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← 19. The Burkean Outlook

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  1. Prof: So this morning
    we're going to start talking
  2. about Edmund Burke and the
  3. And one prefatory note is that
    when thinking about political
  4. theory as opposed to everyday
    political argument I think it's
  5. very important not to get hung
    up on labels such as left wing,
  6. or right wing,
    or liberal, or conservative.
  7. And I think the occasion of
    beginning to speak about Burke
  8. is a good moment to make this
  9. After all, I think it'd be fair
    to say that before you walked
  10. into this course if you had
    looked down the syllabus and
  11. somebody had said,
    "Who is the most radical
  12. thinker on this syllabus?"
  13. most of you would have picked
    out Marx.
  14. But as we've seen,
    Marx is actually a footnote to
  15. the Enlightenment.
  16. Marx is not,
    he's not somebody who engages
  17. in a radical departure from the
    ideas that were developed by
  18. Locke and the other thinkers
    that shaped the main ideas of
  19. the Enlightenment.
  20. Burke, on the other hand,
    is generally thought of as a
  21. conservative politically,
    and indeed he was a
  22. conservative politically,
    but philosophically he's a much
  23. more radical thinker than Marx
  24. He is somebody who really goes
    to the root of accepted
  25. assumptions in his critical
  26. Burke completely rejects the
    Enlightenment project as I have
  27. described it to you today.
  28. Let me say a little bit about
    who he was.
  29. He was born in 1829,
    so that makes him,
  30. I mean 1729,
  31. I gave him a hundred years
  32. He was born in 1729,
    a quarter of a century after
  33. Locke died,
    and the main work for which he
  34. is most known,
    his Reflections on the
  35. Revolution in France,
    was published in 1790 almost
  36. exactly a century after,
    actually more like 110 years
  37. after Locke's Second
  38. Well, I should say it was
    published a hundred years after,
  39. but it was written a 110 years
    after because we now know that
  40. Locke wrote The Second
    Treatise in the early 1680s.
  41. But what motivated Burke to
    write his reflections on the
  42. French Revolution was the
    appalling carnage that
  43. eventually resulted from the
    French Revolution.
  44. The French Revolution was not
    planned as a revolution.
  45. It was really street riots that
    escalated in Paris,
  46. but escalated to the point of
    the complete destruction of the
  47. whole society,
    the inauguration of a massive
  48. terror,
    which appalled Burke.
  49. And so he wrote this,
    what started out as a pamphlet,
  50. but became this very famous
    book on the Reflections on
  51. the Revolution in France
    , and that becomes a
  52. basis of Burke's outlook.
  53. He wasn't a professional
    scholar or academic.
  54. He was actually a public person.
  55. He would eventually become a
    Member of Parliament and has
  56. some things to say about
    democratic representation that I
  57. will come back to when we get to
    the theory of democracy.
  58. But at the time he wrote the
    Reflections on the Revolution
  59. in France,
    which is what I had you read
  60. excerpts from today,
    he was mainly preoccupied with
  61. what had happened,
    what had transpired across the
  62. Channel in 1789.
  63. And he was, in particular,
    concerned to establish against
  64. people like Richard Price,
    who's one of the people who he
  65. engages there,
    that 1789 was in any sense a
  66. logical follow-on of 1688 in
  67. 1688, of course,
    when we had the revolution in
  68. England,
    the glorious revolution of 1688
  69. when William was put on the
  70. which Locke defended,
    but from Burke's point of view
  71. that was a minor palace affair
    not a fundamental or radical
  72. revolution.
  73. And in this sense Locke's
    view--I'm sorry,
  74. Burke's view of the English
  75. for those of you who are
    historians here you might be
  76. interested to know,
    is very much at odds with the
  77. big new book called 1688
    just recently published by
  78. Professor Pincus in the history
    department here,
  79. a very interesting book which
    argues that 1688 was a much more
  80. radical break with the past than
    people thought at the time,
  81. and certainly than Burke
    thought because Burke thought
  82. that 1688 was not a radical
    break with the past whereas 1789
  83. in France was a radical break
    with the past.
  84. And I think that another thing
    to say before we get into the
  85. particulars of Burke's view is
  86. unlike everybody else you've
    read in this course,
  87. Burke really does not have a
    theory of politics.
  88. He does not have a set of
    premises that you can lay out,
  89. conclusions to which he wants
    to get and then change of
  90. reasoning that get him from A to
    B from the premises to the
  91. conclusion.
  92. There is no theory of politics
    in Burke.
  93. With Kant we talk about
  94. Locke we talk about this
    commitment to principles of
  95. scientific certainty.
  96. Burke has, rather than a
    theory, he has an attitude or a
  97. disposition,
    an outlook, and that outlook is
  98. informed first and foremost by
    extreme distrust not only of
  99. science,
    but of anybody who claims to
  100. have scientific knowledge.
  101. He thinks that human society is
    way too complicated for us ever
  102. to get completely to the bottom
    of it.
  103. That we are kind of carried
    along on a wave of very
  104. complicated history that we
    understand only dimly,
  105. if at all, and that that's not
    going to change.
  106. The human condition is a
    condition first and foremost,
  107. of fumbling in the dark.
  108. He says, just to give you a
    flavor of this),
  109. "The science of
    constituting a commonwealth,
  110. or renovating it,
    or reforming it,
  111. is,
    like every other experimental
  112. science,
    not to be taught a priori."
  113. So here you can see a complete
    resistance to the logical
  114. reasoning that drove Hobbes and
    Locke in thinking about the
  115. structure of mathematics and a
    system of axioms of the sort
  116. Bentham tried to come up with.
  117. "No,"
    says Burke, "Nor is it a
  118. short experience that can
    instruct us in that practical
  119. science;
    because the real effects of
  120. moral causes are not always
  121. but that which in the first
    instance is prejudicial may be
  122. excellent in its remoter
  123. (so when we think we see
    something bad it might be having
  124. a good effect) and its
    excellence may arise even from
  125. the ill effects it produces in
    the beginning.
  126. The reverse also happens;
    and very plausible schemes,
  127. with very pleasing
  128. have often shameful and
    lamentable conclusions.
  129. In states there are often some
    obscure and almost latent
  130. causes,
    things which appear at first
  131. view of little moment,
    on which a very great part of
  132. its prosperity or adversity may
    most essentially depend."
  133. So the world is fundamentally
    mysterious and murky.
  134. And things that look good might
    have bad consequences.
  135. Things that look bad might have
    good consequences.
  136. The effects of our actions are
    going to be realized in the
  137. distant future in ways that we
    can't possibly imagine.
  138. And so that being the case the
    most important characteristic of
  139. thinking about politics is
  140. We should be cautioned.
  141. "The science of government
  142. therefore, so practical in
    itself, and intended for such
  143. practical purposes,
    a matter which requires
  144. experience,
    and even more experience than
  145. any person can gain in his whole
  146. however sagacious and observing
    he may be,
  147. it is with infinite caution
    that any man ought to venture
  148. upon pulling down an edifice
    which has answered in any
  149. tolerable degree for ages the
    common purposes of society,
  150. or on building it up again
    without having models and
  151. patterns of approved utility
    before his eyes."
  152. So what they did in the French
    Revolution was the antithesis of
  153. what Burke recommends,
    because they swept everything
  154. away and decided to build again
    tabula rasa.
  155. Burke is deeply suspicious of
    all attempts to do that and he
  156. thinks they'll end in disaster
    because the people who undertake
  157. them will not know what they're
  158. and even more dangerous,
    they're not smart enough to
  159. know how dumb they are.
  160. They're not smart enough to
    realize that they really do not
  161. know what they're doing.
  162. They're not smart enough to
    understand that they will
  163. unleash forces which they will
    not be able to control.
  164. So Burke is,
    in that sense,
  165. a conservative who thinks about
    social change in a very cautious
  166. and incremental way.
  167. He's not a reactionary in the
    sense of being someone who's
  168. opposed to all change.
  169. He's a conservative.
  170. I think one of the nice
    definitions of conservatism in
  171. Burke's sense was actually put
    forward by Sir Robert Peel in
  172. the nineteenth century when he
  173. he defined conservatism as,
    "Changing what you have to
  174. in order to conserve what you
  175. Changing what you have to in
    order to conserve what you can,
  176. as distinct from a reactionary
    view which would be just flat
  177. resistance to all change.
  178. Now, of course,
    this idea of conservatism as
  179. valuing tradition is very
    different from the libertarian
  180. conservatism of Robert Nozick
    that we looked at earlier in the
  181. course.
  182. The libertarian conservatism of
    Robert Nozick is anti-statist,
  183. anti-government,
    and resistance to authority
  184. being imposed on you,
    hence the notion of libertarian
  185. conservatism.
  186. Burke is a traditionalist
  187. He thinks that tradition is the
    core of human experience,
  188. and he thinks whatever wisdom
    we have about politics is
  189. embedded in the traditions that
    we have inherited.
  190. "They have served us over
  191. this is his view writing at the
    end of the eighteenth century,
  192. "they have served us for
  193. They have evolved in a glacial
  194. As I said, people make
    accommodations to change,
  195. but only in order to conserve
    the inherited system of norms,
  196. practices and beliefs in
    institutions that we reproduce
  197. going forward.
  198. So that's the sense in which
    it's a conservative tradition;
  199. to conserve,
    the basic meaning of the word
  200. conserve, conservative.
  201. And so science is a really bad
    idea when applied to political
  202. and social arrangements because
    there isn't scientific
  203. knowledge,
    and anybody who claims to have
  204. it is either a charlatan or a
  205. perhaps both.
  206. And so, as I said,
    he doesn't have a theory
  207. because he's skeptical of the
    very possibility of having a
  208. theory.
  209. He thinks we should,
    as Clint Eastwood says--
  210. I've forgotten in which movie
    it is,
  211. I think A Fistful of
  212. maybe--"A man's got to
    know his limitations.
  213. Are you feeling lucky?"
  214. A man's got to know his
    limitations, Burke thinks that
  215. in spades.
  216. He thinks we have to understand
    that our grasp of the human
  217. condition is very limited and
    it's going to stay that way.
  218. So, on the first of our two
    prongs of the Enlightenment
  219. endeavor he's completely out of
  220. Now what about the second?
  221. What about the commitment to
    this idea of the importance of
  222. individual rights?
  223. We saw how this developed
    initially in Locke's formulation
  224. in a theological way when Locke
    argued that God created us with
  225. the capacity to behave in a God
    like fashion in the world.
  226. Each individual is the bearer
    of the capacity to create
  227. things, and therefore have
    rights over his or her own
  228. creation.
  229. In Locke's view we're all equal.
  230. We're equal in God's sight.
  231. He creates us all equally,
    and we're all also equal in the
  232. sense,
    very important for Locke,
  233. that no earthly power has the
    authority to tell us what the
  234. scripture says.
  235. Each person must do it for
  236. and when they disagree they
    have to either find a mechanism
  237. to manage their disagreement,
    or if they can't,
  238. look for their reward in the
    next life.
  239. But basically each individual
    is sovereign over themselves.
  240. And that's where modern
    doctrines of individual rights
  241. come from.
  242. We saw how that played out with
    the workmanship ideal,
  243. Mill's harm principle all the
    way down through Nozick and
  244. Rawls.
  245. Bentham has, I'm sorry;
    Burke has a very,
  246. very different view of the idea
    of rights.
  247. They're first of all,
    they are inherited.
  248. They're not the product of
    reason or any contrived
  249. theoretical formulations.
  250. They're inherited.
  251. "You will observe that
    from Revolution Society to the
  252. Magna Carta it has been the
    uniform policy of our
  253. constitution to claim and assert
    our liberties as an entailed
  254. inheritance derived to us from
    our forefathers,
  255. and to be transmitted to
  256. as an estate specially
    belonging to the people of this
  257. kingdom,
    without any reference whatever
  258. to any other more general or
    prior right.
  259. By this means our constitution
    preserves a unity in so great a
  260. diversity of its parts.
  261. We have an inheritable crown,
    an inheritable peerage,
  262. and a House of Commons and a
    people inheriting privileges,
  263. franchises, and liberties from
    a long line of ancestors."
  264. So what we think of when we
    talk about rights for Burke,
  265. first of all,
    they're not human rights or
  266. natural rights for him,
    they are the rights of
  267. Englishmen.
  268. They are the rights of
  269. they are particular rights.
  270. They're the result of a
    particular tradition.
  271. The idea that there could be
    universal rights doesn't make
  272. any sense.
  273. It's not an intelligible
    question, as far as Burke is
  274. concerned,
    to assay what Rawls would say,
  275. what rights would we create for
    all people in some abstract
  276. setting?
  277. It doesn't make any sense to
  278. So it's the rights of
  279. And indeed, when Burke was
    sympathetic to the American
  280. Revolution,
    not the French Revolution,
  281. it was because he thought that
    the rights of the American
  282. colonists as Englishmen were
    being violated by the English
  283. Crown.
  284. And he was also sympathetic to
    claims for home rule for
  285. Ireland, again,
    on the same sort of basis.
  286. But it's this entailed
    inheritance, what we have been
  287. born into as a system of rights
    and obligations that we
  288. reproduce into the future.
  289. And those rights,
    above all, are limited.
  290. Again, just as our knowledge of
    the world is limited so our
  291. rights, in the normative sense,
    are limited.
  292. "Government is a
    contrivance of human wisdom to
  293. provide for human wants.
  294. Men have a right that these
    wants should be provided for by
  295. this wisdom.
  296. Among these wants is to be
    reckoned the want out of civil
  297. society, of a sufficient
    restraint upon their
  298. passions."
  299. We have a right to be
    restrained, a very different
  300. notion than a right to create
    things over which we have
  301. authority, a right to be
  302. "Society requires not only
    that the passions of individuals
  303. should be subjected,
    but that even in the mass and
  304. body,
    as well as in the individuals,
  305. the inclinations of men should
    frequently be thwarted,
  306. their will controlled,
    and their passions brought into
  307. subjection.
  308. This can only be done by a
    power out of themselves,
  309. and not, in the exercise of its
  310. subject to that will and to
    those passions which it is its
  311. office to bridle and subdue.
  312. In this sense the restraints on
    men, as well as their liberties,
  313. are to be reckoned among their
  314. The restraints on men,
    as well as their liberties,
  315. are to be reckoned among their
  316. "But as the liberties and
    the restrictions vary with times
  317. and circumstances and admit to
    infinite modifications,
  318. they cannot be settled upon an
    abstract rule (take that John
  319. Rawls);
    and nothing is so foolish as to
  320. discuss them upon that
  321. So we have a right to be
  322. We have a right,
    most importantly,
  323. that others are going to be
  324. and that our passion should be
    controlled is something that he
  325. insists is an important part of
    what we should think of under
  326. the general heading of what it
    is that people have rights to.
  327. "One of the first motives
    to civil society,
  328. and which becomes one of its
    fundamental rules,
  329. is that no man should be the
    judge in his own cause.
  330. By this each person has at once
    divested himself of the first
  331. fundamental right of
    uncovenanted man,
  332. that is, to judge for himself
    and to assert his own
  333. cause."
  334. That's not that different from
    Locke, that first part.
  335. After all, Locke talks about
    the state of nature as being
  336. exactly a state in which we get
    to judge in our own cause,
  337. but for Locke we give it up in
    a conditional way.
  338. We never lose the right to
    revolution if society doesn't
  339. protect us, and that's what he
    thought was triggered in 1688.
  340. Burke says no.
  341. "He advocates all right to
    be his own governor.
  342. He inclusively,
    in a great measure,
  343. abandons the right of
  344. the first law of nature.
  345. Men cannot enjoy the rights of
    an uncivil and of a civil state
  346. together.
  347. That he may obtain justice,
    he gives up his right of
  348. determining what it is in points
    the most essential to him.
  349. That he may secure some liberty;
    he makes a surrender in trust
  350. of the whole of it."
  351. This, to some extent,
    has a Hobbesian flavor that
  352. Hobbes says,
    "If we don't have law
  353. we'll have civil war,
    and so we have to give up
  354. freedom to authority."
  355. The difference is even in
    Hobbes's formulation there's
  356. ultimately the recognition that
    if society does not provide you
  357. with protection you have a
    reasonable basis for resistance
  358. and for overthrowing it.
  359. But in Locke's case,
    I mean, in Burke's case he
  360. doesn't want to concede even
  361. Because we cannot,
    once we've made the transition
  362. into civil society,
    we cannot go back.
  363. There is no turning back.
  364. We are part and parcel of this
    system of entailed inheritances
  365. and that is the human condition
    all the way to the bottom.
  366. He doesn't reject completely
    the metaphor of the social
  367. contract, but he makes it
  368. He says, "Society is
    indeed a contract.
  369. Subordinate contracts for
    objects of mere occasional
  370. interest may be dissolved at
    pleasure (if I make an agreement
  371. with you to do something we can
    agree to dissolve our
  372. agreement)--
    but the state ought not to be
  373. considered as nothing better
    than a partnership agreement in
  374. a trade of pepper and coffee,
    calico or tobacco,
  375. or some other such low concern
    to be taken up for a little
  376. temporary interest,
    and to be dissolved by the
  377. fancy of the parties.
  378. It is to be looked on with
    other reverence (the
  379. "it"
    here is the state) - because it
  380. is not a partnership in things
    subservient only to the gross
  381. animal existence of a temporary
    and perishable nature - it is a
  382. partnership in all science;
    a partnership in all art;
  383. a partnership in every virtue,
    and in all perfection."
  384. "As the ends of such a
    partnership cannot be obtained
  385. in many generations,
    it becomes a partnership (now
  386. this is the most famous sentence
    Burke ever wrote) not only
  387. between those who are living,
    but between those who are
  388. living, those who are dead,
    and those who are yet to be
  389. born."
  390. A very different idea of the
    social contract,
  391. partnership between those who
    are living, those who are dead
  392. and those who are yet to be
  393. "Each contract of each
    particular state is but a clause
  394. in the general primeval contract
    of eternal society."
  395. So, the "law is not
    subject to the will of those
  396. (this is a flat rejection of
  397. who by an obligation above
    them, and infinitely superior,
  398. are bound to submit their will
    to that law.
  399. The municipal corporations of
    that universal kingdom are not
  400. morally at liberty at their
  401. and on the speculations of a
    contingent improvement,
  402. wholly to separate and set
    asunder the bonds of their
  403. subordinate community,
    and to dissolve it into an
  404. unsocial,
    uncivil, unconnected chaos of
  405. elementary principles."
  406. So one way of just driving home
    the radical break here between
  407. his thought and the social
    contract theorists is to mention
  408. that one of the standard
    criticisms that often gets made
  409. of social contract theory is,
    well, even if there was a
  410. social contact,
    you know, some people think of
  411. the adoption of the American
    Constitution as a kind of social
  412. contract.
  413. After all it was ratified by
    the states.
  414. Actually, the Articles of
    Confederation had said it had to
  415. be unanimously ratified,
    and they couldn't get that,
  416. so they changed it to
    three-quarters of the
  417. confederacy states.
  418. Still, there was an agreement
    of some sort,
  419. and it was ratified and so on,
    but people have often said,
  420. "Well, so what?
  421. So those people in the
    eighteenth century made an
  422. agreement.
  423. I didn't.
  424. What has it got to do with me?
  425. Why should it be binding on
    subsequent generations?"
  426. And that's often been a
    critique of the idea of the
  427. social contract.
  428. Burke turns that reasoning on
    its head.
  429. He says, "Once we see that
    this social contract is
  430. multi-generational between the
  431. the living, and those who are
    yet to be born,
  432. who are you (any given
  433. who are you to think that you
    can upend it?
  434. What gives you the right to
    pull the rug out from under this
  435. centuries-old evolving social
  436. What gives you the right to
    take it away from those who
  437. haven't even been born who are
    part of this (he even uses the
  438. word eternal) eternally
    reproducing social
  439. contract."
  440. So it's a sort of mirror image
    of the critique which says,
  441. "Well, we never made it so
    why should we be bound by
  442. it?"
  443. He says, "It preexisted
  444. and you're going to predecease
    it, and you don't have the
  445. right,
    you don't have the authority to
  446. undermine it because any rights
    you think you have are the
  447. product of this evolving
  448. they're contained within
  449. So society is not subordinate
    to the individual,
  450. which is the most rock-bottom
    commitment of the workmanship
  451. idea.
  452. On the contrary,
    the individual is subordinate
  453. to society.
  454. Obligations come before rights.
  455. We only get rights as a
    consequence of the social
  456. arrangements that give us our
    duties as well.
  457. So whereas the Enlightenment
    tradition makes the individual
  458. agent the sort of moral center
    of the universe,
  459. this god-like individual
    creating things over which she
  460. or he has absolute sovereign
  461. is replaced by the exact mirror
    image of the idea of an
  462. individual as subordinate to
    inherited communities,
  463. traditions, social
  464. and political institutions to
    which he or she is ultimately
  465. beholden.
  466. If there was a pre-collective
    condition it's of no relevance
  467. to us now because we can't go
    back to it,
  468. and any attempt to try,
    look across the English Channel
  469. and see what you're going to
  470. That is the Burkean outlook in
    a nutshell, and it is,
  471. as I said, the most fundamental
    critique of the Enlightenment
  472. it's possible to make.
  473. And even though the
    Enlightenment tradition,
  474. as we have studied it here,
    was unfolding in the
  475. seventeenth,
    eighteenth, nineteenth and
  476. twentieth centuries,
    this anti-Enlightenment
  477. undertow has always been there
    as well.
  478. Not to make the metaphor do too
    much work,
  479. but you can really think of
    every wave of advancement in
  480. Enlightenment thinking washing
    down the beach and producing an
  481. undertow of resistance and
    resentment against it,
  482. both philosophically,
    and I'm going to start talking
  483. in a minute about
    twentieth-century Burkean
  484. figures,
    but also politically.
  485. One story about the rise of
  486. and jihadism,
    and ethnic separatism is this
  487. is all part of the political
    undertow against the current
  488. form that the Enlightenment
    political project is taking,
  489. which is globalization,
  490. this sort of McDonald's effect
    on the world,
  491. produces this backlash against
    globalization where people
  492. affirm primordial-looking
  493. even though there's probably no
    such thing as a genuinely
  494. primordial one,
  495. partial affiliations and
  496. connections to doctrines which
    deny the scientific and rational
  497. project of the Enlightenment.
  498. And so, just as globalization
    has been advancing we've seen a
  499. resurgence of separatists,
    religious fundamentalists,
  500. nationalists,
    and other kinds of identities.
  501. Quite the opposite,
    for example,
  502. of what Marx predicted.
  503. Marx predicted that things like
    nationalism, sectarian
  504. identifications,
    would go away,
  505. and Lenin too.
  506. They thought that as the
    principles of capitalism defused
  507. themselves throughout the world,
    things like national
  508. attachments would go away.
  509. And indeed on the eve of the
    First World War there was the
  510. Second Communist International
    where they basically came out
  511. and said to the workers of
  512. "Don't get involved in
    this national war.
  513. It's not in your interest.
  514. You have a common class
    interest across nations against
  515. the interest of employers across
  516. and of course this fell on
    completely deaf ears.
  517. In 1916 the Second
    International pretty much
  518. disintegrated.
  519. And, in fact,
    one of the big paradoxes of the
  520. twentieth century has been the
    persistence of things like
  521. nationalism through the first
    two world wars and then in the
  522. last part of the twentieth
  523. this resurgence of religious
    and other forms of
  524. traditionalist attachment that
    are fundamentally antithetical
  525. to the Enlightenment project.
  526. So the Enlightenment has always
    produced reaction,
  527. undertow, rejection,
    often from the people who don't
  528. benefit from it,
    and it's one of the ways in
  529. which I think the proponents of
    the Enlightenment have always
  530. been politically na�ve.
  531. They've always thought that as
    modernization and Enlightenment
  532. diffuses itself throughout the
    world these kinds of primitive
  533. thinking will go away.
  534. Well, it turns out that they
  535. and so one of the big tasks of
    political science at the present
  536. time is to try and understand
  537. to try and understand what the
    dynamics of political
  538. affiliation and identity
    attachment really are.
  539. And so that's a Burkean agenda.
  540. Now if you fast-forward from
    Burke to the middle of the
  541. twentieth century,
    I had you read a short piece,
  542. very famous and important
  543. by Lord Devlin who was an
    English judge.
  544. Like Burke, someone with Irish
  545. though some certain amount of
    ethnic ambiguity in both cases
  546. there about just how much Irish
    and just how much English,
  547. but we needn't detain ourselves
    with that in this course.
  548. And he was commenting upon
    something called the Wolfenden
  549. Report,
    which was published in 1959 by
  550. a commission that had been asked
    to tell the British Parliament
  551. what it should do about
    homosexuality and prostitution.
  552. And the Wolfenden Report had
    said, "The laws against
  553. them should be repealed.
  554. They should both be legalized
    on the grounds (they didn't use
  555. these terms but this is the
    basic thought or the term we
  556. would use today) that both
    homosexuality and prostitution
  557. are victimless crimes."
  558. They are, to use the jargon of
    our course, Pareto-superior
  559. exchanges.
  560. They're voluntary transactions
    among consenting adults that
  561. don't harm anybody else.
  562. And of course this was put in a
    different idiom because it was
  563. the 1950s, but that was
    essentially the point.
  564. They don't harm anybody,
    so it's just traditional
  565. prejudice, bigotry that leads us
    to outlaw these things and we
  566. shouldn't do it.
  567. That was what the Wolfenden
    Report had said.
  568. And Burkean-to-the-core Lord
    Devlin says, "No!"
  569. I don't know how caught up you
    are in the reading.
  570. Anyone who has read Burke--I'm
    sorry, Devlin,
  571. tell us why he thinks this.
  572. Yeah?
  573. We need to get you the mic.
  574. Why he thinks,
    why is it that Lord Devlin
  575. thinks that the mere fact that
    there's no harm is not enough of
  576. a basis for legalizing
    homosexuality and prostitution.
  577. Yeah?
  578. Student: He claims that
    it's not an attack against the
  579. individual but a harm against
  580. Prof: So what does that
    mean, though,
  581. when you say it's a harm
    against society?
  582. How do you unpack that in your
    own mind?
  583. Student: I guess it's
    maybe an attack against the
  584. morals that society tends to
    agree to.
  585. Prof: Yeah, well, agreed.
  586. Let's put brackets around
  587. It's not what we mean by it,
    but certainly the morals that
  588. are there.
  589. And where do they come from?
  590. Where do those morals,
    I mean, so we have a moral code
  591. that says homosexuality and
    prostitution are wrong,
  592. but where does that come?
  593. Anyone?
  594. Yeah?
  595. Student: Well,
    he put a lot of weight on the
  596. basis of religion for driving
    one's morals.
  597. Prof: Correct,
    religion, an interesting--look
  598. what he says about religion.
  599. He says, "Morals and
    religions are inextricably
  600. joined--
    the moral standards generally
  601. accepted in Western civilization
    being those belonging to
  602. Christianity.
  603. Outside Christendom (there's a
    1950s word, we don't say
  604. Christendom anymore,
    do we?)
  605. other standards derive from
    other religions."
  606. Outside Christendom other
    standards derived from other
  607. religion.
  608. "In England we believe in
    the Christian idea of marriage
  609. and therefore adopt monogamy as
    a moral principle.
  610. Consequently the Christian
    institution of marriage has
  611. become the basis of family life,
    and so part of the structure of
  612. our society.
  613. It is there not because it is
    Christian (this comes to the
  614. point about whether we've
  615. It has got there because it is
  616. but it remains there because it
    is built into the house in which
  617. we live and could not be removed
    without bringing it down."
  618. It's there not because it's
    Christian, it got there because
  619. it's Christian,
    it's a matter of history.
  620. It was a Christian civilization.
  621. So we have a Christian
    conception of morality,
  622. but he's not saying it's true.
  623. He's not saying that the
    Christian set of beliefs about
  624. religion is true.
  625. He has no interest in the
    question of whether or not it's
  626. true.
  627. He's saying here,
    "A different society might
  628. be glued together by a different
    religion which wouldn't create
  629. monogamy.
  630. It might create polygamy,
    and that would have its own
  631. history and its own system of
    rights and institutions and
  632. everything that goes with
  633. So it's conservative in the
    sense of affirming tradition,
  634. but not conservative in the
    sense of saying there are
  635. absolute moral values.
  636. Neither Burke nor Devlin
    ventures any opinion on that
  637. subject.
  638. They say it's not even really
  639. What's important is that the
    people in the society believe in
  640. these values.
  641. And if the people in this
    society don't believe in some
  642. system of values as
  643. the society will fall apart.
  644. You can't put together a
    society just on the basis of
  645. interest.
  646. It needs more.
  647. It needs moral glue.
  648. So these folks,
    you could say when I say they
  649. don't really have a theory in
    the sense that we've looked at
  650. theories up until now in this
  651. it's because you could say,
  652. they're not political theorists.
  653. They're really sort of
  654. They're really sociologists of
    stability because they're saying
  655. that it's necessary for a
    society to be stable that it's
  656. held together by this kind of
    moral glue of authoritative
  657. opinion."
  658. So when you say to Lord Devlin,
    when he's defending the
  659. outlawing of homosexuality and
  660. "Well, that's just your
  661. his answer wouldn't be to deny
    that it's in some absolute sense
  662. an irrational position,
    but he would say,
  663. "Every society needs its
  664. Every society needs its
  665. And so he doesn't appeal to
    rationality, but he does appeal
  666. to what he calls reasonableness.
  667. And what is reasonableness?
  668. It's basically the system of
    beliefs, as he puts it,
  669. "of the man on the Clapham
  670. We might today say the woman on
    the A train reading the New York
  671. Post.
  672. The prejudices of the average
    person that is the basic
  673. yardstick,
    and if the average person is
  674. appalled by some practices,
    then they should be illegal.
  675. And that's the beginning and
    end of it.
  676. So what about that?
  677. You could fast-forward it since
    he talks about homosexuality and
  678. what we call gay rights today.
  679. If you look at the American
  680. in 1986 this came up before the
    Supreme Court in a case called
  681. Bowers versus Hardwick,
    and they essentially took the
  682. Burke-Devlin position.
  683. That is that states should be
    allowed to outlaw homosexuality
  684. because most people find it
  685. A couple of years ago it came
    back to the court and they said,
  686. "Well, mores have evolved
    enough since 1986 that we're
  687. going to overturn Bowers versus
  688. very Burkean.
  689. They're following the man on
    the Clapham omnibus.
  690. They're following the woman on
    the A train's prejudices,
  691. beliefs and values,
    and that's as it should be.
  692. What about that?
  693. How many people find this
  694. Only two?
  695. How many people find it
  696. So we still have at least half
  697. What's unappealing about it?
  698. Yeah?
  699. Student:
  700. Prof: Take the
  701. Student: According to
    his perspective we might still
  702. have a system of slavery in this
  703. Prof: According to this
    perspective we would still have
  704. slavery in this country.
  705. Well, I think he wouldn't
    concede the point that quickly.
  706. He would say what I just said
    about Bowers versus Hardwick
  707. that if the views of the man on
    the Clapham omnibus evolve
  708. enough,
    then we can recognize change.
  709. Now you might want to not
    accept that because what if they
  710. happen before--Yeah?
  711. Student: Yeah,
    to refute that I would just say
  712. that our morals and our ideas of
    what is right and wrong are
  713. shaped by the systems that we
    were born into and consequently
  714. I feel like Burke and Devlin's
    system ascribes a great deal of
  715. value to the moral conceptions
    at the beginning of society and
  716. that almost leads us to a system
    of stasis in terms of our
  717. morality.
  718. There seems to be too much
    stasis and no ability to
  719. reevaluate given how our moral
    systems are shaped.
  720. Prof: I think that's
  721. and we will pick up with this
    on Monday,
  722. but if you think that the basic
    society structure is okay you're
  723. likely to find this doctrine
  724. but if you think the basic
    structure of the society is
  725. deeply unjust then you're likely
    to be affronted by this outlook
  726. because one person's reasonable
    morality is another person's
  727. hegemony,
    and we'll start with that idea
  728. next time.