THE BURKE-PAINE CONTROVERSY
Reflections on the Revolution in France, by Edmund Burke, and
The Rights of Man, by Thomas Paine. (Garden City, N.Y.:
Doubleday, Dolphin Books, 1961). 1 Pp. 515.
WI he first thing to be noted about the Burke–Paine controversy
is that it never really took place. Burke wrote a book. Paine
wrote a reply to it. Burke scorned to answer Paine by name, though
he quoted him without acknowledgment in the sequel to his own
book. Paine wrote a second attack on Burke, and Burke ignored it.
Throughout, the two men succeeded pretty well in talking past each
other in an effort to influence British public opinion.
The "controversy" began with the publication of Burke's Reflections on the Revolution in France in November 1790. Paine had
met Burke about two years earlier and in the interval had spoken
and written to him often enough to be confident that Burke was
familiar with his republican political philosophy. He was also vain
enough and naive enough to think that he might convert Burke to
it. When the Reflections appeared, therefore, Paine was shocked at
Burke's monarchist and aristocratic attack on the French Revolution. He also took it as a personal challenge to himself and his ideas.
He therefore replied with an attack on Burke and his views in The
Rights of Man, Part I, published in March 1791.
In his admirable monograph, Burke, Paine, and the Rights of
Man e R. R. Fennessy describes Paine's book as not the first or the
best reply to Burke's Reflections but as the most popular and influentia1. 3 In Fennessy's judgment, "Paine's book does not constitute a
major, or even a minor, contribution to political theory, but it is a
great work of political popularization. It is one of the most influential pieces of political journalism that ever was written in English."4
Political journalism was Burke's own estimation of The Rights
of Man, and he despised it. But he also dreaded it as an effort to fan
the flames of a revolution in Great Britain in imitation of the one
in France. At a time when few even of Burke's friends in England
shared his view of the radical character of the French Revolution or
1 All references to these two works will be to this edition; references to Burke's
and Paine's other writings will be to editions of their collected works.
2
The Hague: Martinus Nijhoff, 1963.
3
Ibid., 10.
4
Ibid., 244.
390
THE POLITICAL SCIENCE REVIEWER
saw any danger of its crossing the Channel, Burke and Paine were
in curious agreement on the point at issue. As Fennessy says, Burke
"understood this doctrine [of the rights of man] precisely as Paine
understood it; and he feared it would have the consequences in
England that Paine hoped it would have." 5 Consequently,
Burke immediately seized on Paine's book as the typical expression
of the opinions and aspirations against which he had taken his
stand. And he was not slow to claim that those who did not agree
with Reflections were necessarily, whatever they might say, supporting Paine. This was the contention of the Appeal from the New to
the Old Whigs, and he also urged it in his private correspondence. . . .6
Burke's technique in An Appeal, published in August 1791, was
to quote Paine at length but without naming him or his book.
Instead, he simply attributed Paine's views to all those British
sympathizers with the French Revolution whom he lumped together
as the "New Whigs." As for Paine himself, while his words would
serve as a statement of "New Whig" principles, Burke had no
further use for him and would not enter into personal controversy
with him. Having quoted him, Burke concluded:
These are the notions which, under the idea of whig principles,
several persons, and among them persons of no mean mark, have
associated themselves to propagate. I will not attempt in the smallest
degree to refute them. This will probably be done (if such writings
shall be thought to deserve any other than the refutation of criminal justice) by others, who may think with Mr. Burke. He has performed his part.?
The refutation of criminal justice was not long in coming. In
February 1792 Paine brought out Part II of The Rights of Man;
it was even more overtly revolutionary than Part I. In September he
left England, never to return. In December he was tried in absentia
by an English court, found guilty of publishing a seditious libel, and
declared an outlaw. Thus ended the Burke—Paine controversy.
But had it ever really been joined? Fennessy thinks not. In his
opinion, "there was no actual controversy between Burke and Paine
—that is, no exchange of argument, reply, or counter—argument5
Ibid., 189-190.
Ibid., 211.
The Works of the Right Honourable Edmund Burke (London: F.C. and J.
Rivington, 16 vols., 1803-1827), VI, 200. Subsequent references to Works will be
to this edition. (There is, unfortunately, no paperback edition of An Appeal
from the New to the Old Whigs currently in print.)
6
7
THE BURKE-PAINE CONTROVERSY
391
but simply two appeals to English public opinion, from two entirely
different and totally irreconcilable points of view." 8 According to
Fennessy, "Paine does not understand Burke's arguments and ideas,
much less refute them." 9 The Rights of Man, therefore, is "much
less an actual reply to Burke's arguments than simply a counter–
manifesto of pro–revolutionary and republican sentiments." 19 As for
Burke, while he was willing to use Paine when it served his purpose,
he saw himself as resisting a movement of ideas far greater and far
more dangerous than Paine's mind could have produced.
A non–controversy that took place nearly two centuries ago may
not seem worth writing about today. Furthermore, we are here commemorating the Declaration of Independence, but that was an event
of the American Revolution, and not one that set Burke. and Paine
at loggerheads as the French Revolution did. In regard to the
American Revolution, Paine at least thought that he and Burke
were on the same side. The opening words of the English edition
of The Rights of Man are: "From the part Mr. Burke took in the
American Revolution, it was natural that I should consider him a
friend to mankind.'11
Burke, on his part, while he had championed the cause of the
American colonies in their quarrel with Parliament, had never
wanted to separate them from Britain. He was always the enlightened imperialist and had striven to give the Americans, as he strove
to give the Irish, reasons for maintaining their connection with
Great Britain. But, when American independence came, Burke was
able to accept it. Once America was out of the British Empire, he
lost interest in American affairs. But he did make at least one comment on them, and it was not unfriendly. He is reported as saying
in the House of Commons on May 6, 1791: "The people of America
had, he believed, formed a constitution as well adapted to their
circumstances as they could." It was, to be sure, a republican constitution, but, given the social history of America, it had to be one:
they had not the materials of monarchy or aristocracy among
them. They did not, however, set up the absurdity that the nation
should govern the nation; that prince prettyman should govern
8 Op. cit., vii.
9
Ibid., 180.
to Ibid., vii. Let me acknowledge here that I am indebted in much of what
follows to Fennessy's analysis of Burke's and Paine's thought.
11 P. 269.
392
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prince prettyman: but formed their government, as nearly as they
could, according to the model of the British constitution.12
It was not the American Revolution, then, that aroused Burke's
wrath and brought him into conflict with Paine. In regard to the
revolution over which they did clash, although Burke had the better
mind of the two men, he was nonetheless on the losing side. He
wrote in defense of a social and political order that has largely
vanished under the impact of the democratic revolution of which
Paine was a herald. Even in parts of the world where it could
hardly be said that democracy has triumphed, its vocabulary has
done so. The most regimented states on earth call themselves
people's democracies and exercise power in the name of the masses.
Paine, it would seem, has won and for Burke it is all over. What,
then, is there left to write about?
An answer is suggested by a passage in a work that has nothing
to do with either Burke or Paine: Alan Gewirth's translation of
Marsilius of Padua, The Defender of the Peace. 13 In his introduction, Professor Gewirth states the three basic themes of Marsilius'
work in these words: "(1) the state is a product of reason and exists
for the end of men's living well; (2) political authority is primarily
concerned with the resolution of conflicts and is defined by the possession and structure of coercive power; (3) the sole source of legitimate political power is the will or consent of the people."14
He then goes on to explain, in terms that will serve to locate
Burke and Paine:
Each of these propositions, taken by itself, marks an approach to
political problems which sets apart a whole school of political
philosophy usually considered as antithetical to each of the other
two. The first proposition represents the theme characteristic of
the perennial tradition of political philosophy which has been
designated by such terms as "rationalistic" and "idealistic": the
state is explained by the rational moral ends which it enables men
to achieve, so that both it and the political authority exercised in it
are at once products of and limited by reason. The second proposition, on the other hand, represents the "positivistic" and "legalistic" theme which usually figures in a tradition opposed to the first:
the state is now viewed not as the vehicle and embodiment of ideal
rational ends or values but as the scene and the regulator of strife,
12 The Parliamentary History of England (London: Hansard, 36 vols., 18061820), XXIX, 365-366.
13
New York: Harper Torchbooks, 1956.
14 Ibid., xxx.
THE BURKE-PAINE CONTROVERSY
393
so that the mark of the state and of political authority comes to
be the structuring of the coercive power which controls and settles
conflicts. Thus, whereas in the full development of the first theme
only that political authority is legitimate which conforms to the
moral demands of reason by leading men to a life of virtue, in the
full development of the second theme any political authority is
legitimate so long as it in fact settles conflicts and preserves society,
so that not supreme virtue but supreme power is the mark of
political authority. The third proposition . . . represents a tradition which has historically been opposed to each of the others: the
"voluntaristic" and "republican" theme whereby the state and its
authority are defined neither by rational ends nor by coercive power
but rather by the people's will.15
Political theorists, of course, do not fall neatly and exclusively
into one of the above categories. But, to speak in broad and general terms, it is safe to say that for Burke the first proposition was
basic—that the state is explained and justified by the rational moral
ends it enables men to achieve—and that Paine's ideology was an
elaboration of the third proposition—that the state and its authority
are defined by the people's will. It can further be said that the issue
thus posed is alive and relevant today.
Its relevance lies in the central position occupied by rights in
Paine's thought and in liberal thought generally. Paine belongs to
the natural–rights school of political thought: natural rights furnish
him with the intellectual foundation of his doctrine of popular
sovereignty. Thus he quotes with full approval the Declaration of
the Rights of Man and of Citizens, which begins:
The representatives of the people of FRANCE, formed into a
NATIONAL ASSEMBLY, considering that ignorance, neglect, or
contempt of human rights, are the sole causes of public misfortunes
and corruptions of government, have resolved to set forth in -a
solemn declaration, these natural, imprescriptible, and inalienable
rights: .. .
And, in Article II, the Declaration states: "The end of all political
associations is the preservation of the natural and imprescriptible
rights of man; . . ."16
The only point we need stress at the moment is that for Paine,
as for the French National Assembly, the purpose of politics and of
the state can be reduced to a question of rights. The end of all
political associations is the preservation of rights, and the sole cause
15
16
xxx–xxxi.
The Rights of Man,
349-350.
394
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of public misfortunes is ignorance, neglect, or contempt of human
rights. It follows that if we ever get our conception of rights straight
and implement it in practice, we shall have solved all the problems
of society. This view is still very much with us today.
To choose an example almost at random, in a newspaper column
written last year,' 7 Judge Nanette Dembitz of the New York State
Family Court discussed the problem of children who are virtually
precondemned to a life of crime by the miserable quality of the
upbringing they get from their parents. Helping such children, she
felt, would often require removing them from their parents. But
that might smack of unconstitutional discrimination, since this
remedy becomes necessary "almost exclusively among the poor." Yet
the children, too, have rights. The judge concluded: "The crisis
developing in the law of parent–child relations arises from the collision between increased legal concern on the one hand for the civil
liberties of the poor and, on the other, for the rights of children as
human beings independent of their parents, rather than as parents'
possessions."
It is not my purpose to criticize Judge Dembitz, still less to suggest that there are no human rights that deserve protection. Still,
it is striking that her analysis of a social problem reduces it simply
to a conflict between the rights of parents and the rights of children.
That such rights are involved is beyond question. But is there nothing more to the problem than that? Can it be adequately stated, let
alone solved, by a process of more accurately defining and balancing
the individual rights at issue? Our courts, and the legal profession generally, seem to be incapable of any more profound social
analysis.
But they are not alone in their limited vision. Reading the daily
newspaper, one cannot but be struck by the regularity with which
Americans render social problems intelligible to themselves by defining them as conflicts of alleged rights—usually individual rights,
sometimes the rights of groups conceived of as collections of individuals. The legalization of abortion has been debated in terms of
the unborn child's right to life vs. his mother's right to control her
own body. School busing became a question of the right of some
parents to get a better education for their children vs. the right of
other parents to send their children to a neighborhood school. The
17
p. 17.
". . .
And Thwarting a Life of Crime," New York Times, 9 August 1975,
THE BURKE-PAINE CONTROVERSY
395
protection of the environment, zoning laws, certain aspects of labor–
management relations, the status of homosexuals and a host of other
issues have been argued in similar terms.
That they have been so argued is due to large part to the American habit of using the courts as political organs for the framing of
social policy. But, at a deeper level, it is the inevitable consequence
of our being a liberal society that defines itself and its goals in
terms of the rights of man. We operate on what the late Alexander
M. Bickel called the "liberal contractarian model" of society which
"rests on a vision of individual rights that have a clearly defined,
independent existence predating society and are derived from nature
and from a natural, if imagined, contract. Society must bend to these
rights."" Since Thomas Paine was one of the great popularizers of
that view, an analysis of his political theory and of the opposed one
of Edmund Burke will help to throw light on the way in which
American society understands itself even today.
Let us turn, then to Paine and begin with one of his flattering
comments on our country. He says:
If there is a country in the world, where concord, according to common calculation; would be least expected, it is America. Made up,
as it is, of people from different nations, accustomed to different
forms and habits of government, speaking different languages, and
more different in their modes of worship, it would appear that the
union of such a people was impracticable; but by the simple operation of constructing government on the principles of society and the
rights of man, every difficulty retires, and all the parts are brought
into cordial unison. There the poor are not oppressed, the rich are
not privileged. Industry is not mortified by the splendid extravagance of a court rioting at its expense. Their taxes are few, because
their government is just; and as there is nothing to render them
wretched, there is nothing to engender riots and tumults.19
Government in America—which for Paine is a model for the
world—is constructed on "the principles of society and the rights of
man." The principles of society refer to a premise which Paine had
earlier expressed in lapidary form in Common' Sense: "Society is
produced by our wants and government by our wickedness." 20 But
he gave a fuller exposition of it in chapter 1 of Part II of The
Rights of Man.
18
The Morality of Consent (New Haven: Yale Univ. Press, 1975), p. 4.
The Rights of Man, 402.
zo The Complete Writings of Thomas Paine, ed. Philip S. Foner (New York:
19
Citadel Press, 2 vols., 1945), I, 4.
396
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His purpose in this chapter was to show that society is prior to
government and that it "performs for itself almost everything which
is ascribed to government." 21 Most of the benefits which governments claim to confer on men, and which they use to justify the
heavy burden of taxation, are in fact produced by society and would
be produced without government. Therefore, "a great part of what
is called government is mere imposition."22
According to Paine, "Nature created [man] for social life." But
tIlat is to say that she so made him that self–interest leads him into
society. "In all cases she made his natural wants greater than his
individual powers. No one man is capable, without the aid of society, of supplying his own wants; and those wants acting upon
every individual, impel the whole of them into society, as naturally
as gravitation acts to a center." 23 Although Paine declared that "man
is so naturally a creature of society, that it is almost impossible to
put him out of it," 24 it remains that he saw man as entering society
because he is incapable "without the aid of society, of supplying his
own wants." The common interest which was the object of society
was, in Paine's eyes, a pooling of individual and private interests.
Thus he explains:
The landholder, the farmer, the manufacturer, the merchant, the
tradesman, and every occupation, prospers by the aid which each
receives from the other, and from the whole. Common interest
regulates their concerns, and forms their laws; and the laws which
common usage ordains, have a greater influence than the laws of
government.25
The function of government, as he states it in a later chapter,
rests on the same reductionist notion of common interest:
Every man wishes to pursue his occupation, and enjoy the fruits
of his labors, and the produce of his property, in peace and safety,
and with the least possible expense. When these things are accomplished, all the objects for which government ought to be established
are answered.26
Paine does not see the bonds that unite men in civil society as
flowing from relations rooted in human nature itself. On the con21 The Rights of Man,
22 Ibid., 399.
23 Ibid., 398.
24 Ibid., 400
25
Ibid., 398.
26 Ibid., 434.
398.
THE BURKE-PAINE CONTROVERSY
397
trary, men's wants do not intrinsically depend on a public and common good for their satisfaction. It is something extrinsic to the
wants, namely, the defect in men's powers, that impels them into
society for the achievement of goals that remain essentially private.
Society is indeed bound together by the "mutual dependence and
reciprocal interest which man has upon man." 27 But Paine has no
conception of a common interest that transcends private interests.
That is why the objects of government, as he describes them above,
can be reduced to the satisfaction of everyman's individual wishes.
Paine does add, however, that nature has gone further.
She has not only forced man into society, by a diversity of wants,
which the reciprocal aid of each other can supply, but she has implanted in him a system of social affections, which, though not
necessary to his existence, are essential to his happiness. There is
no period in life when this love for society ceases to act. It begins
and ends with our being.28
From this we may infer that for Paine man is by nature a gregarious animal but not a political animal. Men are by nature such
that they cannot be happy without each other's company. They are
thus drawn into society and bound together there by the attraction
of what the French Revoluion called fraternity. But their natural
relationship to each other is at bottom one of equality in individual
freedom. Liberty and equality are more fundamental principles
than fraternity because they are more directly related to the requirements of human existence. 29 As much as men need other men,
their basic wants are individual and private, their common interest
consists in a reciprocity of private interests, and their social relations are in consequence external and contractual. That this was
Paine's view is confirmed by his explanation of the fundamental
principles of society.
It is the natural reciprocity of interests that furnishes "the great
and fundamental principles of society and civilization," namely,
"the common usage universally consented to, and mutually and
reciprocally maintained," and "the unceasing circulation of interest, which, passing through its million channels, invigorates the
whole mass of civilized man." Therefore Paine can say:
398.
398-399.
29 I have been influenced in writing the above by remarks which Prof. Wilson
Carey McWilliams of Rutgers University made in a talk at a conference on
Thomas Paine and the American Revolution, held at the College of New
Rochelle, New York, on October 11,1975.
27 Ibid.,
28 Ibid.,
398
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All the great laws of society are laws of nature. Those of trade and
commerce, whether with respect to the intercourse of individuals,
or of nations, are laws of mutual and reciprocal interest. They
are followed and obeyed because it is the interest of the parties so to
do, and not on account of any formal laws their governments may
impose or interpose.30
Since all the great laws of society are laws of nature, they are
easily accessible to reason, in which Paine had an enormous confidence. "Mankind, as it appears to me," he said, "are always ripe to
understand their true interest, provided it be presented clearly to
their understanding." 31 On matters of common concern, "men have
only to think, and they will neither act wrong nor be misled." 32 The
reason is: "It is always the interest of a far greater number of people
in a nation to have things right, than to let them remain wrong;
and when public matters are open to debate, and the public judgment free, it will not decide wrong, unless it decides too hastily."33
Paine was an individualist, for whom reason was individual
reason and interest was private interest. But he was able to combine his individualism with his faith in man's natural sociability
because he believed in the natural harmony of private interests and
because he was sure that this harmony would be obvious to men's
individual minds once they were emancipated from the mystifications practised on them by the established regimes. "Man is not the
enemy of man," he said, "but through the medium of a false system
of government." 34 It was in the interest of kings, aristocrats, and
priests to obfuscate men's minds. But let the obfuscation be dissipated, as it was being in the "morning of reason [now] rising upon
man,"" and man would cease to be the enemy of man.
The remedy, of course, was to overthrow the false systems of
government that held sway almost everywhere but in America and
France, and to institute the true system. "Government," Paine
thought, "is not farther necessary than to supply the few cases to
which society and civilization are not conveniently competent?"3s
But it is necessary, and so there must be true principles of government as there are of society.
3
Ibid., 400-401.
Ibid., 387.
32 Ibid., 393.
33
Ibid., 426.
34 Ibid., 385.
33
Ibid., 444.
36 Ibid., 399.
°
31
THE BURKE-PAINE CONTROVERSY
399
The only thing that it is beneficial to know about government,
according to Paine, is this: "That government is nothing more than
a national association acting on the principles of society." 37 Men
enter society to further their own interests. For the most part common interest, i.e., enlightened self–interest, suffices to regulate their
dealings with each other. Unfortunately, however, the wickedness of
men is such that they do not always take the enlightened and long
view of their own interests. Shortsighted greed and arrogance lead
them to attack other men's interests and thereby to violate their
rights. 38 It then becomes necessary for society, which otherwise could
have functioned as a self–regulating free market, to turn itself into
a national association for the protection of every man's rights.
Rights are thus the origin and the final cause of government in
Paine's theory. If government performs its function of protecting
them, the principles of society springing from the natural reciprocity
of interests will do the rest.
Now, the rights of man which government is to preserve are
natural, original, and equal. They cannot be defined, in the manner
of Edmund Burke, by precedents drawn from antiquity. There is no
justification for stopping at any particular stage of history, one
hundred or one thousand years ago and making that the rule for
the present day. We must go the whole way back "till we come to
the divine origin of the rights of man, at the Creation." The rule
can only be the rights with which God endowed man as man at the
beginning. But all accounts of the Creation (biblical or other) agree
on one point: the original unity and equality of mankind. "Every
generation," therefore, "is equal in rights to the generations which
preceded it, by the same rule that every individual is born equal in
rights with his conternporary."39
Paine was a Deist for whom, in Fennessy's words, "there was but
one certain religious truth: the existence of God, which he believed
should be clearly known from the evidence of Creation." 40 God had
but one function in Paine's political theory: to endow man with his
natural and imprescriptible rights. There is in Paine's thought no
teleology in the created universe, no human perfection—natural or
Ibid., 403.
"Man . . . acquires a knowledge of his rights by attending justly to his
interests." Ibid., 446. Interests, that is, are rights insofar as they are compatible
with the interests of others in natural reciprocity.
39
Ibid., 303-304.
40 op. cit., 13.
37
38
400
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supernatural—toward which man is directed by his Creator, no
natural moral order and no providential design in history. Equipped
with natural rights which natural reason could recognize, man had
all he needed to build a just and good society.
There is no natural moral order in Paine's thought in the sense
that there are no moral duties directing men to rational moral ends.
For Paine, duties are reducible to respect for the rights of others.
Thus, for example, he answers the criticism that the French Declaration of Rights should have been accompanied by a Declaration of
Duties with the remark: "A Declaration of Rights is, by reciprocity,
a Declaration of Duties also. Whatever is my right as a man, is also
the right of another; and it becomes my duty to guarantee, as well
as to possess." 41 Rights are the beginning and the end.
Man is by nature a subject of rights. Another way of saying the
same thing is to describe man as by nature a sovereign individual,
subject to no will other than his own. A society populated by
sovereign individuals under no common authority would be possible, in Paine's view, were it not for the need to protect rights by
the coercive force of government. But, since the need is a real one,
some natural rights must be turned into civil rights. A distinction
thus arises between natural and civil rights, which Paine explains in
these words:
Natural rights are those which appertain to man in right of his
existence. Of this kind are all the intellectual rights, or rights of
the mind, and also all those rights of acting as an individual for his
own comfort and happiness, which are not injurious to the natural
rights of others. Civil rights are those which appertain to man in
right of his being a member of society. Every civil right has for its
foundation some natural right pre-existing in the individual, but
to the enjoyment of which his individual power is not, in all cases,
sufficiently competent. Of this kind are all those which relate to
security.42
Civil rights, therefore, are natural rights that have undergone the
transmutation necessary for their protection by civil society. On
entering civil society, a man retains all those natural rights "in which
the power to execute it is as perfect in the individual as the right
itself." But, says Paine, he does not retain those natural rights
in which, though the right is perfect in the individual, the power to
execute them is defective. They answer not his purpose. A man, by
41
42
The Rights of Man,
Ibid., 305-306.
353.
THE BURKE-PAINE CONTROVERSY
401
natural right, has a right to judge in his own cause; and so far
as the right of the mind is concerned, he never surrenders it: but
what availeth it him to judge, if he has not power to redress? He
therefore deposits his right in the common stock of society, and
takes the arm of society, of which he is a part, in preference and in
addition to his own. Society grants him nothing. Every man is
proprietor in society, and draws on the capital as a matter of
right.43
The transmutation which natural rights undergo in becoming
civil rights, then, is in some instances a true surrender of them. A
man gives up his natural right, not precisely the right to be judge
in his own cause, but the right to execute his judgment. He thereby
submits to the judgment of society but receives in return society's
defense of his rights, both natural and civil. This defense is something that society owes to him as a matter of right, because civil
society is nothing but an association of right—holders who have
pooled their rights to individual judgment and self—defense for the
sake of an organized common defense.
It follows, then, says Paine, that "every civil right .. . is a
natural right exchanged." Civil power, indeed, consists in "the aggregate of that class of the natural rights of man" which the isolated
individual lacks the power to protect but which he can adequately
protect by pooling his power with that of others. Consequently, civil
power "cannot be applied to invade the natural rights which are
retained in the individual."'"
The origin of civil society, therefore, is a compact among originally sovereign individuals for the protection of their individual
rights. It is in no wise a compact between those who govern and
those who are governed. It is, rather, "the individuals themselves,
each in his own personal and sovereign right, [who] entered into a
compact with each other to produce a government: and this is the
only mode in which governments have a right to arise, and the only
principle on which they have a right to exist."45
The compact which produces a government ipso facto brings into
existence a sovereign nation which alone is the legitimate holder of
the pooled powers of its authors. Sovereign power cannot be the
property of any particular man or family, as it is falsely assumed to
be in monarchies. "Sovereignty, as a matter of right, appertains to
43
Ibid.,
44
306.
Ibid., 306-307.
45 Ibid., 308.
402
THE POLITICAL SCIENCE REVIEWER
the nation only, and not to any individual; and a nation has at all
times an inherent indefeasible right to abolish any form of government it finds • inconvenient, and establish such as accords with its
interest, disposition and happiness."46
No prescription and no argument derived from the age of the
existing constitution or from the acts of preceding generations can
tell against this sovereign right of the nation. "Every age and generation must be as free to act for itself, in all cases, as the ages and
generations which preceded it. . .. It is the living, and not the
dead, that are to be accommodated. . . . That which a whole nation chooses to do, it has a right to do." 47 To be sure, it is usual for
laws to remain in effect for generations, but this does not prove that
the laws derive their force from anything other than the consent of
the living. "A law not repealed continues in force, not because it
cannot be repealed, but because it is not repealed; and the non–
repealing passes for consent."48
Paine professed indifference to forms of government so long as
they were founded on sound principles. He carefully explained:
"What is called a republic, is not any particular form of government." There are, he said, only four forms of government: "The
democratical," i.e., the direct democracy of the ancient city–states,
"the aristocratical, the monarchical, and what is now called the
representative." The term, republic, does not refer to any of these
forms, but to the "object for which government ought to be instituted," namely, the res publica or public good."
But, in any territory too large for direct democracy, the only
form of government that qualifies as republican in Paine's eyes is
the representative one. Iri a later pamphlet entitled Dissertation on
First Principles of Government, he stated, more explicitly than he
had in The Rights of Man, that this form is based on the principles
of one man–one vote and majority rule. As was typical with social–
compact theorists, he laid down both these principles as laws of
nature, inasmuch as they are not optional conventions but follow
from the essence of representative government. So he said: "The
true and only true basis of representative government is equality
of rights. Every man has a right to one vote, and no more in the
Ibid., 382.
Ibid., 277-278.
Ibid., 280.
4° Ibid., 413.
46
47
48
THE BURKE-PAINE CONTROVERSY
403
choice of representatives." 50 And again: "In all matters of opinion,
the social compact, or the principle by which society is held together, requires that the majority of opinions becomes the rule for
the whole, and that the minority yields practical obedience
thereto." 54 In short, the basic principles of the only legitimate
constitution are dictated by natural right.
Therefore, "the government of America, which is wholly on the
system of representation, is the only real republic in character and
practice, that now exists." 52 When Paine wrote these words, France
was still a monarchy, though a constitutional one, and so not fully
a republic. On the other hand, the first three articles of the Declaration of Rights laid down the sound principles of natural rights and
popular sovereignty, "nor can any country be called free, whose
government does not take its beginning from the principles they
contain, and continue to preserve them pure."53
In practice, in his world, Paine recognized only two kinds of
government: representative and hereditary. 54 "All hereditary government is in its nature tyranny," he declared, 55 and repeated the
thought in varying phraseology throughout The Rights of Man.
Representative government, on the contrary, was the institutional
form taken by the natural rights of man in civil society. It alone
was structured to express the will and consent of the people. They
in turn were a collection of originally sovereign individuals who
had pooled their powers and formed a sovereign nation in order to
protect their rights. Nothing but the indefeasible sovereignty of the
national will could assure that that object, in which the public good
consisted, would constantly be achieved. In short, Paine belonged
to that school of political thought whose basic concepts are rights,
consent, and contract.
There is more to Paine's theory than this. In the last chapter of
Part II of The Rights of Man he outlines a far–reaching program
for the redistribution of the national wealth in Great Britain, and
the beginnings of what a later generation would call a welfare state.
But it is not this aspect of Paine's thought that concerned Burke,
Complete Writings, ed. Foner, II, 577.
Ibid., 584.
52 The Rights of Man, 413-414.
53
Ibid., 353.
54 Ibid., 379, 406.
55
Ibid., 407.
50
51
404
THE POLITICAL SCIENCE REVIEWER
and we may ignore it here. Shortly after quoting Paine in extenso
in An Appeal from the New to the Old Whigs, Burke stated: "The
factions, now so busy amongst us, in order to divest men of all love
for their country, and to remove from their minds all duty with
regard to the state, endeavour to propagate an opinion, that the
people, in forming their commonwealth, have by no means parted
with their power over it." 56 These were the factions that Burke had
just finished tarring with Paine's brush, and it is significant that,
having said in the preceding paragraph that he would not attempt
in the smallest degree to refute their views, he immediately proceeded to refute them at great length on this point. Since I have
summarized Burke's argument in An Appeal in an earlier article,"
I will not repeat the summary here, but will concentrate on his
Reflections on the Revolution in France. The argument in both
works is substantially the same, in any case, and centers on the same
point at issue between Burke and his opponents: do or do not the
people, when they form a government, retain sovereignty and the
right to change the government at will?
Burke's answer to this question was negative. His position had
two apparently antithetical but complementary premises. The first
was that, because the constitution of a country is a product of convention, its particular shape and form are not conclusions that
follow necessarily from principles of natural right, i.e., from the
original rights of man in the state of nature. But the second premise was that, once formed, a constitution becomes a moral as well
as a political obligation whose force is derived from the natural
moral order. It is binding, therefore, on successive generations. Consequently, the will and consent of the people are not the supreme
law of the commonwealth.
It is unlikely that Burke had Paine in mind when he wrote
Reflections on the Revolution in France. But he does begin the
Reflections with an overt and lengthy attack on Dr. Richard Price,
whose views are not dissimilar to Paine's. Dr. Price was a well–
known dissenting or non–conformist minister. On 4 November 1789
he delivered a speech, later published as A Discourse on the Love
of Our Country, to the Society for Commemorating the Revolution
in Great Britain. The revolution commemorated was that of 1688,
but the discourse was highly sympathetic to the revolution then
56
Works, VI, 200.
"Burke on Prescription of Government," The Review of Politics, XXXV
(1973), 454-474, at 458 ff.
57
THE BURKE-PAINE CONTROVERSY
405
going on in France, and the published version was accompanied by
an appendix containing the Declaration of Rights of the National
Assembly of France.
According to Dr. Price, as quoted by Burke, George III was
"almost the only lawful king in the world, because the only one who
owes his crown to the choice of his people." 58 Popular choice, then,
was the criterion of legitimacy. This followed from what Dr. Price
said was a basic principle established by the Revolution of 1688: the
right of the people of England (1) "To choose our own governors."
(2) "To cashier them for misconduct." (3) "To frame a government
for ourselves." 59 Burke read this declaration of the right of the
people as an assertion of the doctrine of popular sovereignty, and
he denounced it as unknown to and incompatible with the British
constitution.
Certainly, he said, it was unknown to the leaders of the Revolution of 1688. He admitted that it would be "difficult, perhaps
impossible, to give limits to the mere abstract competence of the
supreme power, such as was exercised by parliament at that time."
But there was no doubt in the minds of the revolutionary leaders
or in Burke's about the limits of what they were morally competent
to do. He explained:
The House of Lords, for instance, is not morally competent to dissolve the House of Commons; no, nor even to dissolve itself, nor to
abdicate, if it would, its portion in the legislature of the kingdom.
Though a king may abdicate for his own person, he cannot abdicate for the monarchy. By as strong, or by a stronger reason, the
House of Commons cannot renounce its share of authority. The
engagement and pact of society, which generally goes by the name
of the constitution, forbids such invasion and such surrender. The
constitutent parts of a state are obliged to hold their public faith
with each other, and with those who derive any serious interest
under their engagements, as much as the whole state is bound to
keep its faith with separate communities.6°
For this reason, Burke continued, "the succession of the crown has
always been what it now is, an hereditary succession by law." First
it was by common law, after the Revolution by statute. "Both these
descriptions of law are of the same force," however, "and are derived from an equal authority, emanating from the common agreeReflections on the Revolution in France,
Ibid., 27.
60 Ibid., 32.
58
59
25.
406
THE POLITICAL SCIENCE REVIEWER
ment and original compact of the state, communi sponsione reipublicae, and as such are equally binding on king, and people too,
as long as the terms are observed, and they continue the same body
politic."64
The operative moral principle, it will be noticed, is that the
terms of the constitution, once set, must be observed. But the reason for accepting hereditary government as a constitutional principle, is a practical one: "No experience has taught us, that in any
other course or method than that of an hereditary crown, our liberties can be regularly perpetuated and preserved sacred as our
hereditary right." 62 It was this consideration that made Burke a
monarchist, and not devotion to any abstract principles of royal
right parallel to Paine's abstract principles of popular right. Burke
explicitly rejected the notions that "hereditary royalty was the only
lawful government in the world," that "monarchy had more of a
divine sanction than any other mode of government," or that "a
right to govern by inheritance [was] in strictness indefeasible in
every person, who should be found in the succession to a throne,
and under every circumstance." 63 But he considered hereditary monarchy justified as an integral part of a constitution that was wholly
based on the principle of inheritance and historically had served the
people well.
"We have," he said, "an inheritable crown; an inheritable peerage; and a House of Commons and a people inheriting privileges,
franchises, and liberties, from a long line of ancestors." Indeed, "it
has been the uniform policy of our constitution to claim and assert
our liberties, as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity; as an estate specially
belonging to the people of this kingdom without any reference
whatever to any other more general or prior right."64
This passage may seem, on the face of it, to imply that there is
no standard of natural right anterior and superior to the constitution. So the late Leo Strauss took it." But it will be noticed that
Burke is speaking here, not of the objective moral order, but of "the
uniform policy of our constitution," and that he praises this policy,
6 1 Ibid., 32-33.
Ibid., 36.
63
Ibid., 38.
64
Ibid., 45.
65
Natural Right and History (Chicago: Univ. of Chicago Press, 1953), 319.
62
THE BURKE-PAINE CONTROVERSY
407
not as a statement of ultimate moral principles, but as a manifestation of "practical wisdom."66
It will be further noticed that throughout this passage Burke
contrasts inherited rights, not with natural rights (to which he could
and did appeal on other occasions) 67 but with "the rights of men."
But these are the original rights of men in the state of nature.
Dr. Price and others presume that it is possible to appeal to them
in order to determine what rights men ought to have now, in an old
and long—established civil society. It is this appeal that Burke says
English statesmen of the past rejected in favor of the historic rights
of Englishmen.
These statesmen wisely "preferred this positive, recorded, hereditary title to all which can be dear to the man and the citizen, to
that vague speculative right, which exposed their sure inheritance
to be scrambled for and torn to pieces by every wild litigious
spirit." 68 Devotion to the rights of men, later generations have
learned, can produce an Abraham Lincoln; it can also produce a
William Kunstler. It is advisable, therefore, to have some viable
definition of what men's rights are. Positive and recorded rights are
better, in Burke's view, because they have been defined, nuanced,
and given sure modes of protection through long historical experience, than are original rights. The latter, which are objects of
speculation rather than of experience, can give rise to conflicting
absolute claims that tear a society apart.
Furthermore, it is to misunderstand the social condition to think
that men's claims on society and one another can be reduced to
rights which they enjoyed in abstract and unqualified form before
civil society came into being. Burke never denied that there had
been a state of nature, or that men had original rights in it, or that
civil society was formed by a compact. Either he accepted these beliefs as one tends to accept the commonplaces of his age, or he knew
that others accepted them so generally that to deny them would
be to lose the argument at the outset. For whatever reason, he restricted himself to arguing that the original rights of men were, not
unreal, but irrelevant to civil society. The change they underwent
in the civil state was so profound that they no longer furnished a
Reflections, 44.
Cf. Works, IV, 8; IX, 194, 364; X, 16; XIII, 168.
68 Reflections, 44.
66
67
408
THE POLITICAL SCIENCE REVIEWER
69
standard for judging the rights of "civil social man." In Burke's
own words:
These metaphysic rights entering into a common life, like rays of
light which pierce into a dense medium, are, by the laws of nature,
refracted from their straight line. Indeed in the gross and complicated mass of human passions and concerns, the primitive rights
of men undergo such a variety of refractions and reflections, that it
becomes absurd to talk of them as if they continued in the simplicity of their original direction. The nature of man is intricate;
the objects of society are of the greatest possible complexity; and
therefore no simple disposition or direction of power can be suitable either to man's nature, or to the quality of his affairs."
We must think, then, of men's rights in society in another way.
If civil society be made for the advantage of man, all the advantages
for which it is made become his right. It is an institution of beneficence; and law itself is only beneficence acting by a rule. Men have
a right to live by that rule; they have a right to justice; as between
their fellows, whether their fellows are in politic function or in ordinary occupation. They have a right to the fruits of their industry;
and to have the means of making their industry fruitful. They have
a right to the acquisitions of their parents; to the nourishment
and improvement of their offspring; to instruction in life, and to
consolation in death. Whatever each man can separately do, without trespassing upon others, he has a right to do for himself; and
he has a right to a fair portion of all which society, with all its
combinations of skill and force, can do in his favour.71
Civil society is "an institution of beneficence:" its purpose is to
do good to its members, and the good that it can do for them becomes their right or legitimate claim upon it. But their civil rights
are not merely the legal form taken, after the social compact, by
their original natural rights. Nor is government, as it was for Paine,
derived from every man's original right to act according to his own
will and judgment.
The purposes of government are specified by the natural wants
of men, understood not as their desires but as their real needs.
"Government," according to Burke, "is a contrivance of human wisdom to provide for human wants. Men have a right that these wants
should be provided for by this wisdom." 72 But among these wants is
the education of men to virtue through legal as well as moral
6
9 Ibid.,
70
72.
Ibid., 74.
71 Ibid., 71-72.
72
Ibid., 72-73.
THE BURKE-PAINE CONTROVERSY
409
restraints upon their passions. "In this sense the restraints on men,
as well as their liberties, are to be reckoned among their rights."
Burke, one sees, is moving toward rational moral ends as the legitimating principle of government, and away from original rights and
their corollary, consent. But his immediate concern in this passage
is to point out that "as the liberties and the restrictions vary with
times and circumstances, and admit of infinite modifications, they
cannot be settled upon any abstract rule; and nothing is so foolish
as to discuss them upon that principle."73
Rather, one must say: "The rights of men are in a sort of middle,
incapable of definition, but not impossible to be discerned. The
rights of men in governments are their advantages; and these are
often in balances between differences of good; in compromises sometimes between good and evil, and sometimes, between evil and
evil." To clarify what Burke is getting at, let us agree by way of
example that it is not good for human beings to be starved, beaten,
humiliated, deprived of human affection, or intellectually stultified.
There are conceivable circumstances in which any of these, in a
limited degree and for a limited time, might do someone more good
than harm. But it could only be as a means to another and a good
end, for these things are not in themselves human goods. Therefore, they cannot constitute the ends of life or the purposes of
society. On the other hand, one can name human needs that do
specify, in a general way, what civil society is for, and Burke named
some of them above.
Civil society exists to guarantee to men justice, the fruits of their
industry, the acquisitions of their parents, the nourishment and
improvement of their offspring, instruction in life and consolation
in death. These are among the advantages that civil society exists to
provide for men. But it is impossible to define antecedently, in the
abstract and for all possible circumstances, the concrete forms in
which these advantages are to be acquired and safeguarded. That
must be left to social experience and the gradual development of
custom and law.
The end of civil society, then, in global terms, is to promote what
is good for human beings. Human goods are "not impossible to be
discerned"—Burke was not a radical cultural relativist—and they
can serve as the general goals that guide law and public policy. They
74
73
74
Ibid., 73.
Ibid., 75.
410
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will therefore set the outer limits of what government may do to
people and define what it may not do to them. Burke was not inconsistent when he denounced the Protestant Ascendancy in Ireland
and Warren Hastings in India for violating natural law by their
treatment of the populations subject to their power. To deny that
natural law is an abstract code of rights is not to say that it forbids
nothing.75
But when it comes to specifying in the concrete the claims on
society that its goals confer on people, it becomes evident that the
rights of men "are in a sort of middle, incapable of definition."
They cannot be defined, that is, in the abstract and in advance.
Human goods must be limited and trimmed in order to be simultaneously attainable in society. Not only that, but evils, which are
the negation of good, must be tolerated, sometimes even protected,
in order that any good at all may be attained. A society ruthlessly
purged of all injustice might turn out to be a vast prison. So, for
that matter, might a society singlemindedly devoted to liberty.
These considerations are particularly relevant to the right that
was fundamentally at issue between Burke and his opponents. They
held that every man in the state of nature had a sovereign right to
govern himself and for that reason had a right to an equal share in
the government of civil society. Burke held that what was important
in the civil state was not that every man's will should be registered
in the process of government, but that his real interests (advantages,
goods) should be achieved.
By entering civil society, Burke insisted, man "abdicates all right
to be his own governor." Hence "as to the share of power, authority,
and direction which each individual ought to have in the management of the state, that I must deny to be amongst the direct original
rights of man in civil society." On the contrary, "It is a thing to
be settled by convention. . . . The moment you abate any thing
from the full rights of men, each to govern himself, and suffer any
artificial positive limitation upon those rights, from that moment
the whole organization of government becomes a consideration of
convenience." But to organize a government and distribute its
75
77
Cf. Works, IX, 349-355; XIII, 13, 15, 21, 155-156, 165-167, 169-170.
This consideration may furnish a partial answer to a recent and well—argued
attack on the thesis that Burke belonged to the natural—law school, by Dinwiddy,
J.R., "Utility and Natural Law in Burke's Thought: A Reconsideration," Studies
in Burke and His Time, XVI (1974-1975), 105-128.
77 Reflections, 72.
75
76
THE BURKE-PAINE CONTROVERSY
411
powers "requires a deep knowledge of human nature and human
necessities, and of the things which facilitate or obstruct the various
ends which are to be pursued by the mechanism of civil institutions." 78 The allocation of power in the state, in other words, ought
to be made by a prudent judgment about that structure of government which will best achieve the goals of civil society. But this is
to imply that purpose is the organizing and legitimizing principle
of a constitution, rather than original rights and individual consent.
A further conclusion follows about the nature of political theory:
"The science of constructing a commonwealth, or renovating it, or
reforming it, is, like every other experimental science, not to be
taught a priori. Nor is it a short experience that can instruct us in
that practical science." 79 Moral and political theory may enlighten
us on the ultimate ends of social life, but the means thereunto are
the object of a practical science that relies on experiene.
Who, then, shall make the practical judgments of politics? The
question cannot be answered by appealing to the rights of men.
"Men have no right to what is not reasonable, and to what is not
for their benefit." 8 ° But, as to what is for their benefit, Burke said:
"The will of the many, and their interest, must very often differ."81
The first duty of statesmen, indeed, is to "provide for the multitude;
because it is the multitude; and is therefore, as such, the first object
.. . in all institutions." 82 But the object is the good of the people,
not the performance of their will. The duties of statesmen, in consequence, do not belong by right to those whom the many have
chosen, but ought to be performed by those qualified by "wisdom
and virtue, actual or presumptive," 83 for the task of government.
Burke was undoubtedly what today is called an elitist and was
by his own frank admission "an aristocrate in principle." 84 He had
a very low estimation of the political capacity of the mass of the
population and, when he agreed that the people had a role in government, he meant only a fairly well educated and prosperous segment of them. But the main object of his attack on the democratic
78
Ibid., 72-73.
Ibid., 73.
80 Ibid., 75.
81 Ibid., 64.
8
2 Ibid., 115.
83 Ibid., 62.
79
84 Letter to the Duke of Devonshire, 11 March 1795, The Correspondence of
Edmund Burke, VIII, ed. R. B. McDowell (Chicago: Univ. of Chicago Press, 1969),
185.
412
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theory of his day was not so much the idea that the populace at large
was capable of exercising political power as the principle that it had
an inherent right to do its own will.
He certainly rejected the notion "that a pure democracy is the
only tolerable form into which human society can be thrown."85
But, he added:
I reprobate no form of government merely upon abstract principles.
There may be situations in which the purely democratic form will
become necessary. There may be some (very few, and very particularly circumstanced) where it would be clearly desirable. This I do
not take to be the case of France, or of any other great country.86
Democracy as a mere form of government, then, would be some
times, if only rarely, acceptable to Burke. What would never be
acceptable was that the people "should act as if they were the
entire masters." 87 Burke explained his objection to this conception
of popular sovereignty in the course of his defense of the principle
of a state establishment of religion. Under a "mixed and tempered
government" 88 such as that of Great Britain, "free citizens . . . in
order to secure their freedom, . . . must enjoy some determinate
portion of power." But "All persons possessing any portion of
power ought to be strongly and awefully impressed with an idea
that they act in trust; and that they are to account for their conduct in that trust to the one great master, author and founder of
society."89
This sense that authority is a trust given by God is all the more
necessary "where popular authority is absolute and unrestrained."
No one can and no one should punish a whole people, Burke said,
but this conclusion followed: "A perfect democracy is therefore the
most shameless thing in the world." It is essential, then, that the
people "should not be suffered to imagine that their will, any more
than that of kings, is the standard of right and wrong." To exercise
political power or any part of it, the people must empty themselves
"of all the lust of selfish will, which without religion it is utterly
impossible they ever should." They must become "conscious that
they exercise, and exercise perhaps in an higher link of the order
of delegation, the power, which to be legitimate must be according
Reflections, 138.
Ibid., 138-139.
87 Ibid., 108.
88 Ibid., 138.
89
Ibid., 106.
85
88
THE BURKE-PAINE CONTROVERSY
413
to that eternal immutable law, in which will and reason are the
same."90
God thus plays a larger role in Burke's political theory than in
Paine's. For . Paine, once God had given man his original rights at
the Creation, His work was done. Men then were able to create
political authority out of their own wills. But for Burke, the
authority even of the people was trust held from God, for their
conduct in which they were accountable to Him, and which they
must perform in accordance with "that eternal immutable law, in
which will and reason are the same." In Burke's thought, arbitrary
will was never legitimate, because will was never superior to reason,
not even in the sovereign Lord of the Universe. In God, however,
will is always rational because His will is identical with His reason.
The people, for their part, must make their will rational by keeping
it in subordination and conformity with the law of God.
The law of God that Burke has in mind is not only or primarily
His revealed law but the natural moral law, because it is a law that
follows from the nature of man as created by God. The Creator is
the institutor, and author and protector of civil society; without
which civil society man could not by any possibility arrive at the
perfection of which his nature is capable, nor even make a remote
and faint approach to it. . . . He who gave our nature to be perfected by our virtue, willed also the necessary means of its perfection—He willed therefore the state—He willed its connection with
the source and original archetype of all perfection 91
The end of the state, for Burke, is divinely set and in its highest
reach is nothing less than the perfection of human nature by its
virtue, i.e., its moral perfection. (It should be noted that, according
to Burke, "in a Christian Commonwealth, the Church and the
90
Ibid., 107-108. The phrase concerning the place of the people in the order
of delegation of power is interesting because it may refer to a theory of the origin
of political power that was generally accepted in the period of Late Scholasticism
and was most elaborately presented by the 16th–century Spanish Jesuit, Francisco
Suarez. In this theory, all political authority comes from God, not by any special
divine act, but merely as a consequence of God having made man a political
animal by nature. This authority inheres in the first instance in the body politic
or whole community. But the community can and, for the common good, normally will transfer its authority to a king or to a body of men less than the whole.
See Rommen, Heinrich A., The State in Catholic Thought (St. Louis: B. Herder,
1945), 444-450. That Burke was acquainted with Suarez' writings is indicated by
his quoting Suarez at some length in Works, IX, 353. For the sake of those who
are sensitive on the point, I hasten to add that I am aware that such a quotation
proves nothing about the derivation of Burke's own theory.
91 Reflections, III.
414
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State are one and the same thing, being different integral parts of
the same whole." He thus found it easy to attribute to the state,
or commonwealth, or civil society, the totality of men's social goals,
where we today should be inclined to divide them between the
political and the religious spheres.)
Hence Burke could say: "Society is indeed a contract," but
with a difference. The constitution of civil society, as he had said
previously, was a convention whose shape and form was not a
necessary conclusion from principles of natural right. None the
less society was natural in the sense of being the necessary and
divinely–willed means to the perfection of human nature. If one
equates the natural with the primitive, one will say that it is more
natural to live in a cave than in a house; this is what is usually
implied in the phrase "back to nature." But if one equates the
natural with the mature perfection of any species of being, one will
say that it is more natural for human beings to live in houses than
in caves. The houses are undeniably artificial works of human
hands. But they are a natural habitat for men because they more
adequately satisfy the needs of human nature than caves can do.
Similarly—and this was Burke's meaning—civil society is artificial,
conventional, even, if you will, contractual. But it is natural to
man because "he is never perfectly in his natural state, but when
he is placed where reason may be best cultivated, and most predominates." The Aristotelian teleology of this remark seems obvious.
Society, then, is indeed a contract, but not one to be regarded
in the same light as a commercial contract that is entered into for
a limited and self–interested purpose and can be dissolved at the
will of the contracting parties. Paine could look upon human society as rather like a vast commercial concern, potentially worldwide
in scope, that was held together by reciprocal interest and mutual
consent. But not so for Burke. In his view society
92
93
94
is to be looked on with other reverence; because it is not a partnership in things of subservient only to the gross animal existence of
a temporary and perishable nature. It is a partnership in all science;
a partnership in all art; a partnership in every virtue, and in all
perfection.95
Works, X, 44.
Reflections, 110.
94 An Appeal, Works,
95
Reflections, 110.
92
9
3
VI, 218.
THE BURKE-PAINE CONTROVERSY
415
Because of the nature of its purposes, the contract of society has
a character and a binding force different from those of ordinary
contracts. "As the ends of such a partnership cannot be obtained
in many generations, it becomes a partnership not only between
those who are living, but between those who are living, those who
are dead, and those who are to be born."" This sentence offended
Paine's commonsense mind and led him to ask what possible obligation can exist between those who are dead and gone, and those
who are not yet born and arrived in this world; a fortiori, how
could either of them impose obligations on the living?" In a literal
sense he was, of course, quite right. But if one turns one's attention
from contracting wills to the rational moral ends which those wills
are bound to serve, one may conclude that, in the light of those
ends, obligations descend upon the present generation from the
past, and there are obligations in regard to generations yet unborn.
Men achieve their natural social goals only in history. The
structures inherited from the past, if they have served and still
serve those goals, are binding upon those who are born into them.
These persons are not morally free to dismantle the structures at
pleasure and to begin anew from the foundations. For the goals in
question are not those alone of the collection of individuals now
present on earth, but of human nature and of God.
This is to say that the constitution of a society, conventional
and historically—conditioned though it is, becomes a part of the
natural moral order because of the ends that it serves. In like
manner, it is possible to believe that marriage is natural and
ordained by God, and therefore imposes obligations superior to
human wills, without believing that all marriages are made in
heaven or that John and Mary marry each other for any reason
other than their own choice. But once they are married, they have
formed a union whose nature and obliging force are not subject to
their wills.
Burke himself made this point about marriage in An Appeal:
"When we marry, the choice is voluntary, but the duties are not
matter of choice." He also stated a more fundamental principle
about moral obligation:
We have obligations to mankind at large, which are not in consequence of any special voluntary pact. They arise from the relation
96
97
Ibid., 110.
Rights of Man,
279.
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of man to man, and the relation of man to God, which relations
are not matters of choice. On the contrary, the force of all the
pacts we enter into with any particular person or number of persons
amongst mankind, depends upon those prior obligations s8
But this is to say that human relations are not all external and
contractual. The most basic relations are intrinsic to man, rooted
in his nature as a human being and a creature of God. It is these
that supply the binding force to relations that are voluntarily
assumed and make the latter a part of the natural moral order.
This is the thought that lies behind Burke's rhetorical language
in the next part of the passage on the contract of society in the
Reflections.
Each contract of each particular state is but a clause in the great,
primaeval contract of eternal society, linking the lower with the
higher natures, connecting the visible and invisible world, according to a fixed compact sanctioned by the inviolable oath which holds
all physical and all moral natures, each in their appointed place.
This law is not subject to the will of those, who by an obligation
above them, and infinitely superior, are bound to submit their will
to that law.99
The "great primaeval contract" and the "inviolable oath" are, of
course, the moral order of the world as established by God. It
furnishes a law to which civil societies as well as individuals are
obliged to conform.
But are people never free to change their constitution and their
government? Burke does not quite say that. "The municipal corporations of that universal kingdom are not morally at liberty at
their pleasure, and on their speculations of a contingent improvement, wholly to separate and tear asunder the bands of their.
subordinate community, and to dissolve it into an unsocial, uncivil,
unconnected chaos of elementary principles." 100 The key phrase in
this statement, however, is "at their pleasure." There is also the unspoken assumption, characteristic of Burke, that a political revolution would be tantamount to a dissolution of society as such.
Underlying that assumption was a conception of the constitution
which one writer has well described in these words: "Burke . . .
understood `constitution' to mean the entire social structure of
England and not only the formal governmental structure . . . inWorks, VI,
110.
Imo Ibid., 110.
98
99
P.
206.
THE BURKE-PAINE CONTROVERSY
417
cluded in his concept of constitution was the whole corporate society
,101
No people, Burke said, had the right
to which he was devoted.'
to overturn such a structure at pleasure and on a speculation that
by so doing they might make things better.
Nonetheless, he could not and did not deny that a revolution
was sometimes necessary. He only insisted that it could not be
justified but by reasons that were so obvious and so compelling that
they were themselves part of the moral order.
It is the first and supreme necessity only, a necessity that is not
chosen but chooses, a necessity paramount to deliberation, that admits no discussion, and demands no evidence, which alone can
justify a resort to anarchy. This necessity is no exception to the
rule; because this necessity is itself a part too of that moral and
physical disposition of things to which man must be obedient by
consent or force; but if that which is only submission to necessity
should be made the object of choice, the law is broken, nature is
disobeyed, and the rebellious are outlawed, cast forth, and exiled
from this world of reason, and order, and peace, and virtue, and
fruitful penitence, into the antagonist world of madness, discord,
vice, confusion, and unavailing sorrow.'"
One may feel that here Burke has gone beyond rhetoric into
bombast. Yet the lines of his argument are clear enough. In An
Appeal from the New to the Old Whigs he made them more explicit
and clearer still. It is difficult therefore to understand why Frank
O'Gorman says in a recent work: "The present writer has always
found it unusual that Burke rarely refers, either explicitly or even
implicitly, to the principles that are supposed to have been the
foundations of his thought. Burke, was, indeed, uninterested in
the workings of the Divine power." 1 ° 3 It seems obvious to this
writer that, particularly in the Reflections and An Appeal, Burke
not only refers to but elaborates in detail the principles that are
the foundation of his theory of civil society and political authority.
He was, it is true, a practicing politician, not a philosopher, and
in these two works he wrote a polemic, not a dispassionate treatise
on political theory. But his polemic included the presentation of a
counter–theory to the theory he was attacking. The counter–theory
depended in turn on explicitly stated premises of a moral and meta101 Ripley, R. B., "Adams, Burke and 18th–century Conservatism," Political
Science Quarterly, LXXX (1965), 228.
102 Reflections, 110-111.
103 Edmund Burke: His Political Philosophy Bloomington and London: Indiana Univ. Press, 1973), 13, n. 5.
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physical nature. The premises are expounded, one must admit, in
rhetorical language, especially in the Reflections. But they are, to
borrow Burke's words, not impossible to be discerned.
Briefly, the ultimate premises of Burke's political thought are
provided by the metaphysics of a created universe. They assume
the superiority of reason or intellect to will both in God and man.
Part of this universe is the natural moral order based on the nature
of man as created by God. Man's nature is oriented by creation to
ends that may be globally described as its natural perfection. Since
civil society is necessary to the attainment of that perfection, it too
is natural and willed by God.
The authority of the state derives from the rational and moral
ends that it is intended , by nature to serve. Consent plays a role
in the formation of the state and the conferral of its authority on
government, since both involve human acts of choice. But the obligation to form a civil society is prior to consent, and, for those
born under a constitution, consent to the constitution is commanded
by the previous obligation to obey a government that is adequately
serving the natural goals of society. Rights also play a part in
Burke's political theory. But the basic political right is the right
to be governed well, not the right to govern oneself. In Burke's
thought, purpose and obligation are more fundamental than rights
and consent.
One must agree with Mr. O'Gorman in his refusal to assume
"that everything which Burke wrote can be treated upon the same
level of abstraction" or "that Burke's political actions were invariably prompted by political theory." One must also concede to Mr.
O'Gorman the right to refuse, as he does, to "attempt to show that
Burke was a member of any particular 'school' or 'tradition'
[or]
104
to 'locate' him in the history of political thought." But, in the
light of what Burke in fact wrote, it would seem that one can
locate him in what Alan Gewirth calls "that perennial tradition of
political philosophy" according to which "the state is explained by
the rational moral ends which it enables men to achieve, so that
both it and the political authority exercised in it are at once
products of and limited by reason."
One may well wonder whether this tradition has anything to
offer to a nation that declared its independence with a summary
statement of political philosophy couched in these terms:
104
Ibid., 14.
THE BURKE-PAINE
CONTROVERSY
419
We hold these truths to be self-evident, that all men are created
equal, that they are endowed by . their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are
instituted among Men, deriving their just powers from the consent
of the governed,—That whenever any Form of Government becomes
destructive of these ends, it is the Right of the. People to alter or
to abolish it, and to institute new Government, laying its foundation
on such principles and organizing its powers in such form, as to
them shall seem most likely to effect their Safety and Happiness.
But, in view of the growing inability of an individualistic
philosophy of rights to cope with the problems of the modern state,
perhaps the perennial tradition has something to offer, even though
the grounds for hoping that contemporary America will accept the
offer are slim. As for Burke himself, it is easy to dismiss him as
a defender of class interests, particularly if one is oneself imbued
with the class prejudices of the British Labour Party. It is easier
still for Americans to do so, since the social structure he defended
never took root in our soil. Yet possibly Americans could learn
something of value even from him.
It is becoming clear that a liberal political philosophy whose
basic premises are rights and consent is, not simply false, but
certainly inadequate. In an age in which more and more demands
on the political system are asserted as rights, liberal theory offers
no substantive norms by which to distinguish genuine from spurious claims of right. The spectacle of public doubt whether society
is justified in "imposing" its heterosexual values on homosexuals is
only one (though probably the most ludicrous) of the instances that
reveal how bankrupt our legal and political theory has become.
To put it even more bluntly, liberty and equality cannot be the
highest values of a political system because they relativize and
ultimately destroy all other values. Because of its devotion to
liberty and equality, liberal thought provides no set of objectively
valid human ends that could serve as the communal values without
which in the long run there is no community. It provides no firm
basis on which such societal values as happen to be held can be
transmitted from generation to generation, as the bewilderment and
anguish of multitudes of parents testify today. It gives no satisfactory explanation of the morally–binding continuity in history of
the community and its political constitution. Finally, at a time
when the obligation to consent to the political system is widely
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called into question, liberalism has no convincing answer to the
question why men should consent."5
In short, the liberal society lacks what Walter Lippmann called
the public philosophy. It will lack it increasingly as the moral and
religious capital of Western culture, on which liberalism has always
traded, is drained away. It would be foolish, of course, to pretend
that our spiritual capital can be restored by a revival of traditional
political theory. But the revival would be a necessary part of a
restored public philosophy.
This is not to suggest that American society today could solve
its problems by taking over bodily the political theory of an aristocratic eighteenth–century British statesman. Nor are Americans
forced to choose between Edmund Burke and Thomas Paine: the
range of choice in political theory is infinitely greater than that.
I venture only to submit that Burke has something to offer as a
corrective to a political theory that has become lopsided. If one
reads Burke discerningly, willing to accept as well as to reject, one
will discover in his writings a restatement of an age–old public
philosophy that can help to fill some of the gaping holes in American
political thought.
FRANCIS CANAVAN
Fordhant University
105 For a recent and penetrating critique of liberal thought and a candid
exposition of the intellectual problems encountered in framing a more adequate
theory of society, see Unger, Roberto Mangabeira. Knowledge and Politics (New
York: The Free Press, 1975).