Suggestions of brilliance.

The Meaning of Conservatism, by Roger Scruton, 3rd ed., South Bend: Saint Augustine's Press, 2002.

MANY REVIEWS PROCLAIM that a book is indispensable for a particular readership, but this book actually is. Anyone remotely interested in conservative thought needs to have thoroughly digested Roger Scruton's The Meaning of Conservatism, now available in a revised third edition. The brilliance of this book--and there is no doubt that it is a classic of political philosophy--is its remarkable combination of a fast "narrative" through essential conservative positions with very subtle, intellectually arresting arguments.

Let me give an example. It is an axiom of liberal thinking that law is not the same thing as morality. Quite to the contrary, Scruton argues that law is often morality--and what is more, it is primarily the morality encrypted in the laws which humanizes us. Explaining why there must be laws regarding the age of consent, Scruton argues as follows:

   It is a crime to make love to a willing, but under-age, schoolgirl
   .... [Although willing], says the law, the girl has not consented.
   Behind that legal fiction lies a moral fiction, and one which is
   vital to the self-image of society. It is the fiction, the myth, ...
   the value of "innocence." It is through a conception of innocence
   that sexual relations are experienced and understood--understood,
   that is, as something other than a merely animal performance.

Today, the most liberal countries in the world have nearly whittled the age of consent down to the time of a child's physical ability to have sex, and it is this reductionism in liberal and socialist thought to which Scruton most objects. This, in turn, reveals the philosophical heart of the book.

Conservatism is not a cynically "realist" politics but is rather oriented around genuine ideals: a society has a self-image; laws are built around salutary fictions and myths; people understand themselves and others through the "surface of social consciousness," ascribing intention and purpose to one another, and assuming both freedom and responsibility when they retaliate against an offense received. It is the object of conservative politics to sustain this "surface" of human meaning, complete with its fictions and images. Here, Scruton is advancing certain insights of de Maistre into social order, and this most difficult aspect of his book deserves close attention from other conservative thinkers.

A liberal thinker like Kant is alive to this "surface," of course, unlike more mechanistic liberals such as Hobbes. Ultimately, however, Kantian liberals lose sight of that which sustains the human things. In contrast, Scruton's quite modern conservatism recognizes the richness of human subjectivity, but it nonetheless avoids collapsing into some variety of subjectivism. The greatest evil for Kant is that someone or something--an institution, a law, a custom--might serve as the basis of a person's action. Such heteronomy would be a diminishment of autonomy, and thus, for Kant, a diminishment of both personhood and liberty. But for the conservative, it is precisely the social order--the expectations of others and the standards of institutions--that makes any human action possible. To the Kantian, laws governing the age of consent are an intolerable affront to a person's freedom-centered dignity. But for Scruton, such a law, which marks off a space for innocence, is that which generates the "surface" of meaning where love, including erotic love, is made human and can flourish. Such a law is the very foundation of human dignity.

Liberal and conservative attitudes to punishment can serve as another example. The ideas of freedom and responsibility, the ascription of agency to self and others, are sustained by law, and in particular by a society's rituals of punishment. A society embarrassed by the idea of punishment and preferring to be tough on the "sources" of crime has already dehumanized the social world, for there is no longer a criminal, a victim, or a wrong to be redressed--and thus, no freedom, but only sociology. Institutions of judgment and punishment establish a society's image of itself as free and populated by human agents, either innocent or guilty. In the last analysis, a subjectivity that is authentically human is always drawn from "the surface of things, with the motives, reasons, traditions and values of society."

It is especially important for American conservatives to engage this book, for Scruton mounts a profound challenge to our prejudices about the primacy of liberty. It is certainly a Burkean conviction that liberty is desired by all, but in Scruton's conservatism liberty is clearly secondary to the authoritative functioning of the state as a source of order and social continuity. In this light, Scruton compels us to consider whether conservatives should be much less critical of authoritarian government. As he wryly notes, we are always told that conservatives such as Franco or Pinochet, mired in brutality, only arrest social liberation for a matter of decades, whilst liberals and socialists are said to be attuned to the development and deepest aspirations of the human spirit, no matter how many dead pile up around their visions of a glorious new social order.

Given the role that terror is now playing in contemporary politics--with issues ranging from the legality of detention without trial to terrorist attacks altering democratic elections--Scruton's comment that, "to sacrifice power for the sake of justice, is to make the exercise of justice impossible," is worthy of much reflection. Scruton is clear that sedition requires the exercise of a power that "may stand wholly outside the rule of natural justice." For "it is unquestionable that, if the power of the state is threatened, so too is its authority, and with it the structure of civil society."

Scruton is extremely conscious of British liberty and he claims the mantle of Burke. Central to Scruton's thinking is Burke's claim at the end of his address on Conciliation with the Colonies (1775) that "English privileges have made [America] all that it is; English privileges alone will make it all it can be." Scruton rejects theories of natural right and sees liberty as a privilege in the gift of the state. If one takes the natural law tradition to span the efforts of Aquinas, Grotius, and Locke, he notes, one sees that there is barely any agreement on what the relationship between nature and ethics or politics might be. Thus, this tradition cannot be the basis for a conservative politics.

Scruton therefore takes a somewhat unusual position. He argues that liberty and property are matters of the positive law, bound to the legal traditions and histories of particular peoples. In America, it is perhaps Justice Scalia who most famously holds such a position. However, it must be added that Scruton is no particular friend of democracy. Consequently, he does not understand the positive law as the outcome of majoritarianism--indeed, in this third edition of a text that first appeared in 1980, he is scathing about the majoritarian forms introduced into British politics by Prime Minister Tony Blair. Some of his comments about Blair's political legacy help to capture what Scruton means by his own attachment to a positive law tradition of politics.

For most American conservatives who are supporters of natural law, whether this be in a Thomistic mode or in a more secular fashion after Locke, Scruton's positive law politics is likely to conjure up images of Bentham's assault on the common law and his pervasive critical questioning of all established authority and moral order. Scruton could not be further removed from Bentham, however, and this makes his conservative positivism both interesting and challenging. Conservatives, observes Scruton, are not apt to criticize the institutions and social arrangements they have inherited, but this is not to say that arguments cannot be given in defense of these institutions. He offers a set of fine arguments for why hereditary privilege is just and necessary, as well as arguments about how this privilege served England well in the House of Lords--until that institution was eviscerated and patronage transferred into the hands of the prime minister alone. With the House of Lords now existing in name only, Scruton identifies, and strongly affirms, the judiciary as a last bastion of privilege against majoritarian rule.

In a most intriguing way, Scruton takes the fight back to the place where Bentham began it. He recognizes that the modern state must have some rule by statute or legislation. He nevertheless insists on the autonomy of the common law as an inheritance, refined over hundreds of years, of an English sensibility about how best for the social world of England to cohere in its very practical and daily interactions. Scruton is, of course, extremely hostile to the administrative law increasingly encroaching upon England through its membership in the European Union. This encroachment is the eradication of the privilege of an autonomous English judiciary which in the past, its eye ever on the common law inheritance, has been a bulwark of conservatism in that country. Actually, Scruton's whole discussion of law is simply superb, and it is to be hoped that some textbook on politics or law might extract this section because it would make for a wonderful teaching tool.

Yet, it is here that any American conservative, no matter what stripe, is bound to start having reservations. Not only is the American bench, and the law schools upon whose research and speculations the bench relies for many of its opinions, largely liberal: it is not even very attached to the rule of law. Policy and sentiment have recently persuaded some of our courts not to intervene when local jurisdictions hand out marriage licenses to homosexual couples in contravention of state law. More significantly for Scruton's conservatism, recent legal research has argued that common law jurisprudence helped lay the groundwork for the most divisive Supreme Court judgment in recent American history, the Roe decision of 1973. (1) Moreover, the English judiciary has been profoundly hostile to America's detention of terror suspects, and whether this is because they youngest members of the English bench are not conservatives or because it outrages their common law sensibility, either way it sits ill with Scruton's sense of the rightful place of authority in government.

Another area of political concern that might trouble American readers is Scruton's views on the economy. He strongly affirms the priority of the political order over the economic order, and he refuses to collapse Tory thought into Thatcherism. As he puts it, "free trade has always been a cause to fight for, not a norm to be assumed." He thinks that Thatcherism was an aberration within Toryism, and he blames Lady Thatcher's "liberal economics" with the contemporary ruin of the Conservative Party. Just as he believes support for the welfare state is necessary for modern conservatism--pointing out that it was Bismarck who established the German variant--he also argues that where political and social goals warrant it, state ownership of something like a nation's railway system is an appropriately conservative policy.

The reservations about modern forms of economic organization that lead Scruton to these views are long-standing and can certainly be found in such conservative thinkers as MaxScheler. Scruton is especially concerned about industrialization, and he identifies it as the source of the alienation which so defines contemporary Western consciousness. But if he bemoans industrialization, and in doing so echoes Churchill, he does not leave the matter there. A central task for our time is to redress this alienation, and Scruton believes conservatism is especially equipped to do so. With its commitment to social continuity, conservatism is able to offer a balm to modern alienated consciousness.

Conservatism, in its rejection of utilitarianism and its defense of traditional standards, endorses activities which might be said to be "intransitive," having their ends in themselves. In this regard, Scruton is fond of analogies to the family, sports, traditional academic pursuits, and, one could add--though strangely Scruton does not--that great English activity, gardening (an activity also associated with another great once-conservative nation, Japan). Such spheres of human action must be endorsed and supported as a counter to the industrial economy's consumerism for no stable human identity is sustained in the latter, and thus nothing human as such.

I hope these few comments on The Meaning of Conservatism have shown why the book is indispensable for further reflection. There is one striking similarity, however, between Scruton's conservatism and the liberalism it otherwise so powerfully opposes. That is, both conceive of the fundamental political problem in terms of institutions. Notably missing from Scruton's book is the question of personal virtue. Like liberals, Scruton is convinced that if the institutions of an established order are allowed to perdure, then the basic identity and goodness of a nation will also endure. Without ignoring the role of institutions and the stability they bestow on the character of a people--and Scruton does a great service in reminding us of this--American conservatives tend to be either more individualist or else more Christian, and very frequently both. For either set of American conservatives, a politics of personal virtue is absolutely necessary.

And does not this American insistence amount to a healthy corrective to Scruton's conservatism? Do not the virtues make a fundamental contribution to the conservation of the human things? Scruton himself must have plenty of virtue. After all, this book was first written whilst Scruton was teaching at the University of London in 1980: it must have required amazing fortitude. As Scruton recalls, in that left-wing milieu the only person in the faculty lounge he could talk to was the dinner lady!

Amongst all the rich material given to us by Scruton in this book, I think it is his sketch--and it remains only that--of what might be called a conservative moral psychology that deserves the most attention. How will conservatives illustrate the "surface of social consciousness" so that the human things might most ably be sustained against further erosion? Is Scruton right that conservatives can find that illustration in the ready-made, but somewhat flexible, moral psychology of the common law? Suggestions of brilliance, let us hope they prove fruitful.

(1.) See James Stoner, Common Law Liberty (Lawrence, Kan., 2003).

GRAHAM MCALEER is Associate Professor of Philosophy at Loyola College of Maryland.