History, p. 33. 12 Natural Right and History (University of Chicago Press: Chicago and London, 1953), p. 80. 13 Natural Right and History, p. 32.

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appropriate response is openness to their reality.14 By its very nature, this Socratic

quest is too critical of mass opinion to permit philosophers to be rulers. It nevertheless

makes an indirect but vital political contribution by destroying the claims of

politicians to possess absolute knowledge or definitive answers, thereby providing a

basis for piety and modesty through appreciation of the complexity of political

problems and the possibility of alternative solutions.

In addition to fostering modesty and piety, classical philosophy makes a more

direct contribution to politics by distinguishing between practical and theoretical

wisdom. What politics requires is practical wisdom, the concern of which is with

‘principles of action’ that are known quite independently of the theoretical sciences

(viz. physics and metaphysics). These principles can in fact only be experienced

through actual involvement in practice itself.15 Because they ‘are the natural ends of

man toward which man is by nature inclined and of which he has by nature some

awareness’, knowledge of them is not confined to an élite but is, on the contrary, fully

accessible to common sense. It must immediately be added, however, that for

Aristotelian political science, common sense ‘shows itself primarily . . . in public or

authoritative speech [and] particularly in law and legislation, rather than in merely

private speech.’16

Because classical political science is firmly based on the common sense of

thoughtful citizens, Strauss emphasizes, it is totally different from contemporary

political science, which makes a virtue of ignoring common sense on the ground that

it is wholly subjective. In order to achieve objectivity, contemporary political science

concentrates instead on empirical data that can be quantified. Although this approach

may well yield objectivity, Strauss contends, it lacks a criterion of political relevance

of the kind inherent in common sense and therefore inseparable from classical

political science. Instead of political wisdom based on common sense, all that is

offered by contemporary positivist political science is specialists in quantitative

methods who claim to be able to predict political events but inevitably find that the

world is too complex for them to do so.17

In order to remedy this situation, it is not sufficient to restore contemporary

common sense to the fundamental position classical thought assigned it in the study

14 Liberalism Ancient and Modern (Chicago: University of Chicago Press, 1989) p. 14. 15 Liberalism Ancient and Modern (Chicago: University of Chicago Press, 1989) p. 205. 16 Liberalism Ancient and Modern (Chicago: University of Chicago Press, 1989) p. 206. 17 Liberalism Ancient and Modern (Chicago: University of Chicago Press, 1989), pp. 203-223.

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of politics: it is also necessary to restore the gentleman, who is the possessor of

common sense, to his proper position in the political arena. Unlike the philosopher,

Strauss stresses, the gentleman is not an intrinsically subversive figure because he

realizes that in political things

it is a sound rule to let sleeping dogs lie or to prefer the established to the

nonestablished or to recognize the right of the first occupier. Philosophy [in

contrast] stands or falls by its intransigent disregard of this rule and of

anything which reminds of it. Philosophy can then live only side by side with

the city . . . The city needs philosophy, but only mediately or indirectly, not to

say in a diluted form . . . the city as city is more closed to philosophy than

open to it.18

The philosopher and the gentleman, then, have different standpoints. The

gentleman, however, is not in conflict with the philosopher since the practical wisdom

he possesses is merely ‘a reflection of the philosopher’s virtue’ at the political level.19

But how, it must be asked, does the gentleman acquire the practical wisdom which

entitles him to rule? The answer is through liberal education, which ‘consists above

all in the formation of character and taste’.20 It is his liberal education that permits the

gentleman to perform his function of rescuing constitutionalism by restoring the link

between wisdom, responsibility, moderation and constitutionalism which existed in

classical thought. Only by diffusing liberal education, in consequence, is it possible to

provide ‘the ladder by which we try to ascend from mass democracy to democracy as

originally meant. Liberal education’, in short, ‘is the necessary endeavour to found a

democracy within democratic mass society’.21 The problem today, however, is that

liberal education is liberal in name only, since what we have in practice is a

predominantly technocratic élite committed to controlling nature rather than to

shaping character and forming taste. What we see today is in fact ‘hardly more than

the interplay of mass taste with high-grade but . . . unprincipled efficiency’.22

18 Liberalism Ancient and Modern (Chicago: University of Chicago Press, 1989) pp. 14-15. 19 Liberalism Ancient and Modern (Chicago: University of Chicago Press, 1989), p. 14. 20 Liberalism Ancient and Modern (Chicago: University of Chicago Press, 1989), p. 11. 21 Liberalism Ancient and Modern (Chicago: University of Chicago Press, 1989), p. 10. 22 Liberalism Ancient and Modern (Chicago: University of Chicago Press, 1989), p. 23.

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Although Strauss’s concern with rule by gentlemen inevitably makes his

political thought élitist, he emphasizes that his vision is not a purely aristocratic one

since the gentlemen must only rule with the consent and cooperation of the masses.

This, he observes, is the message to be learned from classical thinkers, who

had no delusions regarding the probability of a genuine aristocracy’s ever

becoming actual. For all practical purposes they were satisfied with a regime

in which the gentlemen share power with the people in such a way that the

people elect the magistrates and the council from among the gentlemen and

demand an account of them at the end of their term in office.23

Having made this concession to democracy, Strauss sums up his position by

describing the role of gentlemen as ‘to set the tone of society in the most direct, the

least ambiguous, and the most unquestionable way: by ruling in broad daylight.24

Although this outline of Strauss’s political philosophy does not do justice to it,

it may suffice to highlight the main question posed by it, which is whether Strauss

succeeds in providing liberal democracy with a more coherent constitutional theory. I

think there are three main reasons why he fails to do so.

In the first place, Strauss’s starting point, which is the claim that modern

liberal democracy is threatened by nihilism, is not supported by convincing evidence.

The chief reason he gives is that the path to nihilism was created by the radical break

with pre-modern natural right philosophy which occurred when Machiavelli and

Hobbes made the ideas of will and power the starting point for all subsequent moral

and political philosophy.

Now Strauss is undoubtedly correct to credit Hobbes in particular as providing

the framework for all later political philosophy by his insistence on will instead of law

as the proper starting point. As Michael Oakeshott noted, however, Strauss is wrong

to conclude that the modern period may be defined in terms of a radical break with the

premodern concept of natural right. On the contrary, Oakeshott writes, natural right

‘has never died at all, but has [only] suffered transformation and […] renewal’.25

More generally, he observes, ‘The most profound movement in modern political

23 Liberalism Ancient and Modern (Chicago: University of Chicago Press, 1989), p. 15. 24 Liberalism Ancient and Modern (Chicago: University of Chicago Press, 1989), p. 13. 25 Oakeshott, M., Hobbes on Civil Association (Blackwell: Oxford, 1975), p. 147.

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philosophy is a revivification of the Stoic natural law theory achieved by grafting

upon it an Epicurean theory’.26 From this point of view, the importance of Hobbes is

not that he rejected premodern philosophy but that he was the first modern thinker to

experiment with uniting Stoic natural law theory with the Epicurean stress on

individual well-being in order to create, Oakeshott suggests, ‘something more

comprehensive and coherent than either’.27 When seen in this light, little room is left

for Strauss’s vision of modernity as the story of nihilism.

It may be objected, however, that Strauss’s vision of nihilism as the almost

inevitable fate of modernity did not rely purely on his interpretation of intellectual

history since Machiavelli, since he also points to the failure of the Weimar republic to

prevent the emergence of Hitler. The advent of totalitarianism cannot be explained,

however, by attributing it to nihilism. The collapse of Weimar was caused, rather, by

a combination of historical factors such as the contempt with which the Weimar

constitution was widely regarded in Germany from its adoption, on the ground that it

represented alien values imposed upon Germany by its enemies; by the fear of class

conflict following upon the Bolshevik revolution of 1917, which fuelled fears of a

coup in Germany; by a multiparty system which caused political paralysis; by the

German sense of national humiliation following upon defeat in the war – a sense

intensified by adverse peace terms imposed on Germany; and by the global economic

recession of the late 1920s, which paved the way for Nazi electoral success by

creating a sense of insecurity amongst the middle class. So far as nihilistic ideas

played any part in the collapse of the Weimar republic, they tended to characterize

only a very small intellectual elite, represented by figures like Ernst Jünger and Ernst

von Salomon, whose cultural despair played into Nazi hands even though they might

not be Nazi supporters. In the case of Italian Fascism, nihilism was even less

significant, being mainly confined to the colourful Gabriele d’Annunzio. Strauss’s

assumption that totalitarianism can be equated with nihilism is open, then, to the

charge of historical oversimplification.

The second problem created by Strauss’s attempt to refurbish

constitutionalism is that by linking that project to the issue of natural right, he risks

disconnecting it from the problem of legitimacy with which constitutionalism has

26 Oakeshott, M., Hobbes on Civil Association (Blackwell: Oxford, 1975), p. 148. 27 Oakeshott, M., Hobbes on Civil Association (Blackwell: Oxford, 1975), p. 148.

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primarily been associated since the beginning of the modern period. This danger is

well illustrated by his interpretation of Hobbes in particular. For Strauss, the main

interest of Hobbes’ thought is that it based political philosophy on a concept of moral

opinion which is fundamentally relativist. What is problematic about this view is not

that it is incorrect but that it ignores Hobbes’ broader aim, which was not merely to

reject natural right as a normative standard for judging political action but to identify

three fundamental aspects of Western modernity that together create the distinctively

modern problem of political legitimacy. Hobbes presented the three aspects as

features of the state of nature, which may be interpreted as an analysis of the moral

predicament to which modern constitutionalism is a response. The first is the

disintegration of consensus on spiritual and moral values following upon the decline

of the religious authority of the church. The second is the emergence of a presumption

of natural equality, following the challenge to social hierarchy which also marked the

decline of the feudal order. The third is the preference for freedom, in the form of a

self-chosen life that characterized the modern world.

In an age characterized by the three features just mentioned, Hobbes

maintained, the only kind of state which can provide a non-coercive, morally based

mode of integration is a formal or procedural one. Only this formal conception of the

state, he maintained, can accommodate the diversity which marks the newly emergent

social order because it does not impose uniformity by demanding commitment to a

common purpose of any kind. Instead, it merely requires acknowledgement by all

citizens of the authority of a sovereign. This sovereign, Hobbes emphasized, is not a

‘natural’ but an ‘artificial’ person, by which he meant that it consists, not of a specific

individual or group, but of an impersonal, legally constituted office whose occupant is

authorized to make law. Law, in turn, consists not of orders or commands backed only

by power, but of rules which obligate because they are acknowledged as authoritative.

For Hobbes, in other words, the legitimacy of law depends neither on the

acknowledgement by subjects of the virtue of rulers, nor of their rationality, nor of the

desirability of the laws they make, but only of their authority. For Strauss, in contrast,

it is impossible to consider seriously the formal or procedural constitutionalism which

Hobbes constructs as the only way of conferring legitimacy on modern states because

his own conception of legitimacy remains tied to classical political thought. This

conception of legitimacy must therefore be carefully scrutinized.

14

For Strauss, it has been seen, political science must be grounded on the

common sense experience of citizens, as it was by Aristotle. But since ‘there is of

necessity a variety of citizen perspectives’, it is necessary for the political order to

accommodate diversity. Strauss’s response to the problem of diversity, however, is

very different from Hobbes’. For him, unlike Hobbes, the solution does not lie in a

concept of sovereign authority but in the search for a political scientist or political

philosopher whose perspective ‘encompasses the partisan perspectives because he

possesses a more comprehensive and a clearer grasp of man’s natural ends and their

natural order than do the partisans’.28 It is their possession of this perspective that

accounts, in particular, for the political authority with which Strauss credits the

gentlemen rulers. The liberal education which entitles the gentlemen to rule arises, in

other words, from the fact that this education does not simply create character and

taste but also gives them a special representative status due to the ‘more

comprehensive and clearer grasp of man’s natural ends’ which it confers.29

Unfortunately, however, representation of this intellectually grounded kind is

impossible to reconcile with the legal representation upon which modern

constitutionalism depends. By invoking it, Strauss is in fact adopting a version of

Voegelin’s concept of existential representation, together with the potentially

authoritarian implications already noted. His attempt to revise modern

constitutionalism by linking it, like Voegelin, to existential representation means, in

short, that he fails to do justice to Hobbes’ contention that only a formal

constitutionalism can avoid the potential conflict with individual freedom inherent in

all alternative theories.

The third problem posed by Strauss’s revision of modern constitutionalism

emerges in the course of his critique of Carl Schmitt’s concept of the political.

Modern liberal political theory, Schmitt maintained, is not properly political at all

because it ignores the element of conflict at the heart of human relations. It fails, that

is, to perceive that the concept of the political is characterized by the relationship

between friend and enemy. Liberal political theory, accordingly, is best described as a

depoliticization project consisting of a flight from politics into culture, in the utopian

hope that the spread of enlightenment will gradually remove all major sources of

conflict from the social order.

28 Liberalism Ancient and Modern (Chicago: University of Chicago Press, 1989), p. 206. 29 Liberalism Ancient and Modern (Chicago: University of Chicago Press, 1989) p. 206.

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In response to Schmitt’s critique of liberalism, Strauss replied that Schmitt

does not go far enough since, far from demolishing the liberal enemy, he remains

trapped within the liberal framework of thought despite his efforts to transcend it.

Schmitt remains trapped within the liberal perspective because his ‘affirmation of the

political as such’ means

the affirmation of fighting as such, wholly irrespective of what is being

fought for. In other words: he who affirms the political as such comports

himself neutrally toward all groupings into friends and enemies. However

much this neutrality may differ from the neutrality of the man [like the

liberal] who denies the political as such . . ., he who affirms the political as

such respects all who want to fight; he is [therefore] just as tolerant as the

liberals – but with the opposite intention: whereas the liberal respects and

tolerates all ‘honest’ convictions so long as they merely acknowledge the

legal order, peace, as sacrosanct, he who affirms the political as such

respects and tolerates all ‘serious’ convictions, that is, all decisions oriented

to the real possibility of war. Thus the affirmation of the political as such

proves to be [merely] a liberalism with the opposite polarity.30

Ironically, Strauss himself fails in the end, despite his acute criticism of Schmitt,

to transcend liberalism and achieve the coherent alternative standpoint he sought. Like

Schmitt, he unwittingly remains trapped within it, albeit for a different reason. In

Strauss’s case, this is that he shares the liberal depoliticization project attacked by

Schmitt. This is evident, more precisely, in the concept of representation already

examined, in so far as that concept confers a monopoly of rationality on the

gentlemen rulers which eliminates the possibility of radical political conflict. What

Strauss terms the ‘comprehensive’ knowledge of man’s ends possessed by the

gentlemen rulers, in other words, permits them to treat those who disagree with them

as benighted cave–dwellers who may properly be excluded from the political arena.

In order to avoid possible misunderstanding, it must immediately be added that

Strauss’s version of the depoliticization project does not mean that he foresees the end

30 H.Meir, Carl Schmitt and Leo Strauss: The Hidden Dialogue (University of Chicago Press: Chicago, 1995), pp. 116-117. This contains Strauss’s ‘Notes on Schmitt’s Concept of the Political’, from which my quotation is taken, as well as three illuminating letters from Strauss to Schmitt. All italics in the quotation are in the original text.

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of the state. That the contrary is true is evident, for example, from his critique of

Kojève, whose sympathy for the Hegelian vision of history as the struggle for

recognition had led him to envisage a final condition of universal equality in which all

men will be reasonably content with the recognition they receive and history will

therefore effectively be at an end. For Strauss, in contrast, it is not recognition but

wisdom which is the end of man.31 Were recognition the end, the final condition of

man, should it ever be universally achieved, would in fact mean the end of man’s

humanity of which Nietzsche spoke when he described the ‘last man’ – the

homogenized man, that is, who seeks only petty comforts and diversions.32 Since

Strauss deeply feared the mediocrity of mass democracy, however, he had a qualified

sympathy for Kojève’s vision of modern history as moving towards a universal and

homogeneous state. But if that is in fact our destiny, Strauss insisted, the universal

state will inevitably be a tyranny, rather than a free state. In a strikingly Orwellian

description of this state, Strauss gives a portrait of the age of the ‘Final’ or ‘Universal’

Tyrant’ which is of particular interest in view of the resurgence of academic interest

in recognition in recent years. It seems reasonable to assume, Strauss wrote, that in

the interest of the homogeneity of his universal state the Final Tyrant must above all

forbid every teaching . . . that there are politically relevant natural differences

among men which cannot be abolished or neutralized by progressing scientific

technology. He must command his biologists to prove that every human being

has, or will acquire, the capacity of being a philosopher or a tyrant . . . [In

former ages, it was possible to go underground or leave the country in order to

escape from tyrants, but from] the Universal Tyrant however there is no

escape. Thanks to the conquest of nature and to the completely unabashed

substitution of suspicion and terror for law, the Universal and Final Tyrant has

at his disposal practically unlimited means for ferreting out, and for

extinguishing, the most modern efforts in the direction of thought.33

31 Leo Strauss, On Tyranny, ed. by Victor Gourevitch and Michael S. Roth (The Free Press: New York, 1991), pp. 209-10. 32 Leo Strauss, On Tyranny, ed. by Victor Gourevitch and Michael S. Roth (The Free Press: New York, 1991), p. 208. 33 Leo Strauss, On Tyranny, ed. by Victor Gourevitch and Michael S. Roth (The Free Press: New York, 1991), p. 211.

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Strauss does not, then, foresee or advocate the end of the state. What has been

suggested, however, is that he nevertheless shares the liberal depoliticization project

in so far as his ideal of a state ruled by gentlemen links legitimacy, not to the

possession of office (which Hobbes termed ‘artificial’ personality), but to the

possession of wisdom, character and taste (which Hobbes ascribed to what he termed

‘natural’ personality). The achievement of Michael Oakeshott, it will now be

suggested, is to have developed an essentially procedural model of civil association

which avoids confusing legitimacy with the possession of wisdom, character or taste

by identifying it, like Hobbes, with the possession of office in a state constituted

entirely by the rule of law. What must now be considered is what Oakeshott means by

civil association and why he maintains that only this ideal is appropriate to Western

modernity.

Oakeshott

For Oakeshott, as for Voegelin and Strauss, the kind of constitutionalism

which characterizes contemporary liberal democracies provides an inadequate

foundation for freedom. In Oakeshott’s case, this inadequacy is rooted in the

predominantly instrumental view of constitutionalism which has characterized

Western liberal political thought since the seventeenth century. According to this

view, Oakeshott writes, a constitution is merely ‘a piece of machinery for doing with

the least opposition and delay whatever [governments] thought proper to be done’.34

This constitutional machinery was naively thought of by liberal theorists as the

product of a contract which creates a collection of ‘constitutional devices’ intended

partly to reduce the menace of sovereign authority and partly to secure substantive

benefits such as education, welfare and employment.35 The result, Oakeshott

maintains, has been a dangerous confusion about the principal requirement of a free

society, which is a concern for political legitimacy.

The source of this confusion is the existence of two fundamentally different

ways of thinking about the state which has made the meaning of every word in the

modern Western political vocabulary ambiguous, including the concept of a

34 M. Oakeshott, On Human Conduct, p. 192. 35 M. Oakeshott, On Human Conduct, p. 245, fn. 2.

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constitution itself. One way conceives of the state as held together by a common

purpose, religion or ideology which it is the task of government to impose. Oakeshott

describes this as an ‘enterprise’ or ‘managerial’ conception of the state. Within the

enterprise way of thinking, a constitution is merely one tool amongst others by which

to impose a substantive interpretation of the good society. An example is the Soviet

constitution of 1936 which appeared on paper to be one of the most democratic

constitutions ever adopted by a modern state. In reality, the constitution was merely

one of a number of tools used by Stalin to implement a totalitarian ideology.

The second way of thinking about the state conceives of it as held together

solely by the formal bond of legal rules, which does not involve the imposition by

government of a substantive vision of social order. Oakeshott describes a state of this

kind as a civil association. Constitutionalism, in the context of civil association, has a

very different meaning to that it possesses in an enterprise way of thinking about

politics. To be precise: in civil association, a constitution is not a device for promoting

the good society, however that may be understood. It determines, rather, an identity –

specifically, the identity of citizenship, as well as specifying the offices necessary to

implement that identity. For this reason, a constitution in civil association cannot be

understood as the product of a singly contractual act by citizens prior to the political

process itself, as Hobbes for example understands it. It consists, rather, of an on-going

acknowledgement of the rule of law in which the acknowledgement involved cannot,

strictly speaking, be theorized as an act of any kind since the acknowledgement is, in

Oakeshott’s phrase, a purely ‘adverbial’ performance. By terming it adverbial,

Oakeshott’s intention is to emphasis that a concern for the constitutional aspect of

political life must not be narrowly understood as a commitment to adopting a written

document but relates, rather, to preserving the integrity of the non-instrumental

procedures, conformity with which is the primary condition for their possession of

valid legal status.

Since the enterprise view of the state has tended to get the upper hand over the

civil perspective in the modern period, Oakeshott maintains, what are referred to as

the constitutional histories of most European states have in fact been, for the most

part, little more than ‘stories of somewhat confused and sordid expedients for

accommodating the modern disposition to judge everything from the point of view of

the desirability of its outcomes in policies and performances and to discount

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legitimacy’.36 Unless this instrumental view of constitutionalism is overcome,

confusion about the conditions for legitimacy will continue to exist, due primarily to

the lack of a clear distinction between the exercise of authority, on the one hand, and

of arbitrary (albeit more or less benign) power, on the other.

I will now pass over the details of Oakeshott’s analysis of civil association in

order to turn immediately from this sketch of his political thought to the main problem

it ultimately poses, which is whether the concept of constitutional legitimacy it

embodies is viable in modern Western liberal democracies. There are three principal

criticisms to be considered.

The first criticism is that Oakeshott’s version of civil association is so ‘thin’ - so

procedural and legalistic, that is - that it leaves him completely at odds with the

enterprise state which is the dominant feature of contemporary political life. John

Gray in particular has reminded us that ‘no government in any modern state can long

survive if it does not preside over sustained economic growth,’ and must therefore

inevitably be in a considerable degree an enterprise association.37 In consequence,

Gray adds, Oakeshott’s ‘project of denying to the modern state its character as, in

significant part, an enterprise association’ is conflicts with his conservative

commitment, since it could only be implemented by a revolutionary transformation of

existing political arrangements. If we are realistic, Gray concludes, we must accept

that for us ‘the enterprise-association state is an historical fate which we may . . .

strive to temper, but which we cannot hope to overcome’.38

In response to Gray it may be replied that it is only fair to Oakeshott to note that

he never maintained that a purely formal conception of civil association could provide

a complete account of politics in a free society. On the contrary, he explicitly

acknowledged that all governments must make some provision for the material well-

being of the population, if only for the prudential reason that it will otherwise be

destabilized by disaffection. In this connection, the weakness of Oakeshott’s thought

is his failure to examine what kind of welfare provision is compatible with civil

association. What seems clear, however, is that in principle Oakeshott can

compromise with the enterprise state provided that two conditions are satisfied. The

first is that the enterprise state must not operate through central planning but only

36 M. Oakeshott, On Human Conduct, p. 193. 37 John Gray, ‘Oakeshott as a Liberal’, The Salisbury Review (Vol. 10, No. 1, Sept. 1991), p. 24. 38 John Gray, ‘Oakeshott as a Liberal’, The Salisbury Review (Vol. 10, No. 1, Sept. 1991), p. 24.

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through fiscal and regulative methods which do not impose a unitary purpose on

citizens. The second is that this compromise must not go so far as to subordinate civil

association to state projects which threaten the rule of law. What this means in

practice will, of course, itself be a matter for political debate within civil association.

The second major difficulty created by Oakeshott’s concept of legitimacy is again

eloquently stated by Gray. It concerns Oakeshott’s assumption that the authority of

the modern state does not depend on its subjects having a common cultural identity.

In this respect, Gray notes, Oakeshott has much in common with Kant as well as with

much recent American constitutional theory.39 The problem, however, is that recent

history does not support this assumption. On the contrary, Gray maintains, ‘insofar as

a policy is held together by little else than allegiance to abstract principles or

procedural rules, it will be fragmented and weak.’ At the present day, he writes,

we may see this ominous development occurring in microcosm in Britain,

where a minority of fundamentalist Muslims that is estranged from whatever

remains of a common culture, and which rejects the tacit norms of toleration

that allow a civil society to reproduce itself peacefully, has effectively curbed

freedom of expression about Islam in Britain today. 40

We may see the same development, Gray continues,

occurring on a vast scale in the United States, which appears to be sliding

inexorably away from being a civil society whose institutions express a

common cultural inheritance to being an enfeebled polity whose institutions

are captured by a host of warring minorities, having in common only the

dwindling capital of an unquestioned legalism to sustain them.

To this criticism, a partial reply is that Gray risks caricaturing Oakeshott’s

position in so far as he assumes that Oakeshott makes a complete divorce between

legal and cultural identity. In reality, Oakeshott assumes that there are many reasons

for acknowledging the authority of a state, which will certainly include ones based on

a common cultural identity both of subjects with one another and with their

39 John Gray, ‘Oakeshott as a Liberal’, The Salisbury Review (Vol. 10, No. 1, Sept. 1991), p. 24 40 John Gray, ‘Oakeshott as a Liberal’, The Salisbury Review (Vol. 10, No. 1, Sept. 1991), p. 24

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government. What Oakeshott maintains is not that legal and cultural identity are

separable, but that the basis of authority in civil society is a concept of sovereignty

which permits no appeal beyond the authority to some higher authority such as

reason, natural law or the teaching of Allah. This is of course a difficult requirement,

as Oakeshott himself fully acknowledges, but it is at least one which can be complied

with for prudential reasons which do not necessarily require cultural homogeneity.

The final difficulty created by Oakeshott’s concept of legitimacy which will be

considered here is one that is identified by Oakeshott himself. This third difficulty, it

may be suggested, is the most serious of all. The difficult is as follows.

Towards the end of his life, Oakeshott was no longer primarily worried about the

tentacles of the enterprise state. What troubled him was, rather, the emergence of an

all-pervasive instrumental mentality which he believed had come to pervade the

whole of modern life. This was the theme of the essay on ‘The Tower of Babel’ in the

last book he published.41 For Oakeshott, this attitude was totally incompatible with the

regard for human dignity which is the basis of civil association. His late pessimism

about the instrumentalism of Western modernity, it may be noticed, converged with

that of members of the Frankfurt School like Adorno and Horkheimer, who also

identified an instrumental perspective as the source of profoundly dehumanizing

tendencies in contemporary Western culture. Did Oakeshott, one may ask, see any

remedy for the instrumentalism which he believed threatened the future of civil

association? The only answer, he believed, lay in a sense of play without which the

non-instrumental perspective upon which civil association depends cannot survive. In

practice, however, Oakeshott was pessimistic about the survival of play in a modern

technological society, sympathizing in this respect with the Spanish philosopher

Ortega y Gasset and the Dutch historian Johan Huizinga, both of whom shared his

misgivings.42

If one sympathizes with Oakeshott’s cultural pessimism, it seems likely that for

this reason alone the concern for legitimacy upon which civil association depends will

simply cease to exist. This is, I think, a more plausible vision of the future than

Voegelin’s prophecy of the triumph of Gnosticism or Strauss’s prophecy of nihilism.

It is worth emphasizing that its plausibility should not be obscured by the survival of

41 ‘The Tower of Babel’, in On History and Other Essays. 42 See J. Ortega y Gasset, The Revolt of the Masses (Unwin: London, 1961) and Johan Huizinga, Homo Ludens (Paladin: London, 1970).

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outward remnants of civil association. Even if power is diffused as Oakeshott

required, for example, and even if the outward forms of parliamentary government

survive, the reality will be only a language of power, rather than an ethical language

of civil obligation.

One notable vision of the likely shape of a post-ethical social order in which only

a language of power exists may be found in Max Weber’s image of the iron cage

created by instrumental rationality – a cage consisting of bureaucratic regulation

which continues to grow quite regardless of the ideological commitment of the

government in office. Although both Voegelin and Strauss are astute critics of

Weber’s positivist methodology, the philosophical merits of their critique should not

be allowed to conceal the continuing relevance of his Kafkasque vision of the iron

cage. A more recent version of that vision is provided by Foucault’s sketch of the

surveillance society. Most instructive of all, however, is de Tocqueville observation

that the post-ethical social order may be a perfectly comfortable one, since the use of

power by its rulers may usually be benign. He warned, however, that comfort should

not conceal the absence of freedom and the arbitrary nature of the power in the post-

ethical order, even if that power confers many material benefits.

Oakeshott’s own misgivings towards the end of his life echo those of de

Tocqueville. If they prove to be well founded, then his fate as a political thinker may

ultimately be the fate Hegel suggested befalls all great political theorists when he

remarked that the owl of Minerva takes wing only at dusk. Oakeshott may have

clarified the constitutional requirements of legitimacy, that is to say, at the very time

when the course of history has begun to turn decisively away from the model of civil

association upon which they depend.

********