THE BURKE-PAINE CONTROVERSY - · PDF fileTHE BURKE-PAINE CONTROVERSY Reflections on the Revolution in France, by Edmund Burke, and The Rights of Man, by Thomas Paine. (Garden City,

THE BURKE-PAINE CONTROVERSY

Reflections on the Revolution in France, by Edmund Burke, andThe Rights of Man, by Thomas Paine. (Garden City, N.Y.:Doubleday, Dolphin Books, 1961). 1 Pp. 515.

WI he first thing to be noted about the Burke–Paine controversyis that it never really took place. Burke wrote a book. Paine

wrote a reply to it. Burke scorned to answer Paine by name, thoughhe quoted him without acknowledgment in the sequel to his ownbook. Paine wrote a second attack on Burke, and Burke ignored it.Throughout, the two men succeeded pretty well in talking past eachother in an effort to influence British public opinion.

The "controversy" began with the publication of Burke's Reflec-tions on the Revolution in France in November 1790. Paine hadmet Burke about two years earlier and in the interval had spokenand written to him often enough to be confident that Burke wasfamiliar with his republican political philosophy. He was also vainenough and naive enough to think that he might convert Burke toit. When the Reflections appeared, therefore, Paine was shocked atBurke's monarchist and aristocratic attack on the French Revolu-tion. He also took it as a personal challenge to himself and his ideas.He therefore replied with an attack on Burke and his views in TheRights of Man, Part I, published in March 1791.

In his admirable monograph, Burke, Paine, and the Rights ofMan e R. R. Fennessy describes Paine's book as not the first or thebest reply to Burke's Reflections but as the most popular and influ-entia1. 3 In Fennessy's judgment, "Paine's book does not constitute amajor, or even a minor, contribution to political theory, but it is agreat work of political popularization. It is one of the most influen-tial pieces of political journalism that ever was written in English."4

Political journalism was Burke's own estimation of The Rightsof Man, and he despised it. But he also dreaded it as an effort to fanthe flames of a revolution in Great Britain in imitation of the onein France. At a time when few even of Burke's friends in Englandshared his view of the radical character of the French Revolution or

1 All references to these two works will be to this edition; references to Burke'sand Paine's other writings will be to editions of their collected works.

2 The Hague: Martinus Nijhoff, 1963.3 Ibid., 10.4 Ibid., 244.

390 THE POLITICAL SCIENCE REVIEWER

saw any danger of its crossing the Channel, Burke and Paine werein curious agreement on the point at issue. As Fennessy says, Burke"understood this doctrine [of the rights of man] precisely as Paineunderstood it; and he feared it would have the consequences inEngland that Paine hoped it would have." 5 Consequently,

Burke immediately seized on Paine's book as the typical expressionof the opinions and aspirations against which he had taken hisstand. And he was not slow to claim that those who did not agreewith Reflections were necessarily, whatever they might say, support-ing Paine. This was the contention of the Appeal from the New tothe Old Whigs, and he also urged it in his private correspon-dence. . . .6

Burke's technique in An Appeal, published in August 1791, wasto quote Paine at length but without naming him or his book.Instead, he simply attributed Paine's views to all those Britishsympathizers with the French Revolution whom he lumped togetheras the "New Whigs." As for Paine himself, while his words wouldserve as a statement of "New Whig" principles, Burke had nofurther use for him and would not enter into personal controversywith him. Having quoted him, Burke concluded:

These are the notions which, under the idea of whig principles,several persons, and among them persons of no mean mark, haveassociated themselves to propagate. I will not attempt in the smallestdegree to refute them. This will probably be done (if such writingsshall be thought to deserve any other than the refutation of crimi-nal justice) by others, who may think with Mr. Burke. He has per-formed his part.?

The refutation of criminal justice was not long in coming. InFebruary 1792 Paine brought out Part II of The Rights of Man;it was even more overtly revolutionary than Part I. In September heleft England, never to return. In December he was tried in absentiaby an English court, found guilty of publishing a seditious libel, anddeclared an outlaw. Thus ended the Burke—Paine controversy.

But had it ever really been joined? Fennessy thinks not. In hisopinion, "there was no actual controversy between Burke and Paine—that is, no exchange of argument, reply, or counter—argument-

5 Ibid., 189-190.6 Ibid., 211.7 The Works of the Right Honourable Edmund Burke (London: F.C. and J.

Rivington, 16 vols., 1803-1827), VI, 200. Subsequent references to Works will beto this edition. (There is, unfortunately, no paperback edition of An Appealfrom the New to the Old Whigs currently in print.)

THE BURKE-PAINE CONTROVERSY 391

but simply two appeals to English public opinion, from two entirelydifferent and totally irreconcilable points of view." 8 According toFennessy, "Paine does not understand Burke's arguments and ideas,much less refute them." 9 The Rights of Man, therefore, is "muchless an actual reply to Burke's arguments than simply a counter–manifesto of pro–revolutionary and republican sentiments." 19 As forBurke, while he was willing to use Paine when it served his purpose,he saw himself as resisting a movement of ideas far greater and farmore dangerous than Paine's mind could have produced.

A non–controversy that took place nearly two centuries ago maynot seem worth writing about today. Furthermore, we are here com-memorating the Declaration of Independence, but that was an eventof the American Revolution, and not one that set Burke. and Paineat loggerheads as the French Revolution did. In regard to theAmerican Revolution, Paine at least thought that he and Burkewere on the same side. The opening words of the English editionof The Rights of Man are: "From the part Mr. Burke took in theAmerican Revolution, it was natural that I should consider him afriend to mankind.'11

Burke, on his part, while he had championed the cause of theAmerican colonies in their quarrel with Parliament, had neverwanted to separate them from Britain. He was always the enlight-ened imperialist and had striven to give the Americans, as he stroveto give the Irish, reasons for maintaining their connection withGreat Britain. But, when American independence came, Burke wasable to accept it. Once America was out of the British Empire, helost interest in American affairs. But he did make at least one com-ment on them, and it was not unfriendly. He is reported as sayingin the House of Commons on May 6, 1791: "The people of Americahad, he believed, formed a constitution as well adapted to theircircumstances as they could." It was, to be sure, a republican con-stitution, but, given the social history of America, it had to be one:

they had not the materials of monarchy or aristocracy amongthem. They did not, however, set up the absurdity that the nationshould govern the nation; that prince prettyman should govern

8 Op. cit., vii.9 Ibid., 180.to Ibid., vii. Let me acknowledge here that I am indebted in much of what

follows to Fennessy's analysis of Burke's and Paine's thought.11 P. 269.


prince prettyman: but formed their government, as nearly as theycould, according to the model of the British constitution.12

It was not the American Revolution, then, that aroused Burke'swrath and brought him into conflict with Paine. In regard to therevolution over which they did clash, although Burke had the bettermind of the two men, he was nonetheless on the losing side. Hewrote in defense of a social and political order that has largelyvanished under the impact of the democratic revolution of whichPaine was a herald. Even in parts of the world where it couldhardly be said that democracy has triumphed, its vocabulary hasdone so. The most regimented states on earth call themselvespeople's democracies and exercise power in the name of the masses.Paine, it would seem, has won and for Burke it is all over. What,then, is there left to write about?

An answer is suggested by a passage in a work that has nothingto do with either Burke or Paine: Alan Gewirth's translation ofMarsilius of Padua, The Defender of the Peace. 13 In his introduc-tion, Professor Gewirth states the three basic themes of Marsilius'work in these words: "(1) the state is a product of reason and existsfor the end of men's living well; (2) political authority is primarilyconcerned with the resolution of conflicts and is defined by the pos-session and structure of coercive power; (3) the sole source of legiti-mate political power is the will or consent of the people."14

He then goes on to explain, in terms that will serve to locateBurke and Paine:

Each of these propositions, taken by itself, marks an approach topolitical problems which sets apart a whole school of politicalphilosophy usually considered as antithetical to each of the othertwo. The first proposition represents the theme characteristic ofthe perennial tradition of political philosophy which has beendesignated by such terms as "rationalistic" and "idealistic": thestate is explained by the rational moral ends which it enables mento achieve, so that both it and the political authority exercised in itare at once products of and limited by reason. The second propo-sition, on the other hand, represents the "positivistic" and "legalis-tic" theme which usually figures in a tradition opposed to the first:the state is now viewed not as the vehicle and embodiment of idealrational ends or values but as the scene and the regulator of strife,

12 The Parliamentary History of England (London: Hansard, 36 vols., 1806-1820), XXIX, 365-366.

13 New York: Harper Torchbooks, 1956.14 Ibid., xxx.


so that the mark of the state and of political authority comes tobe the structuring of the coercive power which controls and settlesconflicts. Thus, whereas in the full development of the first themeonly that political authority is legitimate which conforms to themoral demands of reason by leading men to a life of virtue, in thefull development of the second theme any political authority islegitimate so long as it in fact settles conflicts and preserves society,so that not supreme virtue but supreme power is the mark ofpolitical authority. The third proposition . . . represents a tradi-tion which has historically been opposed to each of the others: the"voluntaristic" and "republican" theme whereby the state and itsauthority are defined neither by rational ends nor by coercive powerbut rather by the people's will.15

Political theorists, of course, do not fall neatly and exclusivelyinto one of the above categories. But, to speak in broad and gen-eral terms, it is safe to say that for Burke the first proposition wasbasic—that the state is explained and justified by the rational moralends it enables men to achieve—and that Paine's ideology was anelaboration of the third proposition—that the state and its authorityare defined by the people's will. It can further be said that the issuethus posed is alive and relevant today.

Its relevance lies in the central position occupied by rights inPaine's thought and in liberal thought generally. Paine belongs tothe natural–rights school of political thought: natural rights furnishhim with the intellectual foundation of his doctrine of popularsovereignty. Thus he quotes with full approval the Declaration ofthe Rights of Man and of Citizens, which begins:

The representatives of the people of FRANCE, formed into aNATIONAL ASSEMBLY, considering that ignorance, neglect, orcontempt of human rights, are the sole causes of public misfortunesand corruptions of government, have resolved to set forth in -asolemn declaration, these natural, imprescriptible, and inalienablerights: .. .

And, in Article II, the Declaration states: "The end of all politicalassociations is the preservation of the natural and imprescriptiblerights of man; . . ."16

The only point we need stress at the moment is that for Paine,as for the French National Assembly, the purpose of politics and ofthe state can be reduced to a question of rights. The end of allpolitical associations is the preservation of rights, and the sole cause

15 xxx–xxxi.16 The Rights of Man, 349-350.


of public misfortunes is ignorance, neglect, or contempt of humanrights. It follows that if we ever get our conception of rights straightand implement it in practice, we shall have solved all the problemsof society. This view is still very much with us today.

To choose an example almost at random, in a newspaper columnwritten last year,' 7 Judge Nanette Dembitz of the New York StateFamily Court discussed the problem of children who are virtuallyprecondemned to a life of crime by the miserable quality of theupbringing they get from their parents. Helping such children, shefelt, would often require removing them from their parents. Butthat might smack of unconstitutional discrimination, since thisremedy becomes necessary "almost exclusively among the poor." Yetthe children, too, have rights. The judge concluded: "The crisisdeveloping in the law of parent–child relations arises from the col-lision between increased legal concern on the one hand for the civilliberties of the poor and, on the other, for the rights of children ashuman beings independent of their parents, rather than as parents'possessions."

It is not my purpose to criticize Judge Dembitz, still less to sug-gest that there are no human rights that deserve protection. Still,it is striking that her analysis of a social problem reduces it simplyto a conflict between the rights of parents and the rights of children.That such rights are involved is beyond question. But is there noth-ing more to the problem than that? Can it be adequately stated, letalone solved, by a process of more accurately defining and balancingthe individual rights at issue? Our courts, and the legal profes-sion generally, seem to be incapable of any more profound socialanalysis.

But they are not alone in their limited vision. Reading the dailynewspaper, one cannot but be struck by the regularity with whichAmericans render social problems intelligible to themselves by de-fining them as conflicts of alleged rights—usually individual rights,sometimes the rights of groups conceived of as collections of indi-viduals. The legalization of abortion has been debated in terms ofthe unborn child's right to life vs. his mother's right to control herown body. School busing became a question of the right of someparents to get a better education for their children vs. the right ofother parents to send their children to a neighborhood school. The

17 ". . . And Thwarting a Life of Crime," New York Times, 9 August 1975,p. 17.


protection of the environment, zoning laws, certain aspects of labor–management relations, the status of homosexuals and a host of otherissues have been argued in similar terms.

That they have been so argued is due to large part to the Ameri-can habit of using the courts as political organs for the framing ofsocial policy. But, at a deeper level, it is the inevitable consequenceof our being a liberal society that defines itself and its goals interms of the rights of man. We operate on what the late AlexanderM. Bickel called the "liberal contractarian model" of society which"rests on a vision of individual rights that have a clearly defined,independent existence predating society and are derived from natureand from a natural, if imagined, contract. Society must bend to theserights."" Since Thomas Paine was one of the great popularizers ofthat view, an analysis of his political theory and of the opposed oneof Edmund Burke will help to throw light on the way in whichAmerican society understands itself even today.

Let us turn, then to Paine and begin with one of his flatteringcomments on our country. He says:

If there is a country in the world, where concord, according to com-mon calculation; would be least expected, it is America. Made up,as it is, of people from different nations, accustomed to differentforms and habits of government, speaking different languages, andmore different in their modes of worship, it would appear that theunion of such a people was impracticable; but by the simple opera-tion of constructing government on the principles of society and therights of man, every difficulty retires, and all the parts are broughtinto cordial unison. There the poor are not oppressed, the rich arenot privileged. Industry is not mortified by the splendid extrava-gance of a court rioting at its expense. Their taxes are few, becausetheir government is just; and as there is nothing to render themwretched, there is nothing to engender riots and tumults.19

Government in America—which for Paine is a model for theworld—is constructed on "the principles of society and the rights ofman." The principles of society refer to a premise which Paine hadearlier expressed in lapidary form in Common' Sense: "Society isproduced by our wants and government by our wickedness." 20 Buthe gave a fuller exposition of it in chapter 1 of Part II of TheRights of Man.

18 The Morality of Consent (New Haven: Yale Univ. Press, 1975), p. 4.19 The Rights of Man, 402.zo The Complete Writings of Thomas Paine, ed. Philip S. Foner (New York:

Citadel Press, 2 vols., 1945), I, 4.


His purpose in this chapter was to show that society is prior togovernment and that it "performs for itself almost everything whichis ascribed to government." 21 Most of the benefits which govern-ments claim to confer on men, and which they use to justify theheavy burden of taxation, are in fact produced by society and wouldbe produced without government. Therefore, "a great part of whatis called government is mere imposition."22

According to Paine, "Nature created [man] for social life." ButtIlat is to say that she so made him that self–interest leads him intosociety. "In all cases she made his natural wants greater than hisindividual powers. No one man is capable, without the aid of so-ciety, of supplying his own wants; and those wants acting uponevery individual, impel the whole of them into society, as naturallyas gravitation acts to a center." 23 Although Paine declared that "manis so naturally a creature of society, that it is almost impossible toput him out of it," 24 it remains that he saw man as entering societybecause he is incapable "without the aid of society, of supplying hisown wants." The common interest which was the object of societywas, in Paine's eyes, a pooling of individual and private interests.Thus he explains:

The landholder, the farmer, the manufacturer, the merchant, thetradesman, and every occupation, prospers by the aid which eachreceives from the other, and from the whole. Common interestregulates their concerns, and forms their laws; and the laws whichcommon usage ordains, have a greater influence than the laws ofgovernment.25

The function of government, as he states it in a later chapter,rests on the same reductionist notion of common interest:

Every man wishes to pursue his occupation, and enjoy the fruitsof his labors, and the produce of his property, in peace and safety,and with the least possible expense. When these things are accom-plished, all the objects for which government ought to be establishedare answered.26

Paine does not see the bonds that unite men in civil society asflowing from relations rooted in human nature itself. On the con-

21 The Rights of Man, 398.22 Ibid., 399.23 Ibid., 398.24 Ibid., 40025 Ibid., 398.26 Ibid., 434.


trary, men's wants do not intrinsically depend on a public and com-mon good for their satisfaction. It is something extrinsic to thewants, namely, the defect in men's powers, that impels them intosociety for the achievement of goals that remain essentially private.Society is indeed bound together by the "mutual dependence andreciprocal interest which man has upon man." 27 But Paine has noconception of a common interest that transcends private interests.That is why the objects of government, as he describes them above,can be reduced to the satisfaction of everyman's individual wishes.

Paine does add, however, that nature has gone further.

She has not only forced man into society, by a diversity of wants,which the reciprocal aid of each other can supply, but she has im-planted in him a system of social affections, which, though notnecessary to his existence, are essential to his happiness. There isno period in life when this love for society ceases to act. It beginsand ends with our being.28

From this we may infer that for Paine man is by nature a gre-garious animal but not a political animal. Men are by nature suchthat they cannot be happy without each other's company. They arethus drawn into society and bound together there by the attractionof what the French Revoluion called fraternity. But their naturalrelationship to each other is at bottom one of equality in individualfreedom. Liberty and equality are more fundamental principlesthan fraternity because they are more directly related to the re-quirements of human existence. 29 As much as men need other men,their basic wants are individual and private, their common interestconsists in a reciprocity of private interests, and their social rela-tions are in consequence external and contractual. That this wasPaine's view is confirmed by his explanation of the fundamentalprinciples of society.

It is the natural reciprocity of interests that furnishes "the greatand fundamental principles of society and civilization," namely,"the common usage universally consented to, and mutually andreciprocally maintained," and "the unceasing circulation of inter-est, which, passing through its million channels, invigorates thewhole mass of civilized man." Therefore Paine can say:

27 Ibid., 398.28 Ibid., 398-399.29 I have been influenced in writing the above by remarks which Prof. Wilson

Carey McWilliams of Rutgers University made in a talk at a conference onThomas Paine and the American Revolution, held at the College of NewRochelle, New York, on October 11,1975.


All the great laws of society are laws of nature. Those of trade andcommerce, whether with respect to the intercourse of individuals,or of nations, are laws of mutual and reciprocal interest. Theyare followed and obeyed because it is the interest of the parties so todo, and not on account of any formal laws their governments mayimpose or interpose.30

Since all the great laws of society are laws of nature, they areeasily accessible to reason, in which Paine had an enormous confi-dence. "Mankind, as it appears to me," he said, "are always ripe tounderstand their true interest, provided it be presented clearly totheir understanding." 31 On matters of common concern, "men haveonly to think, and they will neither act wrong nor be misled."32 Thereason is: "It is always the interest of a far greater number of peoplein a nation to have things right, than to let them remain wrong;and when public matters are open to debate, and the public judg-ment free, it will not decide wrong, unless it decides too hastily."33

Paine was an individualist, for whom reason was individualreason and interest was private interest. But he was able to com-bine his individualism with his faith in man's natural sociabilitybecause he believed in the natural harmony of private interests andbecause he was sure that this harmony would be obvious to men'sindividual minds once they were emancipated from the mystifica-tions practised on them by the established regimes. "Man is not theenemy of man," he said, "but through the medium of a false systemof government." 34 It was in the interest of kings, aristocrats, andpriests to obfuscate men's minds. But let the obfuscation be dis-sipated, as it was being in the "morning of reason [now] rising uponman,"" and man would cease to be the enemy of man.

The remedy, of course, was to overthrow the false systems ofgovernment that held sway almost everywhere but in America andFrance, and to institute the true system. "Government," Painethought, "is not farther necessary than to supply the few cases towhich society and civilization are not conveniently competent?"3sBut it is necessary, and so there must be true principles of govern-ment as there are of society.

3° Ibid., 400-401.

31 Ibid., 387.32 Ibid., 393.33 Ibid., 426.34 Ibid., 385.33 Ibid., 444.36 Ibid., 399.


The only thing that it is beneficial to know about government,according to Paine, is this: "That government is nothing more thana national association acting on the principles of society." 37 Menenter society to further their own interests. For the most part com-mon interest, i.e., enlightened self–interest, suffices to regulate theirdealings with each other. Unfortunately, however, the wickedness ofmen is such that they do not always take the enlightened and longview of their own interests. Shortsighted greed and arrogance leadthem to attack other men's interests and thereby to violate theirrights. 38 It then becomes necessary for society, which otherwise couldhave functioned as a self–regulating free market, to turn itself intoa national association for the protection of every man's rights.Rights are thus the origin and the final cause of government inPaine's theory. If government performs its function of protectingthem, the principles of society springing from the natural reciprocityof interests will do the rest.

Now, the rights of man which government is to preserve arenatural, original, and equal. They cannot be defined, in the mannerof Edmund Burke, by precedents drawn from antiquity. There is nojustification for stopping at any particular stage of history, onehundred or one thousand years ago and making that the rule forthe present day. We must go the whole way back "till we come tothe divine origin of the rights of man, at the Creation." The rulecan only be the rights with which God endowed man as man at thebeginning. But all accounts of the Creation (biblical or other) agreeon one point: the original unity and equality of mankind. "Everygeneration," therefore, "is equal in rights to the generations whichpreceded it, by the same rule that every individual is born equal inrights with his conternporary."39

Paine was a Deist for whom, in Fennessy's words, "there was butone certain religious truth: the existence of God, which he believedshould be clearly known from the evidence of Creation." 40 God hadbut one function in Paine's political theory: to endow man with hisnatural and imprescriptible rights. There is in Paine's thought noteleology in the created universe, no human perfection—natural or

37 Ibid., 403.38 "Man . . . acquires a knowledge of his rights by attending justly to his

interests." Ibid., 446. Interests, that is, are rights insofar as they are compatiblewith the interests of others in natural reciprocity.

39 Ibid., 303-304.40 op. cit., 13.


supernatural—toward which man is directed by his Creator, nonatural moral order and no providential design in history. Equippedwith natural rights which natural reason could recognize, man hadall he needed to build a just and good society.

There is no natural moral order in Paine's thought in the sensethat there are no moral duties directing men to rational moral ends.For Paine, duties are reducible to respect for the rights of others.Thus, for example, he answers the criticism that the French Declara-tion of Rights should have been accompanied by a Declaration ofDuties with the remark: "A Declaration of Rights is, by reciprocity,a Declaration of Duties also. Whatever is my right as a man, is alsothe right of another; and it becomes my duty to guarantee, as wellas to possess." 41 Rights are the beginning and the end.

Man is by nature a subject of rights. Another way of saying thesame thing is to describe man as by nature a sovereign individual,subject to no will other than his own. A society populated bysovereign individuals under no common authority would be pos-sible, in Paine's view, were it not for the need to protect rights bythe coercive force of government. But, since the need is a real one,some natural rights must be turned into civil rights. A distinctionthus arises between natural and civil rights, which Paine explains inthese words:

Natural rights are those which appertain to man in right of hisexistence. Of this kind are all the intellectual rights, or rights ofthe mind, and also all those rights of acting as an individual for hisown comfort and happiness, which are not injurious to the naturalrights of others. Civil rights are those which appertain to man inright of his being a member of society. Every civil right has for itsfoundation some natural right pre-existing in the individual, butto the enjoyment of which his individual power is not, in all cases,sufficiently competent. Of this kind are all those which relate tosecurity.42

Civil rights, therefore, are natural rights that have undergone thetransmutation necessary for their protection by civil society. Onentering civil society, a man retains all those natural rights "in whichthe power to execute it is as perfect in the individual as the rightitself." But, says Paine, he does not retain those natural rights

in which, though the right is perfect in the individual, the power toexecute them is defective. They answer not his purpose. A man, by

41 The Rights of Man, 353.42 Ibid., 305-306.


natural right, has a right to judge in his own cause; and so faras the right of the mind is concerned, he never surrenders it: butwhat availeth it him to judge, if he has not power to redress? Hetherefore deposits his right in the common stock of society, andtakes the arm of society, of which he is a part, in preference and inaddition to his own. Society grants him nothing. Every man isproprietor in society, and draws on the capital as a matter ofright.43

The transmutation which natural rights undergo in becomingcivil rights, then, is in some instances a true surrender of them. Aman gives up his natural right, not precisely the right to be judgein his own cause, but the right to execute his judgment. He therebysubmits to the judgment of society but receives in return society'sdefense of his rights, both natural and civil. This defense is some-thing that society owes to him as a matter of right, because civilsociety is nothing but an association of right—holders who havepooled their rights to individual judgment and self—defense for thesake of an organized common defense.

It follows, then, says Paine, that "every civil right .. . is anatural right exchanged." Civil power, indeed, consists in "the ag-gregate of that class of the natural rights of man" which the isolatedindividual lacks the power to protect but which he can adequatelyprotect by pooling his power with that of others. Consequently, civilpower "cannot be applied to invade the natural rights which areretained in the individual."'"

The origin of civil society, therefore, is a compact among origi-nally sovereign individuals for the protection of their individualrights. It is in no wise a compact between those who govern andthose who are governed. It is, rather, "the individuals themselves,each in his own personal and sovereign right, [who] entered into acompact with each other to produce a government: and this is theonly mode in which governments have a right to arise, and the onlyprinciple on which they have a right to exist."45

The compact which produces a government ipso facto brings intoexistence a sovereign nation which alone is the legitimate holder ofthe pooled powers of its authors. Sovereign power cannot be theproperty of any particular man or family, as it is falsely assumed tobe in monarchies. "Sovereignty, as a matter of right, appertains to

43 Ibid., 306.44 Ibid., 306-307.45 Ibid., 308.


the nation only, and not to any individual; and a nation has at alltimes an inherent indefeasible right to abolish any form of govern-ment it finds • inconvenient, and establish such as accords with itsinterest, disposition and happiness."46

No prescription and no argument derived from the age of theexisting constitution or from the acts of preceding generations cantell against this sovereign right of the nation. "Every age and gen-eration must be as free to act for itself, in all cases, as the ages andgenerations which preceded it. . .. It is the living, and not thedead, that are to be accommodated. . . . That which a whole na-tion chooses to do, it has a right to do." 47 To be sure, it is usual forlaws to remain in effect for generations, but this does not prove thatthe laws derive their force from anything other than the consent ofthe living. "A law not repealed continues in force, not because itcannot be repealed, but because it is not repealed; and the non–repealing passes for consent."48

Paine professed indifference to forms of government so long asthey were founded on sound principles. He carefully explained:"What is called a republic, is not any particular form of govern-ment." There are, he said, only four forms of government: "Thedemocratical," i.e., the direct democracy of the ancient city–states,"the aristocratical, the monarchical, and what is now called therepresentative." The term, republic, does not refer to any of theseforms, but to the "object for which government ought to be insti-tuted," namely, the res publica or public good."

But, in any territory too large for direct democracy, the onlyform of government that qualifies as republican in Paine's eyes isthe representative one. Iri a later pamphlet entitled Dissertation onFirst Principles of Government, he stated, more explicitly than hehad in The Rights of Man, that this form is based on the principlesof one man–one vote and majority rule. As was typical with social–compact theorists, he laid down both these principles as laws ofnature, inasmuch as they are not optional conventions but followfrom the essence of representative government. So he said: "Thetrue and only true basis of representative government is equalityof rights. Every man has a right to one vote, and no more in the

46 Ibid., 382.47 Ibid., 277-278.48 Ibid., 280.4° Ibid., 413.


choice of representatives." 50 And again: "In all matters of opinion,the social compact, or the principle by which society is held to-gether, requires that the majority of opinions becomes the rule forthe whole, and that the minority yields practical obediencethereto." 54 In short, the basic principles of the only legitimateconstitution are dictated by natural right.

Therefore, "the government of America, which is wholly on thesystem of representation, is the only real republic in character andpractice, that now exists." 52 When Paine wrote these words, Francewas still a monarchy, though a constitutional one, and so not fullya republic. On the other hand, the first three articles of the Declara-tion of Rights laid down the sound principles of natural rights andpopular sovereignty, "nor can any country be called free, whosegovernment does not take its beginning from the principles theycontain, and continue to preserve them pure."53

In practice, in his world, Paine recognized only two kinds ofgovernment: representative and hereditary. 54 "All hereditary gov-ernment is in its nature tyranny," he declared, 55 and repeated thethought in varying phraseology throughout The Rights of Man.Representative government, on the contrary, was the institutionalform taken by the natural rights of man in civil society. It alonewas structured to express the will and consent of the people. Theyin turn were a collection of originally sovereign individuals whohad pooled their powers and formed a sovereign nation in order toprotect their rights. Nothing but the indefeasible sovereignty of thenational will could assure that that object, in which the public goodconsisted, would constantly be achieved. In short, Paine belongedto that school of political thought whose basic concepts are rights,consent, and contract.

There is more to Paine's theory than this. In the last chapter ofPart II of The Rights of Man he outlines a far–reaching programfor the redistribution of the national wealth in Great Britain, andthe beginnings of what a later generation would call a welfare state.But it is not this aspect of Paine's thought that concerned Burke,

50 Complete Writings, ed. Foner, II, 577.51 Ibid., 584.52 The Rights of Man, 413-414.53 Ibid., 353.54 Ibid., 379, 406.55 Ibid., 407.


and we may ignore it here. Shortly after quoting Paine in extensoin An Appeal from the New to the Old Whigs, Burke stated: "Thefactions, now so busy amongst us, in order to divest men of all lovefor their country, and to remove from their minds all duty withregard to the state, endeavour to propagate an opinion, that thepeople, in forming their commonwealth, have by no means partedwith their power over it." 56 These were the factions that Burke hadjust finished tarring with Paine's brush, and it is significant that,having said in the preceding paragraph that he would not attemptin the smallest degree to refute their views, he immediately pro-ceeded to refute them at great length on this point. Since I havesummarized Burke's argument in An Appeal in an earlier article,"I will not repeat the summary here, but will concentrate on hisReflections on the Revolution in France. The argument in bothworks is substantially the same, in any case, and centers on the samepoint at issue between Burke and his opponents: do or do not thepeople, when they form a government, retain sovereignty and theright to change the government at will?

Burke's answer to this question was negative. His position hadtwo apparently antithetical but complementary premises. The firstwas that, because the constitution of a country is a product of con-vention, its particular shape and form are not conclusions thatfollow necessarily from principles of natural right, i.e., from theoriginal rights of man in the state of nature. But the second prem-ise was that, once formed, a constitution becomes a moral as wellas a political obligation whose force is derived from the naturalmoral order. It is binding, therefore, on successive generations. Con-sequently, the will and consent of the people are not the supremelaw of the commonwealth.

It is unlikely that Burke had Paine in mind when he wroteReflections on the Revolution in France. But he does begin theReflections with an overt and lengthy attack on Dr. Richard Price,whose views are not dissimilar to Paine's. Dr. Price was a well–known dissenting or non–conformist minister. On 4 November 1789he delivered a speech, later published as A Discourse on the Loveof Our Country, to the Society for Commemorating the Revolutionin Great Britain. The revolution commemorated was that of 1688,but the discourse was highly sympathetic to the revolution then

56 Works, VI, 200.57 "Burke on Prescription of Government," The Review of Politics, XXXV

(1973), 454-474, at 458 ff.


going on in France, and the published version was accompanied byan appendix containing the Declaration of Rights of the NationalAssembly of France.

According to Dr. Price, as quoted by Burke, George III was"almost the only lawful king in the world, because the only one whoowes his crown to the choice of his people." 58 Popular choice, then,was the criterion of legitimacy. This followed from what Dr. Pricesaid was a basic principle established by the Revolution of 1688: theright of the people of England (1) "To choose our own governors."(2) "To cashier them for misconduct." (3) "To frame a governmentfor ourselves." 59 Burke read this declaration of the right of thepeople as an assertion of the doctrine of popular sovereignty, andhe denounced it as unknown to and incompatible with the Britishconstitution.

Certainly, he said, it was unknown to the leaders of the Revo-lution of 1688. He admitted that it would be "difficult, perhapsimpossible, to give limits to the mere abstract competence of thesupreme power, such as was exercised by parliament at that time."But there was no doubt in the minds of the revolutionary leadersor in Burke's about the limits of what they were morally competentto do. He explained:

The House of Lords, for instance, is not morally competent to dis-solve the House of Commons; no, nor even to dissolve itself, nor toabdicate, if it would, its portion in the legislature of the kingdom.Though a king may abdicate for his own person, he cannot abdi-cate for the monarchy. By as strong, or by a stronger reason, theHouse of Commons cannot renounce its share of authority. Theengagement and pact of society, which generally goes by the nameof the constitution, forbids such invasion and such surrender. Theconstitutent parts of a state are obliged to hold their public faithwith each other, and with those who derive any serious interestunder their engagements, as much as the whole state is bound tokeep its faith with separate communities.6°

For this reason, Burke continued, "the succession of the crown hasalways been what it now is, an hereditary succession by law." Firstit was by common law, after the Revolution by statute. "Both thesedescriptions of law are of the same force," however, "and are de-rived from an equal authority, emanating from the common agree-

58 Reflections on the Revolution in France, 25.59 Ibid., 27.60 Ibid., 32.


ment and original compact of the state, communi sponsione rei-publicae, and as such are equally binding on king, and people too,as long as the terms are observed, and they continue the same bodypolitic."64

The operative moral principle, it will be noticed, is that theterms of the constitution, once set, must be observed. But the rea-son for accepting hereditary government as a constitutional princi-ple, is a practical one: "No experience has taught us, that in anyother course or method than that of an hereditary crown, our liber-ties can be regularly perpetuated and preserved sacred as ourhereditary right." 62 It was this consideration that made Burke amonarchist, and not devotion to any abstract principles of royalright parallel to Paine's abstract principles of popular right. Burkeexplicitly rejected the notions that "hereditary royalty was the onlylawful government in the world," that "monarchy had more of adivine sanction than any other mode of government," or that "aright to govern by inheritance [was] in strictness indefeasible inevery person, who should be found in the succession to a throne,and under every circumstance." 63 But he considered hereditary mon-archy justified as an integral part of a constitution that was whollybased on the principle of inheritance and historically had served thepeople well.

"We have," he said, "an inheritable crown; an inheritable peer-age; and a House of Commons and a people inheriting privileges,franchises, and liberties, from a long line of ancestors." Indeed, "ithas been the uniform policy of our constitution to claim and assertour liberties, as an entailed inheritance derived to us from our fore-fathers, and to be transmitted to our posterity; as an estate speciallybelonging to the people of this kingdom without any referencewhatever to any other more general or prior right."64

This passage may seem, on the face of it, to imply that there isno standard of natural right anterior and superior to the constitu-tion. So the late Leo Strauss took it." But it will be noticed thatBurke is speaking here, not of the objective moral order, but of "theuniform policy of our constitution," and that he praises this policy,

6 1 Ibid., 32-33.62 Ibid., 36.63 Ibid., 38.64 Ibid., 45.65 Natural Right and History (Chicago: Univ. of Chicago Press, 1953), 319.


not as a statement of ultimate moral principles, but as a manifesta-tion of "practical wisdom."66

It will be further noticed that throughout this passage Burkecontrasts inherited rights, not with natural rights (to which he couldand did appeal on other occasions) 67 but with "the rights of men."But these are the original rights of men in the state of nature.Dr. Price and others presume that it is possible to appeal to themin order to determine what rights men ought to have now, in an oldand long—established civil society. It is this appeal that Burke saysEnglish statesmen of the past rejected in favor of the historic rightsof Englishmen.

These statesmen wisely "preferred this positive, recorded, heredi-tary title to all which can be dear to the man and the citizen, tothat vague speculative right, which exposed their sure inheritanceto be scrambled for and torn to pieces by every wild litigiousspirit." 68 Devotion to the rights of men, later generations havelearned, can produce an Abraham Lincoln; it can also produce aWilliam Kunstler. It is advisable, therefore, to have some viabledefinition of what men's rights are. Positive and recorded rights arebetter, in Burke's view, because they have been defined, nuanced,and given sure modes of protection through long historical ex-perience, than are original rights. The latter, which are objects ofspeculation rather than of experience, can give rise to conflictingabsolute claims that tear a society apart.

Furthermore, it is to misunderstand the social condition to thinkthat men's claims on society and one another can be reduced torights which they enjoyed in abstract and unqualified form beforecivil society came into being. Burke never denied that there hadbeen a state of nature, or that men had original rights in it, or thatcivil society was formed by a compact. Either he accepted these be-liefs as one tends to accept the commonplaces of his age, or he knewthat others accepted them so generally that to deny them wouldbe to lose the argument at the outset. For whatever reason, he re-stricted himself to arguing that the original rights of men were, notunreal, but irrelevant to civil society. The change they underwentin the civil state was so profound that they no longer furnished a

66 Reflections, 44.67 Cf. Works, IV, 8; IX, 194, 364; X, 16; XIII, 168.68 Reflections, 44.


standard for judging the rights of "civil social man."69 In Burke'sown words:

These metaphysic rights entering into a common life, like rays oflight which pierce into a dense medium, are, by the laws of nature,refracted from their straight line. Indeed in the gross and compli-cated mass of human passions and concerns, the primitive rightsof men undergo such a variety of refractions and reflections, that itbecomes absurd to talk of them as if they continued in the sim-plicity of their original direction. The nature of man is intricate;the objects of society are of the greatest possible complexity; andtherefore no simple disposition or direction of power can be suit-able either to man's nature, or to the quality of his affairs."

We must think, then, of men's rights in society in another way.

If civil society be made for the advantage of man, all the advantagesfor which it is made become his right. It is an institution of bene-ficence; and law itself is only beneficence acting by a rule. Men havea right to live by that rule; they have a right to justice; as betweentheir fellows, whether their fellows are in politic function or in ordi-nary occupation. They have a right to the fruits of their industry;and to have the means of making their industry fruitful. They havea right to the acquisitions of their parents; to the nourishmentand improvement of their offspring; to instruction in life, and toconsolation in death. Whatever each man can separately do, with-out trespassing upon others, he has a right to do for himself; andhe has a right to a fair portion of all which society, with all itscombinations of skill and force, can do in his favour.71

Civil society is "an institution of beneficence:" its purpose is todo good to its members, and the good that it can do for them be-comes their right or legitimate claim upon it. But their civil rightsare not merely the legal form taken, after the social compact, bytheir original natural rights. Nor is government, as it was for Paine,derived from every man's original right to act according to his ownwill and judgment.

The purposes of government are specified by the natural wantsof men, understood not as their desires but as their real needs."Government," according to Burke, "is a contrivance of human wis-dom to provide for human wants. Men have a right that these wantsshould be provided for by this wisdom." 72 But among these wants isthe education of men to virtue through legal as well as moral

69 Ibid., 72.

70 Ibid., 74.

71 Ibid., 71-72.72

Ibid., 72-73.


restraints upon their passions. "In this sense the restraints on men,as well as their liberties, are to be reckoned among their rights."Burke, one sees, is moving toward rational moral ends as the legiti-mating principle of government, and away from original rights andtheir corollary, consent. But his immediate concern in this passageis to point out that "as the liberties and the restrictions vary withtimes and circumstances, and admit of infinite modifications, theycannot be settled upon any abstract rule; and nothing is so foolishas to discuss them upon that principle."73

Rather, one must say: "The rights of men are in a sort of middle,incapable of definition, but not impossible to be discerned. Therights of men in governments are their advantages; and these areoften in balances between differences of good; in compromises some-times between good and evil, and sometimes, between evil andevil." 74 To clarify what Burke is getting at, let us agree by way ofexample that it is not good for human beings to be starved, beaten,humiliated, deprived of human affection, or intellectually stultified.There are conceivable circumstances in which any of these, in alimited degree and for a limited time, might do someone more goodthan harm. But it could only be as a means to another and a goodend, for these things are not in themselves human goods. There-fore, they cannot constitute the ends of life or the purposes ofsociety. On the other hand, one can name human needs that dospecify, in a general way, what civil society is for, and Burke namedsome of them above.

Civil society exists to guarantee to men justice, the fruits of theirindustry, the acquisitions of their parents, the nourishment andimprovement of their offspring, instruction in life and consolationin death. These are among the advantages that civil society exists toprovide for men. But it is impossible to define antecedently, in theabstract and for all possible circumstances, the concrete forms inwhich these advantages are to be acquired and safeguarded. Thatmust be left to social experience and the gradual development ofcustom and law.

The end of civil society, then, in global terms, is to promote whatis good for human beings. Human goods are "not impossible to bediscerned"—Burke was not a radical cultural relativist—and theycan serve as the general goals that guide law and public policy. They

73 Ibid., 73.7 4 Ibid., 75.


will therefore set the outer limits of what government may do topeople and define what it may not do to them. Burke was not in-consistent when he denounced the Protestant Ascendancy in Irelandand Warren Hastings in India for violating natural law by theirtreatment of the populations subject to their power. 75 To deny thatnatural law is an abstract code of rights is not to say that it forbidsnothing.75

But when it comes to specifying in the concrete the claims onsociety that its goals confer on people, it becomes evident that therights of men "are in a sort of middle, incapable of definition."They cannot be defined, that is, in the abstract and in advance.Human goods must be limited and trimmed in order to be simul-taneously attainable in society. Not only that, but evils, which arethe negation of good, must be tolerated, sometimes even protected,in order that any good at all may be attained. A society ruthlesslypurged of all injustice might turn out to be a vast prison. So, forthat matter, might a society singlemindedly devoted to liberty.

These considerations are particularly relevant to the right thatwas fundamentally at issue between Burke and his opponents. Theyheld that every man in the state of nature had a sovereign right togovern himself and for that reason had a right to an equal share inthe government of civil society. Burke held that what was importantin the civil state was not that every man's will should be registeredin the process of government, but that his real interests (advantages,goods) should be achieved.

By entering civil society, Burke insisted, man "abdicates all rightto be his own governor." Hence "as to the share of power, authority,and direction which each individual ought to have in the manage-ment of the state, that I must deny to be amongst the direct originalrights of man in civil society." 77 On the contrary, "It is a thing tobe settled by convention. . . . The moment you abate any thingfrom the full rights of men, each to govern himself, and suffer anyartificial positive limitation upon those rights, from that momentthe whole organization of government becomes a consideration ofconvenience." But to organize a government and distribute its

7 5 Cf. Works, IX, 349-355; XIII, 13, 15, 21, 155-156, 165-167, 169-170.76 This consideration may furnish a partial answer to a recent and well—argued

attack on the thesis that Burke belonged to the natural—law school, by Dinwiddy,J.R., "Utility and Natural Law in Burke's Thought: A Reconsideration," Studiesin Burke and His Time, XVI (1974-1975), 105-128.

77 Reflections, 72.


powers "requires a deep knowledge of human nature and humannecessities, and of the things which facilitate or obstruct the variousends which are to be pursued by the mechanism of civil institu-tions." 78 The allocation of power in the state, in other words, oughtto be made by a prudent judgment about that structure of govern-ment which will best achieve the goals of civil society. But this isto imply that purpose is the organizing and legitimizing principleof a constitution, rather than original rights and individual consent.

A further conclusion follows about the nature of political theory:"The science of constructing a commonwealth, or renovating it, orreforming it, is, like every other experimental science, not to betaught a priori. Nor is it a short experience that can instruct us inthat practical science." 79 Moral and political theory may enlightenus on the ultimate ends of social life, but the means thereunto arethe object of a practical science that relies on experiene.

Who, then, shall make the practical judgments of politics? Thequestion cannot be answered by appealing to the rights of men."Men have no right to what is not reasonable, and to what is notfor their benefit." 8° But, as to what is for their benefit, Burke said:"The will of the many, and their interest, must very often differ."81The first duty of statesmen, indeed, is to "provide for the multitude;

because it is the multitude; and is therefore, as such, the first object.. . in all institutions." 82 But the object is the good of the people,not the performance of their will. The duties of statesmen, in con-sequence, do not belong by right to those whom the many havechosen, but ought to be performed by those qualified by "wisdomand virtue, actual or presumptive," 83 for the task of government.

Burke was undoubtedly what today is called an elitist and wasby his own frank admission "an aristocrate in principle." 84 He hada very low estimation of the political capacity of the mass of thepopulation and, when he agreed that the people had a role in gov-ernment, he meant only a fairly well educated and prosperous seg-ment of them. But the main object of his attack on the democratic

78 Ibid., 72-73.79 Ibid., 73.80 Ibid., 75.81 Ibid., 64.8 2 Ibid., 115.83 Ibid., 62.84 Letter to the Duke of Devonshire, 11 March 1795, The Correspondence of

Edmund Burke, VIII, ed. R. B. McDowell (Chicago: Univ. of Chicago Press, 1969),185.


theory of his day was not so much the idea that the populace at largewas capable of exercising political power as the principle that it hadan inherent right to do its own will.

He certainly rejected the notion "that a pure democracy is theonly tolerable form into which human society can be thrown."85But, he added:

I reprobate no form of government merely upon abstract principles.There may be situations in which the purely democratic form willbecome necessary. There may be some (very few, and very particu-larly circumstanced) where it would be clearly desirable. This I donot take to be the case of France, or of any other great country.86

Democracy as a mere form of government, then, would be sometimes, if only rarely, acceptable to Burke. What would never beacceptable was that the people "should act as if they were theentire masters." 87 Burke explained his objection to this conceptionof popular sovereignty in the course of his defense of the principleof a state establishment of religion. Under a "mixed and temperedgovernment" 88 such as that of Great Britain, "free citizens . . . inorder to secure their freedom, . . . must enjoy some determinateportion of power." But "All persons possessing any portion ofpower ought to be strongly and awefully impressed with an ideathat they act in trust; and that they are to account for their con-duct in that trust to the one great master, author and founder ofsociety."89

This sense that authority is a trust given by God is all the morenecessary "where popular authority is absolute and unrestrained."No one can and no one should punish a whole people, Burke said,but this conclusion followed: "A perfect democracy is therefore themost shameless thing in the world." It is essential, then, that thepeople "should not be suffered to imagine that their will, any morethan that of kings, is the standard of right and wrong." To exercisepolitical power or any part of it, the people must empty themselves"of all the lust of selfish will, which without religion it is utterlyimpossible they ever should." They must become "conscious thatthey exercise, and exercise perhaps in an higher link of the orderof delegation, the power, which to be legitimate must be according

85 Reflections, 138.88 Ibid., 138-139.87 Ibid., 108.88 Ibid., 138.89 Ibid., 106.


to that eternal immutable law, in which will and reason are thesame."90

God thus plays a larger role in Burke's political theory than inPaine's. For . Paine, once God had given man his original rights atthe Creation, His work was done. Men then were able to createpolitical authority out of their own wills. But for Burke, theauthority even of the people was trust held from God, for theirconduct in which they were accountable to Him, and which theymust perform in accordance with "that eternal immutable law, inwhich will and reason are the same." In Burke's thought, arbitrarywill was never legitimate, because will was never superior to reason,not even in the sovereign Lord of the Universe. In God, however,will is always rational because His will is identical with His reason.The people, for their part, must make their will rational by keepingit in subordination and conformity with the law of God.

The law of God that Burke has in mind is not only or primarilyHis revealed law but the natural moral law, because it is a law thatfollows from the nature of man as created by God. The Creator is

the institutor, and author and protector of civil society; withoutwhich civil society man could not by any possibility arrive at theperfection of which his nature is capable, nor even make a remoteand faint approach to it. . . . He who gave our nature to be per-fected by our virtue, willed also the necessary means of its perfec-tion—He willed therefore the state—He willed its connection withthe source and original archetype of all perfection 91

The end of the state, for Burke, is divinely set and in its highestreach is nothing less than the perfection of human nature by itsvirtue, i.e., its moral perfection. (It should be noted that, accordingto Burke, "in a Christian Commonwealth, the Church and the

90 Ibid., 107-108. The phrase concerning the place of the people in the orderof delegation of power is interesting because it may refer to a theory of the originof political power that was generally accepted in the period of Late Scholasticismand was most elaborately presented by the 16th–century Spanish Jesuit, FranciscoSuarez. In this theory, all political authority comes from God, not by any specialdivine act, but merely as a consequence of God having made man a politicalanimal by nature. This authority inheres in the first instance in the body politicor whole community. But the community can and, for the common good, nor-mally will transfer its authority to a king or to a body of men less than the whole.See Rommen, Heinrich A., The State in Catholic Thought (St. Louis: B. Herder,1945), 444-450. That Burke was acquainted with Suarez' writings is indicated byhis quoting Suarez at some length in Works, IX, 353. For the sake of those whoare sensitive on the point, I hasten to add that I am aware that such a quotationproves nothing about the derivation of Burke's own theory.

91 Reflections, III.


State are one and the same thing, being different integral parts ofthe same whole."92 He thus found it easy to attribute to the state,or commonwealth, or civil society, the totality of men's social goals,where we today should be inclined to divide them between thepolitical and the religious spheres.)

Hence Burke could say: "Society is indeed a contract," 93 butwith a difference. The constitution of civil society, as he had saidpreviously, was a convention whose shape and form was not anecessary conclusion from principles of natural right. None theless society was natural in the sense of being the necessary anddivinely–willed means to the perfection of human nature. If oneequates the natural with the primitive, one will say that it is morenatural to live in a cave than in a house; this is what is usuallyimplied in the phrase "back to nature." But if one equates thenatural with the mature perfection of any species of being, one willsay that it is more natural for human beings to live in houses thanin caves. The houses are undeniably artificial works of humanhands. But they are a natural habitat for men because they moreadequately satisfy the needs of human nature than caves can do.Similarly—and this was Burke's meaning—civil society is artificial,conventional, even, if you will, contractual. But it is natural toman because "he is never perfectly in his natural state, but whenhe is placed where reason may be best cultivated, and most predomi-nates."94 The Aristotelian teleology of this remark seems obvious.

Society, then, is indeed a contract, but not one to be regardedin the same light as a commercial contract that is entered into fora limited and self–interested purpose and can be dissolved at thewill of the contracting parties. Paine could look upon human so-ciety as rather like a vast commercial concern, potentially worldwidein scope, that was held together by reciprocal interest and mutualconsent. But not so for Burke. In his view society

is to be looked on with other reverence; because it is not a partner-ship in things of subservient only to the gross animal existence ofa temporary and perishable nature. It is a partnership in all science;a partnership in all art; a partnership in every virtue, and in allperfection.95

92 Works, X, 44.9 3 Reflections, 110.94 An Appeal, Works, VI, 218.95 Reflections, 110.


Because of the nature of its purposes, the contract of society hasa character and a binding force different from those of ordinarycontracts. "As the ends of such a partnership cannot be obtainedin many generations, it becomes a partnership not only betweenthose who are living, but between those who are living, those whoare dead, and those who are to be born."" This sentence offendedPaine's commonsense mind and led him to ask what possible obli-gation can exist between those who are dead and gone, and thosewho are not yet born and arrived in this world; a fortiori, howcould either of them impose obligations on the living?" In a literalsense he was, of course, quite right. But if one turns one's attentionfrom contracting wills to the rational moral ends which those willsare bound to serve, one may conclude that, in the light of thoseends, obligations descend upon the present generation from thepast, and there are obligations in regard to generations yet unborn.

Men achieve their natural social goals only in history. Thestructures inherited from the past, if they have served and stillserve those goals, are binding upon those who are born into them.These persons are not morally free to dismantle the structures atpleasure and to begin anew from the foundations. For the goals inquestion are not those alone of the collection of individuals nowpresent on earth, but of human nature and of God.

This is to say that the constitution of a society, conventionaland historically—conditioned though it is, becomes a part of thenatural moral order because of the ends that it serves. In likemanner, it is possible to believe that marriage is natural andordained by God, and therefore imposes obligations superior tohuman wills, without believing that all marriages are made inheaven or that John and Mary marry each other for any reasonother than their own choice. But once they are married, they haveformed a union whose nature and obliging force are not subject totheir wills.

Burke himself made this point about marriage in An Appeal:"When we marry, the choice is voluntary, but the duties are notmatter of choice." He also stated a more fundamental principleabout moral obligation:

We have obligations to mankind at large, which are not in con-sequence of any special voluntary pact. They arise from the relation

96 Ibid., 110.97 Rights of Man, 279.


of man to man, and the relation of man to God, which relationsare not matters of choice. On the contrary, the force of all thepacts we enter into with any particular person or number of personsamongst mankind, depends upon those prior obligations s8

But this is to say that human relations are not all external andcontractual. The most basic relations are intrinsic to man, rootedin his nature as a human being and a creature of God. It is thesethat supply the binding force to relations that are voluntarilyassumed and make the latter a part of the natural moral order.

This is the thought that lies behind Burke's rhetorical languagein the next part of the passage on the contract of society in theReflections.

Each contract of each particular state is but a clause in the great,primaeval contract of eternal society, linking the lower with thehigher natures, connecting the visible and invisible world, accord-ing to a fixed compact sanctioned by the inviolable oath which holdsall physical and all moral natures, each in their appointed place.This law is not subject to the will of those, who by an obligationabove them, and infinitely superior, are bound to submit their willto that law.99

The "great primaeval contract" and the "inviolable oath" are, ofcourse, the moral order of the world as established by God. Itfurnishes a law to which civil societies as well as individuals areobliged to conform.

But are people never free to change their constitution and theirgovernment? Burke does not quite say that. "The municipal cor-porations of that universal kingdom are not morally at liberty attheir pleasure, and on their speculations of a contingent improve-ment, wholly to separate and tear asunder the bands of their.subordinate community, and to dissolve it into an unsocial, uncivil,unconnected chaos of elementary principles." 100 The key phrase inthis statement, however, is "at their pleasure." There is also the un-spoken assumption, characteristic of Burke, that a political revo-lution would be tantamount to a dissolution of society as such.Underlying that assumption was a conception of the constitutionwhich one writer has well described in these words: "Burke . . .understood `constitution' to mean the entire social structure ofEngland and not only the formal governmental structure . . . in-

98 Works, VI, 206.99

P. 110.Imo Ibid., 110.


cluded in his concept of constitution was the whole corporate societyto which he was devoted.'

,101 No people, Burke said, had the right

to overturn such a structure at pleasure and on a speculation thatby so doing they might make things better.

Nonetheless, he could not and did not deny that a revolutionwas sometimes necessary. He only insisted that it could not bejustified but by reasons that were so obvious and so compelling thatthey were themselves part of the moral order.

It is the first and supreme necessity only, a necessity that is notchosen but chooses, a necessity paramount to deliberation, that ad-mits no discussion, and demands no evidence, which alone canjustify a resort to anarchy. This necessity is no exception to therule; because this necessity is itself a part too of that moral andphysical disposition of things to which man must be obedient byconsent or force; but if that which is only submission to necessityshould be made the object of choice, the law is broken, nature isdisobeyed, and the rebellious are outlawed, cast forth, and exiledfrom this world of reason, and order, and peace, and virtue, andfruitful penitence, into the antagonist world of madness, discord,vice, confusion, and unavailing sorrow.'"

One may feel that here Burke has gone beyond rhetoric intobombast. Yet the lines of his argument are clear enough. In AnAppeal from the New to the Old Whigs he made them more explicitand clearer still. It is difficult therefore to understand why FrankO'Gorman says in a recent work: "The present writer has alwaysfound it unusual that Burke rarely refers, either explicitly or evenimplicitly, to the principles that are supposed to have been thefoundations of his thought. Burke, was, indeed, uninterested inthe workings of the Divine power." 1 ° 3 It seems obvious to thiswriter that, particularly in the Reflections and An Appeal, Burkenot only refers to but elaborates in detail the principles that arethe foundation of his theory of civil society and political authority.He was, it is true, a practicing politician, not a philosopher, andin these two works he wrote a polemic, not a dispassionate treatiseon political theory. But his polemic included the presentation of acounter–theory to the theory he was attacking. The counter–theorydepended in turn on explicitly stated premises of a moral and meta-

101 Ripley, R. B., "Adams, Burke and 18th–century Conservatism," PoliticalScience Quarterly, LXXX (1965), 228.

102 Reflections, 110-111.103 Edmund Burke: His Political Philosophy Bloomington and London: In-

diana Univ. Press, 1973), 13, n. 5.


physical nature. The premises are expounded, one must admit, inrhetorical language, especially in the Reflections. But they are, toborrow Burke's words, not impossible to be discerned.

Briefly, the ultimate premises of Burke's political thought areprovided by the metaphysics of a created universe. They assumethe superiority of reason or intellect to will both in God and man.Part of this universe is the natural moral order based on the natureof man as created by God. Man's nature is oriented by creation toends that may be globally described as its natural perfection. Sincecivil society is necessary to the attainment of that perfection, it toois natural and willed by God.

The authority of the state derives from the rational and moralends that it is intended , by nature to serve. Consent plays a rolein the formation of the state and the conferral of its authority ongovernment, since both involve human acts of choice. But the obli-gation to form a civil society is prior to consent, and, for thoseborn under a constitution, consent to the constitution is commandedby the previous obligation to obey a government that is adequatelyserving the natural goals of society. Rights also play a part inBurke's political theory. But the basic political right is the rightto be governed well, not the right to govern oneself. In Burke'sthought, purpose and obligation are more fundamental than rightsand consent.

One must agree with Mr. O'Gorman in his refusal to assume"that everything which Burke wrote can be treated upon the samelevel of abstraction" or "that Burke's political actions were invari-ably prompted by political theory." One must also concede to Mr.O'Gorman the right to refuse, as he does, to "attempt to show thatBurke was a member of any particular 'school' or 'tradition' [or]to 'locate' him in the history of political thought."

104 But, in the

light of what Burke in fact wrote, it would seem that one canlocate him in what Alan Gewirth calls "that perennial tradition ofpolitical philosophy" according to which "the state is explained bythe rational moral ends which it enables men to achieve, so thatboth it and the political authority exercised in it are at onceproducts of and limited by reason."

One may well wonder whether this tradition has anything tooffer to a nation that declared its independence with a summarystatement of political philosophy couched in these terms:

104 Ibid., 14.


We hold these truths to be self-evident, that all men are createdequal, that they are endowed by . their Creator with certain un-alienable Rights, that among these are Life, Liberty and the pur-suit of Happiness.—That to secure these rights, Governments areinstituted among Men, deriving their just powers from the consentof the governed,—That whenever any Form of Government becomesdestructive of these ends, it is the Right of the. People to alter orto abolish it, and to institute new Government, laying its foundationon such principles and organizing its powers in such form, as tothem shall seem most likely to effect their Safety and Happiness.

But, in view of the growing inability of an individualisticphilosophy of rights to cope with the problems of the modern state,perhaps the perennial tradition has something to offer, even thoughthe grounds for hoping that contemporary America will accept theoffer are slim. As for Burke himself, it is easy to dismiss him asa defender of class interests, particularly if one is oneself imbuedwith the class prejudices of the British Labour Party. It is easierstill for Americans to do so, since the social structure he defendednever took root in our soil. Yet possibly Americans could learnsomething of value even from him.

It is becoming clear that a liberal political philosophy whosebasic premises are rights and consent is, not simply false, butcertainly inadequate. In an age in which more and more demandson the political system are asserted as rights, liberal theory offersno substantive norms by which to distinguish genuine from spuri-ous claims of right. The spectacle of public doubt whether societyis justified in "imposing" its heterosexual values on homosexuals isonly one (though probably the most ludicrous) of the instances thatreveal how bankrupt our legal and political theory has become.

To put it even more bluntly, liberty and equality cannot be thehighest values of a political system because they relativize andultimately destroy all other values. Because of its devotion toliberty and equality, liberal thought provides no set of objectivelyvalid human ends that could serve as the communal values withoutwhich in the long run there is no community. It provides no firmbasis on which such societal values as happen to be held can betransmitted from generation to generation, as the bewilderment andanguish of multitudes of parents testify today. It gives no satisfac-tory explanation of the morally–binding continuity in history ofthe community and its political constitution. Finally, at a timewhen the obligation to consent to the political system is widely


called into question, liberalism has no convincing answer to thequestion why men should consent."5

In short, the liberal society lacks what Walter Lippmann calledthe public philosophy. It will lack it increasingly as the moral andreligious capital of Western culture, on which liberalism has alwaystraded, is drained away. It would be foolish, of course, to pretendthat our spiritual capital can be restored by a revival of traditionalpolitical theory. But the revival would be a necessary part of arestored public philosophy.

This is not to suggest that American society today could solveits problems by taking over bodily the political theory of an aris-tocratic eighteenth–century British statesman. Nor are Americansforced to choose between Edmund Burke and Thomas Paine: therange of choice in political theory is infinitely greater than that.I venture only to submit that Burke has something to offer as acorrective to a political theory that has become lopsided. If onereads Burke discerningly, willing to accept as well as to reject, onewill discover in his writings a restatement of an age–old publicphilosophy that can help to fill some of the gaping holes in Americanpolitical thought.

FRANCIS CANAVAN

Fordhant University

105 For a recent and penetrating critique of liberal thought and a candidexposition of the intellectual problems encountered in framing a more adequatetheory of society, see Unger, Roberto Mangabeira. Knowledge and Politics (NewYork: The Free Press, 1975).

Documents

THE BURKE-PAINE CONTROVERSY - · PDF fileTHE BURKE-PAINE CONTROVERSY Reflections on the Revolution in France, by Edmund Burke, and The Rights of Man, by Thomas Paine. (Garden City,