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Constitutionalism, legitimacy and modernity

in the political philosophy of

Eric Voegelin, Leo Strauss and Michael Oakeshott

[Draft please do not cite]

Nol OSullivan

Hull University

UK

November 2010

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Constitutionalism, legitimacy and modernity in the political philosophy of

Eric Voegelin, Leo Strauss and Michael Oakeshott,

Abstract: The principal concern of European defenders of liberal democracy after the

Second World War was to restate the case for constitutional government in terms that

would provide a conclusive critique of totalitarian ideology in all its forms. What

united Michael Oakeshott, Leo Strauss and Eric Voegelin was their shared

commitment to this task. Beneath this unity of purpose, however, lay profound

disagreement about the precise meaning of constitutionalism and the nature of its

relation, more generally, to Western modernity.

The aim of the present paper is to suggest that Oakeshott alone develops a

coherent conception of modern constitutionalism, mainly because he alone focuses

systematically on the problem to which constitutionalism in its ethical and non-

instrumental form is a response. This is the problem of legitimacy which first emerged

at the beginning of the modern period in the form of the question: under what

conditions can obligation to law exist in a non-voluntary association (i.e. the state)

whose members desire a self-chosen life?

In the pre-modern era, the problem of legitimacy in this distinctively modern

form could not arise due to the assumption that the power of rulers over subjects is

rationally or divinely ordained by the order of the universe itself. In the modern

period, however, this kind of cosmically grounded concept of legitimacy is no longer

available. In its absence, the only viable modern response consists in constructing a

public realm in which both rulers and ruled participate, thereby making politics more

than mere power or domination. Accordingly, the main condition for political

legitimacy in modern Western liberal democracies is, in Oakeshotts words, that a

government must be constituted in such a way that it can be considered as belonging

to the governed and not as an alien power.1 In practice, representative government

has been the means of achieving this outcome.

When Oakeshotts identification of the primary condition for political

legitimacy is borne in mind, the principal failing of Strauss and Voegelin as defenders

1 Oakeshott, M. (200), The Concept of Government in Modern Europe, in Collingwood and British Idealism Studies, 12, 17-35. First published as La Idea de Gobierno en la Europa Moderna (Madrid: Ateneo, 1955). This was a Spanish translation of a lecture delivered in English at the Ateneo, Madrid.

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of constitutionalism is immediately apparent: it is their tendency to evade the problem

due to their dominant concern with comprehensive cultural critiques focused on

nihilism, in Strausss case, and on secularized forms of the Gnostic heresy, in

Voegelins. As a result of this concern with cultural critique, both thinkers fail to

disengage the conditions for political legitimacy from the intellectual and moral

conditions for spiritual order.

In Strausss case, the form of constitutionalism he favoured was the ancient

kind resting on wisdom and virtue, rather than the modern procedural kind. The

central problem presented by his political thought, however, is that his critique of

modern constitutionalism from a classical standpoint is open to the charge of being a

caricature, a charge which may be made quite regardless of the truth or falsity of his

belief that classical thought has a secret or esoteric character designed to conceal a

message which only the privileged scholar may penetrate.

In Voegelins case, as in Strausss, a commitment to constitutionalism was at

odds with his desire to protect postwar democracy from subversion by the Gnostic

yearning for salvation which he believed had inspired modern radical ideologies (and

continues to inspire neo-conservatism, for example). The outcome in both instances

was potentially authoritarian sympathies which were more likely to subvert any

modern constitution than to defend it.

What distinguishes Oakeshott from both thinkers is his commitment to an

essentially procedural form of constitutionalism expressed in the juridical ideal of

civil association as alone appropriate to Western modernity. It will be argued that

although Oakeshotts ideal of civil association is difficult to extricate from the

integrating aspects of nationalism, economic prosperity and welfare policy which

have accompanied its historical development in the nation state, it nevertheless,

remains the only conception of constitutionalism that offers a coherent response to the

problem of legitimacy that is, to reconciling authority with freedom.

***********

The principal concern of European defenders of a free society after the Second

World War was to mount a critique of totalitarianism which would ensure that it never

recurred in Western liberal democracies. What united Michael Oakeshott, Leo Strauss

and Eric Voegelin was the belief that this critique must take the form of a defence of

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constitutional government. The three thinkers disagreed profoundly, however, about

precisely what constitutionalism means, as well as about the crisis of modernity which

they believe threatens it. Eric Voegelins treatment of these issues will be considered

first.

Voegelin

Voegelin believed that the form of constitutionalism adopted by liberal

democracies after 1945 provides no protection against the return of dictatorship

because it offers no remedy for the spiritual malaise which, after inspiring the radical

ideologies of the inter-war era, continues unabated into the post-war decades, after.

This malaise he attributed to a secularized version of the ancient Gnostic heresy, the

essence of which is the experience of the existing order as a prison from which

liberation must be sought by violence if necessary. In its secularized and politicized

form, the Gnostic experience consists of alienation from the established social order

so profound that ideologies offering the prospect of an escape from it by revolution

are welcomed.

It is not relevant in the present context to explore Voegelins interpretation of

the stages by which he believes Gnosticism was gradually transformed from a

religious heresy (as the Church labelled it) during the early centuries AD into a

secularized interpretation of history from the time of Joachim of Fiore in the twelfth

century. Thereafter, the process of immanentizing the Christian eschaton, as

Voegelin termed it, led to a political vision of earthly salvation through revolutionary

violence which eventually triumphed in the totalitarian ideologies of the twentieth

century. The seven league boots worn by Voegelin in the course of his account of the

two millennia during which he argues that the transformation occurred, it need hardly

be said, have been criticized on the ground that his giant strides testify more to his

speculative ability than to his regard for historical accuracy. What is more to the point

is that, ironically, his desire to protect post-war democracy from subversion by

Gnostic-inspired authoritarian political movements led him to sympathize with a

potentially authoritarian solution more likely to subvert modern liberal democratic

constitutions than to protect them.

The tension between constitutionalism and authoritarianism in Voegelins

political thought is evident above all in a crucial distinction he made in The New

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Science of Politics (1952) between two different kinds of representation in the course

of specifying the kind of reform required in order to place liberal democracy on a

secure foundation. One kind is what he termed elemental representation, and the

other, existential representation. By elemental representation Voegelin referred to

the formal system of popular elections on which modern western liberal democracies

rely. Its weakness is that it leaves a society at the mercy of any Gnostic tendencies to

which the masses are prone. By existential representation, he referred to a system in

which the ruler is representative in the deeper sense that the values he stands for

reflect the societys whole way of life.2 Voegelins contention was that only a

democracy based on the latter, existential kind of representation is secure against

extremist movements like Nazism because it permits power to be placed in the hands

of an lite which is free from Gnostic tendencies.

As Hans Kelsen, one of Voegelins former doctoral supervisors, was not slow

to point out, the concept of existential representation could easily sanction exactly the

kind of totalitarian system Voegelin opposed, since it permitted the Soviet

government, for example, to claim to be the existential rep

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