Mar­tin Cothran – pro­po­nent of patri­archy, hyper of the het­ero­nor­ma­tive, cru­sad­er for cre­ation­ists, water-car­ri­er for women-haters, doyen of defend­ers of Holo­caust deniers, trou­ba­dour of trai­tors – thinks I should insult him more class­i­ly. If he’s seri­ous about that, he needs to do dif­fer­ent sorts of offen­sive things. How many ways are there to call him out for defend­ing – at length! – Pat Buchanan’s anti-Semi­tism and Holo­caust denial? How many ways are there to say that he’s a doc­tri­naire con­ser­v­a­tive who (there­fore) wants to drag Ken­tucky back to the 18th cen­tu­ry, where men were men, women were bare­foot and preg­nant, and folks with skin of a dark­er hue knew their place? 

Cothran’s main point in the post linked above is not actu­al­ly about the man­ner in which he prefers to be insult­ed, but about Edmund Burke. This all start­ed because Cothran could­n’t fath­om why peo­ple were claim­ing it vio­lat­ed the Egypt­ian peo­ple’s human rights when Mubarak cut off their inter­net access:

What does it mean to say that Inter­net access a right? What is a right? And what is a human right?

It can only mean one of two things to say that some­thing is a right. A right is either legal or meta­phys­i­cal. If it is legal, then there ought to be some kind basis for it in a writ­ten statute or in some kind of case law. If it is a meta­phys­i­cal right, then it ought to have some kind of ratio­nal or rev­e­la­to­ry basis.

I point­ed out that there was a basis in writ­ten statutes of var­i­ous sorts, includ­ing treaties rat­i­fied by the Egypt­ian gov­ern­ment and inter­na­tion­al con­ven­tions assent­ed to by the Egypt­ian gov­ern­ment and by the com­mu­ni­ty of nations more broad­ly. Cothran insist­ed that those did­n’t count, because even though he pre­vi­ous­ly accept­ed legal rights as a basis for jus­ti­fy­ing a human rights claim, now he thinks that only meta­phys­i­cal rights count. I point­ed out that the notion of meta­phys­i­cal rights is far from uni­ver­sal­ly grant­ed, and that even Cothran’s beloved Edmund Burke did­n’t jus­ti­fy claimed rights by ref­er­ence to meta­physics.

Cothran now replies with a lengthy dis­qui­si­tion on Burke’s phi­los­o­phy that ulti­mate­ly refutes Cothran’s point. Cothran – quot­ed above – treat­ed legal­ly rec­og­nized rights and meta­phys­i­cal rights as utter­ly dis­tinct, and had mocked the notion that we could eval­u­ate a claim of meta­phys­i­cal rights by look­ing at legal­ly rec­og­nized rights. And yet the best argu­ment Cothran can now make is that a Burkean con­ser­v­a­tive rec­og­nizes meta­phys­i­cal rights by exam­in­ing laws and cus­toms of soci­ety: exact­ly the evi­dence he pre­vi­ous­ly reject­ed. Here’s Cothran’s sum­ma­ry of Burke’s methods:

Burke did not deny the nat­ur­al law; he cham­pi­oned it. What he attacked is the attempt­ed imple­men­ta­tion of the nat­ur­al law based on the artic­u­lat­ed ratio­nal­i­ty so val­ued by the French Rev­o­lu­tions who, instead of acknowl­edg­ing rea­son in is prop­er place, instead exalt­ed Rea­son as a god­dess. His prob­lem with Robe­spierre was the con­ceit that held that men could behold nat­ur­al law in the abstract: “But I can­not stand for­ward and give praise or blame to any­thing which relates to human actions, and human con­cerns, on a sim­ple view of the object, as it stands stripped of every rela­tion, in all the naked­ness and soli­tude of meta­phys­i­cal abstraction.”

Abstract nat­ur­al rights “may and do exist in total inde­pen­dence” of human gov­ern­ment, but the only means by which to know them, and the only form in which they can be installed is cus­tom and tra­di­tion. This is what he means when he says that “their abstract per­fec­tion is their prac­ti­cal defect.”

“Cus­tom and tra­di­tion,” in Burke’s case, refers to the con­sti­tu­tions and writ­ten and unwrit­ten com­mon laws of Eng­land. The sort of thing that now also resides in inter­na­tion­al treaties and non-bind­ing dec­la­ra­tions affirmed by the vast bulk of nations. It is unclear where Cothran locates rea­son’s “prop­er place.” He seems to leave it on the shelf, mostly.
Cothran also intro­duces var­i­ous dis­tinc­tions, entire­ly plau­si­ble ones which schol­ars of Burke’s writ­ings can enjoy mulling over to their hearts’ con­tent, but which don’t actu­al­ly help him out. Cothran cites a review of Stan­lis’s Edmund Burke and the Nat­ur­al Law, not­ing in pass­ing the review­er’s acknowl­edge­ment that con­fu­sion over Burke’s views on nat­ur­al rights is ram­pant and under­stand­able. He quotes the begin­ning, but not the last sen­tence, of this para­graph, leav­ing out the bit which sug­gests that Stan­lis’s views – which Cothran accepts whole­heart­ed­ly – may not be the last word on the topic:

It is as a polit­i­cal philoso­pher that Burke has had endur­ing influ­ence, and in polit­i­cal phi­los­o­phy the Burkean para­dox may be for­mu­lat­ed in terms some­thing like the fol­low­ing: How can a man be an advo­cate of expe­di­en­cy and an apos­tle of prin­ci­ple at one and the same time? How can he, for exam­ple, exco­ri­ate the French Dec­la­ra­tion of the Rights of Man as “abstract” and “metaphysical” in almost the same breath that he denounces the French rev­o­lu­tion­ar­ies for their crimes against the “eternal immutable law”? Even the most sym­pa­thet­ic inter­preters have found them­selves con­fused and exas­per­at­ed by Burke’s appar­ent changes of front; some, indeed, out of sheer des­per­a­tion, have set him down as sim­ply incoherent.

As we’ll see in a bit, the lat­ter view is still easy to pre­fer. We also find that Stan­lis’s view is hard­ly uni­ver­sal. In a review of Burke’s views on nat­ur­al law in inter­na­tion­al con­flicts from 1959, James David­son rejects Stan­lis’s argument:

[I]t is mis­lead­ing to place Burke in the old­er nat­ur­al law tra­di­tion. In ideas as well as in time, he stands more near­ly at a mid-point between that tra­di­tion and the pos­i­tivist approach to law [which Cothran here is argu­ing against]. Rev­e­la­tion and the inter­pre­tive aid of a Uni­ver­sal Church, which were cru­cial to the tra­di­tion­al con­cept of nat­ur­al law, do not play a sim­i­lar role in Burke’s thought.

David­son goes on to note that “This empha­sis on tra­di­tion, which obscures any stan­dard by which the prod­ucts of tra­di­tion can be judged, drains the mean­ing from ‘nat­ur­al law,’ how­ev­er much the term may be invoked.” These tra­di­tions, David­son notes, include “the con­sti­tu­tions of the indi­vid­ual states, their treaties, and their mutu­al cus­toms and prac­tices.” Again, exact­ly the sort of evi­dence I referred to before Cothran forced this down a philosophical/historical jag. 

Look­ing specif­i­cal­ly at Burke’s take on inter­na­tion­al law, David­son observes: 

When Burke appeals to the law of nations against irre­spon­si­ble or expe­di­ent acts, the bur­den of his argu­ment is always direct­ed to the force of cus­tom among civ­i­lized nations and to the oblig­a­tions of Eng­land not to dis­cred­it her­self in the eyes of her peers by vio­lat­ing this cus­tom. This is the inter­na­tion­al coun­ter­part, in Burke’s thought, of the oblig­a­tion of the cit­i­zen to observe the pre­scrip­tive laws of his nation, and it involves the same dif­fi­cul­ties of jus­ti­fi­ca­tion in terms of nat­ur­al law.

This is the prob­lem Cothran does­n’t want to acknowledge.

That prob­lem aside, the dis­tinc­tions Cothran intro­duces (via Stan­lis) are com­ing a bit late: Cothran began by argu­ing that meta­phys­i­cal rights must be jus­ti­fied by abstract rea­son or by sub­jec­tive rev­e­la­tion, and that laws are not a prop­er way to argue for meta­phys­i­cal rights. Now he sides with Stan­lis’s (or at least Stan­lis’s review­er’s) read­ing of Burke, which holds: “It is in man’s his­tor­i­cal expe­ri­ence rather than in any abstract meta­phys­i­cal scheme that we can hope to catch a glimpse of the under­ly­ing Nat­ur­al Law as well as of the mod­i­fi­ca­tions it must under­go if it is to become oper­a­tive in social life.” The more he tries to sal­vage his claim to Burkean con­ser­vatism, the more holes he shoots in his orig­i­nal argu­ment. In reject­ing abstract rea­son­ing as a way to find meta­phys­i­cal rights, Cothran seems to agree to Burke’s strat­e­gy of using law as a basis for jus­ti­fy­ing meta­phys­i­cal rights, an approach he reject­ed as absurd when I applied it ear­li­er. The only alter­na­tive Cothran offers is “rev­e­la­tion,” but he still gives no basis for eval­u­at­ing a claim of mag­i­cal rev­e­la­tion – the same mag­i­cal rev­e­la­tion Burke steers clear of in his own arguments.

All this being said, I cite Burke here not to defend his views, but to oblige Cothran to con­tort him­self into fur­ther knots. As to the inad­e­qua­cy of Burke’s meth­ods, I refer you to Brad Delong, who skew­ers Burke (and con­ser­vatism) rather nice­ly:

THERE ARE NO ATTRACTIVE MODERN CONSERVATIVES BECAUSE CONSERVATISM SIMPLY IS NOT ATTRACTIVE. DEAL WITH IT!!

You can see this most clear­ly if you take a close look at Edmund Burke. Edmund Burke does not believe that Tra­di­tion is to be Respect­ed. He believes that good tra­di­tions are to be respect­ed. When Edmund Burke in his Reflec­tions on the Rev­o­lu­tion in France makes the argu­ment that Britons should respect the organ­ic polit­i­cal tra­di­tion of Eng­lish lib­er­ty that has been inher­it­ed from the past, he whis­pers under his breath that the only rea­son we should respect the Wis­dom of the Ances­tors is that in this par­tic­u­lar case Burke thinks that the Ancestors–not his per­son­al ances­tors, note–were wise.

When­ev­er Burke thought that the inher­it­ed polit­i­cal tra­di­tions were not wise, the fact that they were the inher­it­ed Wis­dom of the Ances­tors cut no ice with him at all. It was one of the tra­di­tions and insti­tu­tions of Eng­lish­men that they would con­quer, tor­ture, and rob wogs when­ev­er and wher­ev­er they were strong enough to do so. That tra­di­tion cut no ice with Edmund Burke when he was try­ing to pros­e­cute War­ren Hast­ings. It was one of the tra­di­tions and insti­tu­tions of Eng­lish­men that all pow­er flowed to West­min­ster. That tra­di­tion cut no ice with Burke when he was argu­ing for con­cil­i­a­tion with and a devo­lu­tion of pow­er to the Amer­i­can colonists. It was one of the tra­di­tions and insti­tu­tions of Eng­lish­men that Ire­land was to be plun­dered and loot­ed for the ben­e­fit of upward­ly-mobile Eng­lish peers-to-be. That tra­di­tion, too, cut no ice with Burke.

Even in Reflec­tions on the Rev­o­lu­tion in France, Burke does­n’t argue that French­men should build on their own polit­i­cal traditions–the tra­di­tions of Riche­lieu and Louis XIV, that is. â€¦

Burke’s argu­ment is not that France in 1789 should have fol­lowed its ances­tral tra­di­tions. Burke’s argu­ment is, instead, that France in 1789 should have dug into its past until it found a moment when insti­tu­tions were bet­ter than in 1788, and drawn upon that usable past in order to but­tress the present rev­o­lu­tion­ary moment. This isn’t an intel­lec­tu­al argu­ment about how to decide what insti­tu­tions are good. It is a prac­ti­cal-polit­i­cal argu­ment about how to cre­ate good insti­tu­tions and then but­tress and secure them by mak­ing them facts on the ground.

What are good insti­tu­tions? Burke sounds like Madi­son: checks-and-bal­ances, sep­a­ra­tion of pow­ers, rights of the sub­ject, lim­i­ta­tions on the state. Burke’s views on what good insti­tu­tions are Enlight­en­ment views–that branch of the Enlight­en­ment that took peo­ple as they are and pol­i­tics as a sci­ence, that is, rather than the branch that took peo­ple as Rousseau hoped they might some­day be and pol­i­tics as the strik­ing of an oppo­si­tion­al pose. Because he finds that the Eng­lish past is usable as a sup­port for his Enlight­en­ment-dri­ven views, Burke makes con­ser­v­a­tive argu­ments in Reflec­tions. But when­ev­er con­ser­v­a­tive argu­ments lead where Burke does­n’t want to go–to Riche­lieu or Louis XIV or the plun­der of Ire­land or the Star Cham­ber or War­ren Hast­ings or impe­r­i­al centralization–Burke does­n’t make them and they have no pur­chase on him. Eng­land’s inher­i­tance of insti­tu­tions and prac­tices is to be respect­ed wher­ev­er it sup­ports Burke’s con­cep­tion of prop­er­ly-ordered lib­er­ty, and ignored wher­ev­er it does not. For Burke, con­ser­vatism is a some­times use­ful rhetor­i­cal weapon, not a set of principles.

And that is how con­ser­vatism con­tin­ues. Not with some prin­ci­pled stand for The Way Things Were, but with an unprin­ci­pled demand for things that com­fort the com­fort­able and pro­tect the already-safe, all jus­ti­fied post hoc by insis­tence that this is “tra­di­tion.”

We see this most obvi­ous­ly, of course, in mod­ern debates over mar­riage equal­i­ty, where “tra­di­tion­al” mar­riage is not the polygamy endorsed by the Bible, nor the divorce-free mar­riage demand­ed by Jesus, nor the love­less com­mer­cial­ly-arranged mar­riages of the feu­dal era through the 19th cen­tu­ry. It is not even the tra­di­tion of ear­ly- to mid-20th cen­tu­ry Amer­i­ca, in which cou­ples of dif­fer­ent races could not mar­ry. It is the tra­di­tion of mar­riages that began in the 1970s that con­ser­v­a­tives defend, just as they pre­vi­ous­ly defend­ed seg­re­ga­tion as tra­di­tion, and as they defend­ed the tra­di­tion of slav­ery before that.

It is the same unprin­ci­pled hack­ery which earns Jus­tice Scalia deri­sion, which argues that the “orig­i­nal intent” of the 14th amend­ment is only to free slaves (not women or oth­er oppressed minori­ties), except when it can be applied to cor­po­ra­tions, or that the 2nd amend­ment must be con­sid­ered as the founders intend­ed, but with­out con­sid­er­ing how the exis­tence of assault rifles, tanks, plas­tic explo­sives, high capac­i­ty clips, and urban gangs might have changed their views.

Cothran is in a sim­i­lar bind here. Mod­ern con­ser­vatism hates the notion of inter­na­tion­al law, and espe­cial­ly the Unit­ed Nations. So he wants to say that UN treaties and dec­la­ra­tions are irrel­e­vant. On the oth­er hands, as I showed above, those are the sorts of sources Burke relied on. So he has to decide whether to reject Burkean tra­di­tion – a tra­di­tion he insists “mod­ern con­ser­vatism starts with… and should end with” – or whether to some­how walk back his ear­li­er mock­ing of ref­er­ences to law and cus­tom as a source of infor­ma­tion on human rights. So far, he’s stick­ing with con­ser­v­a­tive’s tra­di­tion­al prac­tice, and reject­ing the tra­di­tion­al claims of conservatives.