July 20, 2013


The Conservative Mind at 60: Russell Kirk's Unwritten Constitutionalism (Gerald Russello, 7/01/13, Imaginative Conservative)

In constitutional law, as in other areas, Kirk displays his central themes:  a suspicion of centralized power and rule by "experts," a devotion to tradition, and a commitment to the nation's federal structure.  He repeatedly states that the purpose of the law is a simple one - it is to keep the peace.   Because it is intended to keep the peace, the law must evolve gradually out of actual disputes and compromises of a living community.  The law must not be imposed top-down, as such an enforced peace is not peace at all.   Moreover, such a legal system reduces certainty and fairness, and turns the legal system into a struggle for power.

But at the same time, Kirk believes in an overarching moral order that also - as much as local custom or convention - informs both the law and the Constitution.  However, Kirk developed his own perspective on whether, and to what extent, that law has to do with positive law.  He emphatically rejected a view that the Constitution required "substituting [the] personal and shifting value judgments of nine judges - who can form no consensus among themselves - for enduring moral standards derived from religion, philosophy, and a people's custom and convention."  That perspective, unfortunately for those seeking a Kirkian "system," does not reduce itself to a series of propositions or statements of "right" answers.  Rather, Kirk was a forceful voice for multiplicity and diversity in constitutional arrangements, but those arrangements must be adjusted and modified at local levels and across a myriad of courtrooms and other fora.  The conservative obsession, at least since the 1980s, with fixing the "original meaning" of the Constitution had little resonance for him given his larger cultural concerns.

The historian Clinton Rossiter once quipped that Kirk was born in the wrong country a hundred and fifty years too late, and Kirk was criticized by fellow conservatives (such as the libertarian Frank Meyer) for promoting a static social order of squire and servant rather than a free republic.  But amidst the sweeping history of The Conservative Mind is a chapter titled, "Legal and Historical Conservatism:  A Time of Foreboding," which treats the work of Henry Sumner Maine,  Leslie Stephen, and W.E.L. Lecky.  This chapter has not received significant attention, but in it Kirk undercuts the vision of him as a faux-aristocrat.   First, he approves Maine's assessment that the transition to the modern world is from status to contract.  Contract accords each of us the right of freely entering into agreements.  In his discussion of Maine, Kirk notes that "the source of social wisdom is the knowledge of past ages, but that dreary imitation of what once lived will stifle the most gifted peoples."  Kirk was no reactionary.

Kirk is often challenged for his statement in The Conservative Mind that civilized society "requires orders and classes, as against the notion of a 'classless society'," and that some such hierarchy was necessary for a stable social order. Kirk's argument is typically misunderstood as an approval of a particular social order, specifically that of late eighteenth-century Britain, and that such a social order must mean people stay in place.  Neither of these mischaracterizations are true.  Kirk in fact had no patience for the eighteenth century, which he called "an age of gilded selfishness and frivolous intellectuality-- an age almost without a heart."  His preference for Burke over other thinkers of the same era, for example, Bolingbroke was because, for Kirk, Burke was "essentially a modern man, and his concern was with our modern complexities."  Rather his point is that every society has such hierarchies and orders, and to pretend otherwise - either by inventing a Marxist "classless society" or an equally imaginative egalitarian utopia, actually undermined both order and liberty.

The "science of jurisprudence" likewise cannot be weighed down by the dead hand of the past but must change with "the passage of the generations."  The law is not, Kirk says, "immutable."   But the fact that the law changes was less important to Kirk than how it changes.  In the Anglo-American tradition, Kirk identified several prerequisites, foundational principles upon which the rule of law rested.  The most important of these are first, that the law is not an arbitrary system to be used by those in power against those who are not; second, the notion that no one is "above" the law; and third, that the sources of law are custom, tradition, and precedent.  These features, for Kirk, it must be stressed, not themselves part of the rule of law or the formal "legal system," but rather arise from the historical experience of the West.  Taken together, they represent a strong preference for gradual, piecemeal development of the law, with few if any abstract, universal principles imposed from outside.

It's ultimately just a matter of republican liberty.
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Posted by at July 20, 2013 12:50 PM

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