In response to: Michael Oakeshott on the Rule of Law and the Liberal Order
It’s hard to imagine an event that more perfectly illustrates Michael Oakeshott’s notion of telocracy than the Supreme Court decision, in a 5-4 vote, that President Obama’s signature piece of legislation, the Affordable Care Act, was constitutional. The reasons for this decision were shocking and unexpected; and the fallout is as yet unknown. But I am less interested in considering the details of the decision, or of the Act itself, than in briefly sketching the implicit vision of government and of human nature that lies behind the ACA’s creation and passage. In doing so, the abiding wisdom of Oakeshott, who understood and explained the telocratic mindset many decades ago, will become clear.
Timothy Fuller’s excellent essay summarizes the fundamental tension that Oakeshott identified variously as the “politics of faith” and the “politics of skepticism,” “telocracy” and “nomocracy,” enterprise association and civil association, “Rationalism” and poetry. Oakeshott thought that human beings, and particularly those engaged in politics, tend to situate themselves at various points between two poles that represent fundamentally opposed orientations. Neither had ever succeeded in “winning” against the other; indeed, a battle between these orientations would, in a certain sense, be impossible. For in employing these various images to describe human tendencies Oakeshott was creating ideal types, things that existed purely in thought. In practice, of course, he saw that ideas are all mixed up in particular human beings.
Nevertheless, we gain valuable clarity by identifying and collecting, in thought, the most important characteristics of particular human tendencies. What telocracy, Rationalism, enterprise association and the “politics of faith” have in common is a notion of people joined in purposive action “designed to procure for each . . . an imagined and wished-for substantive (and therefore evanescent) outcome: an intrinsically terminable relationship.” Such relationships are characterized by contingency, and may change or be eliminated altogether as circumstances change.
Telocracy is, indeed, the model for most of what we do as human beings: running a business, educating children, or promoting a political cause. In this mode of association there is only “Purpose, Plan, Policy and Power.” But what also characterizes it is our ability to enter and exit at will; and this is why Oakeshott considers it an inappropriate model for government. If government itself becomes “telocratic” we have little ability to protest and no real possibility of exit. We are compelled, by force or threat, to take substantive action of a sort that we may or may not approve, all in the service of an end we have not chosen. To paraphrase Oakeshott, there is only one thing worse than hearing the dreams of others, and that is being forced to live them yourself.
One other point is worth noting about this notion of purposive government. As Oakeshott points out, people who favor the telocratic model very often express themselves in the terms of emergency, war and necessity, arguing that a chosen end is not merely desirable but essential for all. It is “not insignificant that the rhetoric of telocratic belief is always liberally sprinkled with military analogy.” Thus we see recent religiously-motivated opposition to the HHS contraceptive mandate characterized not as legitimate objection to a disliked policy but as a “war on women.” Law, in this telocratic vision, is not a neutral set of regulations but a tool that helps or hinders the achievement of a substantive end. The end, not the means, is always most important.
Contrast this vision of “law as tool” with Oakeshott’s notion of law as a framework within which diverse activities take place. Government, in nomocracy, is charged not with pursuing its own ends or the ends of elites but only with guarding “a system of legal rights and duties in the enjoyment and observation of which . . . subjects . . . may pursue their own chosen ends and purposes while still remaining a single association.” Oakeshott is careful here to distinguish his positive but restrained notion of the duties of government from that held by radical laissez-faire libertarians of his day, people he derisively calls the “lunatic fringe of modern European thought.” For Oakeshott, nomocratic government has two distinct and important purposes: (1) to preserve the political association as a single, undivided entity and (2) to guard its interests “in relation to other similar associations.”
Perhaps the most fundamental distinction between telocracy and nomocracy is that in telocracy the achievement of a chosen end is of supreme importance; in nomocracy, how a government acts is more important than what it does. This proves enormously frustrating to those who understand government as telocracy. For if one sees so clearly the good to be aimed at—whether it is universal healthcare or contraceptive coverage for every woman, or anything else—then laws that stand in the way are nothing but obstacles to be overcome. In just this way we have seen President Obama choose “not to enforce” the provisions of the 1996 Defense of Marriage Act, an act lawfully passed by Congress and still on the books, as well as grant “waivers” to certain states that exempt them from federal education requirements. I use these examples not to make a partisan political argument, but simply to show that Oakeshott’s diagnosis of telocracy was, and is, remarkably applicable to our current situation. It is also, regrettably, a notion of government that is probably held by as many conservatives as liberals in the present day.
The trouble with nomocracy is that it is difficult. To distance oneself from one’s desires, whether selfish or benevolent, is never easy; and to suppose that one’s own judgments about the good should not be immediately “put into practice” requires self-restraint and perhaps even artifice. Nomocracy thus requires important qualities of self-control and maturity in those of us who would enjoy its fruits: first, an understanding that citizens are “dissimilar, adult individuals,” not passionate adolescents or children who need supervision. We are also expected to know what is worth doing, and to have something “to do” with our lives—not to require a purpose or occupation given by the state. Moreover, we expect to be afforded freedom to do what we have chosen, within the limits of established laws, and we hope to “enjoy a system of rights and duties in respect of one another” and, only in exceptional circumstances, in respect of our government. In other words, we engage in a practice of civility.
Here we can see how this idea of nomocracy—law as a framework for the freely undertaken actions of individuals—has much in common with Oakeshott’s other articulations of his preferred vision of government and human conduct in general. It is worth consulting both On Human Conduct for its discussion of the character of “civil association,” as well as “The Voice of Poetry in the Conversation of Mankind,” an essay in Rationalism in Politics, for its notion of conversation. The best conversationalists, Oakeshott maintains in “The Voice of Poetry,” have the elements of self-restraint required by nomocracy: they observe certain conventions of moderation and humility, they listen to the contributions of others, and they are generally less concerned with advancing their own interests than with facilitating the conversation itself. Of course, all we have to do is to reflect on our own conversations to realize how rare such qualities are in actual human beings. They are just as rare, if not more so, in political life, where the attractions of power, honor and wealth are infinitely greater.
It is not hard to see why telocracy is ascendant in the present day. As I have already suggested, it is the most “practical” of all human relationships, rooted in our basic desires to acquire and preserve, to do and make things, to change the world. It is “relationship in terms of wants and substantive satisfactions, which occupies time and looks to a future . . . subject to no other considerations save those of power to achieve a purpose.” Thus healthcare reform is rooted in the benevolent desire to make things better for many people, as well as the not-so-benevolent desire that all people might conform to a particular vision of reform. The great danger of teleocracy is that it usurps individuals’ liberty to make choices for themselves, and aims at foreclosing the choices of those who might pursue a way of life that goes against the grain of modern life.
One final point is worth making with respect to Oakeshott’s conception of nomocracy as preferable to telocracy. It is a much-noted irony that for all the lip service paid to the notion of diversity, progressive “telocratic” politics actually requires far greater conformity than does nomocracy. Real diversity requires that people be left free to make their own choices, to “understand or misunderstand” themselves, in Oakeshott’s words. The possibility of freedom means the possibility of engaging in behavior that is rational or irrational, healthy or unhealthy, saintly or sinful. This will certainly yield a much less uniform, and perhaps less attractive, political and social landscape. But individual freedom is worth too much for us to sacrifice it on the altar of perfection. That’s what Oakeshott understood so well, and all but the most fervent planners know he is right.
 Rule of Law 132
 Rule of Law 135
 LHPT 496
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 LHPT 484
 See discussion on LHPT 484
Professor Fuller has provided a very helpful outline of Oakeshott’s conception of the rule of law. The British philosopher is at some of his most difficult here. But this is not to say that Oakeshott is ever easy. For readers educated in the English-speaking world, Oakeshott is challenging on a number of levels. He forces…