Justice Thomas' masterful dissent in Whole Woman’s Health v. Hellerstedt skewers the Court's arbitrary use of tiers of review.
This month’s Liberty Forum considers the ideas of the English political philosopher Michael Oakeshott. Timothy Fuller, Elizabeth Corey, and Justin Shubow evaluate Oakeshott’s contributions on the rule of law and the threats to political and individual liberty posed by advocates of telocratic government, that is, the use of law to achieve ideological conclusions. Below are excerpts from this month’s Forum.
Timothy Fuller: As Oakeshott says in the Lectures, commenting on Adam Smith,
The system of law, if it is to serve its purpose, must, of course, be appropriate to the kind of relationships which the members of the association are apt to enter into, and the kind of injuries they are most apt to do to one another. It, therefore, falls to government not only to administer the law, but also to see that this law is appropriate to its subjects….The business of government is not to impose an overall pattern of life upon its subjects, or to give a ‘purpose’ or ‘end’ to the activities of subjects who might otherwise not know what they should be doing.(Lectures, 494)
Oakeshott also spoke of the “ideological style” in politics. This style is dissatisfied with the unplanned, undesigned order which has come to be through a combination of chance and choice over a long period of time and which is understood through the familiarity those who participate in it acquire. Such order will be misunderstood if judged according to an independently premeditated model of what it “ought to look like.” Oakeshott argues that this ideological vision can never in fact be independent; it is constructed by abstraction from actual experience, offering what appears to be a coherent design only because it sets aside all the complexities with which, if it is “put into practice,” it will inevitably have to deal and which will immediately begin to reveal its inappropriateness . . .
Elizabeth Corey: Telocracy is, indeed, the model for most of what we do as human beings: running a business, educating children, or promoting a political cause. In this mode of association there is only “Purpose, Plan, Policy and Power.” But what also characterizes it is our ability to enter and exit at will; and this is why Oakeshott considers it an inappropriate model for government. If government itself becomes “telocratic” we have little ability to protest and no real possibility of exit. We are compelled, by force or threat, to take substantive action of a sort that we may or may not approve, all in the service of an end we have not chosen. To paraphrase Oakeshott, there is only one thing worse than hearing the dreams of others, and that is being forced to live them yourself.
One other point is worth noting about this notion of purposive government. As Oakeshott points out, people who favor the telocratic model very often express themselves in the terms of emergency, war and necessity, arguing that a chosen end is not merely desirable but essential for all. It is “not insignificant that the rhetoric of telocratic belief is always liberally sprinkled with military analogy.” Thus we see recent religiously-motivated opposition to the HHS contraceptive mandate characterized not as legitimate objection to a disliked policy but as a “war on women.” Law, in this telocratic vision, is not a neutral set of regulations but a tool that helps or hinders the achievement of a substantive end. The end, not the means, is always most important.
Justin Shubow: Oakeshott’s views must seem all the more alien to Americans. Oakeshott criticizes the Declaration of Independence and Bill of Rights for being ideological, for being ground in abstract principles. Ideologies, he contends, are always abridgments of actual practice. Although they might make explicit some of what was implicit, ideologies necessarily leave out much of what is important since it is impossible to articulate every aspect of a practice. Practices are akin to vernacular language: the rules of grammar and syntax can never tell one how to write a beautiful sentence. Ideologies as rulebooks for practice can be nothing more than cribs—thus their dangerous popularity with the inexperienced and unwise. All of this holds not just for political ideologies but for moral ideologies, such as Utilitarianism. They ignore the fact that nearly all practical decision-making is deliberative, not demonstrative; it is a matter of judgment.