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Posts Tagged ‘Milton Friedman’

How to Fight the ABA’s Anticompetitive and Discriminatory Practices

In American History, Economics, History, Law, Legal Education & Pedagogy, Scholarship on September 13, 2017 at 6:45 am

This piece was originally published here by the James G. Martin Center for Higher Education.

Recently I urged top law schools to stand up to the excesses and abuses occasioned by the ministrations of the American Bar Association (ABA). These schools could band together and follow the lead of the journalism schools at Northwestern and Berkeley, which dropped their accreditor, the Accrediting Council on Education in Journalism and Mass Communication, earlier this year because accreditation standards were outmoded and not worth the cost of compliance.

But states can also fight the ABA and are arguably in a better position to do so.

The ABA is a nonprofit organization incorporated in Illinois that operates like a trade union for lawyers. Founded in 1878 by a small group of prominent East Coast lawyers, it has accredited law schools under the authority of the U.S. Department of Education (DOE) since 1952.

Why, exactly, would states want to push back against the ABA? There are two reasons, the first involving economics and the second involving racial diversity in the legal profession. In other words, both the Right and the Left have a standing interest in diminishing the ABA’s power.

The Economic Reason

The ABA remains the sole accreditor for legal education in the United States. Its onerous and in many cases outmoded regulations drive up the price of law school, forcing schools to reallocate resources away from students and education and towards regulatory compliance.

The high costs of legal education resulting from ABA regulations are passed off to ordinary consumers over time.

As one example, ABA Standard 701 states, “A law school shall have facilities, equipment, technology, and technology support that enable it to operate in compliance with [ABA] Standards and carry out its program of legal education.” To address this standard, law schools have furnished computer labs with fancy equipment to give the appearance of technological sophistication. But the labs and equipment often go unused.

The legal profession is notoriously behind the times on the technology front, and it takes advantage of anticompetitive restrictions regarding the unauthorized practice of law to push out innovative companies like LegalZoom that offer creative and inexpensive services. If the ABA were serious about technological innovation in law schools, it wouldn’t burden online and distance education the way it does in Standard 306. It bears noting, as well, that the ABA’s official interpretation of Standard 306 includes the “Internet,” “video cassettes,” “DVDs,” and “CD-ROMs” as examples of “technology.” Not exactly inspiring or pioneering. No wonder some analysts predict that computers and artificial intelligence will replace lawyers.

The high costs of legal education resulting from ABA regulations are passed off to ordinary consumers over time. They also prevent people with low to modest incomes from attending law school. According to Law School Transparency, the cost of legal education at private schools has risen from an average annual tuition of $7,526 in 1985 to $41,985 in 2013. The average cost of legal education for in-state students at public schools rose from $2,006 in 1985 to $23,879 in 2013 (for non-residents, tuition increased from $4,724 in 1985 to $36,859 in 2013).

These figures suggest that disadvantaged students do not have the financial means to delay or suspend a career to pay for legal education, or to take out student loans with an interest rate that exceeds that of the housing market. Thus, the ABA not only inadvertently drives up legal costs for all consumers, but also prevents many consumers of certain income levels from entering the legal industry to reform it from the inside.

The Diversity Reason

The ABA has an ugly history of targeting ethnic minorities who aspired to become attorneys. For most of the 20th century, it openly discriminated against African Americans, officially excluding them from membership for 66 years.

In 1912, the ABA ousted three African Americans from membership and issued a resolution proclaiming, “it has never been contemplated that members of the colored race should become members of this association.” Recent decades have seen the ABA attempt to make up for its racist past by instituting committees and programs aimed at racial diversity and championing what are widely considered to be leftist social causes.

These efforts, however, seem insincere—just another PR tactic—because the very purpose of the ABA’s accrediting arm (the Council of the Section of Legal Education and Admissions to the Bar) is to exclude people from legal education. To this day, the exclusionary policies and practices of the ABA disproportionately impact African Americans and other racial minorities. In other words, the ABA still does precisely what it was designed to do: keep African Americans, other minorities, and poor people out of the practice of law.

Law schools that are not ABA-accredited often offer inexpensive, part-time evening or night programs that enable students to work during their studies. Students who cannot afford to take off years of work to pursue legal education can complete these programs in four to five years. This affordable option provides needed access to legal education for low-income students who wish to become lawyers.

The ABA was formed, in part, to segregate the legal profession from ethnic minorities. It can’t be used now to the fix problems it caused and exacerbated.

Under present conditions, however, a graduate from one of these unaccredited schools can sit for a bar exam only in the state in which the school is located—and only if the state allows that. Unaccredited law schools also carry a stigma.

For these reasons, among others, ethnic minorities and disadvantaged students who are able learners with competitive test scores and academic records typically forego affordability and choose to attend ABA-accredited schools with a higher sticker price. These students thus take out massive loans and dig themselves deeper into a financial hole from which it’s difficult to emerge, even with good jobs coming out of law school.

Critics of unaccredited law schools point to high attrition rates and low success on bar exams to rationalize increased restrictions and stricter standards. But if the ABA no longer accredited law schools, capable students would begin to populate what are now unaccredited law schools, if for no other reason than affordability. Expensive law schools that are currently ABA-accredited would be forced to find cost-cutting measures to remain competitive in the market and attract new students.

The prevailing justification for ABA accrediting authority is that such superintendence is necessary to protect consumers. But protect consumers from what? From a more diverse legal community? From black people? From poor people? That is the message the ABA is sending.

The ABA would never defend itself in these terms, nor purposefully discriminate with the goal of ensuring that the profession remain predominately white. Yet it can’t deny the realities that flow from its very purpose for existing. The ABA was formed, in part, to segregate the legal profession from ethnic minorities. It can’t be used now to the fix problems it caused and exacerbated. It simply lacks the institutional incentives and infrastructure to realize the objectives of diversity or inclusion.

Revising Standard 316

To make matters worse, the ABA is considering revising its Standard 316 to require law schools to maintain a 75 percent bar passage rate among its graduates in at least three of the last five years. Law schools failing to meet this standard face potential consequences for non-compliance, including loss of accreditation. The ABA House of Delegates rejected this measure in February, but the ABA has issued a questionnaire to law schools pending the possible reconsideration of this revised standard in 2018.

The ABA Council for Racial and Ethnic Diversity opposes the revised standard, which was proposed to address concerns that greedy law schools, faced with declining enrollments, were admitting unqualified students to generate tuition revenue. Although this criticism has merit, the revised standard is the wrong remedy. It will disproportionately impact schools in states like California, where bar passage rates historically have been low. Moreover, it could limit educational options for minorities who aspire to practice law by punishing schools with high minority enrollment.

You might be asking, “Why is the author advocating reform that would lower standards? Don’t we want better attorneys? And don’t we have enough attorneys already?” If the bar exam measured the ability to practice law, it might be a reliable indicator of a person’s legal skills. But it has little to do with actual practice; therefore, passing or failing it doesn’t measure one’s legal skills. It also delays what has already been delayed during three years of law school: the practical experience necessary to make a good lawyer.

If there were no law schools, no bar exams, and no barriers to entry, we could still figure out how to weed out the good lawyers from the bad. In fact, we might even see exciting new advances in the field of online reputation markets that could rank and assess lawyers, giving a feedback mechanism to consumers.

If there were no law schools, no bar exams, and no barriers to entry, we could still figure out how to weed out the good lawyers from the bad.

And sure, there are a lot of attorneys. But having a lot of attorneys is not necessarily a bad thing. If we were to roll back all the anticompetitive practices perpetuated by the ABA, state bar associations, and their lobbyists, which work together to solidify lawyers’ monopoly on the practice of law, the costs of legal services could be drastically reduced. An overabundance of lawyers would simply mean that hiring lawyers would be cheap. It’s unlikely, at any rate, that we’d ever see an overabundance of lawyers in such a competitive market because intelligent people would choose to enter a different profession where salaries are higher.

The ABA discusses the bar exam in several standards: Standard 315 (the official interpretation), Standard 316, Standard 504, and Standard 505. The unintended consequence of this emphasis is to unreasonably encumber students and schools with red-tape administrative measures that have no proven effect on the quality of legal services.

Conclusion

The economic function of the ABA is, as I’ve said, to serve as a barrier to entry. Milton Friedman once declared that “[t]he overthrow of the medieval guild system was an indispensable early step in the rise of freedom in the Western World,” adding that it was also “a sign of the triumph of liberal ideals.” Recently, though, there’s been what he called a “regression,” and the ABA is a case in point.

Combating the ABA isn’t easy. This organization is equipped with powerful lobbyists and enjoys longstanding relationships with influential politicians. Still the states, through their supreme courts and bar associations, remain in control over the admission of candidates into the legal profession in their jurisdiction.

State bar associations are typically corporations to which state legislatures have granted monopoly powers over the legal profession, subject to the oversight of state supreme courts. They are not affiliates or adjuncts of the ABA. If several state supreme courts and state bar associations allowed all graduates of non-ABA accredited law schools to sit for the state bar exam in their state, they could curtail the ABA’s authority and diminish the ABA’s credibility. To this end, they could also enter into reciprocity agreements with other states to allow graduates of non-ABA accredited schools in those states to sit for the bar exam.

State supreme court justices—or justices sitting on the highest court in their state—are elected in a majority of states. And of course judicial appointments are always political to some degree. Thus, these justices are likely attentive to the demands of an informed public. Citizens should press their state supreme courts about the ABA, especially during campaign season when seats are up for grabs. Moreover, citizens should urge their legislators to interrogate state bar associations about the ABA. After all, state legislators can undo legislation empowering state bar associations.

Citizens should press their state supreme courts about the ABA, especially during campaign season when seats are up for grabs.

Of course, the Obama administration contemplated another alternative that would likely appeal to both President Trump and Secretary of Education Betsy DeVos: the DOE could strip the ABA of its accreditation authority altogether, in effect getting the federal government out of legal education. (Obama was motivated by animus against for-profit colleges, as reflected in his Education Department’s gainful employment rule, whereas Trump’s interest would be in scaling back federal meddling.) This solution would leave matters of accreditation and bar eligibility to the respective states. Stripping the ABA of accrediting powers, however, raises other concerns, given that, at present, a law school’s eligibility to receive federal funds is tied to accreditation.

In this period of political rancor, reining in the ABA should appeal to both the Left and the Right, the former on grounds of racial diversity and fundamental fairness and the latter on grounds of decentralization and economic freedom. Despite the vitriolic and malicious rhetoric emanating from our politicians and media pundits, I believe most Americans want to get along and facilitate constructive dialogue about pressing issues. Why not refocus our attention on matters about which there is critical consensus? Why not work together, as a start, to curtail or revoke the ABA’s ability to accredit law schools?

This move could reduce the costs of legal education and, hence, of legal services. It could go a long way towards restoring confidence in the legal profession and freeing up law schools to work more closely with state supreme courts and state bar associations to meet the needs of local markets, adapt to new industry technologies, and satisfy the changing demands of consumers.

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The Moral Case for Property Rights

In Arts & Letters, Books, Conservatism, Economics, Ethics, History, Humane Economy, Humanities, Jurisprudence, Law, Liberalism, Philosophy, Property, Scholarship, Western Civilization, Western Philosophy on March 9, 2016 at 8:45 am

Allen 2

This review originally appeared here at the Library of Law and Liberty.

The James Madison Program in American Ideals and Institutions at Princeton University has become a hub of conservative constitutionalism and natural law theory, a forum where mostly likeminded scholars and public intellectuals can come together for constructive dialogue and critique. Directed by Robert P. George, the McCormick Professor of Jurisprudence at Princeton, the program has hosted established and emerging scholars alike. Adam MacLeod is one of the latter—a figure to watch, a fresh and tempered voice in the increasingly ideological field of jurisprudence and legal theory. During his James Madison fellowship, with the support and advice of his colleagues, MacLeod wrote Property and Practical Reason, his first book.

MacLeod frames his normative claims and pleas within the common law context. And he gives us his thesis in his crisp opening sentence: “This book makes a moral case for private property.” He adds that “institutions of private ownership are justified.”

That institutions of private ownership are now jeopardized is upsetting. Before the 18th century, it was simply taken for granted in most Western societies that private property rights incentivized both work and custodianship and served moral ends. Leaders of advanced nations understood that the opportunity to own land or goods motivated people to work; that work, in turn, contributed to the aggregate health of the community; and that once ownership was attained, owners preserved the fruits of their labor and likewise respected the fruits of others’ labor as having been dutifully earned. There were, of course, violations of these principles in Western societies, which is why the law protected and promoted private ownership.

Even absolute monarchs across Europe centuries ago understood the instinctual drive for personal ownership and, consequently, allowed their subjects to obtain at least qualified possession of land and real property. During the Enlightenment, however, philosophers such as John Locke awakened the Western intellect to the stark reality that private property rights were routinely violated or compromised by monarchs and sovereigns at the expense of morality and at odds with the natural law. Because humans own their bodies, Locke maintained, any object or land they removed or procured from nature, which God had provided humanity in common, was joined to those people, who, so long as no one else had a legitimate claim to such object or land, could freely enjoy a right of possession exclusive of the common rights of others.

It’s surprising that Locke isn’t mentioned in MacLeod’s defense of reason and private property, since Locke more than any other figure in the Western tradition—let alone the British tradition in which the common law emerged—made the reason-based case for the morality of private property ownership. “God,” Locke said, “who hath given the world to men in common, hath also given them reason to make use of it to the best advantage of life and convenience.” On this score MacLeod echoes Locke without giving him attention.

MacLeod advocates the type of mediated dominion of private ownership that, he says, existed at common law. Under the common law, he argues, dominion was mediated because it was restrained by the normative guides of “practical reasonableness.” He does not fully delineate what unmediated dominion looks like. But presumably it has something to do with “many contemporary accounts” that, he claims, “view property as an individual right” and facilitate an “atomization of private property” that’s “unnecessary and unhelpful.” An example might have polished off this point, since in the opening chapters it’s not always obvious to which property arrangement mediated dominion is allegedly superior.

He does, however, supply helpful examples of mediating private institutions under the common law: families and family businesses, religious associations such as churches or synagogues, civic associations, and other such cooperative forms that exercise modest control or otherwise influence a person’s claim to outright ownership. For instance, one’s community may reasonably insist that my absolute ownership of a weapon does not permit one’s use of that weapon to threaten or injure another except in self-defense. It may likewise restrict the profligate use of scarce resources, or the reckless use of intrinsically dangerous resources to the manifest detriment of one’s immediate neighbors.

The author submits that, under the common law, which illustrates constructive administration of property rights, private ownership is never total or unqualified but always subject to reasonable restraint as prescribed by custom and community. He intimates that one thing that makes private ownership reasonable is its promotion of reasonable behavior; the very reasonableness of private property is self-perpetuating. The owner of property who’s confident his ownership is legally honored and enforced will pursue future gain; as the number of such owners multiplies, the corporate prosperity of society increases.

MacLeod rejects consequentialist arguments for private property and seeks to justify private ownership on the basis of morality. He shows that private ownership is not just optimal by utilitarian standards but is practically reasonable and morally good.

In so arguing, he navigates around two anticipated criticisms: first that his defense of private property and promotion of common law standards and conditions are remedies in search of an illness, and second that beneath his proposed remedy is the sickness he wants to cure.

By discussing the work of Pierre-Joseph Proudhon, Jeremy Waldron, J. E. Penner, and Larissa Katz, among others, MacLeod proves he’s not remonstrating against straw men but engaging actual thinkers with real influence on our working perceptions of property rights. The problems he confronts are palpable: regulatory takings, trespass, taxation, riparian-right disputes, adverse possession, and waste, among others.

In depicting mediated dominion as a form of voluntary “plural ownership” that excludes state coercion, moreover, he reassures readers that a common law property regime does not contravene private ordering, despite the fact that the common law dates back to periods when English monarchs retained total and ultimate control of the land within their jurisdiction under the Doctrine of the Crown; forced owners to hold property rights in socage; confiscated property from rivals and dissidents; redistributed property in exchange for loyalty and political favors; and permitted and at times approved of slavery and villainy.

These unreasonable elements of the common law tradition do not square with the case that MacLeod makes for practical reasonableness; yet the common law tradition he invokes is sufficiently flexible and adaptive to modify or eradicate rules that perpetuate unreasonable practices and behaviors. He reminds us, too, that “slavery was for a long time unknown at common law, and its rise in positive law derogated common law rights and duties.” In other words, the rise of the English slave trade “is a story of lawmakers first departing from, then returning to, common law norms.”

Following if not synthesizing John Finnis and Joseph Raz, MacLeod recommends in the property-law context something akin to perfectionist liberalism and value pluralism. The pluralism championed by MacLeod involves multiplying the options for deliberating agents: the more room there is for rational choice, the more diverse and numerous are the opportunities to exercise human reason. These opportunities may be circumscribed by the morality of the community that is inherent in the rules that reflect basic values. The law is by nature coercive, but it is good to the extent it enables practical reason and restricts bad behavior, as determined by the net, collaborative efforts of non-state actors. MacLeod calls these combined actors members of “intermediary communities.”

The trope of individualism and community is for MacLeod a framing device for advocating mediated dominion as an incentivizing force for moral action. He skillfully and meticulously affirms that private ownership, which is conditional on the reasonable limitations established by collective norms, is reasonable not only for instrumental purposes (because it works well and facilitates constructive social relations) but also because it is good in itself. Summoning the commentary of Thomas Aquinas, William Blackstone, James Madison, Alexis de Tocqueville, Joseph Story, Georg Friedrich Hegel, F.A. Hayek, Neil MacCormick, Ronald Dworkin, Richard Epstein, and Robert P. George, MacLeod also manages to work in unexpected references to writers who do not immediately spring to mind as jurisprudents: Richard Weaver, Wendell Berry, Charles Murray, John Tomasi, and Milton Friedman. This range demonstrates the importance of property law across disciplines and in broad contexts.

To profit from this book you must, I think, hold in abeyance any assumptions or readymade generalizations you have about the nature and function of private property. You’d benefit as well from a prior familiarity with the field and discourse of property jurisprudence, not to mention the new natural law theories. I make this observation as an outsider myself. If you can’t immediately define terms like “usufruct,” either because you’ve never heard of them or because it’s been too long since you studied for a bar examination, you’ll likely need Black’s Law Dictionary and other resources close at hand as you piece through MacLeod’s rationale. Readers in other disciplines might find that the chapters presuppose an awareness of, say, the essentialist debate over whether exclusion or use defines property norms, or might question the meaning and import of “personalist” approaches to private property that emphasize the doctrines of positive liberty and personal autonomy.

Such disciplinary specificity isn’t a bad thing. One hopes, in fact, that it would motivate curious readers to undertake further study and inquiry. Yet specialization limits what a book can accomplish.

MacLeod exhibits a disposition to be philosophical rather than sociological, adopting as he does a neutral, academic tone free of animus and personal pique, arguing from logical deduction rather than concrete data or statistics. Whether this approach redounds to his advantage depends on what he wants to achieve. If he’s writing only for an academic audience of philosophers and political theorists, he’s succeeded admirably, but if his goal is to reach beyond the narrow confines of the academy, spreading his influence as widely as possible, he has fallen short. The prose is accessible to scholars and advanced graduate students, but the average lawyer will find no practical instruction in the book and might even question the at times challenging syntax and vocabulary that can obscure basic points. If economists ignore the book for its rejection of consequentialist arguments, however, it’s to their disadvantage.

No common reader, I’m afraid, will read this book from cover to cover, and that’s a pity because the subject is important, especially given the spread of eminent-domain abuse and the general embrace of egalitarianism, redistributivism, and Rawlsian notions of social justice by Americans today. The desire for private ownership is a primordial fact. We need more books and treatises that examine at a fundamental level how and why we alienate, possess, and exchange property. At around $100, Property and Practical Reason is prohibitively expensive for curious undergraduates, and also for courses in graduate studies. Moreover, the law schools may well ignore it due to its focus on abstract jurisprudence.

All that said, this book should be read—and will be, by the people who know about and are sympathetic to the work of the James Madison Program. Unfortunately, that’s not many people. Not enough, anyway. There’s no cottage industry for the philosophy of practical reasonableness. Yet there ought to be, and the reception of MacLeod’s work might tell us whether there can be. Those of a philosophical bent will delight not just in the conclusions MacLeod reaches, but in the way he reaches them: framing and reframing his sinuous arguments until his central theses become refrains. This reviewer found it a delightfully industrious, hard-won defense of private property, and well worth the high sticker price.

Razing the Bar

In American History, History, Humane Economy, Law, Legal Education & Pedagogy, Liberalism on June 17, 2015 at 8:45 am

Allen 2

This piece originally appeared here in The Freeman.

The bar exam was designed and continues to operate as a mechanism for excluding the lower classes from participation in the legal services market. Elizabeth Olson of the New York Times reports that the bar exam as a professional standard “is facing a new round of scrutiny — not just from the test takers but from law school deans and some state legal establishments.”

This is a welcome development.

Testing what, exactly?

The dean of the University of San Diego School of Law, Stephen C. Ferrulo, complains to the Times that the bar exam “is an unpredictable and unacceptable impediment for accessibility to the legal profession.” Ferrulo is right: the bar exam is a barrier to entry, a form of occupational licensure that restricts access to a particular vocation and reduces market competition.

The bar exam tests the ability to take tests, not the ability to practice law. The best way to learn the legal profession is through tried experience and practical training, which, under our current system, are delayed for years, first by the requirement that would-be lawyers graduate from accredited law schools and second by the bar exam and its accompanying exam for professional fitness.

Freedom of contract

The 19th-century libertarian writer Lysander Spooner, himself a lawyer, opposed occupational licensure as a violation of the freedom of contract, arguing that, once memorialized, all agreements between mutually consenting parties “should not be subjects of legislative caprice or discretion.”

“Men may exercise at discretion their natural rights to enter into all contracts whatsoever that are in their nature obligatory,” he wrote, adding that this principle would prohibit all laws “forbidding men to make contracts by auction without license.”

In more recent decades, Milton Friedman disparaged occupational licensure as “another example of governmentally created and supported monopoly on the state level.” For Friedman, occupational licensure was no small matter. “The overthrow of the medieval guild system,” he said,

was an indispensable early step in the rise of freedom in the Western world. It was a sign of the triumph of liberal ideas.… In more recent decades, there has been a retrogression, an increasing tendency for particular occupations to be restricted to individuals licensed to practice them by the state.

The bar exam is one of the most notorious examples of this “increasing tendency.”

Protecting lawyers from the poor

The burden of the bar exam falls disproportionately on low-income earners and ethnic minorities who lack the ability to pay for law school or to assume heavy debts to earn a law degree. Passing a bar exam requires expensive bar-exam study courses and exam fees, to say nothing of the costly applications and paperwork that must be completed in order to be eligible to sit for the exam. The average student-loan debt for graduates of many American law schools now exceeds $150,000, while half of all lawyers make less than $62,000 per year, a significant drop since a decade ago.

Recent law-school graduates do not have the privilege of reducing this debt after they receive their diploma; they must first spend three to four months studying for a bar exam and then, having taken the exam, must wait another three to four months for their exam results. More than half a year is lost on spending and waiting rather than earning, or at least earning the salary of a licensed attorney (some graduates work under the direction of lawyers pending the results of their bar exam).

When an individual learns that he or she has passed the bar exam, the congratulations begin with an invitation to pay a licensing fee and, in some states, a fee for a mandatory legal-education course for newly admitted attorneys. These fees must be paid before the individual can begin practicing law.

The exam is working — but for whom?

What’s most disturbing about this system is that it works precisely as it was designed to operate.  State bar associations and bar exams are products of big-city politics during the Progressive Era. Such exams existed long before the Progressive Era — Delaware’s bar exam dates back to 1763 — but not until the Progressive Era were they increasingly formalized and institutionalized and backed by the enforcement power of various states.

Threatened by immigrant workers and entrepreneurs who were determined to earn their way out of poverty and obscurity, lawyers with connections to high-level government officials in their states sought to form guilds to prohibit advertising and contingency fees and other creative methods for gaining clients and driving down the costs of legal services. Establishment lawyers felt the entrepreneurial up-and-comers were demeaning the profession and degrading the reputation of lawyers by transforming the practice of law into a business industry that admitted ethnic minorities and others who lacked rank and class. Implementing the bar exam allowed these lawyers to keep allegedly unsavory people and practices out of the legal community and to maintain the high costs of fees and services.

Protecting the consumer

In light of this ugly history, the paternalistic response of Erica Moeser to the New York Times is particularly disheartening. Moeser is the president of the National Conference of Bar Examiners. She says that the bar exam is “a basic test of fundamentals” that is justified by “protecting the consumer.” But isn’t it the consumer above all who is harmed by the high costs of legal services that are a net result of the bar exam and other anticompetitive practices among lawyers? To ask the question is to answer it. It’s also unclear how memorizing often-archaic rules to prepare for standardized, high-stakes multiple-choice tests that are administered under stressful conditions will in any way improve one’s ability to competently practice law.

The legal community and consumers of legal services would be better served by the apprenticeship model that prevailed long before the rise of the bar exam. Under this model, an aspiring attorney was tutored by experienced lawyers until he or she mastered the basics and demonstrated his or her readiness to represent clients. The high cost of law school was not a precondition; young people spent their most energetic years doing real work and gaining practical knowledge. Developing attorneys had to establish a good reputation and keep their costs and fees to a minimum to attract clients, gain trust, and maintain a living.

The rise in technology and social connectivity in our present era also means that reputation markets have improved since the early 20th century, when consumers would have had a more difficult time learning by word-of-mouth and secondhand report that one lawyer or group of lawyers consistently failed their clients — or ripped them off. Today, with services like Amazon, eBay, Uber, and Airbnb, consumers are accustomed to evaluating products and service providers online and for wide audiences.  Learning about lawyers’ professional reputations should be quick and easy, a matter of a simple Internet search.  With no bar exam, the sheer ubiquity and immediacy of reputation markets could weed out the good lawyers from the bad, thereby transferring the mode of social control from the legal cartel to the consumers themselves.

Criticism of the high costs of legal bills has not gone away in recent years, despite the drop in lawyers’ salaries and the saturation of the legal market with too many attorneys. The quickest and easiest step toward reducing legal costs is to eliminate bar exams. The public would see no marked difference in the quality of legal services if the bar exam were eliminated, because, among other things, the bar exam doesn’t teach or test how to deliver those legal services effectively.

It will take more than just the grumbling of anxious, aspiring attorneys to end bar-exam hazing rituals. That law school deans are realizing the drawbacks of the bar exam is a step in the right direction. But it will require protests from outside the legal community — from the consumers of legal services — to effect any meaningful change.

Thoughts on ‘The Road to Serfdom’: Chapter 1, “The Abandoned Road

In Arts & Letters, Austrian Economics, Book Reviews, Books, Britain, Economics, Epistemology, Essays, Ethics, Historicism, History, Humane Economy, Humanities, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Modernism, Philosophy, Politics, Pragmatism, Western Civilization, Western Philosophy on September 11, 2013 at 7:45 am

Slade Mendenhall

Slade Mendenhall is an M.Sc. candidate in Comparative Politics at the London School of Economics, with specializations in conflict and Middle Eastern affairs. He holds degrees in Economics and Mass Media Arts from the University of Georgia and writes for The Objective Standard and themendenhall.com, where he is also editor.

This analysis is the second installment in a series of chapter analyses of Friedrich Hayek’s The Road to Serfdom. The previous analysis of Hayek’s introduction can be found here.

If Hayek’s introduction gave us a brief summary of the ideas and practices he is setting out to oppose and contextualized the progression toward a socialist political culture in the last half century of Europe’s history, his first chapter, “The Abandoned Road”, firmly roots his grievances in the present and the problems facing England at the time of his writing and seeks to explain how England (and the West more generally) arrived there. He describes the intellectual evasions, distortions, and faulted epistemology—often consisting of poorly defined key concepts —that led to and are, in his time, perpetuating the state of affairs he observes. He then proceeds to address the subject of liberalism and how socialists who misconceive of their own system do so at least as much with its antithesis. In the process, Hayek makes many excellent observations, but also succumbs to several dangerous philosophical errors and unsubstantiated claims against laissez-faire capitalism that tarnish what might otherwise be an outstanding defense against government controls.

Hayek begins the chapter with one of the most argumentatively powerful, poignant approaches that one can take in opposing socialist ideas: illustrating to those who support more moderate, tempered versions of statist controls that though they may differ in degree from those statists they oppose, the philosophical fundamentals they advocate are the same. “We all are, or at least were until recently, certain of one thing,” he writes,

“that the leading ideas which during the last generation have become common to most people of goodwill and have determined the major changes in our social life cannot have been wrong. We are ready to accept almost any explanation of the present crisis of our civilisation except one:  that the present state of the world may be the result of genuine error on our own part, and that the pursuit of some of our most cherished ideals have apparently produced utterly different results from those which we expected” (8).

Hayek’s point is well made and much needed at a time when such widespread, utter contradictions were even more severe than they are today. Writing to Britons in the 1940s, but with as much truth to offer Americans who stumbled over the same contradictions in the 1960s and 1970s, as the platitude “we are all socialists now” manifested on Nixon’s lips as “we are all Keynesians now” (and with less fundamental difference between them than Keynesians would have you believe), he asks us to recognize that “the tendencies which have culminated in the creation of the totalitarian systems were not confined to the countries which have succumbed to them” (8-9). Nor, for that matter, are they confined to those times, and Hayek’s message to this effect—the importance of recognizing the same fundamental ideas across contexts—is as much needed today as it was then.

He goes on to recognize that the conflict between the Axis and Allied powers in World War II is fundamentally a conflict of ideas: “The external conflict is a result of a transformation of European thought in which others have moved so much faster as to bring them into irreconcilable conflict with our ideals, but which has not left us unaffected.” He is quick to point out, though, that “the history of these countries in the years before the rise of the totalitarian system showed few features with which we are not familiar” (9).

Such an appreciation for the motive power of ideas in human conflict was not so unique in Hayek’s time. In fact, the Allied leaders superlatively acknowledged the enemy they faced as “fascism” and condemned it explicitly (though the economic and social policies of FDR, along with his earlier overt flirtations with such ideas, may have made the condemnation somewhat ironic). If Hayek has a lesson to teach to this effect, it is most needed in today’s world, when the significance of philosophy is so frequently cast aside by the influences of multiculturalist nihilism and the failure, even in academia, to appreciate the role of broadly held cultural ideas in deciding man’s fate. At a time when the mention of a “clash of civilizations” invites accusations of oppressive Western chauvinism, Hayek’s acknowledgement that conflicting fundamental ideas may lead to actual conflict is a welcome reminder.

Much of the chapter appropriately looks to fundamental ideology as the cause for the rise of Nazism, seeing the rejection of individualism in favor of collectivism as a necessary prerequisite to the “National-Socialist revolution” and a “decisive step in the destruction of that civilisation which modern man had built up from the age of the Renaissance.” The spirit of this argument is undoubtedly sound. However, the method by which he proceeds to argue it leaves much to be desired. Hayek proceeds down a path of questionable historical interpretations, a half-cocked swipe at moral philosophy (that, as we shall see, is flawed but not unfamiliar to readers of this site), and ultimately an incomplete defense of the liberal policies he hopes to defend—showing the consequences of that brief glimpse of skepticism we witnessed in the introduction.

In his historical contextualization of the trends he observes, Hayek writes,

“How sharp a break not only with the recent past but with the whole evolution of Western civilisation the modern trend towards socialism means, becomes clear if we consider it not merely against the background of the nineteenth century, but in a longer historical perspective. We are rapidly abandoning not the views merely of Cobden and Bright, of Adam Smith and Hume, or even of Locke and Milton… Not merely the nineteenth- and eighteenth-century liberalism, but the basic individualism inherited by us from Erasmus and Montaigne, from Cicero and Tacitus, Pericles and Thucydides is progressively relinquished” (10).

Hayek’s invocation of these great names in the history of liberal thought is, in most instances, not misplaced. It is true that all emerged from Western civilization and that to varying extents they all fit well into the liberal, individualist tradition he means to illustrate. One would be wise to regard the inclusion of Hume and Montaigne, paragons of skepticism, as only conditional points on such a list, though Hayek’s own skepticism and that of many libertarians in his tradition would certainly allow them.

More broadly, however, it must be said that the individuals mentioned, no matter how great their contributions to political and social thought, were not often the rule in their place and time, but the exception. One can admire the works of Pericles, but should bear in mind the fickle reception he received among the Athenians. Likewise, Cicero may deserve praise above any in his time, but for those virtues we might praise he was slaughtered without trial by a dictator who faced no consequences.

Thus, as admirable as Hayek’s examples may be, to suggest that they were the norm throughout most of Western civilization is unsubstantiated. They may have embodied those qualities that most distinguished Western civilization and have been most responsible for its progress, but it was a progress often achieved by much-abused minorities. The Renaissance, Enlightenment, and nineteenth century were the high-points of individualism and Western ideals, and Hayek is right in singling them out. However, he also runs the risk of obscuring the philosophical roots of National Socialism, itself the product of contrary trends in Western thought, by engaging in careless generalization from those high-points and distinguished individuals to Western history in general.

Departing from this somewhat problematic historical interpretation, Hayek moves through a favorable discussion of the benefits of economic and political freedom on scientific innovation. His recognition and argument that “[w]herever the barriers to the free exercise of human ingenuity were removed man became rapidly able to satisfy ever-widening ranges of desire” is incontestable (12). He also anticipates the common objections by socialist apologists today who characterize the Industrial Revolution as a period of oppression by citing the difficult living conditions of the urban poor. He rightly rejects this by contextualizing the period in the experiences and expectations of those who lived through it, writing that

“[w]e cannot do justice to this astonishing growth if we measure it by our present standards, which themselves result from this growth and now make many defects obvious. To appreciate what it meant to those who took part in it we must measure it by the hopes and wishes men held when it began… that by the beginning of the twentieth century the working man in the Western world had reached a degree of material comfort, security, and personal independence which a hundred years before had seemed scarcely possible” (12-13).

What proceeds from there is where Hayek seems on unsteady footing, as he briefly undertakes the task of trying to explain what ideas diverted man from the individualist course set from the Renaissance to the nineteenth century. Inexplicably, Hayek credits an excess of ambition as responsible for the turn toward socialism. He writes,

“What in the future will probably appear the most significant and far-reaching effect of this success is the new sense of power over their own fate, the belief in the unbounded possibilities of improving their own lot, which the success already achieved created among men. With success grew ambition—and man had every right to be ambitious” (13).

He returns to the idea again later, writing that,

“Because of the growing impatience with the slow advance of liberal policy, the just irritation with those who used liberal phraseology in defence of anti-social privileges, and the boundless ambition seemingly justified by the material improvements already achieved, it came to pass that toward the turn of the century the belief in the basic tenets of liberalism was more and more relinquished” (14-15).

It is here that Hayek’s inadequacy in analyzing philosophical ideas, and perhaps an economic bias toward looking at matters purely as a function of supply and demand, begins to show. The notion that an inadequate or insufficiently rapid provision of living standards by capitalism is to blame for the introduction and spread of socialism is baseless, as it not only commits the philosophical error of attributing a total change in fundamental beliefs to external conditions, but also ignores the fact that the introduction of socialist policies preceded the slowdown in quality of living improvements in the Western world—and, furthermore, that the slowdown still wasn’t all that slow, as anyone who looks at world history from 1870 to 1928 will readily observe.

Thus, Hayek’s notion that “ambition” is somehow to blame is irrational. If we accept the notion that capitalism was responsible for man’s improved quality of living, then the only function that ambition should serve in this context is to drive men back toward capitalism and its fundamental values—not toward socialism. To the contrary, it is not an excess of ambition that drove men away from capitalism, but the fact that the philosophical principles that underlie and empower capitalism were not consistently established in the minds of its practitioners in the first place. That is: those who lived under capitalism had not explicitly embraced reason as man’s means of acquiring knowledge, nor rational egoism as his proper ethical system, and thus lacked the fundamentals on which individualism rests. Thus, ultimately, the individualism that Hayek admires was present in the West, but not firmly rooted enough to survive the philosophical revival of Plato in the forms of Kant and Hegel. Undercut by their philosophies, in the face of Marx and Engels the West was a pushover.

Hayek’s invocation of excess ambition as an explanation for socialism shows that though he understands the role of political ideology in man’s fate, his ability to explain how that ideology stems from deeper levels of philosophy is severely lacking. Unfortunately, he does not allow this lack of expertise to stop him from making such baseless speculations as to the roots of socialism being in man’s ambition, nor from making a similarly arbitrary and more dangerous conjecture: that the essential quality that animated the Renaissance and Western civilization’s embrace of individual man was “tolerance.”

“Tolerance,” he writes, “is, perhaps, the only word which still preserves the full meaning of the principle which during the whole of this period was in the ascendant and which only in recent times has again been in decline, to disappear completely with the rise of the totalitarian state” (3). Hayek offers no further explanation to support this statement or the implication that tolerance was the animating virtue of these times, or at the very least played some crucial role in it. Nor does he illustrate the point with citations or examples. The claim stands alone.

We are thus left to speculate as to his actual beliefs on this point. However, a look at a somewhat younger contemporary libertarian economist who dabbled in political writings such as this and who shares certain philosophical fundamentals—namely a skepticist epistemology—may shed some light on the claim. Milton Friedman similarly cited ‘tolerance’ and, more specific to Friedman’s case, “tolerance based on humility” as the fundamental basis of his libertarianism. That is: the rejection of statism based not on the rights of individuals but based on the fact that no one can rightly initiate force against another since the initiator has no basis by which to know whether the cause in whose name he would initiate that force is right or wrong. Put simply, it establishes a social system in which peaceable relations between men depend upon the impossibility of establishing objective principles. In which ignorance, not knowledge, is man’s saving grace. In which moral certainty is perceived to be the root of all tyranny.

(I will not go further into Friedman’s confused moral philosophy here, though it is encouraged that the reader reference my article “The Failures of Milton Friedman” for a fuller explanation his views and the dangers they entail.)

Whether Hayek’s implication in citing “tolerance” as the great virtue lost by the rise of collectivism is in line with Milton Friedman’s connections of “tolerance” and libertarianism is unknown, but the fact that the two men share a skepticist epistemology and both ultimately land at the same word to describe the virtue that they see to be animating their ideals cannot be ignored and provides a possible explanation for Hayek’s unsupported statement.

Where skepticist epistemology and haphazard forays into moral philosophy are found, an incomplete defense of freedom usually follows. So it is here with Hayek, who shows us precisely his conception of freedom and how it should be fought for, writing, “There is nothing in the basic principles of liberalism to make it a stationary creed, there are no hard and fast rules fixed once and for all. The fundamental principle that in the ordering of our affairs we should make as much use as possible of the spontaneous forces of society, and resort as little as possible to coercion, is capable of an infinite variety of applications” (13).

I will not engage with this statement directly, as it has been soundly argued elsewhere in other essays from this publication such as “The Philosophy of Capitalism” and Brian Underwood’s “Political Capitalism”, as well as in Ayn Rand’s essays “Man’s Rights”, “The Objectivist Ethics”, and “The Nature of Government.” I will observe simply that for a man accepted by many to be symbolic of twentieth century liberalism to take such a pragmatic, unprincipled approach to the defense of freedom stands as much as a symbol of the unsteadiness and lack of a moral basis in that movement as it does a condemnation of the man himself. What’s more, it shows that no sound defense of liberty can be based on a skepticist epistemology. A defense of man begins with an admiration for man and his nature as a rational, efficacious being. Whoever hopes to undertake a task so daunting and so crucial as a defense of man’s rights against oppression cannot enter the fray with a puttering “Who knows?!” as his battle cry.

It is the inevitable fate of such pragmatists that they should ultimately abandon a strict conception of liberty and that they should shrink principles down to the level of momentarily expedient guidelines to be cast aside at the first sign of opposition. We must be immensely grateful that the Founding Fathers of the United States had the moral basis to recognize and firmly assert the rights of “life, liberty, and the pursuit of happiness”, yoking future statesmen to these principles rather than settling for such a shrugging recommendation that they “make as much use as possible of the spontaneous forces of society.” We must be proud that Jefferson swore “an oath upon the altar of God eternal hostility against every form of tyranny over the mind of man”, and not merely an oath to “resort as little as possible to coercion.”

The distortions, sadly, do not end there. Hayek confounds our expectations further by seeking to balance his critique of socialism with a contrary charge against advocates of full individual rights, writing that “[p]robably nothing has done so much harm to the liberal cause as the wooden insistence of some liberals on certain rough rules of thumb, above all the principle of laissez faire” [emphasis mine] (13).

Hayek’s ambiguous accusation against advocates of laissez-faire, that they are somehow partly responsible for the rise of socialist policies, apparently rests on the capitalists having viewed the principle as a “hard and fast… rule which knew no exceptions” (13).  He goes on to explain that the downfall of liberalism is explainable by reference to the liberal’s strict adherence to the laissez-faire principle, finding it “inevitable that, once their position was penetrated at some points, it should soon collapse as a whole” (13).

At this point, Hayek quickly reveals several key implications: that advocates of laissez-faire are partly responsible for the rise of socialism, that laissez-faire is a flawed system, and that its legitimacy has indeed “collapse[d]” through being disproven. He continues, “No sensible person should have doubted that the crude rules in which the principles of economic policy of the nineteenth century were expressed were only a beginning, that we had yet much to learn, and that there were still immense possibilities of advancement on the lines on which we had moved” (14).

To be clear: Hayek is not referring to changes in application or translation of the existing principles, but a shift in principles as such. ‘What’, one must ask, ‘could have fundamentally changed so drastically in the period in question, to make the basic principles of economic freedom no longer relevant or applicable in one period as they had been in the previous one?’ According to Hayek, it was the inevitable result of having

“gained increasing intellectual mastery of the forces of which we had to make use. There were many obvious tasks, such as our handling of the monetary system, and the prevention or control of monopoly, and an even greater number of less obvious but hardly less important tasks to be undertaken in other fields, where there could be no doubt that the governments possessed enormous powers for good and evil;” (14)

Thus, Hayek posits that our “increasing intellectual mastery” (though I can think of a century of economic instability primarily brought by government controls that would refute this alleged “mastery”) is to credit for government intervention in the economy. He implies that the belief that governments could regulate the economy by force somehow translates to the presumption that they should do so—a significant leap that Hayek does not and cannot, without reference to philosophy, explain. Not only does this misconceive of the problem; it carelessly implies that those statesmen of earlier times did not intervene in the economy because they could not conceive of how to do so. To the contrary: earlier liberal thinkers did not plead ignorance in the face of proposed interventionism—they opposed it on principle, and suggesting otherwise is a discredit to their defenses of liberty.

Hayek’s passing statements apparently endorsing the “control of monopoly” and his suggestion that “the governments possessed enormous powers for good and evil”—that is, that good could be achieved by force just as surely as evil—only add layers to the disappointing picture established thus far. He goes on to make an unconvincing argument that the slow pace of economic progress under liberalism was to blame for people having turned away from it—a confounding claim to make about a century that witnessed the most rapid and dramatic rise in quality of life in the history of humankind, and one that even Marx himself would likely have disputed as unsubstantiated.

Finally, he ends the chapter on an agreeable note with a brief description of how the geographical flow of ideas—from Britain and the US east to continental Europe—reversed at this period in history and the prevailing current turned westward, exporting German socialist ideas to the Atlantic. He astutely summarizes how the ideas of Marx, Hegel, List, Schmoller, Sombart, and Mannheim overtook the intellectual tone set by the English after 1870. He ends on the essential point that it was ultimately the lack of confidence in their own convictions by Western thinkers that made this shift possible. In this effort—narrating the history of philosophical and cultural trade balances—Hayek is excellent and displays the power of which he is capable when he remains in his purview, capitalizing on his unique perspective.

After a promising introduction, the first chapter of Hayek’s book has proven shaky at best. The flaws are numerous and fatal: a questionable interpretation of the histories of both liberalism’s origins and socialism’s ascendance, a dangerously inadequate grasp of the role of moral philosophy in the histories he details, a desire to blame liberalism for its own destruction with insufficient substantiation, a skepticist rejection of principles that leads to a pragmatist’s approach to policy, and, finally, a rejection of laissez-faire capitalism.

To his credit, Hayek is overall favorable on matters of economic history, arguing effectively for the role of capitalism in promoting scientific progress and advances in standards of living. However, his suggestion that advancement in the nineteenth and early twentieth centuries was slow, and that this slowness of progress is to blame for the West’s acceptance of socialism, is largely without a supporting argument, is contrary to the unrivaled history of economic progress that we know to have characterized that period, and, incidentally, indulges a determinist philosophy that we saw him as likely to avoid in the introduction—a serious point of inconsistency.

Overall, Hayek’s first chapter is a dramatic step down from the introduction and a disappointment considering the reputation of the book. It is, in its own way, an abandonment of the road, if in a slightly different direction than those whom Hayek criticizes. Though future chapters may redeem the work to some extent, the fact that so much ground is lost in the first few pages is a severe blow, but one that is in keeping with the suspicions which we noted in assessing the introduction and which we warned to be on the lookout for. It illustrates well the consequences of even small cracks in one’s intellectual foundation and confirms the value of critically applying careful philosophical detective work in reading works such as this, no matter their reputation.

My Reading List for 2013

In Arts & Letters, Books, Creativity, Fiction, History, Humanities, Law, Literature, Novels, Philosophy, Politics, Western Civilization, Western Philosophy, Writing on December 12, 2012 at 8:45 am

Allen Mendenhall

Editorial Note (April 15, 2013):  At this point in the year, I have already discovered flaws in this list. For instance, I gave myself two weeks to read Augustine’s Confessions and one week to read Aquinas’s Summa Theologica.  I should have done the reverse.  Summa Theologica may have required more than two weeks to read, since I found myself rushing through it, and it is not a book through which one should rush.  My schedule has forced me to speed read some texts in order to avoid taking shortcuts.  Some of the texts on this list will therefore appear on my list for next year, so that they get the treatment and consideration they deserve.

2013 will be a good year for reading.  I’ve made a list of the books I’m going to undertake, and I hope you’ll consider reading along with me.  As you can see, I’ll be enjoying many canonical works of Western Civilization.  Some I’ve read before; some I haven’t.  My goal is to reacquaint myself with the great works I fell in love with years ago and to read some of the great works that I’ve always wanted to read but haven’t.  I wouldn’t go so far as to say that everybody ought to read these works, but I do think that by reading them, a person will gain a fundamental understanding of the essential questions and problems that have faced humans for generations.

Some works are conspicuous in their absence; the list betrays my preferences.  Notably missing are the works of Shakespeare and the canonical texts that make up the Old and New Testament.  There’s a reason for that.  I’ve developed a morning habit of reading the scriptures as well as Shakespeare before I go to work.  If I’m reading these already, there’s no need to add them to the list, which is designed to establish a healthy routine.  What’s more, the list comes with tight deadlines, and I’m inclined to relish rather than rush through the Bible or Shakespeare.

Lists provide order and clarity; we make them to reduce options or enumerate measurable, targeted goals.  Lists rescue us from what has been called the “tyranny of choice.”  Benjamin Franklin made a list of the 13 virtues he wished to live by.  What motivated him is perhaps what’s motivating me: a sense of purpose and direction and edification.

At first I wanted to assign myself a book a week, but realizing that some works are longer or more challenging than others, that as a matter of obligation I will have other books to read and review, that I have a doctoral dissertation to write, that the legal profession is time consuming, and that unforeseen circumstances could arise, I decided that I might need more time than a week per book depending on the complexity of the particular selection or the busyness of the season.  Although I hope to stick to schedule, I own that I might have to permit myself flexibility.  We’ll see.

For variety—and respite—I have chosen to alternate between a pre-20th century text and a 20th century text.  In other words, one week I might read Milton, the next Heidegger.  For the pre-20th century texts, I will advance more or less chronologically; there is no method or sequence for the 20th century texts, which I listed as they came to mind (“oh, I’ve always wanted to read more Oakeshott—I should add him.  And isn’t my knowledge of Proust severely limited?—I’ll add him as well.”).  It’s too early to say what lasting and significant effects these latter texts will have, so I hesitate to number them among the demonstrably great pre-20th century texts, but a general consensus has, I think, established these 20th century texts as at least among the candidates for canonicity.

I have dated some of the texts in the list below.  Not all dates are known with certainty, by me or anyone else.  Some texts were revised multiple times after their initial publication; others were written in installments.  Therefore, I have noted the time span for those works produced over the course of many years.

One would be justified in wondering why I’ve selected these texts over others.  The answer, I suppose, pertains to something Harold Bloom once said: that there are many books but only one lifetime, so why not read the best and most enduring?  I paraphrase because I can’t remember precisely what he said or where he said it, but the point is clear enough: read the most important books before you run out of time.

Making this list, I learned that one can read only so many great works by picking them off one week at a time.  The initial disheartenment I felt at this realization quickly gave way to motivation: if I want to understand the human condition as the most talented and creative of our predecessors understood it, I will have to make a new list every year, and I will have to squeeze in time for additional texts whenever possible.  I am shocked at the number of books that I wanted to include in this list, but that didn’t make it in.  I ran out of weeks.  What a shame.

Here is my list.  I hope you enjoy. Read the rest of this entry »

A Few More Words on Patrick Allitt’s The Conservatives

In American History, Arts & Letters, Book Reviews, Conservatism, History, Humanities, Liberalism, Libertarianism, Politics on October 9, 2011 at 4:51 pm

Allen Mendenhall

Many American politicians call themselves “conservative” despite never having read Paul Elmer More, Irving Babbitt, Robert Taft, Donald Davidson, Frank Meyer, Richard Weaver, James Burnham, or Russell Kirk.  Television pundits recycle the term “neoconservative” without even a passing reference to Leo Strauss, Irving Kristol, or Norman Podhoretz.  A welcome respite from the ignorance of the talking heads, Patrick Allitt’s The Conservatives (Yale University Press, 2009) is an engaging and informative book, even if it is more of an introduction to American conservatism than a critical study.  I recently reviewed the book here at the journal 49th Parallel, but I have more to say about it.

American conservatism is rich and complex but too often simplified or ignored by academics who think they know what conservatism means.  I applaud Allitt for taking conservatism seriously and for marshaling a wealth of evidence to support his thesis.  Those who cannot identify what generally distinguishes a paleoconservative from a neoconservative, or who’re confused by the apparent hypocrisy of conservatives who call for big-government spending on military and surveillance while griping about big-government, need to read this book.  Allitt provides clarity and direction for the uninitiated.  He deserves not just our attention, but our admiration.

Allitt attends to several figures in this book, including John Adams, Alexander Hamilton, William Cobbett, John Marshall, John Randolph of Roanoke, George Fitzhugh, Rufus Choate, Henry Clay, Daniel Webster, George Ticknor, Abraham Lincoln, Orestes Brownson, William Graham Sumner, Andrew Carnegie, Theodore Roosevelt, John Crow Ransom, Andrew Lytle, H. L. Mencken, Herbert Hoover, William Howard Taft, Albert Jay Nock, Ralph Adams Cram, George Santayana, Friedrich Hayek, Ludwig Von Mises, Murray Rothbard, Ayn Rand, Whittaker Chambers, William F. Buckley, Milton Friedman, Barry Goldwater, George Will, Ronald Reagan, Michael Novak, Robert Bork, Allan Bloom, M. E. Bradford, Thomas Fleming, Clyde Wilson, Francis Fukuyama, Samuel Huntington, Patrick Buchanan, Jerry Falwell, Roger Kimball, Thomas Sowell, Charles Murray, Dinesh D’Souza, and others.  One book cannot address every major figure that influenced American conservatism, and Allit’s failure to mention some names (Strom Thurmond, Gerald Ford, Dick Cheney, Newt Gingrich, Donald Rumsfeld, Wendell Berry, James Dobson, Pat Robertson, or any of the Bob Joneses) is understandable.  Paul Gottfried appears just once in the book, and passingly.  But a case could be made that Gottfried’s paleoconservatism is more European in origin and thus worthy of analysis.  And surely Eric Voegelin warrants more than a casual reference in a single paragraph.

For some, Allitt’s most objectionable suggestion will be that the Civil War was a conflict of two conservatisms: Calhoun’s versus Webster’s.  This interpretation illuminates and simultaneously complicates such recent debates as the one held between Thomas DiLorenzo and Harry V. Jaffa over the issue of Abraham Lincoln’s legacy.

Allitt also suggests that the Federalists represent an early manifestation of conservatism.  This classification would mean that Jefferson and his ilk were not conservatives, which would in turn imply that current Jeffersonians are not in keeping with a purely conservative tradition.  Allitt offers this helpful and accurate note about Jefferson: “He might not have been the Jacobin his Federalist foes alleged, but neither can he easily be thought of as a conservative.”  Many scholars and enthusiasts consider Jefferson to be a “classical liberal,” but the signification of that word relative to “libertarian” or “conservative” merely confounds definitional precision:  All three words have been used interchangeably and negligently in recent decades.  It may not matter if Jefferson is called “conservative” or “liberal,” especially if those terms cause people to short-circuit reflection or affix a contemporary label to a complicated man living in a complex, radically different era.

Allitt’s book is a fine contribution to and about conservative letters.  I recommend it to anyone who thinks he can explain conservatism.

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