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Pol/Econ Government
Pol/Econ: Harvey Mansfield, the Rule of Law and President Bush
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Thursday, 03 May 2007 Written by Henry Midgley
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Harvey Mansfield
(Click for full image)
Should the American Republic be a tyranny? Should George Bush have the right as some say he has to lock up those that he wishes to lock up upon accusations of terrorist intent? What should the balance of the relationship be between executive and legislature and between them and the law?

Harvey Mansfield, Professor of Government at Harvard, has recently written an interesting article reflecting on the merits of these questions in the Wall Street Journal. His views have been greeted by howls of rage in the left wing blogosphere. Some of these attacks are appropriately due to an article which discusses the virtues of one man rule as opposed to constitutional rule- others such as this this confuse Mansfield's attacks on Athenian democracy with attacks on present day Democrats- misapplying the word democrat within a present context rather than understanding it as Mansfield is using the word, as a signifier of a constitutional arrangement.

Despite the political hullabaloo, Professor Mansfield is undoubtedly intelligent and thoughtful. One of the perils of politics as opposed to political thought is beleiving that your opponents are stupid (I have laid out the dangers of that here). Professor Mansfield deserves to be taken seriously and the argument he makes is one that resonates through the history of Western Political Thinking- right back to the Greeks. Its worth examining exactly what Professor Mansfield is saying- because this is one of the stronger arguments for tyranny around today- and then seeing whether it holds up either as an exegesis from the writers that he quotes or indeed as current political thought.


The argument


So what is Professor Mansfield on about. his article is wonderfully elaborate- quoting theorists from Aristotle forward to the Tocqueville- and providing an account of the English Civil War and American Founding amongst other things. However there is a central point to his argument. Professor Mansfield argues that the conception of constitutional government- government by the rule of law which is laid out in some document or documents- is flawed. He bases this argument upon two moments in the life of the state, where the rule of law proves a brittle and useless device to govern a nation.

The first case that Professor Mansfield argues demonstrates that the rule of law cannot govern a nation is that it cannot force its own obedience.
Law assumes obedience, and as such seems oblivious to resistance to the law by the "governed," as if it were enough to require criminals to turn themselves in. No, the law must be "enforced," as we say.

Furthermore he suggests that the law cannot provide in the classic case where the Republic is itself threatened- is itself under pressure- the case of neccessity where he suggests that the law is inadequate to defend itself. It is before what Mansfield calls 'the face of necessity...in Machiavelli's words, la necessità che non da tempo (the necessity that allows no time)' that the rule of law collapses, because the dignified procedures of courts and judicial arraignment cannot cope with an instant decision. (The typical early modern example was that of a fire spreading through a town, it may be illegal to knock someone's house down, but if you do that it will save the rest of the town- similar arguments could be and were made about state action)

Mansfield argues that the American Constitution embodies principles which allow the executive to take action to defend both the law in the case where it is violated and to defend it in the case of necessity, where it is threatened from the outside, and illegal action needs to be taken to defend it. Its an interesting argument- but his article has important historical flaws and I beleive political flaws as well. If we take the historical problems first- and reinterpret the classical theorists then we might actually understand the problems contained within Professor Mansfield's arguments a little better when we come to explore the political problems that his suggestions create.


The Historical Flaws- or how not to do the history of Political Thought


Professor Mansfield's argument rests upon a history of the American Founding as a solution envisaged by the Americans to a British problem. Essentially Professor Mansfield argues that in the English Civil War, a conflict developed between a Parliament embodying the rule of law and a King who embodied an executive power- a conflict which continued under Cromwell- and incapaciated the Cromwellian regime from attempting a lasting constitutional settlement. Locke, Mansfield argues, reflected upon this and provided in his Two Treatises a method for settling the argument which established Parliament as the supreme legal power- but set up the King in perpetual peaceful conflict with Parliament as the supreme executive power- with the adjudication in the courts. Hence the separation of powers. The American constitutionalists, Mansfield suggests, took what Locke had argued and placed it in a constitution- a document of laws above and apart from ordinary law- which set up a perpetual conflict between the executive and the leglislature. He finds the expression of these views most perfectly in the American context declared in the Federalist Papers.

What's wrong with that argument? There is a first major problem within the argument- the English Civil War was not what Mansfield says it was. The English Civil War took place as Professor Pocock and Dr Baldwin's research makes clear (see Pocock's Machiavellian Moment and Dr Baldwin's thesis in the Cambridge University Library) as a contest between two groups both claiming supreme authority when the law was violated. Henry Parker the great Parliamentarian propagandist argued for example that the law had already been attacked by the King and Parliament was obliged to act illegally in defence of the law of the land. Whether to live under the rule of law was not the issue here- both sides recognised that there were times when the state had to act illegally- the question was who could take that action. Reconstructing the civil war argument in this way allows us to proceed through the thinkers that Professor Mansfield talks about later in a much more sensible way because the fact of the matter is that by misunderstanding what the civil war was about- his entire historical trajectory after that is wrong as well.

I am no expert on Locke- but one thing that is pretty much accepted now about Locke is that he was a radical Whig- forced into exile in the 1680s, he returned with William III in 1688 to publish his tract the Two Treatises of Government. Actually though that tract, as Peter Laslett established fifty years ago in his introduction to the book, was written in the circumstances of 1682 when Locke was trying to depose a King for again attacking the constitution. The Two Treatises are an attempt to refute royalist philosophies which espoused the doctrine that the King was above the law and could nominate his own Catholic successor- far from being a radical reinterpretation and justification of conflict between the King and Parliament within the British Constition, Locke meant them to buttress his patron Lord Shaftesbury in attacking the King and taking a particular line within that conflict. Furthermore Locke's works were not as influential upon the early eighteenth century as Mansfield maintains- he should look to other Whigs Petyt or Harrington even more for the foundations of what the regime that emerged after 1688 was trying to do.

So the English Civil War was not as Mansfield beleives it was, and Locke was not trying to do what Mansfield suggests he was doing, what about the American Revolution and his interpretation of the founding. I have to say unlike with the civil war, I am no expert on the founding but several things appear interesting to me in this context. Firstly Mansfield is right- as Pocock has maintained- that the American founding was a deliberate answer to English problems and in particular to the English Civil War- Washington wished to avoid being Cromwell and we know of instances where American soldiers quoted minor figures from the English war as they went to die. Mansfield's interpretation of the Federalist Papers may be correct- but the Papers were not reccomending tyranny, rather they recomended strong government under the rule of law (here I dissent from Mansfield a police force doesn't mean a break in the rule of law- and I can't quite see how it would mean that), Mansfield argues that Hamilton and the authors of the papers reccomended energy within the government and holds that up as his example of their willingness to countenance tyranny- and that with his analysis of Machiavelli is the next historical problem within his thesis.

Energy is an ambivalent term in this kind of political philosophy- but its worth again being very precise by what we mean here. Mansfield takes both the word energy and the Machiavellian word, virtu, to be attributes that only tyrants or those acting extra legally can have. Its an interesting case- but in my view totally wrong. What these thinkers meant by energy was the principle, the life of a constitution, the way that it inspired men to fight and die for it. What they did not mean was to endorse some over arching dictatorship over the constitution, they meant its ability to inspire and form the population that lived under it. Machiavelli would have agreed- how else can one account for his argument in the Discourses on Livy that it was the Roman laws (orders or ordine is the word he uses) that maintained Roman virtu- it was the law that maintained character not a magistrate from outside. That is what I take Hamilton to mean as well- who had definitely read the Discourses and absorbed the lessons that they included about Republican Rome. In this sense the executive is not opposed to the Rule of Law but operates within it.


Mansfield and the Magistrate- the Flaws of Elegant Language


Writing about Gibbon, James Boswell compared reading his history to walking through a lovely garden filled with mantraps to imprison the unwary inside atheism. I feel pretty much the same about this elegant and beautiful article that Mansfield has produced- its beauty contains rhetorical moves which are simply confused. The first problem is that the foundation of a police force or system of enforcement does not break the law. The original sense of the word police indeed means the system of laws- in eighteenth century tracts you often find countries commended for a good police- that doesn't mean the force that means that the system of law is enforced. Enforcement of the law as everyone recognised from Sir Edward Coke, who beleived that nobody should make a law because all law was perfect and emanated from time immemorial, to John Locke- was part of the rule of law and could not be contrasted with it.

What about the argument about neccessity. Well again Mansfield is confused. The arguments in the 17th Century concerned the placing of such power, whether in Parliament or the King. The power of acting in neccessity is clearly reserved in the US constitution for the President, in the UK the queen's government takes on the role- but that power is limited. The President is subject to judicial review- the Prime Minister to Parliamentary sanction. Ultimately there is no question about who would act in times of extremity- as there was in the 17th Century- and there is no dispute about who resolves whether the President or Prime Minister has acted in a genuine time of extremity or not. This is a non-issue- noone would deny that if the United States was hit by a nuclear weapon then the President would have the right to command troops- both 9/11 and Katrina demonstrated that.

Mansfield thus is being dishonest- what he is really arguing for and the reference both to police and to the necessary powers of the President makes this clear is for the President to be able to act unilaterally in the war on terror. Lets be clear, if there is a nuclear weapon on US soil which threatens the life of the Republic then indeed the President can act- but as Lord Hoffman recently in the UK's highest court argued that isn't the case in the war on terror at the moment. The case at the moment is that the President's job is to, under the law, enforce the law. He needs no special powers to do this and definitely not the power to override the law. Mansfield has skirted around the issue- the real question is why is this a case of neccessity- we all allow that in a case of necessity the President can act- what we aren't sure about is whether this is such a case.


Conclusion


Mansfield's article is therefore mistaken in its history and incorrect in its politics- it is also dishonest because it attempts to paint its opponents into a position that they cannot defend. Refuting it is not an easy matter because it requires one to both unpick the history and the politics. His history furthermore is lazy- he has only cited the Everyman catalogue of political thinkers- there is nothing here to suggest a mind that has seriously engaged with political thinking outside the canon- and yet as Professors Skinner and Pocock have demonstrated it is precisely from without the canon that the arguments about the American Republic were formed. Furthermore the laziness is reflected in the imprecision of the argument- nowhere does Mansfield talk about the extent of tyrannical power and nowhere does he argue that this is a true case of necessity, which means that the President must act.

I'm afraid the Imperial Presidency needs better defenders before it becomes a defensible political option- or maybe Harvey Mansfield needs to rewrite his defence of it.

LATER I should add that some attacks on my position have been made both here and on my blog here- I have defended my own position here. My assailant is a very good political science graduate student- Ashok Karra- and he argues against several aspects of what I have written- I have to say that I don't take all his points. But he does have a point with regard to the Federalist Papers- I don't know the Federalist that well- so am content to acknowledge an error there- though I do still think that Professor Mansfield's thesis is incorrect historically- especially about the seventeenth century- and is incorrect politically too.