Skepticism and the State

Sometimes it’s valuable to reiterate truths, even if one has argued for them before (indeed several times). One such truth is that skepticism about power cannot successfully underwrite liberalism, in the sense of skepticism about the authority of the state, the “liberalism of fear.” The problem is that skepticism about power, as an argument, is in a sense too powerful, too sweeping. It applies to all forms of power, whether “public” or “private,” whether expressed through state “action” or state “inaction,” whether expressed through statutes and administrative regulation or through the common law. Because power is ubiquitous, skepticism about power cuts in no particular direction. It applies everywhere, and thus applies nowhere.

I refer here to a genre of arguments that try to ground liberalism in skepticism about power and insistence on the “fallibility” of the powerful. (I refer to liberalism in the European sense, which encompasses in different ways both American left-liberalism and American right-liberalism). Such arguments are a staple of the daily output of both the middlebrow journals and, with more elaborate apparatus, of the academic spokesmen of liberalism. Of course the left-liberal is more likely to invoke skepticism about state authority when the topic is, say, abortion, the right-liberal when the topic is environmental regulation or consumer protection. I will return at the end to the inevitable ideological selectivity of both types.

These arguments are usually decorated with a passing citation — to Burke or Oakeshott in the mouth of the right-liberal, to Mill in the mouth of the left-liberal. What is less often considered is that the arguments from skepticism or fallibility were exploded long ago by critics such as J.F. Stephen and James Landis, on the ground that the whole genre of argument is too powerful, too universally applicable, to justify anything in particular. Stephen pointed out that Mill’s effort to ground free speech and liberalism generally in arguments from the fallibility of the governors cut no ice. Fallible custodians of the state might just as well err in failing to prohibit speech that, on any view, ought to be prohibited, such as defamation or incitement to imminent violence; they might just as well err in failing to offer adequate protection to consumers or in offering excessive protection; and so on. Consider also the extraordinary power wielded recently in the form of selective refusal to enforce the law.

The possibility that power will be exercised or not exercised unwisely is undeniable, but abusus non tollit usum. Power must lie somewhere, and although no one can guarantee that any particular exercise of power or refusal to exercise power will be wise, no such impossible guarantee is necessary or assumed. As Stephen put it, “in cases in which it is obvious that no conclusion at all can be established beyond the reach of doubt, and that men must be contented with probabilities, it may be foolish to prevent discussion and prohibit the expression of any opinion but one, but no assumption of infallibility is involved in so doing.” In practical matters of government, of course, it is almost always the case that no conclusion can be established beyond the reach of doubt. That our reason is imperfect is merely the universal condition of humanity, the fallen state of man in its epistemic aspect. It applies to everything we do or fail to do, and thus cannot be invoked to bar, to license, or to mandate any action or inaction of the state in particular.

Landis, building on work by figures such as Robert Hale and John Dewey, took the critique a step farther by pointing out that skepticism about power should apply not only to everything undertaken or not undertaken by public power, but also, and crucially, to the exercise of “private” power. The term “private” is of course a misnomer, insofar as such power is underwritten by common-law entitlements backed by the coercive power of the state, entitlements that are themselves given concrete form by state power, expressed through the cadre of state officials known as “judges”; by corporate charters granted under state corporation statutes; or by other legislation and regulation, such as the rules that immunize social-media platforms from certain claims. Landis pointed out that common-law liberalism, of the sort that underpins the persistent fear of “Stuart tyranny,” cuts no ice either. The problem is that the invisible hand, as though mocking its own worshippers, has busied itself with constructing corporations that are no less than quasi-sovereigns, representing “concentrations of power on a scale that beggars the ambitions of the Stuarts.” Under developed capitalism, there is an “absence of equal economic power” between corporation and individual. The consequence, said Landis, is “that the umpire theory of administering law is almost certain to fail. . . . [G]overnment tends to offer its aid to a claimant . . . because the atmosphere and conditions created by an accumulation of such unredressed claims is of itself a serious social threat.” The administrative state, whose defining feature is tribunals and bodies exercising active, ongoing supervision rather than reactive common-law jurisdiction over particular cases, is necessary to redress the hierarchical imbalance of economic power between corporations and individuals. Skepticism about power — in particular, the exploitative power of the few over the many — is precisely what justifies the administrative state.

If arguments from power-skepticism cut in no particular direction, it does not follow that they are useless. On the contrary, precisely because such arguments can only be invoked selectively, and invariably are invoked selectively, they are supremely useful as a diagnostic tool: they immediately reveal the myopia of those who do invoke them. The left-liberal who fears that the fallible power of the state is a threat to autonomy, but only when the topic is abortion, as opposed to “hate” speech; the right-liberal who loves to cite Burke and Oakeshott, but remains resolutely silent about the endless disruption of traditional ways of life and local communities by transnational corporate power; each in his or her own way tells us, quite clearly, what program is served by the rhetoric of skepticism.