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Forms of the Liberal State

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Political Ideologies Contexts, Ideas, And Practices
 
Professor. Arvind Sivaramkrishnan Department of Humanities and Social Sciences Indian Institute of Technology, Madras
 
Lec 9 Liberalism Lec 2 Forms of the Liberal State 26:29
 
So, that takes us to the liberal state. Well, liberalism lays great emphasis on freedom, justice and the individual, and that means that only particular forms of state are compatible with liberalism. In this, liberalism differs greatly from conservatism because conservatism, as we have seen, accepts society and its institutions as the outcome of an organic process, something that has developed in the natural course of events.
 
Liberalism instead requires a certain form of state that is a state in which institutions have specified roles and function; institutions are given specified roles and functions, such as making laws or implementing justice, and there are specified relationships between the main institutions of state, so that none of them can dominate the others. Liberal theory has to be very explicit about these aspects of political organization, and some of the most intense and detailed arguments about the organization of the state have taken place in liberal theory or in response to liberal theory.
 
You will be familiar with things like the separation of powers between the judiciary and the legislature, between the courts and parliament, in most democracies, and also familiar with the idea that elected politicians have to leave the process of justice to the courts. Those are examples of typically liberal ideas - and explicit separation of powers between institutions, and quite often of personnel between institutions as well.
 
 
 
 
 
 
 
For example, in the Republic of India, Supreme Court judges are not allowed to stand for election, they have to resign their position from the bench. Well, we need to spend more time therefore, on the form of the liberal state and its institutions. Historically, liberal thinkers and politicians demanded, and fought for, and established constitutional government before they focused on representative government.
 
This was mainly because they were trying to put an end to the excesses and corruptions of late medieval monarchies and because they also regarded constitutional government as the first requirement that involves a set of basic laws which specify the powers of public institutions and office bearers and specifies the procedures those in office have to follow. So, liberalism also specifies the limits to the powers of institutions and their staff or elected officials, and liberalism creates processes, judicial processes, so that disputes can be decided and limits can be laid down in particular cases.
 
Constitutions therefore, restrict or act best abolish arbitrary conduct in matters of government and politics; liberal thinkers in particular consider arbitrariness random decision and the random use of power to be part of tyranny, and for liberals, tyranny is an inevitable danger in all forms of political power. So, why are constitutional systems and constitutions so important for liberals? They specify the ground rules and procedures for the conduct political life, and they also limit the powers of government.
 
In many democratic systems. the Constitution is often called the basic law. In Germany, for example, the Constitution is called the Grundgesetz, the Basic Law, and that is the English translation of the term. For liberals, such basic laws are essential for the protection of individual rights and freedoms. Many of them would apply to private bodies and individuals, as well as public bodies and personnel. In general, when constitutions are written, well, they lay things down for us and we have to follow them.
 
Written constitutions are a very widespread feature of liberal political systems, and almost all contemporary democracies have written constitutions. The United Kingdom and New Zealand are two exceptions. But both of those states have laws and conventions and institutions which would be found in most written constitutions which are informed by liberal thought. For example, the United Kingdom has a Human Rights Act, and New Zealand has a bill of rights.
 
 
 
 
Both of those laws set some limits to governmental powers. For example, the British Human Rights Act 1998 requires that all laws passed thereafter be consistent with the act. As for written constitutions, India provides an excellent example, with powers and responsibilities specified for Central Government and the States. The Supreme Court, that is the guardian and interpreter of the Constitution, can order official bodies to act in accordance with the constitution and can strike down legislation which contravenes the Constitution.
 
I should add here, it can also strike down procedures within institutions even educational institutions, if these contravene the Constitution, and a ruling has just been issued by the Kerala High Court, for example, here we are, in October 2019, a ruling has just been issued, which states that access to the internet is a fundamental right under the Constitution. Now, that also means then, well, that other bodies will be bound by this ruling, which was issued in respect of a regulation within an educational institution.
 
Of course, the decision may be appealed and so on. But the point is that official bodies as well as other kinds of bodies can be ordered by the Courts to act in accordance with the constitution, and that those decisions are binding on everyone in the territories of the Republic of India. Well, how does this relate, how do constitutional procedures relate to representative government? We will see here that there are unresolved tensions between liberalism and democracy.
 
It may seem surprising that liberalism has what is at best and uncomfortable relationship with democracy. We are very familiar with the idea that most democratic constitutions in today's world express recognizably liberal commitments to things like limitations on governmental power, express commitments to rights of many kinds, free and fair elections and so on. Nevertheless, conceptually and historically, liberalism has a much less comfortable relationship with representative government than it with constitutional government.
 
John Locke saw the task of government as protecting what he called natural rights. For him these were life, liberty and property, so that individuals could pursue their own private activities and advance their private interest freely. Locke also held that mixing our labor with something, say by working on land or on raw materials, made it our own property, and therefore gave us a right over it. Locke did however state certain cautions or caveats about the possession of excessive amounts of land or other resources.
 
 
 
But in respect of politics, all liberal theorists are nervous that any public institutions we create can start to expand beyond the limits that we set for them, or that they can abuse the powers they already [have], we have given them. In liberal thought it is the public who give power to public institutions and officials and it is the public who must be able to take that power away from those who hold it if they abuse it.
 
In effect in liberalism, power comes from below. It is given to institutions on our behalf, we give it to them, we can take it away. But there is a problem here, and that is, who are the relevant public? Partly because education is very important in liberal theory. Early liberals, John Stuart Mill for example, thought that educated people were better fitted to make political decisions than say the uneducated or illiterate.
 
Mill later came to accept the idea of a universal franchise. But he also held that educated people's votes should count for up to four votes by illiterates. John Locke for his part, thought that only those who own property should be allowed to vote, because in his time only the property classes paid taxes.
 
This kind of nervousness or even fear of popular or mass democracy is shown very strikingly in the United States Constitution. Article 2 of the United States Constitution says the president shall be elected by an electoral college. What does that mean? Well, in any given state in the United States, a certain number of college votes are allocated. That college vote that number of college votes, is equal to the number of representatives sent by that state to the House of Representatives, plus two for the senators who represent the state in the Senate.
 
For example, California has the biggest population in the United States. So, it has 53 representatives, that is at the time of writing. At the time, I am saying this to you, California has 53 representatives and 2 senators. So, it has 55 college votes. Other states with smaller populations have say 23 representative college votes and 2 senators, college votes. In other words, 25 college votes.
 
Now, these are really strictly just numbered votes. So, how does the system work? If a presidential candidate in the presidential election itself wins the popular vote in the state in the normal way, then he or she takes all the college votes for the state, say if you win the state of California you get 55 college votes. So, in effect a presidential candidate needs to win only the 7 most populous states, the 7 states with the biggest populations in order to win a majority of the current total of 538 college votes.
 
 
Four times, the winner of the college majority has won less of the popular vote than the loser. For example, Grover, Grover Cleveland lost in 1888 because he won the count of total popular votes, but was unable to persuade the college - in those days it had the option - to give him a majority. More recently, in 2000, George W. Bush lost the popular vote to the democrat Al Gore, but in a disputed count, George W. Bush won the state of Florida and he thereby got a total of 271 college votes, and therefore he won the presidency.
 
Perhaps most strikingly, in 2016 Donald Trump won the presidential election by 306 college votes to 232, but his nearest rival Hillary Clinton, won 2.86 million more popular votes, or about 2.1 percent more of the turnout than Trump. Those who drafted the US Constitution were very frightened that a simple popular vote would lead to what the French philosopher Alexis de Tocqueville called the tyranny of the majority. So they could not allow a popular vote to decide the presidency. Even Alexander Hamilton, one of the framers of the Constitution, wrote a letter in which he said of the United States that democracy was I quote, ‘our disease’. The framers of the Constitution therefore devised the requirement for the college vote as a safeguard against what they feared might be bad judgment by the masses.
 
Liberalism therefore has an uncomfortable relationship with democracy, and this does appear fairly frequently. Liberalism gave rise to this kind of problem, not just in single countries in the industrial world, but in Imperial and industrial contexts. John Stuart Mill, like his father James Mill, worked for the East India Company for a time, and he concluded that liberal democracy would have to be imposed on the Indian civilization by force, because its cultural values were too far removed from those of liberalism, for a reasoned introduction to take place.
 
At the end of the twentieth century, the idea of liberal interventionism became something of a media fashion for a short time, because, well, it was certainly a way of trying to justify the western invasion of Afghanistan, which was valid in international law, and also the invasion of Iraq, which was illegal and was led by the United States and the United Kingdom. Yet, liberal interventionism, even if it was proposed for Afghanistan and Iraq, seems never to have been proposed in respect of Saudi Arabia, which is a very powerful Western ally, or in respect of Nigeria and India.
 
 
 
 
 
 
Liberal intervention seems never to been proposed in respect of Saudi Arabia, which is a very powerful Western ally. It also seems never to have been proposed in respect of Nigeria and India. Both of these have free and fair elections. But both, both have societies which are tainted - societies and political systems - which are tainted by severe corruption and very severe inequality and corruption and inequality; both cause enormous problems for hundreds of millions of people in respect of access to education and health care and the justice system, whether civil or criminal, that is all very well documented.
 
But liberal intervention seems never to have been proposed for Saudi Arabia or Nigeria or India. With Nigeria and India one reason is very probably that both have free and fair elections and recognizable justice systems, which brought the, seem to work despite documented problems. Now, this kind of problem is not new in the history of liberalism. Domenico Losurdo has written an unrelenting critique of liberalism, and he shows that the American Revolution, which was started in the name of liberty, involves what was in effect, official consecration of the institution of slavery.
 
This was not the kind of slavery recorded in antiquity. But it was permanent hereditary slavery, determined by the colour of people's skin, that is, slavery or permanent subordination by descent. According to Losurdo, a central factor here was that to the emerging merchant and financial classes, anything and everything was as a tradable commodity, including human beings, or, more specifically, human labour power, the capacity to perform work.
 
It was these classes, who according to Losurdo, defined themselves as liberals. Now in the conceptual home of liberalism, that was Great Britain, this meant the forced expulsion of peasants from the land and the enclosure by law of common land and the measures taken were of, I quote, ‘unprecedented harshness’. Even absolute monarchy might have provided a possible protection against these enclosures, but Britain's executive monarchy had been abolished in 1688, and in 1688, the nobles who then composed parliament created the doctrine of parliamentary supremacy, and made the monarch a figurehead.
 
One consequence was that the whole sphere, whole sphere of politics and legislation was defined very narrowly. It was defined so is to exclude material living conditions, and the system of structural economic relations. This also made it impossible to raise seriously the fact of pub, of slavery as a public matter. I have taken that passage from the Losurdo book.
 
 
 
Now as Western colonialism spread, a further result was the imposition of colonial control based on repression and genocide or near genocide, whether in Australasia, the United States, or the expanding French Empire. Indeed, according to Losurdo, slavery was in many places replaced by what he calls servile, meaning indentured, labour; the United States, for example, imported 10,000 Chinese laborers to build railroads in inaccessible parts of what was then the far west of the US.
 
So, we should not be surprised that liberalism with its record, I will rephrase that I have to correct it. We should therefore be surprised that liberalism, with a record like that, has been so apparently successful in our time. Rights and anti-discrimination legislation are now a routine feature of almost any democratically constituted polity. Whether or not such rights are observed in practice, such rights are now a routine feature of legislation or institutions to protect them and so on.
 
One possible reason for the widespread popularity, if that is the right word, for the widespread character of liberalism is that it continues to be an ideology of ruling classes and putative or aspiring, aspirant ruling classes, just as it was during the period of its early successes; and if it is, therefore a form of class ideology, it would rely on passive conceptions of citizenship, that is citizenship as membership with relatively limited participation such as the right to vote.
 
Even if that is a universal right in most democracies, its impact is very largely quite limited. So, other kinds of limitations which express in effect a class ideology within liberalism would include tight control of official information, like Official Secrets legislation, and also would include other ways in which access to the public sphere is restricted or controlled, whether by official bodies or by private interests, such as media corporations, but that is not a complete explanation, because the flaws in the practice of liberalism and in the theory continue to be exposed globally. There is a philosophic difficulty too, and this applies to any ideology, and that is that the historical record does not use up or exhaust or end the possibilities in any system of political ideas. In fact, it is, it is hardly clear what our world would look like, if the historical record were the whole story of everything there is to any ideology.
 
What would such a state of affairs mean? The rejection for example of Marxism, on historical grounds is common enough. But the same point is just as true of liberalism. In other words, we need whether we like it or not to continue taking liberal ideas seriously. So, what are these liberal ideas? They are things like political pluralism and civil society. We will take political pluralism first. Liberal states, by definition, allow a wide range of political opinions at parties.
 
This is consistent with the liberal principle that people are free to support policies they like, and they are free to do that in freedom from coercion by the state, or by private bodies or individuals. This also means we are free to choose our political representatives, and the representatives themselves can offer a range of policies and attitudes to the electorate. Therefore, liberal states are characterized by a range of ideas and viewpoints and political parties.
 
We’re very familiar with that. That is political pluralism, and as we shall see, it is also reflected in moral pluralism within society. That leads us to the kind of society that goes with liberal political systems, and that is found in the concept of civil society. It is a very important feature of liberal political systems.
 
Liberal theorists distrust and fear what they see as the state’ tendency, they even consider it an inherent tendency, to encroach upon more and more of the individual's life, and liberals therefore require limits to the state's reach, so that individuals can freely follow their own interests, including business and commercial interests, and can continue their own activities without state interference.
 
These would be things like voluntary societies, sporting and artistic activities, recreational pursuits, and such things. For most liberal theorists, and in practice, in most liberal systems, people spend most of their time in civil society, and that includes the right to freedom of association. Civil society, therefore, is the space of all activities, not connected or not directly connected with the state.
 
The German philosopher Georg Hegel calls civil society the aggregate sphere of interests. Now we should note here briefly that, yes, civil society is often regulated by the state. So that antidiscrimination law, so that health and safety legislation, so that certain kinds of broad regulatory legislation are followed. But within those usually very broad limits, we are free to choose and free to carry out activities in civil society. That’s a feature of all liberal societies and liberal systems.
 
Liberal economics, well, goes with that. That is our next concept within liberalism, and that is liberal economics. What does it mean? A broadly free market or capitalist economy is essential to liberalism, because economic freedom is part of liberal thinking. Liberal theory has a substantial economic element, and it broadly shows two main tendencies.
 
One is formed by classical liberalism and neoliberalism, and the other one is often called modern liberalism. Well, we need to move on to those. That is the end of our set of topics. Before we look, go on to look at, classical liberalism and neoliberalism. W’ll take a pause there, and then we’ll move on to do the next two topics, that is forms of liberalism.