"no harm, no foul"
Sunday, July 06, 2003
 
OMAN ON COKE: Nate Oman has a characteristically thoughtful post on what he sees as the difference between theories that, in some way or another, posit history as a ground for the legitimacy of an institution. My trouble is trying to figure out how to best cash out the difference between what Nate calls “Burkean” and “Cokeian” theories of historical legitimization, and whether the latter is any improvement over the former.

First, a word about Burkeanism, and its supposed advantages. I’m bracketing historical correctness here, and just going on what Nate says – still, I think he’s write when he writes of Burkeanism that “long historical practice somehow instantiates wisdom that cannot be easily articulated or rationally grasped.” I think the best way of seeing the advantages of Burkeanism is to take them as primarily pragmatic. There is a real risk in overthrowing established social institutions, which includes not only the obvious costs of going against custom and all the problems that involves (it’s messy getting people to change too much and too quickly), but also the costs of forsaking the implicit wisdom in a lot of our practices, which we may at the time be only dimly aware of. So I take it that for the Burkean, present institutions with a long history have at least a presumptive legitimacy.

(A side note: I realize I may be collapsing Burkeanism into what Nate calls “expectation theory,” i.e., don’t disappoint expectations that have legitimately arisen from past practice. But I have hard time seeing the advantages of Burkeanism except in these terms. To base policy on wisdom that can’t be rationally grasped I think involves bringing in theological premises, which even if sound are a dubious basis for public policy. I should add, also, that I also take the advantages of the “expectation theory” to be mainly pragmatic, or at least until we get a better idea of what expectations are “legitimate” and what makes them so.)

But there are obvious costs to being Burkean. Just as there are costs of changing too much, there are costs of not changing. Worse, sometimes the costs of not changing seem obvious and severe, to which the Burkean can answer only in vague terms, about “wisdom” that can’t be “rationally grasped” or “easily articulated.” The Burkean is often put in the position of darkly warning about changing things; the problem is, sometimes he’s just wrong, and sometimes even if he’s right about the costs of change, the costs of not changing may still be high enough to warrant the move, overcoming the presumption of legitimacy the institution may have. It can’t be that institutions with a long history necessarily and in every case have a hidden wisdom which we only see through a glass, darkly.

Does Coke help us out here? Coke, on Nate’s recounting (again, I’m taking Nate’s word on the history here), is a sort of souped-up Burke. To the thought that long history may indicate a hidden wisdom (which “cannot be easily articulated”), Coke adds the idea that institutions that have “universally persisted over long periods of time” can be seen as being consented to (didn’t someone call this the “democracy of the dead”?). And this “consent” gives them a kind of legitimacy. As Nate elaborates, “a Cokeian consent rests on a much thicker notion of ratification [than the one conferred by mere present-day democratic majorities] one that can only exist when practices prove themselves over long periods of time and across many subcommunities.”

Obviously, the key idea here, that of consent, needs to be elaborated. Specifically, we need to have a way of distinguishing between consent (across the years and across different communities) and mere persistence. The fact that an institution has been around for a long time, and even the fact that it has been a part of many communities across time, doesn’t entail that that institution enjoys consent, even if we liberally interpret that term, as we’re going to have to. It may just enjoy grudging acceptance; it may inspire only indifference. At least with democratic majorities in the present day, we at least have some sense that the institution is approved of (some sense – I don’t want to push this point too hard).

It’s even more of a problem when that institution is oppressive. And that’s the real point here. When a practice is based in animus towards a group, and leads to the restriction of that group’s liberties and its ability to function as a full member of the political process, then the oppressed group’s opinion won’t adequately be registered, and so the idea that the practice has been consented too will be biased from the start – because those who wouldn’t have consented to the practice have been shut out. With an oppressive practice, the Cokeian risks reading into it a superficial “consent” that doesn’t represent the opinions of all those who are affected by it.

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