Liberalism in the role of underdog

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In understanding the phenomenon of liberal dominance of leadership positions in society, it is helpful to look at things from their point of view. Liberals view the market as an overpowering reality against which they must constantly struggle to save society from the egotism, exploitation, rapine, and devastation caused by uncontrolled economic activity. And, aside from the false moralizing, this viewpoint is accurate. Government in the modern era is angled to form the “opposition” to the baseline capitalist condition inherent in the private-law regime of property and contract. In this context, the market is an overriding reality that a liberal can only view as something monstrous and overbearing. Therefore they view government as the savior from the preponderance of the market economy. In their view, they are the little guys fighting against Goliath. From the conservative point of view, of course, they control all the positions of power over society and the way society views itself.

McIlwain’s distinction between gubernaculum and jurisdictio expresses this dual reality in the state (see his Constitutionalism: Ancient and Modern). Gubernaculum is the action of government agency, jurisdictio is the common-law adjudication of disputes. The former is the positive action of command, the latter the negative action of establishing boundaries. Through the former, the state as government acts as one agent among many; through the latter, the state as adjudicator withdraws from active participation to perform its role as umpire and arbiter, through which action it establishes and confirms the institutions of private law.

Supplement this understanding with Hayek’s distinction between nomos, the law of liberty, and thesis, the law of organization (cf. Law, Legislation, and Liberty). Nomos is private law, which regulates the relations between associations; thesis is the law regulating relations within associations. The state has a thesis, which is public law, including administrative law. It also is the institution charged with maintaining and upholding nomos. As Hayek vividly brings out, the problem is that thesis turns on nomos and begins to absorb it. This is the problem all republics face, and which citizens must be made aware of if they are to exercise responsible citizenship.

Liberals therefore view nomos as the enemy and thesis as the means to overcoming it. Conservatives must not fall into the trap of reversing the relationship, viewing thesis as the enemy and nomos as a weapon to defeat it. That leads to radical contractualism and undermines all internal distributive relationships. Public law and administrative law have proper roles, the point is to delimit those roles, establish proper boundaries, and maintain them.

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