David Hume [1 ed.] 0754627160, 9780754627166

Table of contents :
Contents
Acknowledgements
Series Preface
Introduction
1 James Moore (1977), ‘Hume’s Political Science and the Classical Republican Tradition’
2 Richard H. Dees (1992), ‘Hume and the Contexts of Polities’
3 Donald W. Livingston (2009), ‘David Hume and the Conservative Tradition’
4 John B. Stewart (1995), ‘The Public Interest vs. Old Rights’
5 Mark G. Spencer (2002), ‘Hume and Madison on Faction’
6 Jeffrey Church (2007), ‘Selfish and Moral Politics: David Hume on Stability and Cohesion in the Modern State’
7 Carl Wennerlind (2002), ‘David Hume’s Political Philosophy: A Theory of Commercial Modernization’
8 A.B. Stilz (2003), ‘Hume, Modern Patriotism, and Commercial Society’
9 Duncan Forbes (1978), ‘The European, or Cosmopolitan, Dimension in Hume’s Science of Polities’
10 Neil McArthur (2005), ‘Laws Not Men: Hume’s Distinction between Barbarous and Civilized Government’
11 Neil McArthur (2005), ‘David Hume and the Common Law of England’
12 James Moore (2002), ‘Utility and Humanity: The Quest for the Honestum in Cicero, Hutcheson, and Hume’
13 Aaron Garrett (2004), ‘Hume’s “Original Difference”: Race, National Character and the Human Sciences’
14 James Moore (1976), ‘Hume’s Theory of Justice and Property’
15 Knud Haakonssen (1978), ‘Hume’s Obligations’
16 Annette Baier (1988), ‘Hume’s Account of Social Artifice—Its Originsand Originality’
17 David Gauthier (1992), ‘Artificial Virtues and the Sensible Knave’
18 Annette C. Baier (1992), ‘Artificial Virtues and the Equally Sensible Non-Knaves: A Response to Gauthier’
19 Stephen Darwall (1993), ‘Motive and Obligation in Hume’s Ethics’
20 Jason Baldwin (2004), ‘Hume’s Knave and the Interests of Justice’
21 Don Garrett (2007), ‘The First Motive to Justice: Hume’s Circle Argument Squared’
22 Rachel Cohon (2001), ‘The Shackles of Virtue: Hume on Allegiance to Government’
23 Stephen Buckle and Dario Castiglione (1991), ‘Hume’s Critique of the Contract Theory’
Name Index

Citation preview

David Hume

International Library of Essays in the History of Social and Political Thought Series Editor: Tom Campbell Titles in the Series: Hannah Arendt Amy Allen

Thomas Paine Bruce Kuklick

James Madison Terence Ball

Max Weber Peter Lassman

Charles-Louis de Secondat, Baron de Montesquieu David Carrithers

Mary Wollstonecraft Jane Moore

Emile Durkheim Roger Cotterrell Vilfredo Pareto Joseph Femia Jean Bodin Julian H. Franklin David Hume Knud Haahonssen and Richard Whatmore Edmund Burke Iain Hampsher-Monk Talcott Parsons John Holmwood Thomas Aquinas John Inglis Jurgen Habermas, Volumes I and II Christian Joerges, Klaus Guenther and Camil Ungureanu Aristotle George Klosko G.W.F. Hegel Dudley Knowles

T.H. Green John Morrow Martin Heidegger Stephen Mulhall Jean-Jacques Rousseau Timothy O 'Hagan Michel Foucault David Owen John Rawls David A. Reidy Immanuel Kant Arthur Ripstein Jeremy Bentham Frederick Rosen Theodor Adorno James Schmidt Thomas Hobbes Gabriella Slomp Friedrich Nietzsche Tracy Strong

David Hume

Edited by

Knud Haakonssen University of Sussex and University College London, UK and Boston University, USA

Richard Whatmore University of Sussex, UK

13 Routledge g^^ Taylor & Francis Group LONDON AND NEW YORK

First published 2013 by Ashgate Publishing Published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 711 Third Avenue, New York, NY 10017, USA Routledge is an imprint of the Taylor & Francis Group, an informa business Copyright © Knud Haakonssen and Richard Whatmore 2013. For copyright of individual articles please refer to the Acknowledgements. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data David Hume. - (International library of essays in the history of social and political thought) 1. Hume, David, 1711-1776 - Political and social views. I. Series II. Haakonssen, Knud, 1947- III. Whatmore, Richard. 320'.01'092-dc23

The Library of Congress has cataloged the printed edition as follows: 2012944938

ISBN 9780754627166 (hbk)

Contents Acknowledgements Series Preface Introduction 1 James Moore (1977), 'Hume's Political Science and the Classical Republican Tradition', Canadian Journal of Political Science, 10, pp. 809-39. 2 Richard H. Dees (1992), 'Hume and the Contexts of Polities', Journal of the History of Philosophy, 30, pp. 219-42. 3 Donald W. Livingston (2009), 'David Hume and the Conservative Tradition', The Intercollegiate Review, 44, pp. 30-41. 4 John B. Stewart (1995), 'The Public Interest vs. Old Rights', Hume Studies, 21, pp. 165-88. 5 Mark G. Spencer (2002), 'Hume and Madison on Faction', The William and Mary Quarterly, 59, pp. 869-96. 6 Jeffrey Church (2007), 'Selfish and Moral Politics: David Hume on Stability and Cohesion in the Modern State', The Journal of Politics, 69, pp. 169-81. 7 Carl Wennerlind (2002), 'David Hume's Political Philosophy: A Theory of Commercial Modernization', Hume Studies, 28, pp. 247-70. 8 A.B. Stilz (2003), 'Hume, Modern Patriotism, and Commercial Society', History of European Ideas, 29, pp. 15-32. 9 Duncan Forbes (1978), 'The European, or Cosmopolitan, Dimension in Hume's Science of Polities', The British Journal for Eighteenth-Century Studies, 1, pp. 57-60. 10 Neil McArthur (2005), 'Laws Not Men: Hume's Distinction between Barbarous and Civilized Government', Hume Studies, 31, pp. 123-44. 11 Neil McArthur (2005), 'David Hume and the Common Law of England', Journal of Scottish Philosophy, 3, pp. 67-82. 12 James Moore (2002), 'Utility and Humanity: The Quest for the Honestum in Cicero, Hutcheson, and Hume', Utilitas, 14, pp. 365-86. 13 Aaron Garrett (2004), 'Hume's "Original Difference": Race, National Character and the Human Sciences', Eighteenth-Century Thought, 2, pp. 127-52. 14 James Moore (1976), 'Hume's Theory of Justice and Property', Political Studies, 24, pp. 103-19. 15 Knud Haakonssen (1978), 'Hume's Obligations', Hume Studies, 4, pp. 7-17.

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1 33 57 69 93 121 135 159 177 181 203 219 241 267 285

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16 Annette Baier (1988), 'Hume's Account of Social Artifice - Its Origins and Originality', Ethics, 98, pp. 757-78. 17 David Gauthier (1992), 'Artificial Virtues and the Sensible Knave', Hume Studies, 18, pp. 401-27. 18 Annette C. Baier (1992), 'Artificial Virtues and the Equally Sensible Non-Knaves: A Response to Gauthier', Hume Studies, 18, pp. 429-39. 19 Stephen Darwall (1993), 'Motive and Obligation in Hume's Ethics', Note, 17, pp. 415^8. 20 Jason Baldwin (2004), 'Hume's Knave and the Interests of Justice', Journal of the History of Philosophy, 42, pp. 277-96. 21 Don Garrett (2007), "The First Motive to Justice: Hume's Circle Argument Squared', Hume Studies, 33, pp. 257-88. 22 Rachel Cohon (2001), "The Shackles of Virtue: Hume on Allegiance to Government', History of Philosophy Quarterly, 18, pp. 393^13. 23 Stephen Buckle and Dario Castiglione (1991), 'Hume's Critique of the Contract Theory', History of Political Thought, 12, pp. 457-80. Name Index

297 319 347 359 393 413 445 467 491

Acknowledgements Ashgate would like to thank our researchers and the contributing authors who provided copies, along with the following for their permission to reprint copyright material: AMS Press, Inc. for the essay: Aaron Garrett (2004), 'Hume's "Original Difference": Race, National Character and the Human Sciences', Eighteenth-Century Thought, 2, pp. 127-52. Cambridge University Press for the essay: James Moore (1977), 'Hume's Political Science and the Classical Republican Tradition', Canadian Journal of Political Science, 10, pp. 809-39. Copyright © 1977 Canadian Political Science Association, published by Cambridge University Press, reproduced with permission; Jeffrey Church (2007), 'Selfish and Moral Politics: David Hume on Stability and Cohesion in the Modern State', The Journal of Politics, 69, pp. 169-81. Copyright © 2007 Southern Political Science Association, published by Cambridge University Press, reproduced with permission; James Moore (2002), 'Utility and Humanity: The Quest for the Honestum in Cicero, Hutcheson and Hume', Utilitas, 14, pp. 365-86. Copyright © 2002 Cambridge University Press, reproduced with permission. Edinburgh University Press forthe essay: Neil MeArthur (2005), 'DavidHume and the Common Law of England', Journal of Scottish Philosophy, 3, pp. 67-82. Published by Edinburgh University Press on behalf of the University of Aberdeen and the Scots Philosophical Club. Elsevier for the essay: A.B. Stilz (2003), 'Hume, Modern Patriotism, and Commercial Society', History of European Ideas, 29, pp. 15-32. Copyright © 2002 Elsevier Science Ltd. All rights reserved. Hume Studies for the essays: John B. Stewart (1995), 'The Public Interest vs. Old Rights', Hume Studies, 21, pp. 165-88; Carl Wennerlind (2002), 'David Hume's Political Philosophy: A Theory of Commercial Modernization', Hume Studies, 28, pp. 247-70; Neil McArthur (2005), 'Laws Not Men: Hume's Distinction between Barbarous and Civilized Government', Hume Studies, 31, pp. 123^4; Knud Haakonssen (1978), 'Hume's Obligations', Hume Studies, 4, pp. 7-17; David Gauthier (1992), 'Artificial Virtues and the Sensible Knave', Hume Studies, 18, pp. 401-27; Annette C. Baier (1992), 'Artificial Virtues and the Equally Sensible Non-Knaves: A Response to Gauthier', Hume Studies, 18, pp. 429-39; Don Garrett (2007), 'The First Motive to Justice: Hume's Circle Argument Squared', Hume Studies, 33, pp. 257-88. Imprint Academic for the essay: Stephen Buckle and Dario Castiglione (1991), 'Hume's Critique of the Contract Theory', History of Political Thought, 12, pp. 457-80. Copyright © 1991 Imprint Academic, Exeter, UK. Intercollegiate Studies Institute Inc. for the essay: Donald W. Livingston (2009), 'David Hume and the Conservative Tradition', The Intercollegiate Review, 44, pp. 30^11.

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John Wiley and Sons for the essay: Duncan Forbes (1978), "The European, or Cosmopolitan, Dimension in Hume's Science of Polities', The British Journal for Eighteenth-Century Studies, 1, pp. 57-60; James Moore (1976), 'Hume's Theory of Justice and Property', Political Studies, 24, pp. 103-19; Stephen Darwall (1993), 'Motive and Obligation in Hume's Ethics', Nous, 17, pp. 415^8. Copyright © 1993 Basil Blackwell, Inc. Johns Hopkins University Press for the essay: Richard H. Dees (1992), 'Hume and the Contexts of Polities', Journal of the History of Philosophy, 30, pp. 219-42. Copyright © 1992 Journal of the History of Philosophy, Inc. Reprinted with permission of The Johns Hopkins University Press; Jason Baldwin (2004), 'Hume's Knave and the Interests of Justice', Journal of the History of Philosophy, 42, pp. 277-96. Copyright © 2004 Journal of the History of Philosophy, Inc. Reprinted with permission of The Johns Hopkins University Press. North American Philosophical Publications for the essay: Rachel Cohon (2001), 'The Shackles of Virtue: Hume on Allegiance to Government', History ofPhilosophy Quarterly, 18, pp. 393^13. Published by University of Illinois Press on behalf of North American Philosophical Publications. Omohundro Institute of Early American History and Culture for the essay: Mark G. Spencer (2002), 'Hume and Madison on Faction', The William and Mary Quarterly, 59, pp. 869-96. University of Chicago Press for the essay: Annette Baier (1988), 'Hume's Account of Social Artifice - Its Origins and Originality', Ethics, 98, pp. 757-78. Every effort has been made to trace all the copyright holders, but if any have been inadvertently overlooked the publishers will be pleased to make the necessary arrangement at the first opportunity. Publisher's Note The material in this volume has been reproduced using the facsimile method. This means we can retain the original pagination to facilitate easy and correct citation of the original essays. It also explains the variety of typefaces, page layouts and numbering.

Series Preface The International Library of Essays in the History of Social and Political Thought brings together collections of important essays dealing with the work of major figures in the history of social and political thought. The aim is to make accessible the complete text with the original pagination of those essays that should be read by all scholars working in that field. In each case, the selection is made from the extensive available literature by an established expert who has a keen sense of the continuing relevance of the history of social and political thought for contemporary theory and practice. The selection is made on the basis of the quality and enduring significance of the essays in question. Every volume has an introduction that places the selection made in the context of the wider literature, the historical period, the contemporary state of scholarship and the editor's particular interests. TOM CAMPBELL Series Editor Centrefor Applied Philosophy and Public Ethics (CAPPE) Charles Sturt University Canberra

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Introduction The literature on Hume, including that devoted to his social and political thought, is now so extensive and so widely varied in character that even a generous collection such as the present cannot hope to be properly representative. It must either limit itself to some subfield or subgenre, or it must proceed by sampling. We have chosen the latter path, picking essays with quite different approaches and addressing a variety of themes in Hume's works. Similarly the collection is opportunistic in combining classic essays from the 1970s with recent work by scholars up to 2007. The collection is systematically organized only in the minimal sense that two general essays (James Moore's 'Hume's Political Science and the Classical Republican Tradition' (Chapter 1) and Richard Dees' 'Hume and the Contexts of Polities' (Chapter 2)) are followed by a part on Hume's politics in various contexts, including statements of the Ciceronian and other sources of his political ideas and their development by figures such as James Madison, and a further part of more text-analytical essays that focus on Hume's political theory in the narrower sense, especially his central ideas of obligation, interest, natural and artificial virtue, justice, contract and so on. What the essays share is a recognition that Hume was striving to enlighten his contemporaries, not in the positive sense of leading people to embrace new ideas, which Hume had little faith in because, as he put it in the third book of the Treatise of Human Nature, 'the opposite passions of men impel them in contrary directions', but rather in the negative sense of shattering the idols, especially those of religion. Superstition was one of the most important terms in the Humean lexicon and combating superstition a singular theme giving meaning to Hume's sense of what he was doing as a political author. When considering his life in the round it was superstition that Hume returned to on what he recognized to be his deathbed, in early August 1776, when his close friend Adam Smith reported that Hume had been reading Lucian's Dialogues of the Dead, and therefore to have contemplated reasons that might be given to Charon to delay being ferried across the river Styx. Hume felt that he would receive little sympathy for an argument that he was correcting his works for a new edition. He might then, he speculated, be forced to make a final plea to Charon, 'I have been endeavouring to open the eyes of the public' and 'if I live a few years longer, I may have the satisfaction of seeing the downfall of some of the prevailing systems of superstition'. Hume imagined Charon exclaiming 'that will not happen these many hundred years ... get into the boat this instant, you lazy loitering rogue'.1 Smith's account of Hume's ultimately tranquil death, free from religious sacrament yet 'in such a happy composure of mind', confirmed Hume's hostility towards the greatest form of superstition, that which had or could become a 'prevailing system' - that is, be established. As if to confirm Hume's view, Smith later noted that his short account of Hume's demise brought more opprobrium upon him than anything else he ever wrote; such was the ferocity of those who perceived themselves to be defending the Christian faith against perceived heretics and deists or even atheists.2 1 2

Adam Smith to William Strahan, 9 November 1776, in Hume (19S7, pp. xlv-xlviii). Smith to Andreas Holt, 26 October 1780, in Mossner and Simpson Ross (1987, p. 251).

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Hume's jocular comment about contemporary superstition was not, however, confined in his published writings to religious belief. Hume had an ear for what might be revealed to be superstition in every sphere of life, and charted its association with various assumptions about politics, philosophy, international relations and the modern rage for commerce in all of his published writings, and more particularly in successive editions of his Essays, Moral, Political and Literary from 1741. Hume's foundational assumptions about the modern politics and its relationship to the commercial world were spelled out in the first edition of the Essays, Moral, Political and Literary, in the essay 'Of Liberty and Despotism', a title that was changed to 'Of Civil Liberty' in editions from 1758. It was here that Hume claimed that something new in philosophy could be charted from the seventeenth century onwards, because hitherto 'trade was never esteemed an affair of state'. Hume noted that Xenophon mentioned trade but doubted 'if it be of advantage to a state', Plato 'totally excludes it from his imaginary republic' and in more recent centuries 'even the Italians [of the Renaissance period] have kept a profound silence with regard to it'. More recently, by contrast, trade had become 'the chief attention, as well of ministers of state, as of speculative reasoners'. The cause of the new obsession with trade was clear to Hume: 'the great opulence, grandeur, and military achievements of the two maritime powers seem first to have instructed mankind in the importance of an extensive commerce'. Hume's contention was that the superstition that dogged the subject of commerce needed to be identified, if possible extinguished, and, at the very least, denounced. In the essay 'Of Luxury' of 1752, which became 'Of Refinement in the Arts' in editions of the Essays from 1760, Hume argued that unthinking condemnation of luxury was one of the great superstitions of the age. It is significant that Hume went on, in 'Of Liberty and Despotism', to compare the condition of the maritime states, Britain and Holland, with France. He concluded that France, 'the most perfect model of pure monarchy', and other monarchies of Europe, were becoming 'civilized monarchies', because 'they are a government of laws, not of men'. Hume's point was that property was secure in such monarchies, industry was encouraged and arts of all kinds were flourishing, so that 'the prince lives secure among his subjects, like a father among his children'. France was, however, unlikely to develop as a trading power to the extent of any of the free states of Europe, because absolute government rested upon the subordination of ranks, and this ensured that 'birth, titles and place must be honoured above industry and riches'. This ensured that traders would sooner or later use their wealth to become landed aristocrats. Despite such tendencies, Hume's great prediction was that absolute monarchies like France, and mixed or republican polities like Holland and Britain, would become more alike in future times. This was due to the fact that a source of improvement in monarchies like France lay in the reform of the system of taxation, which could be levied so as to make agriculture thrive, which in turn would boost trade. By contrast, free states like Britain faced the prospect of degeneration because of the dangers associated with contracting debt, and of relying upon public credit to fund wars. While absolute monarchs could declare a bankruptcy, and ruin the financiers who had lent them money, free states did not have this option, as 'the people, and chiefly those who have the highest offices' are 'commonly the public creditors' themselves.3 Hume feared the 3

Haakonssen, Knud (1994) David Hume, Political Essays, Cambridge:Cambridge University Press, pp. 51-8.

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consequences in Britain's mixed government and advised frugality with regard to public expenditure. In Hume's eyes, the issue of commerce was connected to the domestic health of a state. Furthermore, it could not be separated from international relations because the extent of national commerce was directly related to the capacity of a state to wage war. Comparative analysis of the condition of states became key to the study of commerce and to the study of politics. Hume's perspective interested contemporaries because of the widespread perception that Europe was on the edge of a precipice at the bottom of which was a return to a new dark age. In a century of near-constant war contemporaries became obsessed by the question of whether the modern world would follow its ancient counterpart and replay the old cycle of decline and fall. One reason for this idea was simply a recurrence of the luxury and inequality that was commonly viewed as having brought down Rome, raising the 'social question' of how to resolve antagonism between rich and poor. In addition, perceptions of imminent crisis and widespread uncertainty about the future were traceable to the financial instruments available to modern states, and particularly to the evolution of public credit, which was deemed to be a Janus-faced force for good or for evil. Like Hume, many eighteenth-century observers focused upon the likely negative effects of national debts. The standing armies funded by credit were expected to lead to the tyrannical rule of new Caesars. Bankruptcy caused by excessive credit was associated with popular rebellion headed by a latter-day Spartacus. Perhaps the most feared possibility was voluntary bankruptcy, whereby a monarch expanded credit to strengthen the military capacities of his or her state, then sacrificed the creditors in the name of national survival or imperial glory, creating a potentially all-powerful polity inimical to liberty and addicted to war. As the century wore on, and the global war for international supremacy between Britain and France intensified, the concomitant rise in national debts was held by many to presage Armageddon. However unrealistic such nightmare scenarios might appear in hindsight, every speculator about eighteenth-century politics accepted that adding a debt to a state had important consequences both for the relationship between state and citizen and for relationships between competing states. In an era of experiment with representative government and more general constitutionalism, one danger commonly identified was that the imperative of paying the national debt would lead wealthy creditors to control politicians and statesmen. Alternatively, high taxes would beggar the populace, or at the very least reduce commercial competitiveness, making rich states prey to their poorer neighbours. If the existence of certain institutional hierarchies kept creditors content, public debts could pay lip service to constitutionalism and create an authoritarian fiscal-military state on the foundations of representative government. As Hume grew older these fears were expressed with ever-greater conviction. The deadly consequences of unintended national bankruptcy, or monarch-inspired planned bankruptcy, for the 'princes and states fighting and quarrelling amidst their debts, funds and public mortgages' were likened by Hume to a cudgelling match in a china shop in his essay 'Of Public Credit'. All of these issues are explored from different directions in the following essays. It is fitting that the collection begins with James Moore's 'Hume's Political Science and the Classical Republican Tradition' (Chapter 1) because this essay, alongside the work of Duncan Forbes, whose 'The European or Cosmopolitan Dimension in Hume's Science of Polities' (Chapter 9) is also included, encouraged scholars to place Hume in a more precise intellectual context. Moore argues that Hume's political writings amounted to a watershed

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moment, because Hume was self-consciously working out what ought to be maintained from the classical republics of Greece and Rome in the modern world, the ways in which ideas about justice had to be adapted to the complex circumstances of commercial societies and the extent to which specific ideas associated with the Roman statesman and orator Cicero continued to be useful to contemporary politics. Moore deals with the Ciceronian legacy and its use by Hume and by Francis Hutcheson in 'Utility and Humanity: The Quest for the Honestum in Cicero, Hutcheson, and Hume' (Chapter 12), also included here, but in 'Hume's Political Science' Moore is most concerned with Hume's engagement with contemporary republican thought, especially as expressed by James Harrington and by Henry St John, Viscount Bolingbroke. Republican ideas were relevant in eighteenth-century Britain in part because of the events of the seventeenth century, but more so because many considered the mixed government established in England during the Glorious Revolution of 1688-89 to be as close to a republic as was practicable in large commercial polities. One question was whether in being a type of republic Britain would follow the Machiavellian prescription of seeking 'an empire for increase', and the inevitable death of the state that followed. Moore reveals Hume's engagement with Machiavelli, with the Harringtonian attempt to create a republic that would survive indefinitely, and with Bolingbroke's jeremiad critique of Britain for lacking proper republican institutions. The Hume who emerges was an innovator exactly because he rejected traditional perspectives upon politics. Britain was a flawed state, but many of the flaws contributed to its survival, and in many respects it was superior as a polity to the republics ancient and modern that attracted so much comment. This was also the case, Moore shows, with regard to Hume's ideas about property ('Hume's Theory of Justice and Property', Chapter 14), which influenced Adam Smith and others so greatly, in refuting the claim that forms of distributive justice, characterizing egalitarian societies in history, ought to inspire contemporary law or policy. Richard Dees' 'Hume and the Contexts of Polities' (Chapter 2) reminds readers of the necessity of including Hume's historical writings alongside his political essays, emphasizing the extent to which Hume was sceptical of political generalizations pretending to have universal import. Indeed, Hume along with Montesquieu did more than any other author to convince contemporaries that if politics was a science it was a science of particular cases. History offered all manner of states; small and large, Catholic and Protestant, rich and poor, agrarian and commercial, monarchical and republican. And a 'scientific' approach showed that while there was a natural core to all human passions and the interests, they were shaped by local factors, by geography and, above all, by historical events. What worked in France would not necessarily work in Britain, and was certain not to function similarly in North America, because of the gulf in circumstances, experiences and difficulties. It was this kind of understanding that was required when facing difficult questions, such as the legitimacy of the Glorious Revolution of 1688-89. Dees argues that Hume's perspective on rebellion, so important in the new foundations for the British polity with monarchs whose legitimacy continued to be challenged, derived from his reading of history and his understanding of the specific circumstances that Britons found themselves in. If Hume's science of human affairs was at its most persuasive and subtle in dealing with the political culture of complicated modern societies, such as Britain and France, it was at its most problematic when faced with the truly alien. As Aaron Garrett explains in 'Hume's "Original Difference": Race, National Character and the Human Sciences' (Chapter 13), Hume's sharp distinction between natural and moral causes made it impossible for him to

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deal with human life forms that did not exhibit the moral causality that he was acquainted with from his (European) cultural perspective. This is brought out most clearly in the specific and sensitive case of Hume's discussion of non-white peoples, as Garrett argues. Hume's more systematic approach to the problem of political obligation is explored in Rachel Cohon's, 'The Shackles of Virtue: Hume on Allegiance to Government' (Chapter 22), which charts Hume's view of the origin of government and the relationship between his ideas about allegiance and virtue in the Treatise and in later essays. Cohon's essay can usefully be read alongside Stephen Buckle's and Dario Castiglione's 'Hume's Critique of the Contract Theory' (Chapter 23), which explains why Hume was so dissatisfied with John Locke's idea of tacit consent as a basis for obligation and was fearful that it would make acts of rebellion more regular at the same time as it made subjects more dissatisfied with their lot. Hume's worry was that from a Lockean perspective, 'the subjects have tacitly reserved the power of resisting their sovereign, whenever they find themselves aggrieved by that authority, with which they have, for certain purposes, voluntarily entrusted him' (p. 479). The implications of Hume's view is made clear in Mark G. Spencer's 'Hume and Madison on Faction' (Chapter 5), which revises Douglass Adair's view of Hume's influence upon the Federalist Papers by explaining the extent of Madison's debt to Hume's political and historical writings, and especially Hume's History of England. In all of these essays the Hume that authors responded to was not a narrow student of politics but rather had formulated a sophisticated portrait of the contemporary world and its likely future, which had to be engaged with to the fullest extent. Hume's continuing concern with the possibility of the collapse of the British state and the increasing seriousness with which he viewed the threats to all modern states bring us to the old question whether or in what sense Hume was a conservative. The debate between Donald Livingston ('David Hume and the Conservative Tradition', Chapter 3) and John Stewart ('The Public Interest vs. Old Rights', Chapter 4) supplies statements of the cases for and against, with Livingston the advocate of the conservative Hume on the grounds that Hume was the first philosopher to ground conservatism philosophically, upon habit, custom, convention, prejudice and common life, and in tune with this claimed that aspirations to a perfectible society were altogether Utopian. Hume's emphasis upon history, historical contingency and the foolishness of rationally planned reform, all make him a more important figure in the conservative tradition than Edmund Burke in Livingston's eyes, because Burke's attack upon political innovation was marred by rhetorical excess. By contrast, Stewart argues that Hume, from the first essays in 1741 defending Robert Walpole against accusations of villainy, and through his close links with the supporters of Walpole in Scotland such as Archibald Stewart and James Oswald, supported the many ministers of the crown who aspired to limit the powers of the monarch, to widen the franchise, and to limit the authority of bishops and landowners. In his economic and religious philosophy Hume was a reformer, Stewart suggests, increasingly aware that the latent barbarism within the British polity was becoming manifest, making the day to day politics of the country dangerous as well as ridiculous. Hume's distinction between barbarism and civilization, also used by Stewart, is exhaustively traced in Neil McArthur's essay, 'Laws Not Men: Hume's Distinction between Barbarous and Civilized Government' (Chapter 10), which underscores Hume's support for politics governed by laws that stood above the influence of those who made them, and did not depend upon the character of those who were responsible for putting them into practice. McArthur's second essay in this collection, 'David Hume and the Common Law of England', presents Hume as

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an enemy of the common lawyers who evaluated law by reference to its antiquity. Hume was fearful of justifications of law that rested upon history rather than utility, in the sense of the generality and equity of the law. In consequence Hume was, on McArthur's reading, what Duncan Forbes had called a scientific Whig rather than a vulgar Whig. One of the most prominent themes in recent Hume scholarship is his interest in the advantages and disadvantages of modern commercial society. In Istvan Hont's (2005, pp. 1-155) reading Hume deserves to be studied today because he recognized, against Marx, that politics could never be replaced by economics, and equally, against Hobbes, that economics had always to be a part of political theorizing. In 'Hume, Modern Patriotism, and Commercial Society' (Chapter 8) Annie Stilz adheres to Hont's viewpoint, seeking to recover the depth of Hume's politics against those, such as Alasdair Maclntyre, who have presented Hume as a sceptic and atheist advocating a politics of self-interest. Stilz, by contrast, claims that the social ties that Hume identified in the commercial society he lived in, founded on imperfect morals, laws and customs, were nevertheless a sufficient basis for forms of patriotism that accurately describe our own world. Carl Wennerlind, in 'David Hume's Political Philosophy: A Theory of Commercial Modernization' (Chapter 7), shares this approach in presenting a Hume whose politics explicitly supported commercial modernization, entailing the recognition that the middling sort of society, the industrious individuals who enjoyed moderate wealth and neither riches nor poverty, were the foundation of trade and ought equally to play a greater role in civic life. The Hume who emerges was an iconoclast with regard to commercial policy, an enemy to the sinister interests that prevailed in political and economic life, most evidently in what Smith famously termed 'the mercantile system' in his Wealth of Nations. Hume's obsession with the play of passion and interest, and their origin in nature or artifice, was at the core of Hume's political philosophy. In 'Hume's Account of Social Artifice - Its Origins and Originality' (Chapter 16) Annette Baier supplies an overview of Hume's distinctiveness, by comparison with the work of Hugo Grotius and Samuel Pufendorf, and a reading of Hume's fascination with the natural family as the source of social conventions, and ultimately laws and duties, and of his opposition to excessive paternal authority, which he saw mirrored in the authority of priests in his own day. David Gauthier ('Artificial Virtues and the Sensible Knave', Chapter 17) challenges Baier's account of Hume's view of the foundation of morals, emphasizing Hume's scepticism through an analysis of the figure of the sensible knave and his challenging questions in the Enquiry Concerning the Principles of Morals. Baier's response ('Artificial Virtues and Equally Sensible Non-Knaves: A Response to Gauthier', Chapter 18) is that Hume took the sceptical challenge of the Hobbist seriously in questions of justice, fidelity and allegiance but supplied a richer account of the origins of the virtues, and argued that 'meekness, beneficence, charity, generosity, clemency, moderation, equity' (p. 356) arose naturally from human intercourse. This was the basis for a sociability within which the non-natural virtues, including good manners and the respect for peace, could arise and be supported because of the shared social interest in adhering to them. Jeffrey Church's 'Selfish and Moral Politics: David Hume on Stability and Cohesion in the Modern State' (Chapter 6) supports Baier's position in emphasizing the difference between Hume and the contemporary Hobbist, Bernard Mandeville; for Hume, in Church's reading, selfish passions could be channelled to socially beneficent ends, and the major goal of political philosophy was to reveal how to do exactly this.

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These concerns of Hume's with what was natural and what artificial in morals and politics have been the subject of intensive debates about his metaphysics and epistemology. These debates are represented in several essays in this collection, but there is especially a line of discussion from Knud Haakonssen's early 'Hume's Obligations' (Chapter 15) through the above-mentioned essays by Gauthier and Baier to Stephen Darwall's 'Motive and Obligation in Hume's Ethics' (Chapter 19), Jason Baldwin's 'Hume's Knave and the Interests of Justice' (Chapter 20) and Don Garrett's 'The First Motive to Justice: Hume's Circle Argument Squared' (Chapter 21). The central issue is the status of the artificial virtues - that is, those that in some way depend upon human conventions, and which are typified mainly by justice: how can justice be a moral virtue that we have an obligation to have? In order to fulfil his naturalistic account of morals and politics, it is generally agreed that Hume must show that there are non-moral motives for virtuous behaviour - that is, for actions that we accept as evidence of those characteristics in a person that we call virtues. In the case of natural virtues, such as meekness, beneficence, charity, generosity, clemency and moderation, this is not a problem; we spontaneously like their presence and hate their absence in ourselves and others, and these natural reactions provide us with reasons for considering such personality traits virtuous. This aspect of our lives provides a natural basis for small-scale sociability. But with those virtues that relate to conventional and institutionalized practices, rules and so on, there is no such immediate motivation, says Hume, and consequently their moral status, or obligatoriness, is aprimafacie problem. Since the artificial virtue of justice is the key to social organization beyond the familial society, the problem is at the heart of Hume's political theory. But how to understand his solution has proved contentious. Haakonssen's attempt at reconstruction in 'Hume's Obligations' is premised on the Scot's concern with character and argues that obligation is a sentiment that arises from the perception of the need to maintain one's character: natural obligation to the basic character constituted by the natural virtues, artificial obligation to the character that has been conventionally 'extended' (for example to owner of property or holder of contract).4 Gauthier takes a more radical way out, as indicated, arguing that Hume's point is that there is no such thing as a moral obligation to justice, while Baier searches for and finds a reading of Hume's notion of self-interest that will make it serve as the non-moral motive for justice. The key here is that self-interest is redirected towards just behaviour when there is security that others will follow suit. In their very detailed analyses, Darwall and Garrett focus on the rule-bound character of justice, in each their different way suggesting that rules of justice, once introduced into the moral life of the human species, engender their own particular inclination to rule following, and that this is the non-moral motive that Hume's theory needs. However, Darwall denies and Garrett maintains that Hume's theory consistently can harbour such a motive.5 The final essays underline the extent to which Hume's notion of enlightenment remains as Hume anticipated it would always be: endlessly contested and often-times misunderstood. 4

Most of the later contributions to the discussion, including the ones reprinted here, refer to a brief version of the argument in Haakonssen (1981, p. 34ff.). We print an earlier and more detailed argument. 5 In an essay that appeared too late for inclusion in the present collection, James Harris (2010) breaks entirely with the long line of debate represented here, arguing that in the case of justice Hume's supposedly fundamental doctrine, that moral judgement is about motives, does not apply, and that the moral status of justice is based not on appreciation of its motive, but upon its consequences.

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Hume's iconoclastic impulses were informednot only by ahistoricalrecognitionthatunintended consequences played a major role in human endeavours, but also that the individual mind rarely perceived itself rationally, and accordingly acted in uncertain ways near-impossible to predict or to guide. Yet it was exactly the guiding of humanity that Hume set himself in his social and political writings. The depth of Hume's insight and vision continues to inspire philosophers and historians: he remains an author who generates controversy and commentary, and perhaps this would have pleased him above all else. If this collection persuades students, scholars and more general readers to open Hume's books after viewing such commentaries as are included here then the editors will have succeeded in their task. References Haakonssen, Knud (1981), The Science of a Legislator, Cambridge: Cambridge University Press. Haakonssen, Knud (1994) David Hume, Political Essays, Cambridge: Cambridge University Press, pp. 51-8. Harris, James (2010), 'Hume on the Moral Obligation to Justice', Hume Studies, 36, pp. 25-50. Hont, Istvan (2005), The Jealousy of Trade, Cambridge, MA: Harvard University Press. Hume, David (1987), Essays, Moral, Political and Literary, ed. Eugene F. Miller, Indianapolis: Liberty Fund. Mossner, Ernest C. and Simpson Ross, Ian (eds) (1987), The Correspondence of Adam Smith, Indianapolis: Liberty Fund.

[1]

Hume's Political Science and the Classical Republican Tradition* JAMES MOORE Concordia University

I Hume's political thought, no less than his epistemology, his ethics and his historical work, stands at a turning point in eighteenth-century thought. And the best means of locating his intentions and of grasping the significance of his political writings may be to examine them in the context of the political thinkers to whom he has responded and the thinkers who were in turn provoked by him. Hume, it should not be forgotten, was always a voracious reader. "I was seized very early with a passion for literature, which has been the ruling passion of my life and the great source of my enjoyments," he has told us.1 And he once remarked that a wife was not one "of the indispensable requisites of life. Books? That is one of them; and I have more than I can use."2 The remarkable range of his reading is reflected in the variety of contexts in which his social and political thinking might be located. His theory of justice and property forms one of the crucial links in the transition from the emphasis on natural law and Roman jurisprudence in the teaching of law in the Scottish universities in the early decades of the eighteenth century to the theoretical or natural history approaches of the various members of the Scottish enlightenment in the second half of the century. His criticisms of the speculative principles of the Whig and the Tory parties, the principles of the original contract and of passive obedience, were equally indispensable in the displacement of those traditional theories of English government and society by the * This paper was presented to the Conference for the Study of Political Thought at a meeting held at Loyola University, Chicago, in April 1976 on "The Year 1776 in the History of Political Thought." I am much indebted to Michael Oakeshott for comments on an earlier draft of this paper, and to students and faculty at the Universities of Exeter and Glasgow for discussion of some of these ideas in the autumn of 1974. 1 4t My Own Life," in E. C. Mossner, The Life of David Hume (Edinburgh: Thomas Nelson and Sons, 1954), 611. 2 Letter to John Clephane, January 1953, in J. Y. T. Grieg (ed.), The Letters of David Hume (Oxford: Clarendon Press, 1932), vol. 1, 170.

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radically different approach to law and politics initiated by Bentham and the English utilitarians. But there is another context of political speculation which may bear more directly on Hume's intentions as a political scientist as revealed in his Essays, Moral and Political and in his Political Discourses. It is his response to a tradition of political speculation which included, as he once said, "some of the greatest geniuses of the nation. "3 They included Bolingbroke and his associates, John Toland, Andrew Fletcher, Algernon Sidney and many others. The tradition to which they belonged has been characterized as the tradition of the English commonwealthman;4 or following the names of its greatest proponents, as neo-Harringtonianism,5 and as one of the English faces of Machiavelli.6 But it is still perhaps most familiar to us, following Zera Fink, as the classical republican tradition.7 It will be the gravamen of my argument in this paper that Hume's political science can best be understood as an elaborate response to the political science of the classical republicans. And I will further suggest that for experimental political scientists, at least, the classical republican tradition comes to an end with the political science of Hume. II

In the introduction to A Treatise of Human Nature, Hume characterized the study of politics as the science of men "united in society and dependent on each other." The science of politics, along with the sciences of logic, morals and criticism, seemed to him to comprise almost everything of importance in the study of human affairs. But of the four 3 David Hume, "That Politics May Be Reduced to a Science," in Philosophical Works, ed. by T. H. Green and T. H. Grose (London: Longmans, Green, 1875), vol. 3, 108; hereinafter referred to as Works. 4 Caroline Robbins, The English Commonwealthman (Cambridge, Mass.: Harvard University Press, 1959). 5 J. G. A. Pocock, "Machiavelli, Harrington and English Political Ideologies in the Eighteenth Century," in Politics, Language and Time (New York: Atheneum, 1971), 104-47. 6 Felix Raab, The English Face of Machiavelli (London: Routledge and Regan Paul, 1964), and J. G. A. Pocock, The Machiavellian Moment (Princeton: Princeton University Press, 1975). 7 Zera Fink, The Classical Republicans (Evanston, 111.: Northwestern University Press, 1945). It will be clear from the sequel that my understanding of the classical tradition, derived in part from my reading of the authors cited above, differs in certain respects from what Duncan Forbes has called "vulgar Whiggism" in his recent and valuable book, Hume's Philosophical Politics (Cambridge: Cambridge University Press, 1975). The reader may also profitably consult earlier books on Hume's political thought by John B. Stewart, The Moral and Political Philosophy of David Hume (New York and London: Columbia University Press, 1963); Giusseppe Giarrizzo, Hume politico e storico (Torino: Giulio Einaudi, 1962); and Georges Vlachos, Essai sur la politique de Hume (Paris: Domat Montchretien, 1955).

David Hume

La science politique de Hume et la tradition republicaine classique La science politique de Hume marque un point tournant dans Vhistoire de la pensee politique. On peut mieux apprecier sa signification si on la considere comme une reponse structuree aux essais de construction d'une science politique fondee sur I'experience tentes par les theoriciens de la tradition republicaine classique. Sa discussion des formes de gouverne me nt, du regime mixte en Grande Bretagne, du role des legislateurs, de {'influence du gouvernement sur le comportement social, des sources de la puissance militaire, de la sagesse d'acquerir des colonies, des merites de la politique de la Grece et de Rome dans I'Antiquite, et en dernier lieu, sa conception d'une republique parfaite, tous ces themes font partie d'une reponse systematique aux oeuvres de Machiavel, Harrington, Bolingbroke et autres. La conception de Hume du gouvernement constitutionnel derive d'une application plus consistante du raisonnement experimental au domaine politique. Sa science politique offre done une nouvelle theorie du gouvernement republicain qui a eu une profonde influence sur les penseurs americains, notamment Hamilton et Madison. Ces derniers y trouverent une conception du politique quipouvait etre applique e aux grandes socle tes mercantiles.

rudimentary sciences of human nature, morals and criticism came to be regarded by him as belonging more to the realm of taste and feeling than to the scientific world of the understanding. He entertained no such reservations, however, about politics, which remained for him an experimental science, comparable with the natural sciences in the scope or object of its investigation. "The sciences, which treat of general facts," he said in his Enquiry Concerning Human Understanding, "are politics, natural philosophy, physics and chemistry, etc. where the qualities, causes and effects of a whole species of objects are enquired into."8 In classifying politics with the natural sciences, Hume was not suggesting that politics was a science capable of demonstration or quantification. He meant rather that political science was a science which must be based, like physics or chemistry, on observation and experiment, on the impressions and ideas of the senses. And, as in the natural sciences, the object of political science was the discovery of general truths, or generalizations substantiated by observation and experiment. There were, to be sure, certain difficulties in formulating generalizations in political science. There was first of all the unpredictability or contingency of political conduct, not just of particular political actions, but of whole areas or realms of public affairs.9 There was also the peculiar susceptibility of political life to radical, often violent changes. How was generalization possible about public affairs, when "whatever 8 Hume, An Enquiry Concerning Human Understanding, ed. by L. A. Selby-Bigge (Oxford: Clarendon Press, 1902), Sect. Ill, Part III, 165; hereinafter referred to as E.C.H.U. 9 "Of the Rise and Progress of the Arts and Sciences," in Works, vol. 3, 175-76.

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anyone should advance on that head would, in all probability, be refuted by further experience Such mighty revolutions have happened in human affairs, and so many events have arisen contrary to the expectations of the ancients that they are sufficient to beget the suspicion of still further changes."10 The challenge for the political scientist was somehow to rescue his generalizations from a world characterized by the conditions of contingency and radical change. In A Treatise of Human Nature Hume adumbrated certain rules which scientists should follow when they employ the experimental method.11 It may be helpful to recall those rules in this connection and suggest how they might be applied to meet the special problems presented by the world of politics. The first three rules of experimental method proposed by Hume were a highly condensed recapitulation of his understanding of the relation between a cause and an effect. The cause and the effect, he said, must be contiguous in space and time; the cause must be temporally prior to the effect; and there must be a constant conjunction of the two ideas in experience. The relevance of these rules for the political scientist was that they directed him to search for contiguities, regularities and constant conjunctions in political behaviour. However unpredictable or merely contingent political actions might appear, the political scientist might discover, in applying the rules of the experimental method to politics, the forms or conventions which permit regular or uniform behaviour in the public realm. The reduction of politics to a science meant, first of all, the discovery of the forms of constitutional behaviour. Following this methodological canon, Hume proposed another which he called "the source of most of our philosophical reasonings."12 This was the rule that to the same causes one must assign the same effects. This too was a principle of uniformity, but it represented another dimension of the uniformity of nature and the uniformity of human nature. In the sciences of physical nature, it referred to the resemblance of certain parts of nature to other parts, "... as to respiration in a man and in a beast; the descent of stones in Europe and in America; the light of our culinary fire and of the sun; the reflections of light in the earth, and in the planets."13 In the science of politics, the implication of this general rule was simply that human nature in different times and in different places must always be assumed to be the same. The assumption that human nature is uniform was not intended by Hume to preclude or expunge evidence of variety and change in human 10 "Of Civil Liberty/' Works, vol. 3, 157. 11 Hume, A Treatise of Human Nature, ed. by L. A. Selby-Bigge (Oxford: Clarendon Press, 1888), Book I, Part III, Sect. IV, hereinafter referred to as Treatise. 12 Ibid., 173. 13 Sir I. Newton, Mathematical Principles of Natural Philosophy (Berkeley: University of California Press, 1946), 270.

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affairs.14 It was intended rather to suggest that if human nature remains the same at all times and in all places, then differences in human conduct must be explained in terms of those circumstances in which men differ;15 and those circumstances were nothing but the artificial or conventional arrangements of social and political life. From the standpoint of the political scientist, then, the conventions and institutions of social and political life were to be regarded as experiments, as uncertain trials of judgment by which politicians have attempted to contrive a world consistent with the uniform needs and wants of human beings. "These records of wars, intrigues, factions and revolutions, are so many collections of experiments, by which the politician or moral philosopher fixes the principles of his science, in the same manner as the physician or natural philosopher becomes acquainted with the nature of plants, minerals and external objects by the experiments which he makes concerning them."16 Because the political scientist perceives the efforts of politicians as experiments, it is understandable that the institutions and conventions of human life appear to him to manifest the widest possible variety of forms of government and styles of political conduct. But because it is the same human nature to which these experiments must be applied, their effectiveness or utility may be judged by their capacity to satisfy the uniform requirements of human nature. And thus men learn from the experience or the experiments of others. And a science of politics, conceived in the experimental manner, is a practical as well as a scientific activity. For if it is part of the vocation of an experimental political scientist to judge forms of government and policy in terms of their usefulness to human nature, then it is consistent with this role that the political scientist should also recommend certain forms of political life as more useful or effective than others, making due allowance for differences in social and political conditions, and for the claims upon the allegiance of subjects of the legal and governmental arrangements under which they happen to live. Ill

This experimental approach to political science was not a wholly original one. Bolingbroke was firmly committed to the experimental method as the only means of achieving a reliable knowledge of nature: "... natural knowledge, the knowledge, I should say, of the system of nature, can never be real, unless it be begun, and carried on, by the painful drudgery of experiment," he said, in his rambling "Essays on the Nature, 14 Duncan Forbes offers some pertinent criticisms of the manner in which Hume's assumption of the uniformity of human nature has been misunderstood by some of his critics. See Hume's Philosophical Politics, chap. 4. 15 Treatise, Book I, Part III, Sect. IV, 174, particularly rule no. 6. 16 E.C.H.U., Sect. VIII, Part I, 83-84.

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Extent and Reality of Human Knowledge."17 His insistence on the use of examples in historical writing was not designed to recommend specific models for the imitation of his readers; examples in history were rather like observations in natural philosophy; by collecting and arranging examples judiciously, the historian might arrive at a general knowledge of life and conduct conformable to the general nature of things. "He who studies history, as he would philosophy, will soon distinguish and collect them, and by doing so will form to himself a general system of ethics and politics on the surest foundations, on the trial of these principles and rules in all ages, and on the confirmation of them by universal experience."18 The difficulty with Bolingbroke's approach considered as an experimental approach to natural and moral subjects was his introduction of a providential role for nature. For Bolingbroke did not confine his assumptions about nature to the Newtonian premises of simplicity and uniformity; he believed that final causes could be discovered by the experimental scientist and that "the more we proceed in the study of nature, under the conduct of experimental philosophy, the more discoveries we make and shall make of the infinite wisdom as well as power of its author."19 This conception of nature as "a nurse and instructress," as D. G. James described it,20 who directs human reason to knowledge of the deity was something of an irrelevance for the experimental scientist; but it offered Bolingbroke grounds of sorts for his conviction that all study properly conducted must instruct the student in private and public virtue. I have said perhaps already [he once said] but no matter, it cannot be repeated too often, that the drift of all philosophy and of all political speculations, ought to be the making us better men and better citizens. Those studies, which have no intention towards improving our moral character have no pretence to be styled philosophical.21

Whatever difficulties may be present in Bolingbroke's philosophical writings, at least one source of confusion in those works must be his attempt to reconcile an experimental conception of human knowledge with the belief that experimental knowledge must lead to virtue. The assumption that the study of politics must be conducive to political virtue was, in Hume's view, the great misconception of Bolingbroke's political science. From an experimental or empirical standpoint that assumption could not be allowed to stand unchallenged. 17 18 19 20

The Works of Lord Bolingbroke (Philadelphia, 1841), vol. 3, 87. "Letters on the Study and Use of History," ibid., vol. 2, 193. "Essay son the Nature, Extent and Reality of Human Knowledge," ibid., vol. 3,97. D. G. James, The Life of Reason: Hobbes, Locke and Bolingbroke (London: Longmans, Green, 1949), 247, 211-12, 218. 21 "Letters on the Study and Use of History," in The Works of Lord Bolingbroke, vol. 2, 211.

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Whatever may be said of Bolingbroke's attempt to reconcile the experimental method with political virtue by way of a providential idea of nature, his understanding of the conditions which permitted the exercise of political virtue, and more specifically of the conditions which permitted political virtue in England, derived from a more consistently experimental or empirical thinker. The most immediate influence upon Bolingbroke's understanding of politics was the political theory of Harrington. Now Harrington was also an experimental political scientist. The experiences of diverse forms of government were regarded by him as experiments which could be used to verify generalizations about public affairs. Thus his insistence that "no man can be a politician unless he be first an historian or a traveller; for... if he hath no knowledge in history he cannot tell what hath been; and if he hath not been a traveller, he cannot tell what is: but he that neither knoweth what hath been nor what is, can never tell what must be or what may be."22 His own generalizations about public affairs were based upon an impressive range of geographical and historical experience: the Greek cities, the Roman Republic, Israel in the era of the judges, the republics of Venice and Florence, the United Provinces of the Netherlands and the Commonwealth of England were all models of governments drawn from experience which served to substantiate his generalizations.23 But, like Bolingbroke, Harrington retained certain assumptions about the object of a scientific enquiry which were alien to a strictly empirical or experimental approach. Specifically, he maintained that nature must consist of something material; and that a scientific explanation of any phenomenon must locate its cause in the unchanging matter of which the entity in question was made or formed.24 In this respect his concept of nature 22 James Harrington, Oceana and Other Works, ed. by John Toland (Dublin, 1737), 183. 23 "Divers Models of Popular Government," in ibid., 524-37. 24 "Valerius and Publicola," in ibid., 494. See also W. H. Greenleaf, Order, Empiricism and Politics (London: Oxford University Press, 1964), chap. 10, who acknowledges that, in Harrington's work, "the empirical method was rarely, if ever, employed in the most stringent fashion... the notion of what constitutes an empirical fact involved acceptance of matter we would reject..." (247). It may be a more satisfactory characterization of Harrington's scientific method to call him an "inductive materialist," notwithstanding the problems any attempt to fix his assumptions precisely must present. Certainly there was nothing mechanical in his idea of nature ("Prerogative of Popular Government," in Oceana, 265), and he explicitly disavowed any intention to "meddle with the mathematicians, an art 1 understand as little as mathematicians do this" (ibid., 243). Toland's inclusion, in his edition of Harrington's works, of the murky and fragmentary thoughts written during his later illness ("The Mechanics of Nature," in Oceana, xlii-xliv), makes no contribution to a clarification of the problem. The fragments in any case are misnamed: insofar as any coherent idea of nature appears in the fragments it is an idea of a plastic nature: "a spirit, the same spirit of God which in the beginning moved upon the waters, his

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remained Aristotelian inasmuch as he continued to distinguish material causes of government, from the formal, efficient and final causes of government.25 But his basic distinction was between matter and form, which he liked to construe as the distinction between nature and art. It was on this basis that he rested the inductive generalization that the balance of power, which he called the art or form of government, inevitably followed the balance of property, that is, the nature or material of government.26 One of the implications of the difference between Harrington's perspective and Hume's in this regard was their manner of explaining the crucial relationship between property ownership and power. Hume acknowledged the validity of Harrington's claim that power followed property; but he argued that the locus of the connection was in the beliefs or opinions of men, not in the material nature of things. Thus he considered that Harrington had mistaken a contingent connection for a necessary connection when he claimed that power necessarily followed property in the determination of the form of government. Power follows property, Hume maintained, only if the owners of property believe that they have a right to share in the exercise of government, and property owners entertain such an opinion only if they have been accustomed to take part in the activities of government.27 In the absence of this foundation of power and authority in the opinions of men, property and power might remain unbalanced and even unconnected indefinitely. And a variety of other differences between Harrington and Hume followed from this basic distinction. But in addition to the notion of material causation and the other Aristotelian assumptions in Harrington's idea of nature, there was a still more significant intellectual force which shaped the manner in which both Harrington and Bolingbroke applied the experimental method to politics. This was the decisive influence of plastic virtue, etc." On the other hand, an interpretation of the nature of things as material, allows one to interpret the nature of government as the material of government, and this seems to be most consistent with the centrality accorded the balance of property as the matter of government in his writings. 25 See the organization of topics in "A System of Politics," in Oceana, 496-514. The efficient cause of government is described by Harrington under the heading of administration or reason of state (512-14); the final cause of government is the preservation of the life of the commonwealth or its immortality. See also "The Prerogative of Popular Government," in Oceana, 266. 26 "Valerius and Publicola," in Oceana, 494: "Publicola: ... The materials of a government are as much in nature and as little in art, as the materials of a house Now so far as art is necessarily disposed by the nature of its foundation or materials, so far it is in art as in nature. "Valerius: What call you the foundation or the materials of government? "Publicola: That which I have long since proved and you granted, the balance, the distribution of property and the power thence naturally deriving." 27 "Of the First Principles of Government," in Works, vol. 3, 112.

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Machiavelli, whose understanding of politics provides the underlying orientation of the tradition of political thought which leads through Harrington to Bolingbroke. Now although the matter has no doubt been overstated on occasion, Machiavelli may be interpreted as an experimental political scientist. More than many of his followers in the classical republican tradition, he was scrupulous to avoid final causes and discussion of the ends of life: he insisted rather that the student of politics must observe how men behave and not how they ought to behave.28 He believed that however changeable and fluctuating human conduct might appear, the passions of men remain the same in all times and places.29 His political science had a direct practical bearing in his insistence that the future must be shaped by experience or judgment based upon the examples of the past.30 But however empirical his method may appear, there was a more fundamental concern in Machiavelli's political thought. This was his attempt to provide an understanding of politics unmodified by presuppositions or assumptions drawn from other aspects of human affairs. This attempt to characterize the distinctive nature of politics led him to formulate peculiarly political categories of the understanding.31 And those categories and assumptions about the nature of politics passed into the tradition of experimental political science in England, where, in a succession of writers from Harrington to Bolingbroke, the methods of experimental science were brought to bear upon a world whose nature was assumed to be the distinctive and autonomous world of politics disclosed by Machiavelli. It was this set of assumptions and this tradition which ended for experimental political scientists with the political thought of Hume. Hume recognized that the assumptions about human nature which the experimental method required could not be reconciled with the understanding of politics so forcibly articulated in the work of Machiavelli. The experience on which Machiavelli had drawn was a limited experience. Hume wrote: "Machiavelli was certainly 4 a great genius,' but having confined his study to the furious and tyrannical governments of ancient times, or to the little disorderly principalities of Italy, his reasonings especially upon monarchical governments have been found extremely defective; and there is scarcely any maxim in his Prince which subsequent experience has not entirely refuted."32 The modern experi28 Machiavelli, The Prince (New York: Mentor Books, 1952), 84. 29 Machiavelli, The Discourses, trans, and ed. by L. J. Walker (London: Routledge and Kegan Paul, 1950), vol. 1, 216. 30 Leonardo Olschki, Machiavelli: The Scientist (Berkeley: The Gillick Press, 1945), 29ff., and L. J. Walker, "Introduction," in The Discourses, Sects. VI, VIII, IX. See Anthony Parel, "Machiavelli's Method and His Interpreters," in Anthony Parel (ed.), The Political Calculus (Toronto: University of Toronto Press, 1972). 31 Sheldon Wolin, Politics and Vision (London: Allen arid Unwin, 1961), 209ff. 32 "Of Civil Liberty," in Works, vol. 3, 156.

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ence of constitutional government, in its monarchical as well as its other forms, afforded new evidence of the possibilities of regular or uniform behaviour in politics. Where Machiavelli had thought it necessary to respond to the unpredictable and changing phenomena of political life by action that was itself unpredictable and impetuous, Hume believed that a science of politics should be able to offer more uniform and more regular directives for political conduct. Implicit in his political science was a response to the challenges of fortuna as Machiavelli and the classical republicans had variously conceived it. His response embraced a wide range of political experience, in which it is possible to distinguish eight separate but connected themes. IV

There was first of all his analysis of forms of government. The comparison of forms of government was considered by some of the most distinguished of Hume's contemporaries to be a pastime of doubtful utility to oneself and others. Pope's memorable advice to Bolingbroke epitomized this point of view: "For forms of government let fools contest; / whate'er is best administered is best."33 There is no reason to suppose, however, that Bolingbroke heeded Pope's counsel in this matter; and Hume rejected it as well. Forms of government were irrelevant only if the government in question was an absolute government, where politicians were absolved from any obligation to adhere to standards of constitutional behaviour.34 But absolute or unconstitutional governments were not to be identified with the simple or unmixed forms of government as the classical republicans believed. It was not the case, as Bolingbroke had said, that "absolute monarchy is tyranny, but absolute democracy is tyranny and anarchy both,"35 for everything depended on the manner in which monarchies, aristocracies and democracies were constituted. The classical tradition had mistaken the strengths and the weaknesses of the simple forms of government, and this was responsible for their diffidence concerning the possibility of constitutional behaviour in the simple or unmixed forms of government. The merit of democratic government was not that it permitted citizens to participate in public affairs by casting their votes for or against proposed legislation as in the Roman Republic. The constitutional provision for popular power in Rome was the principal blunder of the founders of the Republic, in Hume's view.36 For the citizens of the Republic proved to be vulnerable to corruption, which was to be expected among members of a legislature, and was not in itself problema33 Alexander Pope, An Essay on Man, ed. by Maynard Mack (London: Methuen, 1950), 123-24. 34 "That Politics May Be Reduced to a Science," in Works, vol. 3, 98-99. 35 The Works of Lord Bolingbroke, vol. 2, 120. 36 "That Politics May Be Reduced to a Science," in Works, vol. 3, 99-100.

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tic. The difficulty in ancient Rome was one of scale: the number of politicians in need of offices, honours and the like was nothing less than the entire body of the citizens. And such a democracy could scarcely fail to degenerate into disorder and eventuate in despotism. In order to conduct a democracy in a constitutional manner, politicians must be limited in number to an assembly capable of being influenced or corrupted in an orderly or regular manner. A constitutional democracy, in short, must be a representative democracy. The aristocratic government of Venice was, to be sure, a constitutional aristocracy. There were many reasons for the classical republican preference for aristocracy on the Venetian model: the wisdom and moderation of those invested with authority, its mixture of aristocracy with elements of monarchy and democracy, its use of the secret ballot and the rotation of offices.37 Hume preferred the Venetian aristocracy for a simpler reason: it was that in Venice the nobles exercised their authority collectively; and this secured the government against the arbitrary or absolute power exercised in feudal aristocracies by lords over their vassals, exemplified in its worst form by the aristocratic government of Poland. It is clear perhaps that in his contempt for Polish aristocracy, Hume had in mind a more familiar aristocracy, the feudal nobility of Scotland, with its vast territorial holdings, its hereditary jurisdictions and its tradition of clan warfare. Hume once described the Scottish highlands as "the rudest perhaps of all the European nations; the most necessitous, the most turbulent, the most ferocious and the most unsettled."38 And he welcomed the abolition of the hereditary jurisdictions of the Scottish lords, following the suppression of the Jacobite rebellion.39 Hume was consistently opposed to the hereditary principle for aristocracies. And it is curious perhaps that he was virtually alone in the eighteenth century in favouring replacement of the hereditary peerage in Britain by a system of life peers, a proposal which he believed would have the merit of removing turbulent politicians from the Commons, immuring them safely in the relatively unthreatening upper house.40 There remained the determination of an appropriate form for constitutional monarchy. Arguments in favour of elective monarchy had been advanced by classical republicans, notably by Sidney and by Walter Moyle.41 Hume conceded that the elective system offered certain advantages, such as some assurance of capacity for office. But the 37 Zera Fink, The Classical Republicans, chap. 2, and J. G. A. Pocock, The Machiavellian Moment, chap. 8. 38 "Of the Authenticity of Ossian's Poems," in Works, vol. 4, 416. 39 Letter to Montesquieu, April 1749, in Letters, vol. 1, 134. 40 "Idea of a Perfect Commonwealth," in Works, vol. 3, 491, and C. C. Weston, English Constitutional Theory and the House of Lords, 1556-1832 (London: Routledge and Kegan Paul, 1965), 177, 174-75. 41 Zera Fink, The Classical Republicans, 171, 153, and passim.

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dangers attendant on conducting elections for so important an office, the prospect of the employment offeree, or money, or intrigue, to procure the votes of the electors," the possibilities for the reward of friends and the punishment of enemies, the danger of electing a monarch with obligations to foreign powers, all suggested to Hume that elected monarchy was less likely to secure a uniform style of political conduct than the hereditary system.42 Thus hereditary monarchy, aristocracy without vassals and representative democracy offered the best arrangements for a constitutional or regular manner of conduct in public affairs. V

Now if the classical republican assessment of simple forms of government had obscured the possibilities of constitutional government in democracy, aristocracy and monarchy, their understanding of mixed government, the only kind of constitutional government they would admit, laboured under a more basic misunderstanding. This was the belief that mixed government offered the best conditions for the enjoyment of political virtue, and that such virtue was guaranteed in the mixed government of Great Britain by what Bolingbroke liked to call the independence of Parliament.43 The belief that constitutional government might be based on the assumption that politicians are capable of virtue seemed to Hume the most fundamental kind of error. In contriving and maintaining the constitutional arrangements of a government one should assume instead that, in politics, all men are vicious or corrupt. Hume took over the maxim that in "fixing the several checks and controls of the constitution, every man ought to be supposed a knave, and to have no other end in all his actions than private interest"44 from an empirical tradition of interest politics which may be traced to the empirical aspect of Machiavelli's work, his preoccupation with avarice and ambition in politics, the tradition explored by Felix Raab.45 Of course, the meaning of interest in politics is notoriously difficult to fix and J. A. W. Gunn's observation that "no group of men more rapidly made the term its own than the preachers, and advice about one's true interest thundered from the pulpit for the remainder of the century"46 is a valuable reminder that 42 "That Politics May Be Reduced to a Science," in Works, vol. 3, 101. 43 "A Dissertation Upon Parties/' in The Works of Lord Bolingbroke, vol. 2, Letters X-XIII. 44 "Of the Independence of Parliament," in Works, vol. 3, 117-18. 45 Felix Raab, The English Face of Machiavelli, 157-68 and 233ff. 46 J. A. W. Gunn, Politics and the Public Interest in England in the Seventeenth Century (London: Routledge and Kegan Paul, 1969), 38, and "Interest Will Not Lie: A Seventeenth Century Political Maxim," Journal of the History of Ideas 29 (1968), 551-64.

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the politics of interest has many aspects, some of them having little in common with the secular world of ambizione described by Machiavelli. But Hume's view of interest in politics clearly derives from those anti-clerical or worldly thinkers who regarded the pursuit of interest as directly opposed to a life of virtue, who believed with La Rochefoucauld that "les vertus se perdent dans Finterets, comme les fleuves se perdent dans le mer."47 The constitutionalist whose position most closely resembles Hume's in this respect was Mandeville, who thought "the best constitution" one "which provides against the worst contingencies, that is armed against knaves, treachery and deceit... and remains unshaken though most men should prove knaves."48 Hume's contribution to this tradition was to have elucidated the pursuit of interest from the perspective which characterized all aspects of his understanding of human nature: the perspective of man in society. Interest for Hume denoted "the avidity... of acquiring goods for ourselves and our nearest friends,"49 where goods were understood not merely in terms of material possessions, but in terms of any acquisitions, offices, titles, honours, etc. which might be considered an appropriate subject of pride and social esteem. The pursuit of interests of this kind posed a special problem for politicians. In the circumstances of ordinary or social life, human conduct was influenced by the approval and disapproval of others. Indeed, in company and polite society, personal identity could be discovered only in the mirror for character afforded by the moral judgments and habitual responses of others. But in politics this indispensable form of social control was lacking, for politicians can depend on the approval of other members of their party. Unless the interests of politicians are checked by the experimental arrangements of the constitution, they may be expected to pursue their individual and collective interests to the detriment of ordinary or social life.50 In this light it may be pertinent to remark that Hume's often reiterated professions of moderation in his approach to political questions are in one respect at least misleading. Hume did not depend on moderate or philosophical temperaments in politics, any more than he thought it possible to depend on natural or moral sentiments in the administration of justice. He believed rather that good government could be achieved quite irrespective of the moral qualities and characters of the politicians who conduct the government.51 If the constitutional arrangements were judiciously ordered, then men in society could be assured that they would not be abused by their politicians. "A constitution is only so far 47 Due de la Rochefoucauld, Maxime No. 171, in Oeuvres Completes (Paris: Bibliotheque de la Pleiade, 1957), 429. 48 Bernard de Mandeville, Free Thoughts on Religion, the Church and National Happiness (3rd ed.; London, 1731), 332. The first edition was published in 1720. 49 Treatise, Book HI, Part II, Sect. II, 491-92. 50 "Of the Independence of Parliament," in Works, vol. 3, 119. 51 "That Politics May Be Reduced to a Science," in Works, vol. 3, 99, 107.

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good as it provides a remedy against maladministration; and if the British, when in its greatest vigour, and repaired by two such remarkable events as the Revolution and the accession... does not provide any such remedy, we are rather beholden to any minister who undermines it, and affords us an opportunity of erecting a better one in its place."52 If everything depended on the constitution it was of the utmost importance to determine the constitutional arrangements which in fact prevailed in eighteenth-century Britain. The mixed constitution of Great Britain was something of an anomaly in this respect. For the constitution provided no formal checks on the collective interest of members of the Commons. The royal power to refuse assent to bills had gone unexercised for so long (since Queen Anne's refusal to give royal assent to the Scotch Militia Bill of 1707)53 that it must be assumed to be no power at all. The House of Lords was merely a "frail" legislative power, inconsequential in comparison with the Commons and the Crown. In the circumstances, the Commons might easily overpower the other institutions by withholding supply, or by attaching conditions to such grants which would eventually bring the government entirely under their control. The best explanation for their inaction was just the interest of venality of individual members. The power of the Crown to appoint members of the Commons to positions in the military and civil service, the power to confer titles and honours and in other ways appeal to the interests and the pride of members of Parliament was the best safeguard against the abuse of democratic power.54 Now this explanation of the merits of the eighteenth-century constitution, so often cited with approval by contemporary historians holding conceptions of human nature in politics which differ little if at all from Hume's, was clearly opposed to the views of Bolingbroke and his associates. The crucial link in the British constitution was not, as Bolingbroke had insisted, the independence of Parliament and Crown: it was the very system of corruption and dependence which Bolingbroke despised. But while Hume differed fundamentally from Bolingbroke on the respective importance of interest and virtue in the framing of constitutional arrangements, his position cannot be identified with the position taken by Bolingbroke's great adversary Sir Robert Walpole. The position of Walpole and his friends was that the influence of the Crown provided no more than a counterweight or balance to the property and revenue of the Commons.55 Hume believed that once the power avail52 Ibid., 108. 53 Sir William Holdsworth, A History of English Law (London: Methuen, 1938), vol. 10, 412. 54 "Of the Independence of Parliament," in Works, vol. 3, 120-21. 55 The London Journal, No. 797, October 5, 1734; No. 744, September 29, 1733; No. 765, February 23, 1734; No. 768, March 16, 1734, No. 796, September 28, 1734; No. 797, October 4, 1734. See Lawrence Hanson, Government and the Press,

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able to the Crown through influence or corruption was properly understood it would be evident that the British constitution was moving steadily towards an absolute monarchy. This argument was so little in accordance with the predilections of the Walpole press that it was in fact published by the Bolingbroke press, appearing in the issue of The Craftsman for October 10, 1741.56 Like Bolingbroke's theory of the independence of Parliament Hume's theory that the British government inclined more to an absolute monarchy than to a republic was based upon a revision of Harrington's theory of property and power. Harrington had been correct in his insight that power follows property, Hume thought, but the connection was not a necessary or material connection, it was a contingent connection resting on the beliefs and opinions of men, and on the psychology of social obligation. The ability of the Crown to offer employment, positions and honours to legislators generated a sense of social obligation, from which political power could be generated. Hume no doubt underestimated the weaknesses of the obligations and the power thus recruited, the uncertainty inevitably attendant on such connections in politics. But it enabled him to explain the power enjoyed by men like Crassus in republican Rome and by the Medici in Renaissance Florence. And his argument that the power of the Crown would ineluctably lead the mixed government of Britain to absolute monarchy, "the easiest death, the true euthanasia of the British constitution"57 was memorable enough to make it employable by the parliamentary opponents of the system of influence later in the century. Dunning cited it in support of his famous resolution that the influence of the Crown has increased, is increasing and ought to be diminished.58 He was reminded, however, by the author of a Letter to Lord North (1780) that Hume had "directly opposed and answered the position in Lord Bolingbroke's Dissertation on Parties that the dependence of Parliament in every degree is an infringement of British liberty."59 His essays could be cited, in short, on both sides of the question in the debate on economical reform. His position was not readily identifiable with the

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1695-1763 (Oxford: Clarendon Press, 1936), 112, and Isaac Kramick, Bolingbroke and His Circle (Cambridge: Harvard University Press, 1968), chap. 5, where it is suggested that Hume's position "came straight from the justification of corruption found in Walpole's press" (124). The Country Journal: or the Craftsman, No. 797, October 10, 1741, where the essay "Whether the British Government Inclines More to an Absolute Monarchy or to a Republic" appears as a letter to the nominal editor, Caleb D' Anvers. The essay was then reprinted in The Gentleman's Magazine 11 (1741), 536-38. "Whether the British Government Inclines More to an Absolute Monarchy or to a Republic," in Works, vol. 3, 126. See Herbert Butterfield, George III, Lord North and the People (London: Macmillan, 1950), 316. Betty Kemp, King and Commons, 1660-1832 (London: Macmillan, 1959), Appendix F, 156-57, 89, 114.

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issues of either the court or the country party; it was part of a larger perspective on public life, which offered a new understanding of constitutional government. VI

For underlying Hume's differences with Bolingbroke's and Harrington's understandings of the British constitution was a more profound difference concerning the role of legislators or law-givers in the framing of a constitution. It had been a central tenet of Machiavelli that a government can never be properly constituted, or reconstituted, when its institutions have become corrupt, unless this act of constitution or reconstitution is undertaken by a single man. The necessity of a single legislator or founder or framer of the constitution was intimately related to Machiavelli's perception of the need for extraordinary ability or virtu in bringing a state into existence, or in reconstituting a state which had become corrupt. Like Romulus, a legislator must be prepared to act violently, being assured that in the founding of states and the framing of constitutions, no reasonable man will blame him''for taking any action, however extraordinary, which may be of service in the organising of a kingdom or the constituting of a republic."60 As Harrington later put it, if the state has not become corrupt there is no need for a reconstitution, for the ordinary means not failing, the commonwealth has no need of a legislator; but the ordinary means failing, there is no recourse to be had but to such as are extraordinary. And, whereas a book or a building has not been known to attain to its perfection, if it has not had a sole author or architect; a commonwealth, as to the fabric of it is of the like nature. And thus it may be made at once; in which there be great advantages.61

A constitution so conceived was an artifact, wrested violently from the flux of human affairs, if one followed Machiavelli, or formed from the materials of property distribution, if one followed Harrington. It was in either case the product of the genius of a single legislator, of his wisdom and his ability to employ any means that might be necessary to establish the constitutional foundations of the state. And, equally important, as Harrington observed, it was accomplished "altogether or at once," thus ensuring an "economy of violence" in the act of foundation, and ensuring that a frame work of law would exist from the beginning of the state. Hume's understanding of constitutional government marks a departure from this classical conception of the legislator who fabricates a constitution in an act of foundation. Hume continued to attach importance to legislators and founders of states.62 But no legislator, however 60 Machiavelli, The Discourses, vol. 1, 234. 61 Harrington, Oceana, 78. See also Hannah Arendt, On Revolution (London: Faber and Faber, 1963), 209-10. 62 "Of Parties in General," in Works, vol. 3, 185.

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great a genius, could be entrusted with the sole responsibility of constituting a government. To balance a large state or society, whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able, by the mere dint of reason and reflection to effect it. The judgements of many must unite in this work: Experience must guide their labour: Time must bring it to perfection: And the feeling of inconveniences must correct the mistakes, which they inevitably fall into, in their first trials and experiments.63

A constitution, as Hume conceived it, remained an artificial contrivance but it was no longer the product of exceptional inspiration or wisdom; it was the work of judgment or experimental reason. It was, as Mandeville had said, the product of a division of labour among legislators. Mandeville had remarked on the laws and ordinances of cities that there are very few that are the work of one man, or of one generation; the greatest part of them are the product, the joint labour of several ages The wisdom I speak of is not the offspring of a fine understanding; or intense thinking, but of sound and deliberate judgement, acquired from a long experience in business, and a multiplicity of observations. By this sort of wisdom and length of time, it may be brought about that there shall be no greater difficulty in governing a large city, than (pardon the lowness of the simile) there is in weaving of stockings.64

It was moreover an important element in the understanding of a constitution reflected in the writings of Mandeville, and refined in the work of Hume, that a constitution was not designed to end corruption, or provide for a life of virtue. Accordingly there was no call for extraordinary virtue and certainly none for violence, in the activity of fabricating a constitution. It was assumed, rather, that corruption was an ineradicable feature of political life, and was not to be removed by a return to first principles or by a new beginning. Instead it was the constant duty of legislators, Hume insisted, to amend and adapt the rules and conventions of public life in a manner that would provide increasingly effective restraints on the corrupt behaviour of politicians. And in this work of constitutional adjustment or amendment, politicians must be guided by experience, and experimental reason. Hume's insistence on the experimental nature of constitutional amendment marked a break with the classical republican emphasis on the virtue of the framers or founders of constitutions. But Hume did not think that legislators should merely reflect and formalize the manners and customs of a people at a given stage in their progress or refinement. This was the position taken later by Adam Ferguson and John Millar, who regarded the importance accorded legislators in "the concurring 63 "Of the Rise and Progress of the Arts and Sciences," in Works, vol. 3, 185. 64 Bernard de Mandeville, The Fable of the Bees, ed. by F. B. Kaye (Oxford: Clarendon Press, 1924), vol. 2, 321-22.

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testimony of historians" as "exaggerated and misrepresented."65 The influence of a Lycurgus or of a Romulus was due neither to their virtue nor their judgment, but rather to their grasp of the social institutions already established by the genius and the manners of the people. But the debunking of the role of the legislator in the works of later Scottish thinkers was part of a very different approach to political subjects from anything engaged in by Hume. The common concern of Ferguson, Millar, Smith, Kames and Robertson on questions of law and forms of government, no less than on question of policy, the arts, science, the condition of women, etc. was to explain all variations and changes in these phenomena as effects brought about by changes in the mode of production.66 Hume's understanding of the causal connection between forms of government and society approached these questions from just the opposite direction: he assigned priority to the influence of the political. He believed that the uniform effects of forms of government upon society was in fact a condition of the scientific study of politics.67 And he attempted to trace the influence of monarchical and republican government on various aspects of social behaviour. This part of Hume's political science, which may be considered one of his most distinctive and important contributions to political understanding, was, no less than his analysis of simple forms of government and of the British constitution, a critical commentary on themes which appeared in the classical republican tradition. 65 John Millar, "The Origin of the Distinction of Ranks," reprinted in William C. Lehmann, John Millar of Glasgow, 1735-1801 (Cambridge: Cambridge University Press, 1960), 177-78, and Adam Ferguson, An Essay on the History of Civil Society, ed. by Duncan Forbes (Edinburgh: Edinburgh University Press, 1966), 122-24, and Forbes's introduction, xxiv. 66 Ronald L. Meek, "The Scottish Contribution to Marxist Sociology," in Meek (ed.), Economics, Ideology and Other Essays (London: Chapman and Hall, 1967), and Social Science and the Ignoble Savage (Cambridge: Cambridge University Press, 1976). See also Andrew Skinner, "Economics and History—The Scottish Enlightenment," Scottish Journal oj Political Economy 12 (1965), 10-22. 67 E.C.H.U., Sect. VIII, Part 1,90: "How could politics be a science if laws and forms of government had not a uniform influence upon society?" See also Forbes, Hume's Philosophical Politics, chap. 7. For a different interpretation of the relation between government and economic society in Hume's thought, see Stewart, The Moral and Political Philosophy of David Hume, 161ff. I have attempted to explore Hume's differences with his Scottish contemporaries more fully in "Hume's Theory of Justice and Property," Political Studies 24 (1976), 103-19. It should be added, however, that current reappraisals of the political thought of Adam Ferguson (by David Kettler) and of Adam Smith (by Donald Winch) suggest that political considerations may have been of first importance for these thinkers, as well as for Hume. See the contributions of Kettler and Winch to "The Year 1776 in the History of Political Thought," in J. G. A. Pocock(ed.), Proceedings of the Conference for the Study of Political Thought, 1976.

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VII

The most important influence exerted by republican government on life in society was its tendency to promote a system of law. In order for men to live in society at all, it was necessary, Hume believed, that they should be capable of arriving at an agreement of judgments which take the form of conventions or laws. This was most likely to have occurred in republics; not because a legislator like Romulus or Lycurgus could be expected to impose such laws on the people; but rather because experience of the advantage of regular restraints on the conduct of magistrates or elected representatives could not fail to lead to the conviction that it was advantageous to have regular restraints on the conduct of everyone.68 Roman legality was traceable not to the edicts of the early Roman kings, but to the demand for simple, general laws applicable to all citizens of the republic which were provided by the Twelve Tables. In England the emergence of general law derived from the accidental circumstances of the recovery of Roman law in the twelfth century, its extensive use to secure the large property holdings of the clergy, and the subsequent adoption of general law by Henry II and other European monarchs.69 For once the advantages of general law became apparent, monarchical governments may come to adopt them. This had occurred most conspicuously in France, and was the cause of the emergence in France of civility, refinement in manners and in conversation. He said: The French are the only people, except the Greeks, who have been at once philosophers, poets, orators, historians, painters, architects, sculptors and musicians. With regard to the stage, they have excelled even the Greeks, who far excelled the English. And, in common life, they have, in a great measure, perfected that art, the most useful and agreeable of any, L'Art de Vivre, the art of society and conversation.70

The achievement of civility in France could only be explained by the influence of the form of government. Although an individual might acquire the arts of civility and conversation by endeavouring to be agreeable and sympathetic in his relations with others, an entire society could be directed in this way only by the general influence that government could provide. In a civilized monarchy the subject could depend upon those superior to him in rank to conduct themselves according to standards of polite or civilized behaviour. And where position at court depended, not on ancestry or force of arms, but on the ability to please or make an impression on the monarch, the subject could not fail to be motivated by a similar desire to impress or please. And that motivation provided the stimulus for artistic endeavour: "Politeness of manners, 68 "Of the Rise and Progress of the Arts and Sciences," in Works, vol. 3, 179. 69 The History of England from the Invasion of Julius Caesar to the Revolution of 1688 (London, 1792), vol. 3, 299ff. 70 "Of Civil Liberty," in Works, vol. 3, 159.

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therefore, arises most naturally in monarchies and courts; and where that flourishes, none of the liberal arts will be altogether neglected or despised."71 Now Hume's conception of art was basically the art of the drawingroom or salon; and there was much that was excluded by his perspective. The art which Hume admired had seemed to have reached its point of perfection in the theatre of Corneille and Racine, in the epigrams of La Rochefoucauld, in the prose of Swift and the verse of Pope. Shakespeare, on the other hand, was regarded by Hume as something of a buffoon; only if one called to mind the barbarism of the court at that time, the uncivilized Tartar despotism of the Tudors, could one excuse the crudities that infected his work.72 It was not only rustic geniuses like Shakespeare which were not comprehended in Hume's conception of art. There was equally no place in his understanding of human nature for that exploration of private or personal experience that became the hallmark of romanticism. And public art, the paideia or culture of the ancient world, was explicitly excluded. The republican governments of ancient Greece and Rome were notorious for the vulgarity of their public speeches, the coarseness of their humour, and the vanity of even their best authors. Hume attributed these regressive characteristics to the form of government; participation in the public realm was not conducive to self-restraint or concealment of emotion, and equality among citizens left no room for deference and civility in social relations.73 Hume was obliged to concede, however, that the eloquence of the ancient orators surpassed the eloquence of even the best modern speakers.74 Pitt the Elder was one of the few politicians in whom Hume recognized this particular ability.75 But Hume regarded Pitt as a madman on various grounds as well as a disaster for English politics, for reasons to which we must shortly turn. Hume's preoccupation with polite and elegant behaviour led him to attach great importance to gallantry. He was persuaded that sexual affection was indispensable for the existence of society. But he did not draw from this premise the conclusion that sexual affection must spread in ever-widening circles to embrace all of mankind in, as Pope had put it, "one vast circle of benevolence." Man's instincts required refinement in order to permit life in society, and gallantry was the most apposite form that refinement of sexual affection could take. He described it as a studied deference and complaisance (a desire to please) for the inclinations and opinions of members of what he liked to call "the fair sex." In the ancient republics, men exercised dominion over their wives, and 71 72 73 74 75

"Of the Rise and Progress of the Arts and Sciences," in Works, vol. 3, 187. The History of England, vol. 6, 191-92. "Of the Rise and Progress of the Arts and Sciences," in Works, vol. 3, 188-90. "Of Eloquence," in Works, vol. 3, 294. Letter to the Earl of Hertford, February 1776, in Letters, vol. 2, 18-23.

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women were thought to form no part of the public world. But in the civilized monarchies of the modern world the society of women improved the manners of courts, and the same inclination to please had carried over into the arts, into essay-writing, poetry, and every branch of artistic endeavour. Now Hume, it should be said, never married, and he seems always to have held women in general in a certain awe. There are poems among his manuscripts, which deserve to be left in decent obscurity, which reflect this attitude. In his letters he liked to say that almost any other topic would be easier to understand. And ultimately, he despaired of reducing the study of women to the experimental method. As he wrote to one of his fair correspondents, "Sir Isaac Newton himself who could measure the courses of the planets, and weigh the earth as in a pair of scales, even he had not algebra enough to reduce that amiable part of our species to a just equation: and they are the only heavenly bodies, whose orbits are as yet uncertain."76 VIII

Perhaps the most important of Hume's insights concerning the effects of government upon society were his reflections on the effect of government and policy on commerce. In the Essays, Moral and Political, Hume took the view that commerce was more likely to flourish under republican governments; not because they offered more security for the subject, for civilized monarchies provided security for property and contracts: but because trade was always less honourable under monarchies and was less likely to secure the esteem of persons of rank and condition.77 In the Political Discourses, however, he recognized that the policies of republican governments had often been directly opposed to commerce. The problem was the republican principle of virtue as frugality, recalled by Montesquieu, but basic to the entire tradition. The ideal of the virtuous citizen as the small agricultural freeholder had been central to Machiavelli's preference for the rural tribes of the Roman Republic; it was surely a factor in Harrington's proposal for an agrarian law modelled on the legislation of Tiberius Gracchus; and it formed the basis of Bolingbroke's conviction that political virtue and a spirit of independence were most likely to be found in the ranks of country gentlemen, uncorrupted by the urban world of commerce, manufacturing and finance. Hume found no virtue in frugality or self-denial. A virtuous character was one who was both useful and agreeable to himself and to others. And one of the most useful and agreeable qualities of character was industry. Industrious characters were agreeable because they rarely fell 76 Letter to Mrs. Dysart of Eccles, April 1751, in ibid., vol. 1, 158-59. 77 "Of Civil Liberty," in Works, vol. 3, 294.

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into the lethargy and boredom which afflict men unengaged in work.78 And industry was useful not merely because its products were necessary for the relief of human needs, but because the working habits acquired in industry could be turned to military or public service in times of war. This was the utility of luxury: [Manufacturers increase the power of the state only as they store up so much labour, and that of a kind to which the public may lay claim without depriving anyone of the necessaries of life. The more labour, therefore, is employed beyond mere necessaries, the more powerful is any state; since the persons engaged in that labour may easily be converted to the public service.79

Moreover, Hume was not opposed to the use of mercenary forces, provided such forces could be hired from poorer neighbours. Indeed, the use of public money for subsidies to allies and for the employment of mercenary forces was the only advantage he perceived in hoarding money in the public treasury.80 In every other respect the volume of money would find a level consistent with its commerce and industry. The latter was the real source of wealth and strength in any nation. There is an exchange with Adam Ferguson which brings out Hume's position on the question of subsidies to allies and auxiliary forces very well. It occurred during a journey taken by David Hume, Adam Ferguson and John Home to the city of Bath in 1776. Home wrote: Nothing occurred worthy the writing down except Mr. David's plan of managing his kingdom in case Ferguson and I had been princes of the adjacent states. He knew very well, he said (having often disputed the point with us) the great opinion we had of military virtue as essential to every state; that from these sentiments rooted in us, he was certain he would be attacked and interrupted in his projects of cultivating, improving and civilizing mankind by the arts of peace; that he comforted himself with reflecting, that from our want of economy and order in our affairs, we should be continually in want of money; whilst he would have his finances in excellent condition, his magazines well filled and naval stores in abundance; but, that his final stroke of policy, upon which he depended, was to give one of us a large subsidy to fall upon the other, which would infallibly secure to him peace and quiet, and after a long war, would probably terminate in his being master of all three kingdoms.81 IX

Now Ferguson and John Home were both earnest advocates of the war with America; Hume, as is well known, was not. Mixed or republican governments should never attempt to be "commonwealths for in78 "Of Refinement in the Arts" (entitled ' 'Of Luxury" in early editions of the Political Discourses, 1752-1758), in Works, vol. 3, 301. 79 "Of Commerce," in Works, vol. 3, 294. 80 "Of Money," in Works, vol. 3, 310. 81 John Home, "Appendix to the Account of the Life of Mr. John Home," in Works, ed. by Henry Mackenzie (Edinburgh, 1822), vol. 1, 181-82.

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crease," Hume consistently maintained. Absolute monarchies invariably provided more uniform or regular administrations for conquered territories than republics.82 And they were not inhibited in the measures they might adopt if their colonies should attempt to liberate themselves. This was the dilemma which confronted Great Britain in America. Hume wrote to William Strahan in October 1775: Arbitrary power can extend its oppressive arm to the antipodes, but a limited government can never be upheld at a distance even where no disgusts have intervened: much less where violent animosities have taken place. We must therefore annul all the charters; abolish every democratical power in every colony; repeal the Habeas Corpus Act with regard to these; invest every governor with full discretionary powers; confiscate the estates of the chief planters; and hang three fourths of the clergy.83

In the circumstances, the best policy was to "lay aside all anger, shake hands, and part friends. Or if we retain our anger let it be only against ourselves for our past folly; and against that wicked madman Pitt, who has reduced us to our present condition."84 Giuseppe Giarrizzo was correct, no doubt, when he remarked that Hume failed to recognize the mysterious energy which burned in Pitt, his capacity for work, his rude but effective political convictions.85 But Hume's hostility for Pitt was directly related to Pitt's use of the one institution which would ultimately, Hume thought, prove disastrous for British government and society: the institution of public credit. The main cause of public credit was not the growth of corruption, as Bolingbroke and Tories like Hume's friend Lord Elibank maintained;86 the growth of public credit was due entirely to Britain's involvement in foreign wars and colonial adventures. Indeed, he contended, as late as 1768, in a letter to Turgot, that there was insufficient patronage or corruption in the British government. "A Minister here can amass no fortune, being checked in every little abuse; he can give little employment to his own friends, favourites and flatterers, but must bestow all offices on those who by their votes and credit may support government."87 The growth of public credit was caused entirely by Britain's ill-considered foreign policy: "[A]bout half our wars with France, and all our public debts are owing more to our own imprudent vehemence than the ambition of our neighbours."88 It was Britain's attempt "to exert such a prodigious power as it has maintained during our late wars; where we have so much exceeded not only our own 82 83 84 85 86 87 88

"That Politics May Be Reduced to a Science," in Works, vol. 3, 103. Letter to William Strahan, October 1775, in Letters, vol. 2, 301. Ibid. Giuseppe Giarrizzo, David Hume politico e storico, 90. Ibid., 94ff. Letter to Turgot, June 1768, in Letters, vol. 2, 180. "Of the Balance of Power," in Works, vol. 3, 354.

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natural strength but even that of the greatest empires. This extravagance is the abuse so much complained of, as the source of all the dangers to which we are at present exposed."89 The erroneous model which Britain had followed was the model of ancient Greece and ancient Rome: " We seem to have been more possessed with the ancient Greek spirit of jealous emulation, than actuated by the prudent views of modern politics."90

Hume's most extended critique of the politics of ancient Greece and ancient Rome appears in his discourse "Of the Populousness of Ancient Nations." If the main source of strength in any state derived from the members of its working men, it was worth considering how the modern world might compare with the ancient in this regard; and the populousness of the ancient world, like other aspects of their societies, must depend, in large part, on their form of government and politics. The factions of the ancient world were violent and antagonistic to a degree that might bear comparison only with the religious factions of modern times. Even the hatred and violence of the parties of modern Ireland were rivalled by the factions of ancient Greece, while the civil wars of the Roman Republic exhibit "the most frightful picture of massacres, proscriptions and forfeitures that ever was presented to the world."91 The effect of these factional struggles on population growth could not possibly have been salutary. For ancient historians record executions and banishments attendant upon every new upheaval in government, with "a fourth, a third, perhaps near half the city... slaughtered or expelled, every revolution "92 And besides the people actually eliminated in this way, others would be prevented from raising children by the disorder and emotional conflict generated by the fighting. Hume was not entirely oblivious to the claims to greatness of ancient Greece and ancient Rome. The problem was in part to account for the sources of their greatness given the frame of reference of his political science. How could so turbulent and unpredictable a government as the Athenian democracy have provided conditions for the extraordinary achievements in the arts and sciences realized by its citizens? How could the Roman Republic have endured for four centuries when its constitution perversely provided for two popular assemblies, the comitia centuriata and the comitia tributa, without securing adequate institutional checks on the conduct of either assembly? His answer was, first, that the Athenians had been sensible of the instability 89 90 91 92

"Of Public Credit," in Works, vol. 3, 368. "Of the Balance of Power," in Works, vol. 3, 354. "Of the Populousness of Ancient Nations," in Works, vol. 3, 408. Ibid., 403.

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of their democracy, and had provided for a process of indictment (the graphe paranomori) which permitted the prosecution of citizens who had introduced measures subsequently judged to be unpopular. It was an irregular procedure to be sure, but it protected the citizens against their own "levity and inconstancy," and it discouraged those citizens who might be tempted to initiate rash and ill-considered policies.93 The success of the Roman Republic was also explicable only through the recognition that they had perceived an indispensable instrument of constitutional government, namely corruption. It was because the comitia centuriata with its patrician dominance had chosen to control voting in the comitia tributa "by intrigue, by influence, by money and by the respect paid to their characters" and had refrained from an open constitutional conflict that the republican government of Rome had endured for so long.94 Hume's perception of the sources of strength in the Athenian democracy and in the Roman Republic betray perhaps more strikingly than any other feature of his political thinking the peculiar limitations of the frame of reference of his political science. The indictment of illegality in Athens was vulnerable, it would seem, to weaknesses not dissimilar to those which affected the practice of impeachment in eighteenthcentury England: it was employed too infrequently to be an effective restraint on political action, and it was often used merely as an instrument of personal revenge.95 And the parallel between the clientage system of republican Rome and the system of corruption in eighteenthcentury Britain, noted by many historians,96 suggests that in both cases, the difficulty of generating adequate power through influence was one of the central weaknesses of both systems. Hume's tendency to rely on personal interests and ambitions, and judicial checks on political conduct derives, however, from his basic assumption about human nature in politics: his assumption that the uniformities or regularities which may be discovered in public life are analogous to the uniformities which prevail in the social realm. XI

Implicit in Hume's political science and his critique of the classical republican tradition was the proposal that republican theory must adopt 93 "Of Some Remarkable Customs," in Works, vol. 3, 374-77. 94 Ibid., 378. 95 See J. W. Jones, Law and Legal Theory of the Greeks (Oxford: Clarendon Press, 1956), 110-11. Paul Vinogradoff, Outlines of Historical Jurisprudence (London: Humphrey Milford, 1922), 138, notes that the case of Aeschines vs. Ktespiphon (Hume's main example of the graphe paranomon) was an instance of "the worst side of the practice, its use as a political weapon for personal motives." 96 See H. H. Scullard, Roman Politics, 220-150 B.C. (Oxford: Clarendon Press, 1951), and Sir Ronald Syme, The Roman Revolution (Oxford: Clarendon Press, 1939).

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a new orientation or direction. Politicians should abandon the attempt to conduct politics as though it were an activity isolated from the behaviour of men in society. They should attempt instead to discover a form of constitutional government which would reflect more accurately the conditions of social life as they presented themselves in the societies of the eighteenth century. His most explicit formulation of a government which could be adapted to the conditions of modern commercial societies was his "Idea of a Perfect Commonwealth." His model of a perfect republic is remarkable for many reasons: for its critical observations on Harrington's Oceana; for its expression in institutional forms of the basic categories of Hume's understanding of politics; but, most of all, there can be no doubt, for its influence on the thought of Hamilton and Madison. The most direct beneficiaries of Hume's political science were the authors of The Federalist Papers. Harrington's Oceana was, in Hume's opinion, "the only valuable model of a commonwealth that has yet been offered to the public."97 Unlike Plato's Republic and More's Utopia, Harrington's work was based upon experience. But there were, as we have seen, crucial differences between Harrington and Hume in their understandings of experience, and those differences are traceable in part to their respective methodological assumptions, that is, to their different ideas of nature. But the change in scientific perspectives which underlies their conceptions of experience involved more than a revision by Hume of Harrington's methodological assumptions. It was possible for Hume to present his model of a perfect commonwealth within the ambit of a different idea of nature, because Hume was writing about a different kind of society. The society for which Oceana was designed was to be sure a society of independent proprietors, but the most significant form of proprietorship in a Harringtonian society was ownership of land. The society which underlies Hume's model of republican government was quite explicitly a commercial society of manufacturers, merchants and financiers, and the labourers, porters and clerks who worked in their service. And the sources of military and political power in such a society no longer depended on the ability of the gentry to bear arms: it depended rather on the surplus of labourers made available for recruitment into military service in wartime, and on the wealth made available from commerce for subsidies to allies and for domestic political support. Whatever the deficiencies in his theory of power, it was not a manifestly implausible theory for a commercial society; it was a perspective at all events which called attention to the difficulty presented by Harrington's reliance on the capacity for public virtue. In the absence of public virtue, the fundamental laws of Oceana: the agrarian law, the rotation of offices and the division of authority and 97 "Idea of a Perfect Commonwealth," in Works, vol. 3, 481.

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power, would all be incapable of implementation. For the agrarian law could be easily subverted by citizens sufficiently self-interested to conceal their property under the names of others, a device made easier to employ when ownership meant property in money or stock in trade, rather than visible property in lands and houses.98 The rotation of offices involved an unnecessary waste of political experience, particularly when, in commercial societies, competent politicians must always be in short supply. And finally the separation of initiative and debate could only operate on the presumption that the initiative was held by aristocratic gentlemen with a disinterested concern for the common good. If Harrington's senators were determined by self-interest, they had only to ignore or overlook problems which required legislation, in order to bypass or override the interests of the people." Harrington's republicanism required, in short, a capacity for frugality in the character and conduct of ordinary citizens; an eagerness to assume the responsibilities of public office; and a certain wisdom or disinterested benevolence in his senators. Such qualities were not to be depended upon in commercial societies. As Hamilton later put in his characteristically trenchant style: We may preach till we are tired of the theme, the necessity of disinterestedness in republics without making a single proselyte [I]t is as ridiculous to seek for models in the simple ages of Greece and Rome as it would be to go in quest of them among the Hottentots and the Laplanders.100

Now Hamilton's concern was to discover a model of republican government which would be applicable not only for a commercial society, but also for a large territory; such a model was not to be found in the classical tradition. The classical theory of republican government, reiterated with great force in the eighteenth century by Montesquieu and Rousseau, was that republics were possible only in cities or cantons or territories of very limited scope; this was not applicable, as Hamilton observed, to America: "When Montesquieu recommends a small extent for republics, the standards he had in view were of dimensions far short 98 "Of Public Credit," in Works, vol. 3, 371. In response to a proposal (of Archibald Hutchinson) that the debt might be discharged all at once, if every citizen would contribute a sum proportionate to his wealth, Hume remarked: "He seems not to have considered that property in money and stock in trade might easily be concealed or disguised; and that visible property in lands and houses would really at last answer for the whole: An inequality and oppression which would never be submitted to." 99 "Idea of a Perfect Commonwealth," in Works, vol. 3,481-82. The experience which suggested this line of reasoning to Hume was the experience of the Lords of the Articles in the Scottish Parliament. See Henry Home's description of this institution in Essays Upon Several Subjects Concerning British Antiquities (Edinburgh, 1747), 49-50. 100 The Papers of Alexander Hamilton (New York: Columbia University Press, 1961), vol. 3, 103, and Gerald Stourzh, Alexander Hamilton and the Idea of Republican Government (Stanford: Stanford University Press, 1970), 70.

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of the limits of every one of these states. Neither Virginia, Massachusetts, Pennsylvania, New York, Carolina, nor Georgia can be compared with the models from which he reasoned and to which the terms of his description apply."101 The alternatives which classical theory presented for America were therefore bleak: either America must adopt an absolute monarchy, or the various states must be further divided into even smaller units which might be brought within a loose confederation of "little, jealous, clashing, tumultuous commonwealths, the wretched nurseries of unceasing discord and the miserable objects of universal pity or contempt."102 Hume's idea of a perfect republic suggested a means of avoiding the classical dilemma. Any state, however large, could be divided into one hundred counties, and each county divided into one hundred parishes. The citizens would gather annually in the parish hall and elect a county representative. The extent of the franchise was made increasingly restrictive by Hume as he reworked successive drafts of the discourses: his ultimate preference was for a franchise limited to freeholders of twenty pounds a year in the counties, and to householders worth five hundred pounds in the towns. These restrictions on the franchise were severe, but more controversially, perhaps, nothing more was expected from the citizens than the election of their representatives. "The lower sort of people and small proprietors are good enough judges of one not very distant from them in rank and habitation But they are wholly unfit for county meetings, and for electing into the higher offices of the republic."103 The election of higher officers, ten magistrates and one senator, would be the privilege of the elected county representatives. The exclusion of citizens from direct participation in the determination of policy was one of the signal merits of republics, as contrasted with democracies, in the view of Madison. And his formulation of this theme in the tenth Federalist paper was merely an abridgment, as Douglass Adair has shown, of Hume's model of a perfect republic.104 And the argument was further developed by Hamilton in his case for an electoral college for the election of a president. He said: "It was peculiarly desirable to afford as little opportunity as possible to tumult and disorder And as the electors, chosen in each state, are to assemble and vote in the state to which they are chosen, this detached and divided situation would expose them much less to heats and ferments... than if they were all to be convened at one time, in one place."105 101 102 103 104 105

In The Federalist Papers, ed. by Clinton Rossiter (New York: Mentor Books, 1961), no. 9, 73. Ibid. "Idea of a Perfect Commonwealth," in Works, vol. 3, 487. Douglass Adair, "That Politics May Be Reduced to a Science: David Hume, James Madison and the Tenth Federalist," Huntingdon Library Quarterly 20 (1957), 343-60. The Federalist Papers, no. 68, 412.

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The other great advantage of republican governments, in Madison's eyes, was their ability to accommodate a plurality of factions and interests which would make it difficult in turn for any majority to dominate the rest. It was an argument derived in part from Hume's theory of the parties of Great Britain: although parties in general were undesirable in Hume's view, and although parties based on differences of principle or affection had ceased to be relevant in Britain, it was impossible, Hume thought, to eliminate parties of interest. There must always remain a party of men whose interests are unsatisfied, if the constitution were to avoid becoming an absolute monarchy. But in his model of a perfect commonwealth he proposed that the benefits of parties could be retained by legitimating the frustrations of unsuccessful candidates for public office: they would form a court of competitors, consisting of all defeated candidates for the Senate. These competitors would be entitled to investigate the political conduct of officeholders, and would provide a continuing opposition in government. There are traces of this proposal in The Federalist Papers in Madison's rationale for a separation of powers in government. Madison did not perceive the separation of powers in the same light as Bolingbroke had perceived the independence of Parliament. It was not the guarantor of public virtue, but merely the best means of ensuring that interests would be set in opposition to other interests in government. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature that such devices should be necessary to control the abuses of governments. But what is government itself but the greatest of all reflections on human nature.106

Hume's willingness to rely on judicial checks on the conduct of politicians was given the fullest possible expression in his model of a perfect commonwealth. Any twenty counties might vote a senator, a magistrate or a county representative out of office for a period of one year, and any thirty counties might remove a public official for three years; the senate or the magistrates might take similar action; and the court of competitors had no other role than the initiation of proceedings of this sort. Moreover, if the Senate acquitted the accused, the court of competitors would be entitled to convene a special tribunal elected by the magistrates and county representatives and try the politician again before this new assembly.107 It may be said that politicians in Hume's perfect commonwealth would have little time for any other aspect of public business than these indictments and trials of their fellow politicians. The Federalists were less prepared to rely on impeachment proceedings. The offences for which politicians are tried, Hamilton 106 Ibid., no. 51, 322. 107 "Idea of a Perfect Commonwealth," in Works, vol. 3, 483, 485.

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said, are often "of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused."108 A better guarantee of constitutional behaviour was to be found in the judiciary itself, which must be invested with the authority "to declare all acts contrary to the manifest tenor of the constitution void."109 This view of the matter, we may presume, would have been entirely acceptable to Hume, who said, in the last of his political essays, that we must look upon all the vast apparatus of our government as having ultimately no other object or purpose, but the distribution of justice, or, in other words, the support of the twelve judges. Kings and parliaments, fleets and armies, officers of the court and revenue, ambassadors, ministers and privy councillors are all subordinate in their end to this part of administration. Even the clergy... may justly be thought, so far as regards this world, to have no other useful object of their institution.110

Thus whatever other influences shaped the political thought and conduct of Alexander Hamilton and James Madison, it is evident that Hume's political science and particularly his "Idea of a Perfect Commonwealth" exercised a most important if not a decisive influence upon them. They were, perhaps, more than anyone, the "legislators and founders of states," whose work most faithfully reflects the maxims and the institutional forms of Hume's political science. It was entirely consistent with this intellectual background that The Federalist Papers should have concluded with Hume's admonition to permit experience to correct the initial errors of those who attempt 4 'to balance a large state or society... on general laws... by the mere dint of reason and reflection "* 11 And in the circumstances it is no less appropriate that the greatest critic of the Federalists should have accurately discerned the source of the political ideas he so heartily opposed. I fear nothing for our liberty [said Jefferson] from the assaults offeree; but I have seen and felt much and fear more from English books, English prejudices, English manners, and the apes, the dupes and designs among our professional crafts. When I look around me for security against these seductions, I find it in the widespread of our agricultural citizens, in their unsophisticated minds, their independence and their power, if called on, to crush the Humists112of our cities, and to maintain the principles which severed us from England. 108 The Federalist Papers, no. 65, 396. 109 Ibid., no. 78, 466. 110 "Of the Origin of Government," in Works, vol. 3, 113-14. This essay was added to the last edition of Hume's essays, published in 1777. 111 "Of the Rise and Progress of the Arts and Sciences," in Works, vol. 3, 185, quoted by Hamilton in The Federalist Papers, no. 85, 526-27. 112 Letter from Thomas Jefferson to H. G. Spafford, March 17, 1814, in Thomas Jefferson on Democracy, selected by Saul K. Padover(New York: Mentor Books, 1946), 85.

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Jefferson's distrust of Hume may have been, like Rousseau's, somewhat obsessive. We are told that "Not only did Jefferson fret publicly over the menace Hume represented to innocent students at Charlotteville, but he continued to worry privately over Hume's pernicious influence."113 There can be no doubt, however, that the object of his concern was judiciously selected. And he was not alone in believing that Hume's political science presented a formidable challenge to classical republican thought. Catherine Macauley, John Brown and Adam Ferguson all challenged Hume's critique of classical republicanism, in different contexts and in different idioms. But on Hume's own grounds, on the grounds of experience and the experimental method, his argument was a difficult one to answer. In order to meet the challenge, a different method of elucidating experience was required. Such a method was perhaps already available in the literature of eighteenth-century thought in the method of Montesquieu, a phenomenological method which assumed that it was not a uniform idea of nature and human nature which must be understood, but rather that everything has a distinctive nature of its own. Hume was prepared to concede that Montesquieu's work was "the best system of political knowledge that, perhaps, has ever yet been communicated to the world."114 But notwithstanding Montesquieu's superior insight into the distinctive sources of inspiration which prompt men to engage in politics, there is one crucial respect at least in which Hume's political science reflects more accurately the political realities of his own time, and remains more relevant perhaps for us today. The conclusion which Hume's political science ultimately forces upon us is that as long as men live in the kind of society which Hume understood so well, they will understand and conduct their politics in something like the manner he described. If one wishes to reconstitute fundamentally the public realm, it is not sufficient to appeal to a distinctive capacity for political virtue and political action. Any reconstitution of the public realm must be accompanied by a fundamental change in the conditions of men in society, without which classical republican politics must remain, as it was in the eighteenth century, a nostalgic dream, without foundation in experience. 113 H. R. Trevor Coulborn, The Lamp of Experience (Chapel Hill, N.C.: University of North Carolina Press, 1965), 179. 114 "Enquiry Concerning the Principles of Morals," in Works, vol. 4, 190, n. 1.

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[2] Hume and the Contexts of Politics RICHARD H. DEES

HUME'S POLITICAL THOUGHT has been variously characterized as archetypically conservative, as contractarian, as utilitarian, and as an elaborate apology for the eighteenth-century ruling classes.1 In examining Hume's politics, commentators have—with good reason—focused on Hume's account of justice in the Treatise, and they have seen his account of justified rebellion as a mere appendage.8 But in doing so, they have ignored some crucial elements of Hume's thought: history and context. The contextual elements of Hume's thought are hidden to those who fail to look at what Hume does and not just at what he says when he makes judgments in politics. Hume, unlike most philosophers, is sensitive to history and to particular political contexts. He was in fact better known as a historian than as a philosopher until the twentieth century, and his History of England is his grandest and, in some ways, his most impressive work.s Hume fancies himself 1 For Hume's alleged conservatism, see Sheldon Wolin, "Hume and Conservatism," American Political Science Review 48 (1954): 999—1016; for his alleged contractarianism, see David Gauthier, "David Hume, Contractarian," Philosophical Review 88 (1979): 3-38; for his alleged utilitarianism, see with some qualification, Frederick Whelan, Order and Artifice in Hume's Political Philosophy (Princeton: Princeton University Press, 1985); and for his alleged elitism, see Alasdair Maclntyre, After Virtue, second edition (Notre Dame: University of Notre Dame Press, 1984), chapter 16, and Whose Justice* Which Rationality? (Notre Dame: University of Notre Dame Press, 1988), chapters 15-16. * See David Hume, Treatise of Human Nature, second edition, edited by L. A. Selby-Bigge and revised by P. H. Nidditch (Oxford: Clarendon Press, 1978), 477-501 and 534-67, respectively. Future references will be in the text, designated by T, followed by the page number, s Several recent works have put the History to good use. See, most notably, Duncan Forbes, Hume's Philosophical Politics (Cambridge: Cambridge University Press, 1975); David Miller, Philosophy and Ideology in Hume's Political Thought (Oxford: Clarendon Press, 1981); Donald Livingston, Hume's Philosophy of Common Life (Chicago: University of Chicago Press, 1984); Nicholas Phillipson, Hume, Historians on Historians (London: Weidenfeld and Nicolson, 1989); and Whelan, Order and Artifice.

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an empirical scientist of sorts, and history provides the "experimental" evidence for a philosophy of politics, much as his observations of his own mental states provides experiments for his philosophy of mind in the Treatise.* Understanding his historical works is, then, essential to understanding his philosophy. By attending to the historical works, we will see that Hume's political thought is more dependent on his judgments about particular situations than on his general pronouncements about abstract possibilities. In politics, then, Hume is a contextualist. To say that Hume is a contextualist is to say that context plays a central role in his political theory. Of course, context plays some role in any sensible political theory. No one—not even Plato—thinks that one political system is best in all circumstances.* But most theories of political justification place context in a secondary role, either by using the particulars of the circumstances only to rule out certain options as "impractical" or by using them only to fill in the variables of a universal equation. On the first view, capitalism may be ruled out for, say, fourteenth-century England, because trade routes could not have been protected effectively, and so a commercial economy was impossible. The first view is also that, say, of Americans who think that capitalism and liberal democracy are the correct systems for every country unless dire circumstances make them impossible. On the second view, we find general principles and then apply the particulars of the circumstances just as we fill in the variables of an algebraic equation, but the principles themselves are universal, awaiting only the "numbers" to determine the "correct answer" of the right political system. A utilitarian view fits this second model: even though it allows a significant place for the features of the circumstances that affect the happiness of the people in the society, those features only play a role once we have already invoked the general principle of all politics—namely, the utilitarian rule itself. Even Rawls, on one reading of A Theory of Justice, holds a position like this: the parties to * "History," Hume writes, "the great mistress of wisdom, furnishes examples of all kinds; and every prudential, as well as moral precept, may be authorized by those events, which her enlarged mirror is able to present to us." Hume, History of England, from the Invasion of Julius Caesar to the Revolution in 1688, in six volumes (Indianapolis: Liberty Classics, 1983), volume 5, page 545 (in chapter 59). Hume expands on this point in "Of the Study of History," in Essays: Moral, Political, and Literary, edited by Eugene Miller (Indianapolis: Liberty Classics, 1985), 563—68. Future references to the History will be in the text, designated by H, followed by chapter, then volume and page. So this reference would be H 59; 5: 545. Since no definitive edition of the History exists, I include the chapter for the benefit of those using other editions. Future references to the Essays will be in the text, designated by E, followed by the page number. For the benefit of those using other editions, I will indicate the essay in which the reference appears the first time I cite that essay. s Plato thought that there was a "best" political system, but he did not recommend it except in very special circumstances. See Republic, Books 4, 5, 8, and 9 and the Laws.

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the original position agree to the "general conception of justice," and then apply the same reasoning to the circumstances found in modern Western societies to develop the "two principles of justice."6 The Humean view, I will argue, stands in sharp contrast to both positions. The context and practices shape the principles that we use as well as the final result. Principles are still vital to the process, because they represent the values that are central to the practice of politics and, more importantly, to the culture as a whole. But the principles we use are as much a part of the cultural context as the economic development of the society or its technological prowess. I will make the case for Hume's contextualism in three stages. First, I will show that Hume thinks contexts are important to any account of justified rebellion, because he thinks any attempt to systematize such an account will be wrecked on our efforts to account for all the relevant factors. Second, I will argue that underlying his rejection of rules for revolution is a much more flexible view of human nature than is usually recognized, a view that opens the way for a contextualist account of politics. Third—and most important—I will show that when Hume looks at actual political situations, he is more intent on discovering what is possible and what the practices of the situation demand than on applying abstract ideas like liberty and property. Contexts, I will argue, are the lynchpin of his analysis. 1.

C O N V E N T I O N S A N D INTERESTS

Like his theory of justice, Hume's account of allegiance to government is based ultimately on convention and practice. Governments remain and should remain in existence, he says, because they serve the interest we have in maintaining justice (T 540—49). Indeed, he sometimes declares that "[o]ur interest is always engag'd on the side of obedience to magistracy," and he suggests that nothing but a mistaken idea of our interests could lead us to rebel (T 545). He thereby seems to confirm the traditional reading of him as a conservative. But Hume overstates his case in these passages; he does not think that our interest is always in obeying the magistrate. After all, he rejects the doctrine of passive obedience as an "absurdity" (T 552).? Rebellions are sometimes justified, he thinks—and not because the government sometimes breaks some kind of contract with us (T 541-49),8 but because our interest in maintaining it is sometimes threatened: "[C]ommon sense teaches us, that, as government 6 John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), section 11, for the strongest suggestion of this view. However, Rawls's more recent work suggests a posidon that is significantly closer to the position I find in Hume. See, most significantly, 'Justice as Fairness: Political not Metaphysical/' Philosophy and Public Affairs 14 (1985): 223-51. ? See also "Of Passive Obedience," E 488-92. 8 See also "Of the Original Contract," E 465-87.

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binds us to obedience only on account of its tendency to public utility, that duty must always, in extraordinary cases, when public ruin would evidently attend obedience, yield to the primary and original obligation [that is, the obligation to public utility]" (E 489). Revolutions are justified, Hume is saying, when the government no longer serves the public good for which it was formed. This view offers apparent support for a utilitarian reading of Hume, but, as many commentators have argued, such an interpretation is highly misleading.9 However, because our interests are usually on the side of obedience (T 545), Hume notes, we form a "general rule" that we should always obey government (T 551). Such general rules are important in our everyday lives10; indeed, we become "mightily addicted" to them—so much so that we are tempted to think that "men may be bound by conscience to submit to a tyrannical government against their own and the public interest. And indeed, to the force of this argument I so far submit, as to acknowledge, that general rules commonly extend beyond the principles, on which they are founded; and that we seldom make any exception to them, unless that exception have the qualities of a general rule, and be founded on very numerous and common instances" (ibid.). In other words, Hume thinks that we form a "general rule" never to resist the government, but we realize that the rule will admit of exceptions if, as Hume thinks, the exception also has the character of a "general rule." One exception to this particular rule is that even if a tyrant performs the minimum functions of government, we need not withstand his "cruel ravages" without resistance (T 552). But even Hume does not think tyranny is necessary to justify a revolution; he clearly approves of the Glorious Revolution of 1688, for example, even 0 On Hume's view, we do not need to suppose that the obligation of allegiance is based on overall utility; the redirected self-interest is enough to explain its origin and its force. And besides, Hume never weighs the pluses and minuses of obligation on a scale of overall happiness; he simply does not treat the "public utility" as a function like the utilitarian's "general happiness." In particular, he makes no provisions for the trade-offs between persons that are essential to a utilitarian rule. For more extensive arguments against a utilitarian reading of Hume, see Aryeh Botwinick, "The Case for Hume's Non-Utilitarianism," Journal of the History of Philosophy 15 (1977): 423-35; and Annette Baier, "Learning from Hume Why Not To Be a Contractarian" (unpublished, 1984). See also Gauthier, "Hume, Contractarian," passim; Miller, Philosophy and Ideology, 74 and 190; Whelan, Order and Artifice, 213; and J. L. Mackie, Hume's Moral Theory (London: Routledge and Regan Paul, 1980), 152. 10 Hume thinks that one of the natural operations of the human mind is to form these general rules, so much of the Treatise is an attempt to put this tendency to work for us. See, for example, T 146-55. For a nice discussion of Hume's use of "general rules," see Thomas K. Hearns, " 'General Rules* in Hume's Treatise" Journal of the History of Philosophy 8 (1970): 405-22.

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though he does not think that James II was a tyrant. And so the account of justified rebellion is still grossly incomplete. But Hume himself would reject any further search for a general rule for revolution as misguided: promulgating such a rule, he thinks, is likely only to encourage rebels who have no real cause.18 And contrary to his previous suggestions, he even argues that any attempt to solve problems of justification by appeals to rules is doomed: "Whoever considers the history of the several nations in the world; .. . will soon learn to treat very lightly all disputes concerning the rights of princes, and will be convinc'd, that a strict adherence to any general rules, and the rigid loyalty to particular persons and families, on which people set so high a value are virtues that hold less of reason, than of bigotry and superstition" (T 562). So far, his claim is not too radical: although controversies in politics about the right to rule are not always capable of principled decision, he says, these controversies should be "subordinate to the interests of peace and liberty" (ibid.)—which itself sounds like a general rule of sorts. However, the interests of peace and liberty may be equally incapable of decision. Before the beginning of the English Civil War, for example, peace seemed to demand that we side with Charles I, but liberty demanded that we side with Parliament (H 53 n. W; 6: 568-69). Indeed, Hume suggests, no general rule, no matter how complex, can tell us when a particular revolution is justified: "But tho' this general principle [that tyrants can be resisted] be authorized by common sense, and the practice of all ages, 'tis certainly impossible for the laws, or even for philosophy, to establish any particular rules, by which we may know when resistance is lawful; and decide all controversies, which may arise on that subject" (T 563). Here, Hume rejects the possibility that we could construct a complex rule out of a rule and its exceptions. The particular problems of particular situations and the details of the particular relationship between a government and its people will always affect our judgments. No rule, he thinks, could capture all those subtleties. Even if a general exception to the rule of obedience like "Resist tyrants" covered all the cases, it does not have sufficient content to guide us in particular cases. As Hume points out, when Alfred the Great bound the people of England to their land, his actions were 11

See section 3A below. As Hume puts it in the History: "Government is instituted, in order to restrain the fury and injustice of the people; and being always founded on opinion, not on force, it is dangerous to weaken, by these speculations, the reverence, which the multitudes owe to authority. .. . [TJhe doctrine of obedience ought alone to be inculcated, and ... the exceptions, which are rare, ought seldom or never to be mentioned in popular reasoning and discourses" (H 59; 5: 544). Of course, Hume's worries here may simply be addressed to a rebellious age in which the Jacobite rebellion of 1745 was still a fresh memory—especially to a Scotsman. See Forbes, Hume's Philosophical Politics, 93-96. 11

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not tyrannical but necessary (or so Hume argues), but the same actions in the seventeenth century would have been an outrage, worthy of revolution (H 2; i: 77). So what actions constitute "tyranny" depends on the particularities of the history and circumstances. Thus, Hume suggests, particular features of context, rather than general rules, are the most important features of our judgments in politics. 2.

THE UNIFORMITY OF HUMAN NATURE

However, his reluctance to systematize an account of revolution does not, by itself, make Hume a contextualist. Indeed, it does not rule out either the view that contexts are only important for ruling out the impractical or the view that they are only important insofar as they promote certain general goals. And there is at least one consideration that seems to indicate that one of these views must account for Hume's use of contexts: Hume's view of human nature. Many commentators take it as obvious that Hume believes in a very particular form of human nature, one which is ahistorical and acontextual. Thus, R. G. Collingwood castigates Hume for his seeing human nature "substantialistically as something static and permanent, an unvarying substratum underlying the course of historical changes."^ Likewise, David Fate Norton argues that an assumption of uniformity undergirds Hume's commitment to common sense morality."4 And for J. L. Mackie, Hume thinks that there must be a "basic psychological theory" that can explain away any differences— though he is less clear about the extent to which that uniformity must hold.'s Indeed, it is tempting to think that a man who self-consciously writes "a treatise of human nature" has a very substantive view of that nature.16 And if '3 Collingwood, The Idea of History (New York: Oxford University Press, 1956), 82. In this passage, Collingwood is blasting all the historians of the Enlightenment, but he also condemns Hume by name: "Hume never shows the slightest suspicion that the human nature he is analyzing in his philosophical work is the nature of a western European in the early eighteenth century"

(83).

'* Norton, "Hume's Common-Sense Morality," Canadian Journal of Philosophy 5 (1975): 52343, especially 534-35; and David Hume: Common-Sense Moralist, Sceptical Metaphysician (Princeton: Princeton University Press, 1982), i36n. '5 Mackie, Hume's Moral Theory, 67. 16 For further examples of commentators who think that Hume believes in a substantive uniformity of human nature, see J. B. Black, "Hume," in The Art of History (New York: Russell and Russell, 1965; reissue of 1926 edition), 77-116; George Sabine, "Hume and the Historical Method/' Philosophical Review 15 (1906): 17—38; and James B. Stewart, The Moral and Political Philosophy of David Hume (New York: Columbia University Press, 1963), chapter 11. More recently, H. D. Aiken, who is otherwise sympathetic to Hume, argues that Hume fails as a historian because he fails to appreciate the human capacity for change. See Aiken, "An Interpretation of Hume's Theory of the Place of Reason in Ethics," Ethics go (1979): 80. The most vociferous attack

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Hume did have a rigid view of human nature, then the range of possible values would be limited since he bases all values on human sentiments. If so, then all societies would be governed by a narrow set of ends, and contexts would play only a small role in moral and political decisions. These commentators do, in fact, find support for their interpretation in two kinds of passages in Hume's writings. In the first, Hume seems to claim baldly that aU humans are fundamentally alike in every age and in every context: "It is universally acknowledged that there is a great uniformity among the actions of men, in all nations and ages, and that human nature remains still the same, in its principles and operations. The same motives always produce the same actions: The same events follow from the same causes. . . . You cannot be much mistaken in transferring to [the Greeks and Romans] most of the observations which you have made with regard to [the French and English]. Mankind are so much the same, in all times and places, that history informs us of nothing new or strange in this particular."1? In the second, Hume explicitly links the very idea of morality with universal sentiments that only make sense as a part of human nature: "The notion of morals implies some sentiment common to all mankind, which recommends the same object to general approbation, and makes every man, or most men, agree in the same opinion or decision concerning it. It also implies some sentiment, so universal and comprehensive as to extend to all mankind."18 The matter is not, however, as simple as these passages suggest. Hume is, after all, well aware of the diverse effects of culture. In "A Dialogue," *9 he reminds us that the most respected persons in ancient Greece and in eighteenth-century Britain can each view the same set of facts and react very differendy. The Greek would look upon the exposure of an infant as a sad necessity and upon a homosexual relationship between a man and a boy with admiring approval, but the Briton would react in horror to both (D 324—30). on Hume's account, however, can be found in Christopher Berry, Hume, Hegel and Human Nature (The Hague: Martinus Nijhoff Publishers, 1982), chapters 4-7. Most other commentators do not address this issue directly. Most assume that Hume is presenting some kind of theory about human nature, but they do not discuss the degree to which a uniformity is assumed in Hume's theory. For but one of the many possible examples, see Barry Stroud, Hume, The Arguments of the Philosophers (London: Routledge and Kegan Paul, 1977), chapter i. >? Hume, Enquiry concerning Human Understanding in Enquiries, third edition, edited by L. A. Selby-Bigge and revised by P. H. Nidditch (Oxford: Clarendon Press, 1975), 83. Future references to the first Enquiry will be in the text, designated by EU, followed by the page number. 18 Hume, Enquiry concerning the Principles of Morals in Enquiries, 272. Emphasis added. See, in fact, 272-76. Future reference to the second Enquiry will be in the text, designated by EM, followed by the page number. *» Hume, "A Dialogue,** in Enquiries, 324—43. Future references will be in the text, designated by D, followed by the page number.

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The same facts lead to different reactions; something about either the context, the culture, or the people themselves explains that difference. So any interpretation of Hume will need to explain both the uniformity and the diversity he recognizes in humans. The key to interpreting both of the "uniformity" passages, I think, is to place them in their proper contexts. The first passage occurs in the midst of Hume's argument that humans, like other parts of nature, are governed by causal laws. In both the Treatise and the first Enquiry, Hume argues that we operate every day on the assumption that human behavior is, on the whole, regular and predictable. So we should, as Duncan Forbes points out, take the "most" in this passage seriously.20 The overwhelming number of ordinary actions in "common life" (to use Hume's favorite phrase) can be predicted on the basis of our observations about our own culture: we can expect most people to refrain from trying to fly off a cliff, and we can expect them to perform some activity that will generate food for themselves. But such a claim should harldy disturb anyone who thinks that humans are profoundly affected by their culture. We could not form the expectations that are necessary for social life at all unless we could rely on the usual effects of certain kinds of behavior (EU 85). Without some kind of predictability, the human sciences— history, politics, and aesthetics—would be impossible (EU go). Because such predictions are successful within our own culture, we assume that people in other cultures are predictable as well. So, we form a working hypothesis that if we understand them well enough, we will be able to predict their behavior, too.21 This hypothesis need not, however, be particularly contentful; it is, as S. K. Wertz points out, methodological." We assume that people are enough alike 20 Forbes, Hume's Philosophical Politics, 117. Indeed, my interpretation of this passage is similar to that found both in Forbes, chapter 4 ("Social Experience and the Uniformity of Human Nature," 102—21) and in Livingston, Hume's Philosophy, 214-25. 21 Hume also has a polemical point in stressing the uniformities in this passage, as Forbes points out. Hume wants his readers to realize that the Greeks and Romans to whom he refers here were human; they ate, slept, and performed ordinary tasks not so unlike the French and the English of the eighteenth century. They were not superhumans of some kind. So part of Hume's point is to debunk the idea, popular in the eighteenth century (think of Rousseau's panegyrics to the Spartans, the Athenians, and the Romans in the Social Contract), that the ancients had superior moral and physical stature compared to the moderns. See Forbes, Hume's Philosophical Politics, 118. The praise of the ancients was usually tied to a condemnation of the moderns as petty, selfinterested, and materialistic. So Hume is defending modern society by asking us to look closely at the behavior of the Greeks and Romans. Indeed, Hume argues in "Of the Populousness of Ancient Nations" that when we consider modern and ancient society as a whole, the ancients do not look so attractive after all. See E 377—464, 22 S. K. Wertz, "Hume, History, and Human Nature," Journal of the History of Ideas 36 (1976): 481-96.

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that we can say that their actions are predictable. For example, to see them as human, we must assume that they have certain biological needs.as And to see them as members of a culture—any culture—we must assume that they meet certain minimum requirements of rationality. Indeed, if Donald Davidson and others are right, we need to assume that they are somewhat like us if we are to understand them at all.8* But such requirements are rather weak; they do presuppose little content to their behavior. So even if we must assume that all humans are somewhat alike as a methodological presumption, we are not thereby forced to claim that they will always act in the same ways we do. When we observe the diverse behavior of people in other cultures, Hume suggests, we do not need to discard the assumption that they are like us in some sense; instead, we assume that we have overlooked a cause that would explain their behavior (EU 85—87). In doing so, however, we only assume that their behavior is explainable, that we can find a system of desires and beliefs that will make their actions understandable. In other words, we assume that the structure of human motivations remains the same, even when the content of those motivations is quite different.^ In fact, in a passage that closely follows the one quoted above from the first Enquiry, Hume explicitly denies that there is anything more significant in his assumption of uniformity: "We must not, however, expect that this uniformity of human actions should be carried to such a length as that all men, in the same circumstances, will always act precisely in the same manner, without making any allowance for the diversity of characters, prejudices, and opinions" (EU 85). In particular, we must not expect people from different cultures to agree, because custom and education "mould the human mind from its infancy and form it into a fixed and established character" (EU 86). So when we begin to look for the causes that will explain differences in behavior, we must take into account what Hume calls the "moral causes" of behavior; that is, we must look to differences that can only be explained by culture and context. »s See Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986); and T. M. Scanlon, "Preference and Urgency "Journal of Philosophy 77 (1975): 655-69. 2 * See Donald Davidson, "On the Very Idea of a Conceptual Scheme,** in Inquiries into Truth and Interpretation (Oxford: Oxford University Press, 1985), 183-98. See also Richard Rorty, "The World Well Lost," in Consequences of Pragmatism (Minneapolis: University of Minnesota Press, 1982), 3-18. »s As W. H. Walsh puts it, to understand these cases of diversity, we must assume that all people "share the same formal apparatus for thinking and deciding"—but not that we share the same thoughts or feelings. See W. H. Walsh, "The Constancy of Human Nature," in Contemporary British Philosophyy fourth series, edited by H. D. Lewis (London: Allen and Unwin, 1976), 283. Walsh himself, however, does not think this view applies to Hume. A similar idea is discussed more fully in Clifford Geertz, "The Impact of the Concept of Culture on the Concept of Man," in The Interpretation of Cultures (New York: Basic Books, 1973), 33-54-

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This interpretation of the first passage gives us a clue about how to interpret the second. If my interpretation of the first passage is correct, then we should expect the "sentiment common to all mankind" in the second to be a broad, schematic principle that structures moral thought rather than a substantive feeling that influences every human. In "A Dialogue," Hume confronts the issues of uniformity and diversity direcdy. Here he explicidy rejects the claim that "fashion, vogue, custom, and law [are] the chief foundations of all moral determinations" (D 333), but his reasons for rejecting a naive form of relativism reveal the crux of his position. Behind differing cultural standards, Hume says, a general principle can be found. He offers this analogy: "The Rhine flows north, the Rhone south; yet both spring from the same mountain, and are also actuated, in their opposite directions, by the same principle of gravity. The different inclinations of the ground, on which they run, cause all the difference of their courses" (ibid.). This "higher principle" of morality is like the principle of gravity; the particular circumstances in which each society finds itself are the "inclinations of the ground." "All the differences . . . in morals," he says, "may be reduced to his one general foundation, and may be accounted for by the different views, which people take of these circumstances" (D 336). So Hume argues that a uniformity in human nature hides behind the superficial differences, and he seems to argue that the higher principle of morality is firmly grounded in a fundamental homogeneity among humans. But what is this "higher" principle? Hume says it is this: "It appears, that there never was any quality recommended by any one, as a virtue or moral excellence, but on account of its being useful, or agreeable to a man himself, or to others" (ibid.).*6 The useful and the agreeable are always virtues, then, because they produce a sentiment of approbation. We have thus found the "sentiment common to all mankind": it is the feeling of approval that people experience when they find something useful or agreeable.2? If this is the "sentiment common to all mankind," however, it does not have much content. Any quality could, in principle, have one of these features. By 86 This thesis is central to Hume's account of the virtues and reappears in all of his moral works. Besides "A Dialogue," see T 591 and generally, Treatise, Book 3, Part 3; and see EM 268 and, more generally, second Enquiry, sections 5-9. The "useful" are those qualities that make people "perform their part in society" and "render them serviceable to themselves" (T 587). These qualities are means to ends, and we will not approve of them except insofar as the ends are themselves agreeable (T 588). They are, then, good for their consequences. The "agreeable" are those qualities "wherein this immediate taste or sentiment produces our approbation" (T 590). These qualities, then, are good in themselves. *? Importantly, the passage in which Hume discusses the "sentiment of all mankind" at EM 272 follows closely on the heels of his conclusion that all moral sentiments can be reduced to the useful or agreeable (EM 268).

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itself, the principle only implies that all humans will approve of those things they find useful or agreeable to themselves or others, but it does not dictate what things they will designate as useful and agreeable. Thus, this sentiment itself gives us little evidence that human nature is substantively uniform. The crucial judgments that are based on it can vary substantially with culture. Hume, in fact, argues that custom determines which of the "sources of moral sentiment" will predominate in a particular culture: "Different customs have also some influence as well as different utilities; and by giving an early bias to the mind, may produce a superior propensity, either to the useful or the agreeable qualities; to those which regard self, or those which extend to society" (D 337—38). Eighteenth-century France, for example, leaned more towards the sociable pleasures, while England leaned more towards the domestic (D 335). So the English favored qualities useful to a very narrow circle, while the French favored those pleasing to a larger crowd. Cultural factors, then, account for the balance between the different kinds of moral considerations. But Hume also notes that custom determines more than just the balance between the useful and the agreeable: "Particular customs and manners alter the usefulness of qualities: they also alter their merit" (EM 241). Different customs value different kinds of behavior, and so different qualities will be useful. Hume, then, realizes that there will be some important differences in morality in separate cultures, based on the differences in their manners and customs. These differences in manners and values between people will, then, be reflected not only in the different qualities that each culture will find "useful," but also in what qualities they will find "agreeable." Custom, he suggests, should determine what we should immediately prefer: "But as culture and practice .. . have settled the just value of every thing; this must.. . guide us, by means of general establish'd maxims, in the proportions we ought to observe in preferring one object to another" (T 294). So, for example, Hume observes that in France people are most concerned to discover whether a stranger is polite and witty, while in England, they are most concerned to learn whether he is a "good-natured, sensible fellow" (EM 262), and he notes that the eighteenth-century French nobleman most wanted honor, while his counterpart in England most wanted wealth (E 92-93**). The members of each of these cultures thus find very different characters to be "agreeable," and they prescribe different ends for their members. The differences between cultures are not, then, determined simply by disagreements about the facts or in the physical circumstances, but by what Hume calls "moral causes"—what we would call cultural, psychological, tech•• In "Of Civil Liberty," E 87-96.

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nological, and sociological factors. Indeed, "Of National Characters"^ is devoted entirely to this thesis. The material differences between the people on two sides of a national boundary may not differ significantly, but their manners and their values may diverge considerably. The differences follow the artificial lines of language, national boundaries, and cultural interactions too closely to be explained by anything but these "moral causes" (E 204—207). Culture, then, deeply influences which qualities are found to be both useful and agreeable, and so culture, rather than nature, determines the qualities that a people will find of merit. These considerations would not be decisive, however, if Hume thought that all cultures must share what he calls "ultimate ends." For Hume, an "ultimate end" is something "desirable on its own account, and because of its immediate accord or agreement with human sentiment and affection" (EM 293). What is an ultimate end, then, is a matter of taste and sentiment; it is a quality that will elicit spontaneous, unreflective approval. If we ask someone of such an end, "Why do you want that?" she cannot answer anything except, "Just because." But because "ultimate ends" are those qualities that immediately produce approval, they are closely linked to the qualities that are "agreeable"—which, we have already seen, can vary from culture to culture. Although some such "ultimate ends" may be common to all cultures— biological needs are surely among thems°—Hume thinks that these common goals are few and that most of them are not very substantive.*1 In matters of taste and morality, he insists, the differences are greater than they appear; we will all agree that "barbarous" actions are bad and then disagree about the content of what constitutes barbaric behavior (E 227—283*). Culture is still the crucial factor. Thus, when Hume says that there is a "sentiment common to all mankind," he is only claiming once again that the structure of human motivations is sufficiently alike in all humans that we can identify in any person the sentiments that function as moral sentiments. This structure is like that which operates in causal reasoning: all humans use certain mental procedures to put together the features of their natural and social world, but these procedures, by themselves, do not determine which features of the world we will use.ss To "9 E 197-215. s° For a development of this idea, see H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), chapter 9; and Raz, Morality of Freedom, 290. Note, however, that although all cultures may share biological needs as ends, those needs may not be very important. s1 Whelan makes a similar point. See Order and Artifice, 338. s* In "Of the Standard of Taste," E 226-49. w This claim is, I take it, consistent with the view articulated by Norman Kemp Smith that Hume believes that humans have certain "natural beliefs" in, for example, causation. To have a natural belief in causation is to have an inclination to see certain kinds of patterns as causal

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say the structure is the same is just to claim that people find certain patterns to be causal relations and, in the moral case, that they will approve of those qualities that they find useful and agreeable. But to say the structure is the same does not imply that they are more substantially similar; in both cases, the common structure radically underdetermines the content of their mental and moral life. Thus, we can say that humans share a common foundation for the moral sentiments, but not that they share the same sentiments.34 Hume thus recognizes the importance of custom and culture in shaping human thought. "Human nature," such as it is, is highly adaptive and immensely flexible. Humans are structurally similar, but not substantially similar. If so, then the content of "human nature" does little to determine the judgments we should make in politics. Instead, culture and context play the crucial roles. 3.

C A S E S T U D I E S FOR C O N T E X T U A L I S M

However, the best evidence that Hume is a contextualist lies in the considerations he brings to bear when he discusses real politics. The most convincing case I could make would canvass a multitude of examples from the History to display the variety of subtle factors Hume employs in his judgments. But my purposes should be served well enough if I examine in some detail Hume's account of two key cases: the Glorious Revolution of 1688 and Bolingbroke's rebellion in 1399.35 A. The Glorious Revolution

In 1688, William of Orange, with the blessing of people and Parliament, overthrew the Catholic king James II and thereby established a Protestant succession and reasserted the power of Parliament. It is a central case for Hume, because it shaped the eighteenth-century political landscape in which he wrote and because its meaning was still a potent political issue. The event relations. See Norman Kemp Smith, The Philosophy of David Hume (New York: Garland Press, 1983; reprint of London: Macmillan, 1941). 34 I owe this way of putting this point to Steve Darwall. 35 I think the entire History demonstrates Hume's contextualism, but some other examples are especially instructive: (i) Alfred the Great and the Danish invasions (H 2; i: 74-79). Hume praises Alfred for devising a system that bound people to the land, but which provided some defense against the Danes, even though it was considered harsh in his time and would have been tyrannical in another. (2) The Hundred Years' War (H 15; 2: 196-200). Hume rejects Edward Ill's claim to the throne of France through his mother, because although English tradition allowed inheritance through a female, the French Salian Code did not. Thus, Edward's claim was spurious because it did not fit the practice of the institution in question. (3) The English Civil War (H 51-54; 5: 186-331). Hume's position here is quite subtle. Initially, he praises the efforts of the Puritan members of Parliament, but at a crucial juncture, he thinks that they, carried forward by their religious zeal, went too far (H 54; 5: 330).

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itself, he thinks, demolished the traditionally Tory doctrine of passive obedience, and his account of it undermines the Whig's social contract theory. But more importantly, the Glorious Revolution was, for Hume, a paradigm of a justified revolt. As such, Hume's account of it will serve as a model of the manner in which we should approach political events. Although Hume thinks the revolution was justified, he does not think—as did his Whig contemporaries (and even his Whiggish successors*6)—that James II was a tyrant. James, he argues, could not be compared to the likes of a Nero or a Domitian (H 71; 6: 513). To be sure, James was bigoted and obstinate, but he was "more unfortunate than criminal"—even if he did embrace arbitrary principles (ibid., 520). Hume takes great pains to show that James was acting on principles which were not unreasonable in themselves and which had, in fact, governed England before the Stuarts. Consider, for example, the king's "dispensing power," the power that allowed him to overturn any act of Parliament by decree. The power, Hume tells us, had a long pedigree, dating back before the reign of Henry III in the thirteenth century (H 70; 6: 472). Indeed, the power was affirmed by Parliament even after the Petition of Right was granted by Charles I in 1628 (ibid., 473), so this prerogative could be assumed to stand during the reigns of Charles II and James II. James's use of it, then, was not obviously unjustified, even if it was frequently cited as a grievance against him. Yet Hume rejects James's use of the dispensing power. But to understand why, he thinks we must first understand its place within the earlier practice of politics in Britain and its place in seventeenth-century practice. Before the modern era, Hume argues, the king did not command a powerful centralized government that could execute his proclamations without relying on the obedience of the nobles and the prominent commoners that constituted Parliament. Indeed, he needed these people to enforce the laws for him and to pay for many of the expenses of government. Since the king needed to stay in the good graces of the nobility, he could not systematically ignore the bodies that represented them, so he had little incentive to abuse the prerogative. But since the central government was so weak, the king possessed few means to ensure that the nobles would themselves obey the law. So when he needed to suppress an uncomfortably defiant lord, he needed the power to ignore regular governmental procedures so he could force the noble back into line. The prerogative was the king's weapon against the enormous power of the nobility, and as such

s6 Particularly Macauley, who wrote his History of England as a rebuttal to Hume's. See Thomas Babington Macauley, The History of England, edited and abridged by Hugh Trevor-Roper (London: Penguin Books, 1968).

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it had been a necessary part of the central government's efforts to fulfill its basic functions (H 50; 5: 179). For these purposes, however, the power had been necessary only in medieval, but not in modern, times. Two major changes had occurred in the transition. First, the power of the nobility had been broken by the Wars of the Roses and the centralizing policies of the Tudors, and so coercive power had become concentrated in the hands of the central government. The nobles no longer had the power to resist the king's edicts effectively. Second, the manners of the people had changed substantially; they had become more "civilized"—that is, they were more apt to obey the government without coercion. With these two changes, the circumstances that required the use of the dispensing power no longer held, and the power became superfluous. But even when the dispensing power was no longer needed to insure domestic peace, Hume does not automatically think its use was unjustified.*? As Hume is well aware, institutions and powers evolve in unpredictable ways, so a power may come to serve new purposes. The dispensing power, however, was not an institution that had evolved usefully: it still increased the government's power, but now it could give that government enough power to pose a threat. With it, James could have gained enough power to rule without the support of Parliament as kings before him could not. He, unlike his predecessors, could have ruled as an absolute monarch. But even the possibility that the power could be used to turn Britain into an absolute monarchy does not, by itself, make the use of the power unwarranted. For Hume, an absolute monarchy is not inherently unjustified*8; a modern absolute monarchy, he thinks, could be "susceptible of order, method, and constancy" (E 94)—the most important elements of good government in the eighteenth century, when the development of commerce and the recent history of religious wars made stability a premium^ It could even, he 37 Indeed, Hume thought its use in later times was sometimes beneficial. Such was the case when Charles II used the prerogative to establish a liturgy in England in 1660, thereby halting the politico-religious controversies of the previous twenty years: "And if ever prerogative was justifiably employed, it seemed to be on the present occasion; when all parts of the state were tome with past convulsions, and required the moderating hand of the chief magistrate, to reduce them to their ancient order" (H 63; 6: 166). Significantly, however, the justified use of the prerogative in the seventeenth century occurred in circumstances very much like those of earlier times—when factions were strong and a single direction was needed. Indeed, Hume excuses many of Cromwell's most arbitrary measures because factions had become so furious in the early years of the Commonwealth that only "the extensive authority and the arbitrary power of some first magistrate" could keep the people from "relapsing into blood and confusion" (H 61; 6: 65). s* For an excellent discussion of Hume's view on absolute monarchy and other forms of government, see Miller, Philosophy and Ideology, chapter 7. 3d These characteristics are, not coincidentally, like those Hume associates with the favored epistemic principles. In Book i of the Treatise, Hume argues that the operations of the mind that

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thinks, be praised as "a government of Laws, not of Men" (ibid.). Hume never condemns the absolute monarchy in France as a government for France, and when he contemplates the future of government in Britain, he says he would prefer an absolute monarchy to a republic*0 Yet even if absolute governments were not necessarily a menace, the people in 1688 certainly felt that the dispensing power in James's hands was a threat. "[T]he nation," Hume says, "thought it dangerous, if not fatal, to liberty," and the people viewed his use of it as equivalent to the "most flagrant usurpation" (H 70; 6: 476). The people, then, thought that because it threatened their liberties, the dispensing power—and James with it—had to be abandoned. But Hume does not think that liberty is essential to good government; it must, he says, be subordinated to authority (E 4O«l). So the fact that their liberties were threatened is not sufficient to justify rebellion either. Significantly, however, Hume does not condemn the people's reasoning. And he does think that the resistance to James's attempts at aggrandizement was justified. At the time, he notes, the dispute centered on whether the power was sanctioned in the past and, if it was, whether that fact gave it current authority. But, Hume says, "[i]t was not considered, that the present difficulty or seeming absurdity had proceeded from late innovations introduced into the government" (H 70; 6: 475). Recent history, Hume says, provided the justification for the rebellion: the resistance to James was not justified because absolute monarchies are tyrannical in and of themselves, but because such a monarchy was at odds with the practice of politics in late seventeenth-century Britain. To understand the practice in 1688, then, we must look at the whole history of the seventeenth century. A hundred years before James—during the glory days of Elizabeth I—the sort of arbitrary actions James took were commonplace in Britain as well as in countries like France.*2 But by the time we should trust are those that are "permanent, irresistible, and universal" (T 225). I owe this reference to Louis Loeb. 4° A republic, Hume thinks, is likely to be fractious and violent, while modern monarchies— even those of the absolute kind—could have all the traditional virtues of the ancient republics without most of the disadvantages. Like the ancient republics, the new monarchies could be governed by laws rather than by whims, and they could be more unified because they were held together by a strong central authority. See E 52, in "Whether the British Government Inclines More to Absolute Monarchy or to a Republic," E 47—53. 41 In "Of the Origins of Government," E 37—41 4* According to Hume, Elizabeth I ignored Parliament, strong-armed the nobility, and systematically destroyed what liberties the people had—crippling industry in the process (H 40; 4: 145). Elizabeth's reign was magnificent, but not because she respected the rights of the people while her successors did not, but because her government was well suited to the times. Her rule was justified in the context of late-medieval politics by the practices of feudal deference and allegiance and by the ideologies of natural hierarchy and of national glory (ibid.).

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the Stuarts came to the English throne, the context had changed considerably. The revenues of the Crown were no longer sufficient for the king to ignore Parliament as Elizabeth had, and the Commons had become knowledgeable enough to be able to use what power it had (H 48 nj; 5: 558). The "new plan of liberty, founded on the privileges of the commons" had been a result of the rise of the "middle rank of men," who were becoming rich and powerful at the expense of the nobility, who had been weakened by their "habits of luxury" (H app. 3; 4: 384)^3 In addition, the new Puritanism taught that each person was, in his own eyes, sacred (H 53; 5: 260), and so many people no longer looked to the Crown, but to themselves, for spiritual guidance. They then became as bold in their politics as in their religion, and they began to support the cause of civil liberty (H 40; 4: 123-24).** In the hundred years between the Spanish Armada and the Glorious Revolution, Parliament had asserted its power against the Crown and the country had fought a civil war over the issues of liberty and religion and, particularly, over the power of the king to dictate his demands to an increasingly independent Parliament. After the Civil War, the practice of politics made any action that could be seen as a threat to that liberty politically salient. The economic/power structure had changed, and the practice of politics was evolving to reflect this transformation.^ The Stuarts, however, failed to recognize the importance of these changes. "[I]t must be confessed," Hume notes, "that their [the Stuarts1] skill in government was not proportioned to the extreme delicacy of their situation" (H 53 n.W; 5: 570). But this pronouncement is Hume at his most generous*6; generally, he finds their rule inept—even if he thinks that their actions were understandable. They bumbled along, each antagonizing the people and Parliament even more than his predecessor.^ In the meantime, Hume says, Parliament 43 Hume notes that for a while, during the reign of the Tudors, the rise of the middle classes and the fall of the nobility helped consolidate the sovereign's power, since there was an interval in which the middle classes were not strong, but the nobility was weak, so the Crown was able to fill in the vacuum and "assumed a power almost absolute" (H app. 3; 4: 384). 44 See also H 51; 5: 212. One of many the delicious ironies of Hume's History is that the liberty he cherished so dearly was won by the Puritans he despised so much. For Hume, it demonstrates, once again, how often the important effects of human actions are unintended. 45 Thus Hume recognizes, with the Marxists, the importance of the rise of the middle classes and the new economics for the political structures that arose in this period. But he also recognizes, with Weber, the importance of religion. See Marx, Capital, Volume I, Part 8; Christopher Hill, Society and Puritanism in Pre-Revolutionary England (New York: Schocken Books, 1964); and C. B, Macpherson, The Political Theory of Possessive Individualism (Oxford: Oxford University Press, 1962). Also see Weber, The Protestant Ethic and the Spirit of Capitalism. 46 Hume pulls his punch here precisely because his point in this note is to demonstrate that the Stuarts had been caught in an awkward period in history and to shift some of the blame for the bloodshed of the seventeenth century onto the supporters of Parliament. 4? Charles I sought to remedy the problems he encountered with extra-constitutional measures which he thought he was entitled to use to procure the public good, but which, unfortu-

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had, "with laudable zeal," pursued reforms "favourable to law and liberty" as a result of the changes occurring around it—reforms that included clear limitations on the king's power (H 70; 6: 475). The people had enthusiastically imbibed the liberties that had evolved in the new practices, and by the end of the century they assumed that an absolute monarchy would violate the basic function of government to protect people and property. Since the practices had changed and since the dispensing power was incompatible with "those accurate and regular limitations, which had of late been established, and which the people were determined to maintain" (ibid.), the dispensing power, rather than the liberties, had to be discarded. Because James was so out of touch with the practice of politics in Britain, Hume concludes that the revolution against him was justified. To reach this judgment, Hume looks to the changes in the political culture of seventeenth-century Britain—changes that, in his view, ultimately centered on the development of individual liberty and Parliamentary power (whatever the people at the time believed). Both resonated in important ways with the economic developments and the religious ideals of the era, and so both had become central values within the practice of politics. The practice that had evolved by James IPs time, then, required a very different kind of politics and a very different method of rule than it did in James I's. The fact that the alternative that James II sought—an absolute monarchy—was a stable and successful form of government elsewhere and might likewise have been successful in Britain is not particularly germane. In France, a similar series of acts would not have—and should not have—fomented a revolution in 1688; indeed, the same holds for Britain in 1588. But in 1688 in Britain, James's actions provoked a revolution—as they should have, in Hume's estimate—because the practice of politics there had transformed those acts from mere exertions of power into arbitrary and illegitimate encroachments upon the liberty of the people. B. Bolingbroke's Rebellion

Now consider an example that Hume regards as a perfect foil to the Glorious Revolution: Henry Bolingbroke's rebellion in 1399, in which he deposed Richard II and claimed the throne as Henry IV. Bolingbroke's rebellion is often nately for his crown and his head, only exacerbated the problems. For example, it led him to impose unilaterally a duty of ship money in 1634 that was later one of the prime grievances against him (H 52; 5: 235-36), (Another one of the wonderful ironies of the History is that the ships Charles built with this money were responsible for the international success of Britain during the Commonwealth. See H 60; 6: 50.) Similarly, James II, because he did not comprehend the extent to which Protestantism had infused the entire culture of Britain, failed to understand the fears he would raise by favoring Catholicism (H 71; 6: 520-21) and by insisting on the use of the dispensing power. And even Charles II, generally the most competent of the Stuarts, nearly provoked a civil war in 1680 with his heavy-handed policies (H 68; 6: 399).

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thought to be justified by Richard's tyranny, but Hume insists that Richard was not the monster that Henry painted him to be. Richard was, Hume admits, "unfit for government, less for want of natural parts and capacity, than of solid judgment and a good education" (H 17; 2: 324). But, like James II, he was no tyrant. The laws that Henry found to be irregular were all authorized by Parliament. And indeed, for the whole of his reign, Hume thinks, Richard observed the national privileges more closely than any of his predecessors, precisely because he did not have enough personal power to challenge them (ibid.).*8 Nevertheless, the revolt Henry led was tremendously popular. The coup d'etat was relatively bloodless, because Richard could not even garner enough popular support to raise an army to oppose him.49 Yet Hume regards Bolingbroke's rebellion as a folly and a usurpation. Henry, he says, gained the throne "by such unjustifiable means, and held it by such an exceptionable title" (H 18; 2: 344), and he clearly views the whole event with considerable distaste. Indeed, he declares, "[a]ll the circumstances of this event, compared to those which attended the late revolution in 1688, show the difference between a great and civilized nation, deliberately vindicating its established privileges, and a turbulent and barbarous aristocracy, plunging headlong from the extremes of one faction into those of another" (H 18; 2: 320-21). What "all the circumstances" are that differentiate them is not, however, so clear. In both cases, an unpopular king, widely—but, according to Hume, wrongly—regarded as a tyrant, was replaced by a popular and strong-willed leader. Neither Henry IV nor William III had much of a claim to the Crown on his own, but each was regarded as a savior of the nation for dethroning his inept predecessor. Both had a more or less equal prospect for a happy rule, though both could expect some violent claims against them; in fact, the new lines of succession each experienced serious rebellions in the hundred years following their accession.50 So the traditional marks of justification are the same in both cases. 48 The popular accounts often view Richard as unjust because he tried to prevent Henry from claiming his estates in Lancaster at the death of his father. (For an example, see Shakespeare's version in Richard II.) But Hume argues that Richard was perfectly within his rights to do so, Henry had been exiled for his conduct in a feud, and Richard had graciously granted him a patent to claim his estate if his father died. But since the patent was an act of grace, Hume argues, Richard was free to revoke it (H 17; 2: 317). « Richard's lack of support is particularly noteworthy since even Richard III, a tyrant on any measure, was able to raise a considerable army and put up a respectable fight against Henry Tudor in 1485 (H 23; 2: 506-18). s° After a number of early rebellions (the most significant of which is chronicled by Shakespeare in Henry TV, Part One), Henry's Lancastrian successors ruled in relative calm until questions about the succession led to the Wars of the Roses in the middle of the fifteenth century (H xxi; II 426-29). William and his Hanoverian successors were challenged most notably by the Jacobite rebellions of 1715 and 1745. See "Of the Protestant Succession," E 502-11.

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The critical difference, then, lies in the contrast between the "civilized nation ... vindicating its established privileges" and a "barbarous aristocracy." By rebelling, the Parliament and the people of 1688 were acting in accord with an established practice, but the practices of the fourteenth century offered no such rationale for Henry. Those practices were, at best, confused and disordered: "[O]n the whole it appears, that the government, at best, was only a barbarous monarchy, not regulated by any fixed maxims, or bounded by any certain undisputed rights, which in practice were regularly observed. The king conducted himself by one set of principles; the barons by another; the commons by a third; the clergy by a fourth. All these systems were opposite and incompatible" (H 16; 2: 284). Which set of principles prevailed at any given moment was dependent on which faction was the most powerful. In the fourteenth century, politics was simply a matter of power factions. The king, as such, had no power of his own; what power he had was the result of the prestige he had as a large landowner, as a charismatic and forceful leader, or as a member of an armed faction willing to support his sovereignty (H 14; 2: 179—Sos1)- Richard's real problem, then, was that he was not a strong and ambitious leader and that he did not command an impressive following. Yet the power of personal factions was not the whole of the practice: it was the reality, but not the ideology, of medieval politics. That ideology was based on the natural hierarchy, surmounted by the authority of the king, who was selected by the right of succession. Factions tried to manipulate the Crown, but the succession itself was considered, quite literally, sacred. It alone determined who should rule. Here, the everyday reality and the aspirations of the practice were in tension. Yet even Henry acknowledged the superior appeal of the right of succession: he refused to claim the throne by right of conquest, and he even tried to claim that he was in fact the rightful heir to the throne (H 17; 2: 321—22).5 2

We might expect Hume, who so often praises regular government, to point to the antecedents of the rule of law in fourteenth-century England as important elements in his analysis. But while Hume notes these changes^, he s1 The passage cited explicitly refers to the early fourteenth century, during the reign of Edward II, but it is fair to say that he thinks it applies equally well to the entire medieval period. s* Henry claimed to be the descendent of a son of Henry III, who, though older than Edward I, was passed over because he was an idiot. But, Hume says, even Henry recognized this claim to be an "absurdity" (H 17; 52: 321). 58 In particular, Hume notes that by the end of Edward I's reign in 1307, Parliament was an accepted institution, even if it frequently reversed itself as one set of barons gained or lost power (H 17; 2: 311) and even if did not regularly exercise much power (H 13; 2: 141-45). And he even points to the salutary effects of these antecedents to the rule of law. When, for example, Edward III set his mind to it and enforced the laws, he brought order to the kingdom and generated

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resists the temptation to read the history ideologically. In his view, even "regular" government was a matter of personality: during these times, laws could only be strictly enforced by kings who were themselves strong and who had the inclination to follow a rule of law. But Hume thinks the prospect of "regular" government was not yet of enough importance within the practice to justify a revolution. So Henry could not have found the support he needed in "regular" government, and since he had no legitimate claim to inherit the throne, no other principle in the practice could legitimize his rebellion; his revolt was, in fact, merely a conquest.54 William's claim, on the other hand, was based on rights and principles that had become established in the previous hundred years. While William's accession to the throne was deeply disturbing to many of the people, it was also seen as necessary to preserve the principles that had become as deeply embedded in the culture as the right of hereditary succession: the rights of people, Parliament, and Protestantism. Thus, while both Henry and William violated the strict rules of succession, William could justify that breach in the politics of the day, but Henry could not. Henry's claim to the throne was based solely on the power of his faction, but that was a claim that had no legitimacy, even within the turbulent practice of fourteenth-century politics. 4.

THE A S S E S S M E N T OF P R A C T I C E S

The contrast between 1399 and 1688 does not, then, lie in the structure of the situations, but in the detailed differences in the political practices. Hume's defense of Richard II and his condemnation of James II depend crucially on the nature of the practice of politics at the time: on the particular facts about the complexion of the current English government, the state of the nation, and the legitimacy of grievances against them. Hume suggests that these details popular support for his rule that proved crucial to his wars of conquest (H 15; 2: 189-90). Indeed, one of the benefits of the rise of the Commons during Edward's reign was that it regularly pressed for the laws to be strictly enforced (H 16; 2: 276-79). And Hume observes that "[i]f subjects would enjoy liberty, and kings security, the laws must be executed" (H 17 n.J; 2: 533). M In addition, Henry could expect bad results from his rebellion that William could ignore. Because he had no claim to the throne, Henry's rebellion undermined the entire foundation for the succession. Henry thus set up a plausible pretext for future rebellions: any malcontent could generate some support for his cause simply by arguing that he only sought to restore the throne to its rightful heir. Given the practice of politics of the time, such an argument was as easy to make as it was powerful. The parallel case against William, while still somewhat effective, was weakened by the other principles that were crucial to William's case. And, in fact, Henry's actions were not forgotten and so, in Hume's view, they led to the pointless conflicts of rival factions that eventually became the furious, yet fruitless, Wars of the Roses. See Hume's comment at H 21; 2: 427.

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matter, and they matter because the details themselves are significant to the judgments we should make. If, however, the subtleties of practices are important, then no account of political justification that ignores them is plausible. To reach these differing judgments about these revolutions, Hume looks to the history, the institutions, and the practices of England in the fourteenth and the seventeenth centuries. In both cases, Hume's assessment is guided by his attention to what he calls the "established practice": "In each of these successive alterations, the only rule of government, which is intelligible or carries any authority with it, is the established practice of the age, and the maxims of administration, which are at that time prevalent, and universally assented to" (H 23; 2: 525).** Once again, Hume overstates his case—there are few maxims that are "universally assented to"—but the thrust of his remark is clear: we should rely on the "established practice" as a guide in politics. But the "established practice" is not just what people think it is, as the example of 1399 demonstrates, nor is it what has always been done, as 1688 demonstrates. It encompasses all the institutions and expectations that surround politics, including the economic, technological, psychological, sociological, and cultural factors that are always in play and which may be changing faster than the actual institutions of government can accommodate. Because Hume relies on the "established practice" as a guide to politics, his view is "conservative" in the sense that it seeks to "conserve" the values and practices that have become established in a community. But it need not be conservative in the more traditional sense. Circumstances and practices change for reasons that have little to do with politics narrowly construed. And when they do, a new politics is required, and the Jameses can be toppled in favor of the Williams. Thus, Hume's "method"—such as it is—is to develop an understanding of the established practice of politics at the time and to place the particular situation in the cultural context in which the actors found themselves. Then, he judges their actions according to his understanding of what is best, given those practices. But even what is "best" is defined by the values of the practices: "In the particular exertions of power, the question ought never to be forgotten, What is best? But in the general distribution of power among the several members of a constitution, there can seldom be admitted any other question, than What is established?" (H app. 3; 4: 354). Here, Hume subordi55 The reference in this passage is to the alterations in government that occurred in the thousand years between the fall of the Roman rule in Britain and the death of Richard III, but his point is, I think, perfectly general. In "Of the Coalition of Parties" (E 493-501), Hume puts a similar argument in the mouths of the Tory opponents to the changes of the mid-seventeenth century. However, I think that he endorses that argument, since the point of the essay is to vindicate partially the Tories' position. See especially £ 495-99.

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nates questions of what is best to questions of what is established; what is best, he suggests, must be decided against a background of what is fixed at that moment in the culture. In 1688, what was "best" was defined in terms of civil liberty, while in 1399, it was defined by political stability. In a sense, "order" is preserved in both cases, and indeed Hume argues that we must respect the "established practice" or else "factions and dissentions must multiply without end" (H app. 3; 4: 355)—in other words, we should use it to help us avoid bloodshed. But his own judgments suggest that "order" is itself defined by the practice of politics. The "order" preserved by William III, with its free press, commercial confusion, and religious toleration, would have been considered anarchy at the beginning of the seventeenth century and worse in the fourteenth, while the "order" of Richard's England seems a brutal factionalism to Hume's age and to ours. Like the "sentiment common to all mankind," "order" has little content independent of its manifestation in particular social practices. Nevertheless, Hume thinks we can only begin to understand a political practice by realizing that the broad goals of any practice of politics are largescale social coordination, basic security, and basic justice. But these goals, too, are given much of their meaning in the particular conventions that surround them in a particular society, and so they are of little help to us until we understand those conventions. So, for example, despite the impression he gives in the Treatise, Hume does not think that basic justice requires the eighteenth-century conception of property rights.s6 He recognizes, for instance, that feudal property was a reasonable solution for the fragmented society that emerged after the fall of the Western Roman Empire (H app. 2; i: 456-61). So, by themselves, the broad goals that underlie any practice that we could recognize as politics offer us only limited assistance; what content they have drastically underdetermines any decision we need to make. To reach a judgment in any actual situation, then, we are forced to rely on other, more substantive values—like civil liberty—that are peculiar to particular social settings. We must understand, for example, that even though religious toleration is the "true secret for managing religious factions" (H 44; 2: 352), it was not "possible" during the reign of Charles I—even though it became not only possible, but desirable, in the reign of William III. Before the Civil War, such an act would have been seen as a sure way to undermine the unity of the society; in 1637, toleration meant anarchy (H 53; 5: 240). But after the Glorious Revolution, the Act of Toleration was passed and the very meaning—and thereby the s6 Maclntyre, especially, thinks that the account Hume gives of justice universalizes his parochial experiences. See After Virtue, 231.

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implications—of toleration had changed completely. The country had seen religious schisms and civil war and now found a way to secure social unity without religious unity.*? Thus, the meaning of political terms can change depending on the peculiar practices of a culture and on the perspective that is defined by its politics.^8 Justification, then, ultimately lies in contexts. A contextualist view like Hume's has wide implications for political theory. It can, for example, help us to rethink the foundations of liberalism and lead us away from the individualistic accounts of traditional liberals towards a more historically-minded and contextually-conscious defense. Indeed, such a view of liberalism has been suggested in the recent works of Rawls and Rorty .59 But while Rawls and Rorty only gesture towards history, Hume gives substance to a contextualist defense of liberalism in his account of the Glorious Revolution, which firmly established important liberal institutions in Britain, and he presents a model of contextualist justifications throughout the History. The Humean view, by placing the established practicle at its center, makes the cultural and political context the most important elements of any judgment about political change. In a way, it makes political theory more determinedly empirical: sociology and history—and the sociology and history of science, technology, economics, sports, and the arts—are much more important to our thinking about politics than abstract speculations about the "best regime." But coming from the man who attempted to "introduce the experimental Method of Reasoning into Moral Subjects,"60 such a thoroughgoing empiricism should not be surprising.61 Saint Louis University

w For an account of how the meaning of toleration and social unity changed in the seventeenth century, see Don Herzog, Happy Slaves (Chicago: University of Chicago Press, 1989), especially chapter 2. 58 For discussions of such conceptual shifts, see the essays in Political Innovation and Conceptual Change, edited by Terence Ball, James Farr, and Russell Hanson (Cambridge: Cambridge University Press, 1989). w See Rawls, "The Idea of an Overlapping Consensus," Oxford Journal of Legal Studies 7 (1987): 1—25, and "Justice as Fairness: Political not Metaphysical"; and Richard Rorty, Contingency, Irony, and Solidarity (Cambridge: Cambridge University Press, 1989), especially chapter 3. 60 From the subtitle to the Treatise. The title page reads, "A TREATISE of Human Nature: Being An Attempt to introduce the experimental Method of Reasoning into MORAL SUBJECTS." 61 This article owes a deep debt to the many people with whom I have discussed its general themes, and especially to Steve Darwall, Annette Baier, Don Herzog, Connie Rosati, Peter Railton, Elizabeth Anderson, Allan Gibbard, Andrew Vails, David Anderson, and Jennifer Kwon. I would also like to thank the anonymous referees for the Journal of the History of Philosophy for their comments on the penultimate draft. Early work on this material was supported by a fellowship from the Charlotte W. Newcombe Foundation.

[3] DAVID HUME AND THE CONSERVATIVE TRADITION Donald W. Livingston

A Ithough the Scottish philosopher jLlJDavid Hume (1711—76) is viewed by some as a significant figure in the conservative political tradition, many find his credentials problematic. They point to his skepticism, which appears to border on nihilism (J. S. Mill said that "regard for truth formed no part of his character"); or to his supposedly utilitarian theory of morals (Jeremy Bentham credited Hume with the origin of utilitarianism); and A. J. Ayer claimed him as the founder of logical positivism, which held that all metaphysical, religious, and value judgments are cognitively meaningless, expressing merely subjective feelings. These skeptical and positivistic strains, along with his supposed hostility to religion, seem to place Hume outside the conservative tradition. But these are spectacular misconceptions of Hume's philosophy.1 When corrected, Hume emerges not only as part of, but as a foundational figure in, the conservative tradition. Russell Kirk defined the conservative tradition as essentially a critique of ideology in politics, first exemplified in the French Revolution and first exposed and criticized in 1790 by Edmund Burke's eloquent Reflections on the Revolution in France. In Burke's view (and Kirk s) a normal or healthy political society reposes in

the enjoyment of inherited traditions and practices. The art of politics is to preserve these general arrangements and, when necessary, to correct them by recourse to principles already intimated in them. An ideological style of politics, however, imagines an alternative order of politics known by reason, entirely independent of tradition and expressed in a set of abstract principles. For the ideologue, the task of politics is to instantiate that alternative (and philosophically "correct") social order. If we take conservatism to be essentially a critique of ideology, then Hume must be counted as a founding figure in the conservative tradition because he was the first to launch a systematic critique of modern ideologies. The critique is grounded in a distinction Hume makes between "true philosophy" and "false philosophy" that was forged in his first work, A Treatise of Human Nature (1739-40), and that runs throughout all his writings, including his historical writings. What Hume calls "false philosophy" is what we would describe today as "ideology," a term unavailable to either Hume or Burke. DONALD W. LIVINGSTON is a professor of philosophy at Emory University. He has written Hume's Philosophy of Common Life (Chicago, 1984) and Philosophical Melancholy and Delirium (Chicago, 1998).

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HUME USES "philosophy" and "reason" to mean the same thing; so a critique of philosophy is also a critique of reason. But how can one distinguish between true and corrupt forms of philosophy (or of reason)? Such a critique would itself be another philosophical theory, and how could one know that the critique was not itself of the corrupt sort? This apparent inability of philosophy or reason to throw itself seriously into question led some to think that reason is a self-certifying guide to truth. Descartes, for instance, taught that the cause of error lies in the will, not the intellect. Philosophic reason, rightly conducted, is infallible. Hume, however, taught that philosophic reason contains within itself the seeds of its own corruption. How is this possible?2 According to Hume, the philosophical act of thought is structured by three principles: ultimacy, autonomy, and dominion. First, philosophical claims purport to provide an unconditioned understanding of what is thought to be ultimately real. Second, philosophy is autonomous, i.e., self-determining. The philosopher cannot (without ceasing to be a philosopher) defer to the pre-reflective authority of custom, tradition, or to the dogmas of priests and poets. Third, philosophical claims about the real, grounded in the philosophers autonomous reason, have a tide to rule over the domain of the pre-reflective. As Plato said, philosophers should be kings. What Hume discovered is that these principles of philosophic reason are incompatible with human nature. When cut loose from the authority of the prereflective, they are indeterminate and can establish no judgment whatsoever. But philosophers typically do not recognize this; instead, they secretly smuggle in their favorite prejudices from pre-reflective custom and pass them off as universal principles entirely free from the authority

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of custom. In doing so they deceive themselves and others. And since the aim of philosophical truth is self-knowledge, this form of philosophic reason is false in the sense of being self-deceptive. There is more. The false philosopher not only smuggles in a favorite part of custom in violation of the autonomy principle, but he spiritualizes that part into the whole of experience: "When a philosopher has once laid hold of a favorite principle, which perhaps accounts for many natural effects, he extends the same principle over the whole creation, and reduces to it every phenomenon, though by the most violent and absurd reasoning."3 Thales taught that all is really water; Proudhon that "property is theft"; Marx that all history is class struggle; Hobbes that love of others is really self-love. Here the philosophic act is engaged in world-inversion, what Hume calls "philosophical chymistry," i.e., alchemy. Just as the alchemist can transform base metal into gold, and King Midas could transform everything he touched to gold, so Proudhon can transform the inherited order of property into theft, and Marx all of history into class struggle. In so doing the false philosopher is a worker in black magic: "Do you come to a philosopher as to a cunning man, to learn something by magic or witchcraft, beyond what can be known by common prudence and discretion?"4 The true philosopher recognizes that philosophical reflection consistently purged of the authority of the pre-reflective leads to total skepticism. In this moment of despair, hubristic reason (structured by the principles of ultimacy, autonomy, and dominion) becomes impotent and utterly silent. It is only then that the philosopher can recognize, for the first time, the authority of that radiant world of pre-reflective common life in which he has his being and which had always been

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a guide prior to the philosophic act. This recognition is gained not by argument (for total skepticism renders all argument silent) but through despair. Moved by this recognition, the true philosopher rejects the autonomy principle (which had presumed the domain of the pre-reflective to be false unless shown otherwise), and replaces it with what we might call "the autonomy of custom": that the pre-reflective is to be presumed true unless shown otherwise. To show otherwise is to criticize a particular belief or practice in the light of standards and ideals already intimated in custom and coherent with the whole. Hume concludes that "true philosophy" is nothing but "reflections of common life, methodized and corrected."5 The principle of dominion is also rejected. Theory based on the autonomy principle loses its title to rule since the philosopher (if he is to inquire at all) now acknowledges the authority of custom as a whole. But the principle of ultimacy remains. Philosophical inquiry is still about what is thought to be ultimate reality, though now purged of the hubris of the autonomy principle. What the stages of Hume's dialectic reveal is that no one is a philosopher unless he instantiates the principles of ultimacy, autonomy, and dominion; but no one is a true philosopher unless he comes to see that those principles are incoherent with human nature. In short, no one can be a true philosopher who has not passed through the fire and despair of false philosophy, an insight achieved only through dialectical reasoning: "In considering this subject we may observe a gradation of three opinions that rise above each other, according as the persons who form them acquire new degrees of reason and knowledge. These opinions are that of the vulgar [the pre-reflective], that of a false philosophy, and that of the true; where we shall

find upon enquiry, that the true philosophy approaches nearer to the sentiments of the vulgar, than to those of a mistaken knowledge."6 Contrary to Mill and many others, Hume was not a nihilistic skeptic. Total skepticism is only a moment in the dialectic of true and false philosophy and one that necessarily follows from the autonomy of philosophy which denies authority to the pre-reflective. Since true philosophy teaches that custom is presumed true unless shown otherwise, Hume can have no a priori objection to religion, even revealed religion, if it can be made coherent with other primordial beliefs in common life. Many forms of revealed religion fail to meet this test, but Hume thought that basic theism (the belief that the universe is the work of a single purposive intelligence) is not only coherent with our deepest natural beliefs but is actually presupposed by them. Because of this, Hume held that no reasonable person could seriously deny the tenets of basic theism, even if he might do so in words. D'Holbach and other atheistic friends in Paris found this amusing, and Hume remarked how they "used to laugh at me for my narrow way of thinking in these particulars." Sir James McDonald, writing from Paris to a friend in England, could speak of "poor Hume, who on your side of the water was thought to have too little religion, is here thought to have too much."7 HUME'S CRITIQUE of natural religion is not a rejection of sacred religious tradition as such but of rationalistic theorizing in religion. Speaking through an imaginary Athenian, Hume says: "The religious philosophers, not satisfied with the tradition of your forefathers, and doctrine of your priests (in which I willingly acquiesce), indulge a rash curiosity, in trying how far they can establish religion upon the principles of reason; and they

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excite, instead of satisfying, the doubts, which naturally arise from a diligent and scrutinous enquiry."8 Hume sought professorships at the universities of Glasgow and Edinburgh. Had he secured them, he would have had to sign the Westminster Confession of Faith, attend church, and lead students in prayer at Glasgow. He was prepared to carry out these duties. Whatever Hume's personal views might have been, like the ancient philosophers, he was prepared to participate in the sacred rites and teachings of the established religion.9 In the Treatise Hume wrote, "Generally speaking, the errors in religion are dangerous; those in philosophy only ridiculous," but he added that this difference was a contingent one.10 He observed that philosophers in the ancient world (each implacably insisting on his own worldinverting system) were more fanatical than the devotees of pagan religion. So why has modern religion been the scene of fanaticism, persecution, and war? Hume's answer is unexpected and quite different from that offered by his Enlightenment colleagues. When Christianity first appeared it was not a theory rooted in the thinker's autonomy; it was instead a story grounded in a sacred tradition. But it soon incorporated Greek philosophy and began to justify itself philosophically in the form of theology, and this would eventually turn Christendom into an unstable compound of sacred tradition and philosophic autonomy. What made Christianity a scene of war and persecution was not its sacred tradition, but rather the transformation of that tradition by false philosophy into sects of implacable world-inversions. It was false philosophy among the ancients that had made philosophy more fanatical than pagan religion. Philosophy, however, posed no threat to ancient society because it was practiced by only a few—its doctrines were not attractive

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to the vulgar—and because it was tightly controlled by the pagan political authorities, as Socrates and Aristotle discovered. But in Christendom all Christians were theologians, and as such, practiced sublimated forms of the philosophic act. Just as ancient philosophers were constrained by the pagan magistrate, so sacred Christian tradition kept the philosophic act on a short leash: philosophy was the hand-

Philosopher of the conservative tradition maiden of sacred tradition. But philosophy would become impatient with this role, and by the seventeenth century would break free from its control by sacred tradition in an act that would come to be known as the Enlightenment. The Catholic philosopher Descartes would revive the radical autonomy of pagan philosophy in terms even stronger than the pagans had conceived it, by laying down as a principle of reason that the whole domain of custom should be presumed false unless shown otherwise. Since all Christians possessed a sublimated philosophical consciousness, many

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greeted emancipated philosophy as something with which they had been, in some way, long familiar. For the first time in history, a mass consciousness informed by the philosophic act would appear on the scene—despite Descartes' insistence that his rationalist method applied only to mathematics, physics, and metaphysics, and should not be applied to morals and politics. Henceforth, partisan political disputes would not be negotiable conflicts over practical interests, but non-negotiable conflicts between the seamless worldinversions of the philosophic act: "Parties from principle, especially abstract speculative principle, are known only to modern times, and are, perhaps, the most extraordinary and unaccountable phenomenon that has appeared in human affairs."11 Enlightenment philosophers welcomed the liberation of philosophical autonomy and sought to make it popular. Not having passed through the fires of Hume's dialectic of true and false philosophy, they did not realize that the philosophic act might contain a source of corruption internal to itself. Hume taught that the tendency of philosophy is to its corrupt forms and that true philosophy is rare. The philosophic act in politics would inevitably display itself in corrupt forms. No political party "in the present age," he said, "can well support itself, without a philosophical or speculative system of principles annexed to its political or practical one." But the people are "commonly very rude builders, especially in this speculative way, and more especially when actuated by party-zeal," so it is natural that "their workmanship must be a little unshapely, and discover evident marks of that violence and hurry, in which it was raised."12 Hume was a critic of the errors of religion, but he did not think matters would be improved should mass secular philosophical movements replace religion as the dominant form of culture.

Hume presents us with the paradoxical teaching that what made Christendom the scene of "religious" wars was not conflict over sacred stories but the spiritualization of them into corrupt forms of the philosophic act. By the seventeenth century the more radical Protestant sects were virtually indistinguishable from instantiations of philosophic autonomy. Self-certifying Protestant "enthusiasm" is isomorphic with self-certifying philosophical autonomy. Consequently, Hume held that Puritanism, "being chiefly spiritual, resembles more a system of metaphysics" than a religion. And he compares it unfavorably with "the Catholic religion" which, adapting itself to the senses and enjoining observances which enter into the "common train of life," is not as inclined to total alienation from the pre-reflective order and is, consequently, more reasonable.13 Hume thought that religion in his own time had become "nothing but a species of philosophy."14 Whereas we tend to see secular ideologies such as Marxism, liberalism, and nationalism as forms of religion, Hume viewed modern religious fanaticisms as disordered forms of philosophy. Religion and philosophy spring from different dispositions: religion, from fear of unknown causes and humility; philosophy, from curiosity, pride, and love of dominion. The former issues in a tradition to guide society; the latter in a theory (entirely emancipated from tradition) to guide society. Their union (and tension) in Christendom created a dynamic civilization.15 THE FIRST instance of modern ideology in politics was the Puritan Revolution. Puritanism was false philosophy in a religious idiom. By the end of the seventeenth century rationalist secular ideologies would emerge. By 1771 Hume thought the religious idiom had been driven from

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the political scene: "Factious [political] prejudices are more prevalent in England than religious ones," he wrote.16 In 1843 Marx could observe to Arnold Ruge that "philosophy has become secularized, and the striking proof thereof is that the philosophical consciousness itself has been pulled into the torment of struggle. . . . What we must accomplish is the ruthless criticism of all that exists."17 Of the philosophic superstitions that were replacing religious ones, Hume singled out three for criticism: the contract theory of government, moral rationalism, and ethical egoism. In "Of the Original Contract," Hume argues that the origin of government cannot be explained by a contract because contracts presuppose the existence of government to enforce them. Furthermore, if "consent" is taken in its ordinary sense, hardly any government has been based on consent. If, on the other hand, we stretch "consent" to include "tacit consent," then any regime that is obeyed is based on consent. The contract theory is a philosophic superstition that occludes political reality and distorts true prudential judgments about it. Another philosophical superstition is moral egoism. Here, self-interest is spiritualized by "philosophical chymistry" into the whole of moral experience. That human beings are motivated by love of others is held to be an illusion. These philosophers "unmask" everything that has "hitherto appear'd sacred and venerable in the Eyes of Mankind. Reason, Sobriety, Honour, Friendship, Marriage are the perpetual subjects of their insipid Raillery: And even public Spirit, and a regard to our Country, are treated as chimerical and romantic." Hume calls these new vulgar philosophers "Anti-reformers" because they are interested not in a genuine understanding of experience but in the worldinversions of false philosophy.18

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Finally there is moral rationalism, which was to have a long and influential history, especially in the form Kant gave to it. In this view, morality has nothing to do with prudential judgments about the formation of virtuous character but only with conduct that satisfies universal and necessary relations between abstract propositions. Hume laid bare the fatal flaw in moral rationalism: either the abstract rules are truly emancipated from the whole of custom, in which case they are indeterminate and incapable of guiding any conduct, or, if content is illegitimately smuggled in from a favorite part of custom, they are arbitrary because not critically examined in light of the whole of custom: "[M]orality consists in the relation of actions to the rule of right. . . . What then is this rule of right? . . . How is it determined? By reason, you say, which examines the moral relations of actions. So that moral relations are determined by the comparison of action to a rule. And that rule is determined by considering the moral relations of objects. Is not this fine reasoning?"19 Nor is Hume a utilitarian in ethics, as Bentham and many others have maintained. Utilitarianism locates moral worth in the consequences of an action. Hume teaches that moral worth is in the motive of the act, which in turn springs from character. Morality for Hume, as for Aristotle and Cicero, is a matter of character formation, and the task of true philosophy is to provide a rational (as opposed to a rationalistic) ideal of human excellence. Hume's ideal combines the Christian virtue of extensive benevolence (humanity) with the pagan virtue of greatness of mind (honor), and is exemplified in an imaginary character called "Cleanthes," who is "a man of honour and humanity," a "character" that "a philosopher might select. . . as a model of perfect virtue."20

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Hume was at odds with the Whig establishment of his time, which subscribed to the contract theory of government (a form of false philosophy) and "ancient constitutionalism" (a false history). The latter taught that liberty is a unique possession of the English national character due to an unchanged constitution stretching back to the Saxon forests. Hume thought this history nourished a chauvinistic and aggressive English nationalism that threatened liberty, and he wrote The History of England largely to refute it. He showed that there had been at least four distinct constitutions in English history and that each was more the result of unintended consequences and contingencies than of efforts to defend any pre-existing, "ancient" constitution. Thomas Jefferson possessed many attributes of Humean "true philosophy," but he was also inclined to philosophic rationalism and to "ancient constitutionalism." Consequently, he saw Hume's History of England (which was critical of Puritan republicanism) as a threat to the American republic. "This book," he said, "has undermined free principles of the English government . . . and has spread universal toryism over the land."21 He accordingly banned Hume's History from the University of Virginia. Yet Jefferson did not understand just what a republican Hume was. Hume taught that civilization began, and had to begin, in small, barbarous republics. He thought monarchies could be superior to republics, but only because they had learned the rule of law from republics. Further, he found intimated in modern European civilization the model of an ideal republic which he formulated in the 1752 essay "Idea of a Perfect Commonwealth." There, Hume rejected the long tradition that republics had to be small and was the first to work out a constitu-

tion for a large-scale republic: something Americans would be the first to try putting into practice.22 Hume supported independence for the colonies as early as 1768, even before Jefferson had come to that view. He was the only major British thinker to support American secession from the British empire. True, there were "friends of America," who urged "concessions" to the colonies—Edmund Burke, William Pitt, Isaac Barre, John Wilkes, Adam Smith—but ultimately, all of them wanted to maintain the empire. Hume's friends were shocked when he refused to write a letter to the King asking for strong measures against the Americans. He replied: "Besides, I am an American in my Principles and wish we would let them alone to govern or misgovern themselves as they think proper."23 It is noteworthy that Jefferson and Hume agreed on the evils of public credit. Mortgaging future revenues enabled the state to finance wars and patronage projects without having to levy taxes for them. This led to a transfer of wealth from regional and local authorities to holders of paper who would have no interest in the nation and "who can enjoy their revenue in any part of the globe in which they chuse to reside, who will naturally bury themselves in the capital or in great cities, and who will sink into the lethargy of a stupid and pampered luxury, without spirit, ambition, or enjoyment. Adieu to all ideas of nobility, gentry, and family."24 Hume—like Jefferson, Tocqueville, Calhoun, and Acton—did not think of liberty as merely a matter of individual rights. He also recognized the right of independent social authorities. These constituted for Hume "a kind of independent magistracy in a state, instituted by the hand of nature." He defined &free state as one composed of a number of independent social authorities recognized to have

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constitutional status, such as the Lords, Commons, Church, and Crown in England or the states in the American federation. Since encroachments were inevitable, Hume, like Jefferson, taught a doctrine of frequent resistance: "In such mix'd governments, the cases, wherein resistance is lawful, must occur much oftener, and greater indulgence be given to the subjects to defend themselves by force of arms, than in arbitrary governments."25 The resistance described here is not Hobbesian or Lockean revolution but lawful constitutional resistance. Hume puts it this way: "As matter wou'd have been created in vain, were it depriv'd of a power of resistance, without which no part of it cou'd preserve a distinct existence, and the whole might be crowded up into a single point: So 'tis a gross absurdity to suppose, in any government, a right without a remedy, or allow, that the supreme power is shar'd with the people, without allowing, that 'tis lawful for them to defend their share against every invader."26 This is of a piece with Jefferson's natural law doctrine of frequent resistance, and his view expressed in the 1799 Kentucky Resolutions that an American state can lawfully "nullify" unconstitutional acts of the central government and if necessary lawfully secede from the Union.27 Likewise, Hume saw secession of the colonies as a natural evolution of American society. How so? The English colonies planted under James I, he said, were "established on the noblest footing that has been known in any age or nation." By this he meant that the Crown left them alone to govern themselves. Over thirty years before the Declaration of Independence, Hume wrote, "the Charter Governments in America are almost entirely independent of England."28 So it is not surprising that by 1768 he could welcome American independence. In so doing, he

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did not need to invoke what he would surely have considered the philosophic superstition of abstract inalienable rights that Jefferson wrote into the Declaration of Independence. I HAVE argued, following Russell Kirk, that conservatism is a critique of ideology in politics, or what Oakeshott called "rationalism in politics," and that Hume was the first to offer a systematic philosophical critique of ideology. He was also the first to explore its dynamic in an historical event. In The History of England, he treats the Puritan Revolution as a violent intrusion of false philosophy into politics, albeit one cast in a religious idiom: "The gloomy enthusiasm, which prevailed among the parliamentary party, is surely the most curious spectacle presented by any history, and the most instructive, as well as entertaining, to a philosophical mind."29 Instead of questions of prudence, debates in Parliament were spiritualized by false philosophy into implacable metaphysical oppositions. A "popular assembly, enflamed with faction and enthusiasm," pretended to discuss "questions, to which the greatest philosophers, in the tranquility of retreat, had never hitherto been able to find any satisfactory solution."30 Speculative theological and philosophical controversies soon spread throughout the nation by means of the pulpit, and "every man began to indulge himself in political reasonings and inquiries." London became a "furious vortex" of speculative "opinions and principles, which had transported the capital."31 Even learning and virtue were transmuted "into the most virulent poison." Instead of reforms, demands were made for a total transformation of the world. The Crown could do nothing to placate "the endless demands of certain insatiable and turbulent spirits, whom nothing less

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will content than a total subversion of the ancient constitution."32 Accordingly, "the bands of society were everywhere loosened, and the irregular passions of men were encouraged by speculative principles, still more unsocial and irregular."33 Speculative opinions informed "all business" and "every discourse or conversation."34 "Every man had framed the model of a republic; and however new it was, or fantastical, he was eager in recommending it to his fellow citizens, or even imposing it by force upon them."35 The Puritans fractured into more radical sects: the Independents, the Quakers, Millenarians, Fifth Monarchists, and so forth. These thought themselves "dispensed from all the ordinary rules of morality, by which inferior mortals must allow themselves to be governed."36 As false philosophy became a habit, "nothing remained to confine the wild projects of zeal and ambition. And every successive revolution became a precedent for that which followed it."37 Simple pleasures were transmuted into crimes. Ministers, magistrates, and the Bible itself were no longer needed by those into whose hearts Christ had descended. Christians no longer had to pay rent to their equals. A Quaker woman walked into Cromwell's presence naked because clothes are no longer needed for the saints.38 The Puritan Revolution cast a grim shadow over monarchical and ecclesiastical Europe for over a century. Hume's was the most popular account, especially in France, where more editions of the History were published than in England. By 1789 the French had been reading Hume for some thirty years. Hume's account of the Puritan Revolution was used as a template to understand the French Revolution as it unfolded. Endless parallels were drawn between the two revolutions in speeches given in the National Assembly, in pamphlets, and in sermons.39 The

Catholic Right celebrated Hume's defense of tradition and reform and noticed the generous remarks made in the History about Catholic and Anglican respect for tradition as opposed to the abstract philosophy of Puritanism. The latter leads to melancholy self-absorption and hubris, whereas a liturgical religion allows the mind to "relax itself in the contemplation of pictures, postures, vestments, buildings, and all the fine arts, which minister to religion."40 Puritan ideologues were identified with the Jacobins; Charles I with Louis XVI; Cromwell with Robespierre and/or Napoleon. And since Hume was known to be a skeptic from a Protestant background, his judgments were all the more valuable because they could not be dismissed as Catholic. Some even called him "the Scottish Bossuet."41 Catherine Macaulay's whiggish History of England (1763—82) was written to subvert Hume's "anti-republican" account of the Puritan Revolution. Hume wrote a letter to Macaulay trying to explain the difference between reform and the worldinverting act of false philosophy—and how dangerous the latter could be if it informed political life. His letter apparently made no impression, for Macaulay later wrote a pamphlet attacking Burke's Reflections and praising the French Revolution.42 Madame Roland, who had the ambition of becoming the Catherine Macaulay of France, helped promote a French translation of her History that she hoped would counter Hume's influence in France. But Madame Roland was killed by the Revolution she did so much to support and is famous for lamenting, as she faced the guillotine, "O Liberty, what crimes are committed in thy name."43 Neither she nor Macaulay understood how the world-inversions of false philosophy can transmute liberty into tyranny and tyranny into liberty.

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A century-and-a-half later, after an ocean of blood had been spilled in ideological wars and totalitarian revolutions, others would reach insights similar to Hume's. Writing at the height of the Cold War, Albert Camus could say: "There are crimes of passion and crimes of logic." We are "living in the era of the perfect crime," and our criminals have "a perfect alibi: philosophy, which can be used for any purpose—even for transforming murderers into judges On the day when crime dons the apparel of innocence through a curious transposition peculiar to our times—it is innocence that is called upon to justify itself."44 Camus' "curious transposition" is just what Hume, two centuries earlier, called "philosophical chymistry." Hume was introduced to the future Louis XVI at court when Louis was a boy, and recalled that the young prince praised his History. As the Revolution advanced, Louis became obsessed with the parallels between the two revolutions. Upon receiving the death penalty, the King's secretary recorded that he asked for Hume's account of Charles' trial and execution to be read in the days he had left. And there is reason to think that he patterned his conduct at the trial and at the guillotine on the noble bearing of Charles I as drawn by the masterful pencil of Hume.45 IF CONSERVATISM is a critique of ideology in politics, then it can be said that Hume, not Burke, was the first conservative because he was the first to work out a systematic philosophic critique of ideology. When Burke looked at what was happening in France in 1789, he saw the beginning of a whole drama that Hume's history of the Puritan Revolution had prepared him to see. Burkes Reflections tried to convince the whiggish English that the French Revolution was not a reform movement but a

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spiritual pathology. But Hume's History had been doing the same thing in France before the publication of Burkes book. It seemed to some in France as if Hume had already written the history of what they were living though. Thus, one of the founders of French conservatism, Joseph de Maistre, titled the last chapter of his famous Considerations sur la France (1796), "Fragments of a history of the French Revolution by David Hume." Hume's History also influenced another founder of French conservatism, Louis de Bonald.46 Hume's dialectic of true and false philosophy also traveled well in Germany. It awakened Kant, as he said, "from his dogmatic slumbers" (though only partially, because Kant never could emancipate himself from moral rationalism). Hume also had a considerable influence on the rise of a German conservatism springing from the thought of Johann Hamann and Friedrich Jacobi. The history of Hume's influence on Continental conservatism has yet to be written. Burke's conservatism is rooted in eloquence. He inveighed against "metaphysical scribblers" and celebrated "wisdom without reflection," but he did not explain how "wisdom without reflection" can generate rational criticism. A conservatism of the heart, though not to be despised, leads to a romantic, nostalgic view of tradition as a refuge from philosophical reflection. De Maistre left France for Russia hoping, as he said, "to find a country not scribbled on by philosophy." What he found instead was an intelligentsia thoroughly taken with the French Enlightenment. Hume described his own age sarcastically as "this philosophic age." There had never been an age in which the philosophic act, unrestrained by religious tradition, was the dominant form of culture. But, as Hume was one of the first to see, we live in such an age. Henceforth, there can be

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no country not "scribbled on by philosophy." In such a world, conservatism, if it is to have substantial meaning, must be a critical philosophical engagement, and for this project, Hume has more to teach us than Burke. 1 See John Stuart Mill, review of Brodie's History of the British Empire in The Westminster Review 2 (1824), 14. For Hume as founder of positivism see A. J. Ayer, Logical Positivism (Glencoe: The Free Press, 1959), 4. For an alternative view of Hume and a systematic interpretation of his conception of philosophy and his critique of ideology, see Donald W. Livingston, Hume's Philosophy of Common Life (Chicago: University of Chicago Press, 1984), and Philosophical Melancholy and Delirium (Chicago: University of Chicago Press, 1998). The latter work thoroughly discusses Hume's distinction between true and false philosophy and the place of philosophic reason in culture. Both works argue that the standard view of Hume as an "empiricist" is understandable but mistaken. 2 I explore Hume's distinction between true and false philosophy in Philosophical Melancholy and Delirium. See especially chapters 2 and 12. 3 David Hume, Essays Moral, Literary, and Political, ed. Eugene Miller (Indianapolis: Liberty Classics, 1985), 159. 4 Ibid., 161. 5 David Hume, Enquiries Concerning Human Understanding and Concerning the Principles of Morals, ed. L. A. Selby-Bigge (Oxford: Clarendon Press, 1975), 162. 6 David Hume, A Treatise of Human Nature, ed. L. A. Selby-Bigge (Oxford: Clarendon Press, 1978), 222-23. 7 Quoted in E. C. Mossner, The Life of David Hume (Oxford: Clarendon Press, 1970), 483-86. 8 Enquiry Concerning Human Understanding, 135. 9 Roger Emerson, "The 'affair' at Edinburgh and the 'project' at Glasgow: The politics of Hume's attempt to become a professor," in Hume and Hume's Connexions, ed. M. A. Stewart and John Wright (Edinburgh: Edinburgh University Press, 1994), 16. That Hume's philosophical reflections on religion

are complicated is discussed in Philosophical Melancholy and Delirium, chapters 3 and 5. 10 Treatise, 272. 11 Essays, 60. Hume's italics. 12 Ibid., 465-66. 13 David Hume, The History of England, From the Invasion of Julius Caesar to The Revolution in 1688, 6 vols. (Indianapolis: Liberty Classics, 1983), 4:14. 14 Enquiry Concerning Human Understanding, 146. 15 See Philosophical Melancholy and Delirium, chapters 3, 5, and 9. 16 The Letters of David Hume, 2 vols., ed. J. Y. T. Greig (Oxford: Clarendon Press, 1969), 2: 223. 17 Karl Marx, Karl Marx on Revolution, ed. & trans. Saul K. Padover (New York: McGraw Hill, 1971), 516. For a discussion of Hume's critique of ideology see Philosophical Melancholy and Delirium, chapters 9 and 10. For his break with Rousseau, 244-55. 18 Essays, 538; for Hume's critique of "the selfish system," see Appendix II, "Of Self-Love," in Enquiry Concerning Human Understanding. 19 Enquiry Concerning the Principles of Morals, 289. 20 Ibid., 269-70. 21 Quoted in Craig Walton, "Hume and Jefferson on History," in Hume: A Re-Evaluation (New York: Fordham University Press, 1976), 393. 22 On republicanism and civilization see in Hume's Essays, "Of the Rise and Progress of the Arts and Sciences," and "Of Civil Liberty" See also "True Philosophy and Civilization" and "False Philosophy and Barbarism" in my Philosophical Melancholy and Delirium', also in this work, see "Hume and America" for a study of Hume's republicanism and the American regime. 23 Letters, 2:184, 210, 303. See also "English Barbarism: Wilkes and Liberty!" "English Barbarism: The Poor Infatuated Americans," and "Hume and America" in Philosophical Melancholy and Delirium. 24 Essays, 357-58. 25 Treatise, 564. 26 Ibid. 27 Thomas Jefferson, letter to W. Crawford, 20 June 1816 in The Writings of Thomas Jefferson, ed. Albert Bergh (Washington, D.C.: Thomas Jefferson Memorial Association of

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David Hume Donald W. Livingston * DAVID HUME AND THE CONSERVATIVE TRADITION the United States, 1905) 15:27. 28 "Hume's Early Memoranda 1729-1740: The Complete Text," Journal of'the History of Ideas 9 (1948), 504. 29 History, 6:142. 30 Ibid., 5:211-12. 31 Ibid., 5:378, 380. 32 Ibid., 5:321. 33 Ibid., 6:4. 34 Ibid., 5:348. 35 Ibid., 5:3. 36 Ibid., 5:514. 37 Ibid., 5:492. 38 Ibid., 6:4,145, 288, 546, 547. 39 For a fascinating examination of Hume's influence in the French Revolution on the Right

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and Left, see Lawrence Bongie, David Hume: Prophet of the Counter-Revolution (Oxford: Clarendon Press, 1965). 40 History, 5:459-60. 41 Bongie, 30. 42 Catherine Macaulay, Reflections of the Right Hon. Edmund Burke, on the Revolution in France, in a Letter to the Right Hon. Earl of Stanhope (1790). 43 Bongie, 119. 44 Albert Camus, The Rebel (New York: Vintage Books, 1956), 23. 45 Bongie, 120-26. 46 Ibid. For Hume's influence on French counter-revolutionary thought, see Bongie, especially 158-72.

[4] The Public Interest vs. Old Rights JOHN B. STEWART

Both Donald W. Livingston and I engage in retrospective labelling. I present David Hume as one of those who helped create the British political movement known initially as Reform Whig and later as Liberal. By his ardent advocacy of commerce, by his attack on protectionism, by his indifference to empire, by his debunking of the inherited constitution, by his efforts to make philosophers and politicians focus on the public interest, and by his denunciation of "religious Whiggery," Hume, I submit, helped create the Liberal reform program. Those who opposed that program, and called themselves Conservatives, saw it as starting yet another battle, perhaps the last great battle, in the long war between Old England, the England of squires and the Church, and the urban commercial interests, with their large nonconformist component. The reforms, some Conservatives said, really were deforms inspired by the kind of thinking behind the French Revolution. If in 1834—when Queen Adelaide expected to share the fate of Marie Antoinette—a philosopher had told a Conservative meeting that their opponents' measures were conservative and ought to be supported, there would have been much shaking of heads and dark muttering. In terms of British political history, that program was liberal, not conservative. But let us go higher, for Livingston's distinction is between conservatism and "foundational liberalism." Conservatives, he says, defer to inherited beliefs and customs; they see false philosophy as the enemy of such beliefs and John Stewart is at The Senate of Canada, 140 Wellington Street, Ste. 801, Ottawa, Ontario K1A OA4 Canada,

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customs. Now, since "foundational liberalism" is a form of false philosophy, and since Hume was the first to expose false philosophy, we can call him the first conservative philosopher. Because conservatives defer to the inherited way of life, one can live the liberal way of life, Livingston tells us, and still be a conservative. How helpful is this distinction at the level of common politics and history? Who was conservative, Charles I or the revolutionaries who sought to restore "the ancient constitution"? Were those who defended the status quo with Divine Right arguments conservatives? Was the American Revolution tainted by metaphysical ideas popularized during the Puritan Revolution? Do the High Church electors of Oxford University who voted against Peel in 1829 on Catholic Emancipation qualify as conservatives? Did those who called themselves Conservatives in the 1830s merit that name? Does David Hume qualify? Livingston states two criteria. The first is denial of the validity of moral rules emanating from sources outside common life. He tells us that all who make this denial are conservatives, and that Hume, unlike "foundational liberals," made it, indeed was the first to make it. The second criterion, which Livingston presents, not as discrete, but as a consequence of the first, is recognition that the narrative order is the only legitimate order. This criterion has two branches. Of these the first is exclusive reliance on a certain process of change. Always the presumption favours the status quo: it is established; it is regarded as right by the people. Yet legitimate change is possible. This takes place by, only by, the evolutionary, case-by-case method. If a new requirement arises, the principles of the prevailing order are applied to it, and a statement of what is right relevant to that requirement is made. Step by step, incrementally, the society's beliefs about what is right are modified. Thus a new status quo gradually takes shape on the loom of time. Implicit in this insistence on no change except by concatenation is the second branch of Livingston's second criterion, namely that there is no best social order. Mislead by having transferred to property a statement made by Hume about right to govern, Livingston writes: Conflict over particular claims to property or over established property rules are settled by reference to other established property rules. Grievances are settled by the established rules, and by virtue of retrospective narrative associations the settlement changes the interpretation of the rules. Such changes may lead to a gradual evolution of new rules and eventually to an entirely different narrative order. Evolutionary reform, then, is not only possible in Hume's system, it is internal to the narrative imagination and, consequently, to the moral world which the imagination weaves into existence.1 Changes in rules, laws, and institutions made in this way are conservative

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changes. The conservative believes that what is established as right is what is good, and that only those changes consistent with what is right at any particular time can be called legitimate. This theory, the theory attributed to Hume by Livingston, is similar to the traditionalism used by Edmund Burke in his attempt to repulse French thinking, and which, as J.G.A. Pocock has shown, was the theory of the common-law lawyers. If Livingston is correct, Hume held a theory very much like that of the English lawyers.2 My submission is, first, that while Livingston's distinction between historical rights and "foundational rights" is formally valid—the sources of these two kinds of rights are different—that distinction has no necessary effect on the content (or substance) of rights. For example, does the rhetoric of a revolutionary determine the content of the "justice" he demands? In fact, Livingston's two kinds of arguments, the historical and the metaphysical, often were blended. The political Puritans, for example, sought to recover the ancient rights of Englishmen; in addition, some said that those rights were theirs by natural or divine law. The lawyers talked their own language, and the philosophers theirs; so too the divines. In sum, the fact that Hume holds metaphysicians in scorn may have no consequences for common life, as Livingston recognizes when he says that it is possible for those who formally are conservatives to be liberals in substance. This means that Livingston's second criterion is the one that counts. Hume, I submit, fails both branches of that criterion. He thinks like a philosopher, not like a lawyer. He is ready, eager, to put prejudices, precedents, and customs to the test. Are the old beliefs true? Are the old customs best?

The Knowledge of the Wise When Hume refutes the pretence of "reason alone" to prescribe moral rules, he is not dismissing reason; rather, he is restricting it to its proper role. Reason alone is insufficient because it neglects the passions. The advocates of reason alone, forgetting that reason is concerned with means, not ends, leave out love of families and friends, ambition, avarice, the effects of sympathy, the effects of habit and familiarity, even the sense of moral obligation. They present us with individuals, with units, but each of their individuals is a blank. They do not tell us what those individuals find good. Hume analyzes the nature of real individuals in "Of the Passions," and the shape of his ideal society follows directly from what he tells us therein. The great cause of conflict is the short supply of external goods. Reason provided the answer: private property. But often the external goods are not distributed in the most useful way compatible with private property. Again, reason showed the answer: trade by barter or contract. Similarly, in large societies, reason showed that government is the appropriate means for assuring that justice is respected. About the

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institutions of civil society Hume is neither vague nor tentative. He calls those institutions "artificial/1 not because they are arbitrary, but because they are means (utilities) devised by reason; unlike the family, for example, they are not good per se. Livingston says that the main discovery of Hume's critique of philosophy is that philosophy is parasitic upon "an unreflective order variously described as habit, custom, convention, prejudice, and common life." Here Livingston tells only half the story. It is true that mankind did not wait for philosophers to prescribe property, contract, and government any more than peasants waited for agronomists to tell them how to plant corn, or shipbuilders for Huygens. But it is also true that many of the beliefs on which the "bulk of mankind," the vulgar, base their practices and customs are erroneous; those beliefs do not conform to the "authentic operations of the understanding" (T 150). Error is far commoner in some subjects than in others. For example, knowledge of what works best in hunting is far easier to achieve than knowledge of what works best in agriculture, "a profession, which, of all mechanical employments, requires the most reflection and experience."3 Again, it is far easier for rulers to learn how to maintain domestic peace than to discover the best economic policy: The more simple ideas of order and equity are sufficient to guide a legislator in every thing that regards the internal administration of justice: But the principles of commerce are much more complicated, and require long experience and deep reflection to be well understood in any state. (HE III 74) The function of moral philosophy, Hume tells us, is to improve our understanding of moral subjects, thus entertaining, instructing and reforming mankind.4 Let us recall what Hume means by the experimental method. When we say that we understand some physical or moral reality, we mean, says Hume, that we know its causes and/or its effects. If we say that some result or outcome came about by chance we are admitting our ignorance as to the cause(s) of that result or outcome. All understanding has its origin in experience and reflection; even young children and animals use the experimental method. It is the only source of valid beliefs and opinions. How then do we explain the many false beliefs which bedevil subjects such as agriculture, economics, and politics? Some errors have their origin in "metaphysical" thinking. But others have their origin in carelessness, as when we jump to conclusions, permit our thinking to be corrupted by prejudices, or are misformed by bad education. Still others originate in indolence, in a lazy or complacent reliance on conventional wisdom, or in contempt for abstruse thought. Hume contends that the experimental method ought to be used to screen out old errors and to achieve new knowledge.

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One reason for trying to understand the moral subjects is to be able to predict the consequences of policies, laws, and institutions, and thus to be able to adopt the best. But here, Hume tells us, we must not be unrealistic. As long as we stick to subjects in which one person or a few do not determine or distort the results we can predict with confidence if we really understand the subject. For example, we can predict the effects of a trade monopoly or an oligarchic constitution. But we cannot expect to predict with any great accuracy about battles or diplomacy, matters in which particular causes—the ability, humour, or attitude of one person or a few—can be decisive. Introducing his explanation of the rise of the arts and sciences, Hume writes; What depends upon a few persons is, in a great measure, to be ascribed to chance, or secret and unknown causes: What arises from a great number, may often be accounted for by determinate and known causes.5 While lawyers are chiefly concerned with rights, the moral philosopher is chiefly concerned to discover what policies, laws, and institutions will be in the public interest. In "Of Commerce" we are told: [I]t is certain, that general principles, if just and sound, must always prevail in the general course of things, though they may fail in particular cases; and it is the chief business of philosophers to regard the general course of things. I may add, that it is also the chief business of politicians; especially in the domestic government of the state, where the public good, which is, or ought to be their object, depends on the concurrence of a multitude of causes; not, as in foreign politics, on accidents and chances, and the caprices of a few persons. (Essays 254, 255) Hume's philosophers do not aspire to be kings; rather, they try to teach the legislators. They try to improve the thinking of the great and powerful. Their abstruse reasoning may frequently be of use in the conduct of public affairs. At least, it must be owned, that nothing can be of more use than to improve, by practice, the method of reasoning on these [economic and political] subjects, which of all others are the most important; though they are commonly treated in the loosest and most careless manner. (Essays 304)

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The Artificiality of Rights Hume is primarily a political philosopher. His analysis of morality deals mainly with the artificial virtues, those virtues that maintain civil society. He sees property and government as the two great public institutions. In "Of the First Principles of Government" he asks why the few who rule are obeyed by the many. All governments, he answers, are founded ultimately upon opinion. There is opinion of right to property. Do the rich inevitably control all nonviolent governments, as Harrington said? Then there is opinion of right to power. That this is a major cause of obedience can easily be seen by observing the attachment which all nations have to their ancient government, and even to those names, which have had the sanction of antiquity. Antiquity always begets the opinion of right; and whatever disadvantageous sentiments we may entertain of mankind, they are always found to be prodigal both of blood and treasure in the maintenance of public justice. (Essays 33) In other words, they will fight to maintain the established regime. The third cause of obedience is opinion of interest, by which Hume means "the sense of the general advantage which is reaped from government; together with the persuasion, that the particular government, which is established, is equally advantageous with any other that could easily be settled" (Essays 33). By "opinion of interest" Hume means, not opinion of self interest, but opinion that the government is good for the public. These three—property, legitimacy, and public interest—are the main elements of Hume's political philosophy. Property, as we have noticed, has its origin in utility. Reason shows that it is good (useful); then, through the operation of the judicious spectator, who represents the public, the rule that property is to be respected becomes a moral rule. The same is true of governmental authority. The passionate side of human nature comes into play in fixing the rules by which particular persons acquire title (right) to particular external goods, and also the rules that appoint kings; thus the great importance of antiquity (or long possession). Rights to property and rights to power alike rest ultimately on public utility. Hume is explicit: [I]t is evident, that, when the execution of justice would be attended with very pernicious consequences, that virtue [justice] must be suspended, and give place to public utility, in such extraordinary and such pressing emergencies. The maxim, fiatfustitia & mat Coelum, let justice be performed, though the universe be destroyed, is apparently [obviously] false, and by sacrificing the end to the means, shews a preposterous idea of the subordination of duties....The case is the same with the duty of allegiance; and common sense teaches us, that,

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as government binds us to obedience only on account of its tendency to public utility, that duty must always, in extraordinary cases, when public ruin would evidently attend obedience, yield to the primary and original obligation. Salus populi suprema Lex, the safety of the people is the supreme law. (Essays 489) Hume assumes (on the basis of high probability) that instances when property rights will have to be set aside in the name of public interest will rarely arise. In contrast, kings who do grave harm to the public are to be sacked regardless of their title. Why the difference? First, there are many proprietors, but only one king. Second, proprietors do not even have to try to understand the public interest; only let each strive for his self-interest within the rules and the public will benefit. In contrast, the king's interest and the public's are the same, even although kings often forget that they are servants of the public. It is important to notice that present possession does not give title to economic goods in an established society; if it did, property would have no meaning. In the case of governmental power, however, no title (e.g., right by inheritance) is sufficient to warrant resistance to the present possessor of the throne even if he came to it by violence. This fundamental difference— between thrones and armchairs, for example—makes it clear that morally all rulers are basically servants of the people. It really doesn't matter all that much who occupies the throne provided he/she is doing a tolerably good job. No king's title is indefeasible. In fact, on resistance there is little substantive difference between Hume and Locke. While Locke's revolutionary is a lawyer arguing that the king has broken his contract, Hume's revolutionary thinks that the conditional nature of the king's employment is obvious to any wise person. Locke and Hume are alike also in that both insist that only serious and continuing abuse of power warrants resistance. (The main difference is over dissemination of the idea that resistance sometimes is desirable.) Hume's doctrine that all governmental authority comes from below and has its ultimate basis in public utility must have seemed dangerously republican to Burke. Hume had stripped kings, the nobility, even the clergy, of their magnificent clothes. Surely, the age of calculators and economists had supplanted the age of chivalry and religion! But for Hume there is more to right than utility. The way the human imagination operates has to be taken into account when we seek to explain either the rules for the allotment of external goods or the rules that designate legitimate rulers. The imagination is conservative; it is most comfortable with the usual, the customary, the familiar, the established, the old. Somehow it seems natural to obey the man or family long in power. It seems natural for the king's son to follow him on the throne. After a few years even a usurper or conqueror comes to be regarded as the rightful ruler. And it seems natural for

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the children to inherit their parents1 estates. That to which the imagination has become accustomed is found legitimate. Clearly, all is well as long as opinion of right coincides with opinion of public interest. At this point we must focus on Hume's distinction between the vulgar and the wise. The vulgar are enslaved to old beliefs and customs. In contrast, the wise know how the understanding works, and strive for accurate knowledge about causes and effects. They know how prejudices, national presuppositions, superficial judgements, and the like give rise to false beliefs. They know that all the institutions and laws of civil society have their ultimate basis in utility. They see that rights make for order and tranquillity. Also, they appreciate that "the bulk of mankind/' the vulgar, respect rights, not because they understand their purpose, but chiefly because of custom and education. But at the same time the wise may see that particular old laws, institutions, and policies are far from the most efficient means to promote the public interest. When considering reforms—to bring the right closer to the good— the wise remember, with Justinian, that because custom avails much to assure observance of law, reforms should not be undertaken unless the good to be achieved compensates for the erosion of obedience entailed by change.

Reforming the Inherited Constitution Hume believed that in his own day the time was ripe for the assiduous application of the experimental method to moral subjects. The principles of civil society could be discovered and enunciated. In addition, the major deficiencies in existing institutions, laws, and policies could be indicated. Accordingly, as soon as he had completed the Treatise, he plunged into the waters of political controversy, then boiling furiously. For upwards of 15 years the Patriots had been attacking the Prime Minister, Sir Robert Walpole. Their main charge was that by bribery and corruption he was robbing Parliament of its independence, thus subverting the best constitution in the world. In 1739 John Campbell, the second Duke of Argyll, broke with Walpole and with his own brother, Archibald Campbell, Earl of Islay, a loyal supporter of Walpole, thus dividing the Argathelians, the dominant party in Scotland. This division was crucial; it was highly probable that the Scottish constituencies would determine Walpole's fate. The battle was hard fought during the period leading up to the elections, in May and June, 1741, and was continued at Westminster when the new Parliament met late in the autumn. After weeks of parliamentary strife, Walpole was forced to resign, early in February, 1742. Two of Hume's closest friends, Archibald Stewart and James Oswald, belonged to "the Duke of Argyll's Gang." In June or July 1741, Hume published at Edinburgh his first volume of essays; seven of those essays dealt with contemporary politics. The second volume, published a few months later, contained one political essay, "A

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Character of Sir Robert Walpole." All those eight essays deal with the Patriotic (or Country) charge against Walpole, and with the Walpolean defence, but do so indirectly, in the context of general political science. Hume agreed with Argyll/ Bolingbroke, et al. that things were far from healthy at Westminster, but unlike them he did not see Walpole as the villain. He wasn't blinded by English boasting about "the matchless constitution"; in fact, the root cause of the trouble, he found, was the constitution, not Walpole. The product of incremental change over many centuries, the English constitution was seriously defective. Probably it contained the seeds of its own destruction. The need for a constitution, Hume found, was not appreciated in barbarous monarchies because enlightening experience was not afforded there; rather, that truth was learned in the republics, where the citizens had the political power in their own hands. Because of conflicting interests among groups of citizens, it became obvious that standing rules governing the exercise of political power were required. Consequently, the citizens created constitutions. The establishment of constitutions led the republics to a second major advance in civilization. Because power could be exercised only by the established process, the republican governments found it necessary to govern by general laws. Thus the rule of men was replaced by the rule of law. No early monarchy was capable of this innovation, an advance without which further civilization would have been impossible. Where there are standing laws to protect "the lives and properties of the citizens, to exempt one man from the dominion of another; and to protect every one against the violence and tyranny of his fellow-citizens" it is possible for advances to be made in the arts and sciences. There the sciences may raise their heads and flourish: But never can have being amidst such a scene of oppression and slavery, as always results from barbarous monarchies, where the people alone are restrained by the authority of the magistrates, and the magistrates are not restrained by any law or statute. (Essays 118) Incidentally, Englishmen should not see this as confirmation of their inveterate belief that because France is an absolute monarchy all Frenchmen are slaves. Once the rule-of-law technique had been discovered in republics, many monarchies, including France, adopted it. By instituting a good constitution a people deliberately makes provision for its future; the more chance, Fortuna, the unpredictable, can be reduced, the better. Legislators, therefore, ought not to trust the future government of a state entirely to chance, but ought to provide a system of laws to

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In addition, a constitution ought to be so contrived as to make all the knaves serve the public. It is a maxim of political science that in politics "every man ought to be supposed a knave, and to have no other end, in all his actions, than private interest." In a good constitution the separate interest of each "order of men," by the skilful division of power, is made to concur with the public interest (Essays 42-43). Absolute monarchy has the merit that the king, who occupies a place high above the competing orders of men, is not one of the knaves: his true interest and that of the public are the same. But what of the succession? If the kings of a country are elected, selfish interests will try to capture the throne at every election; consequently, it is a truth "eternal and immutable" that an hereditary monarchy is superior to an elective monarchy. Yet hereditary monarchy has its own typical defect: the competence and good character of the heirs to the throne cannot be guaranteed; thus chance is inherent in a hereditary monarchy. So we turn to republics. Political science shows us that there are both bad and good republics. In the bad ones power is lodged with one parcel of knaves, or perhaps a coalition, thus assuring that public interest will be sacrificed to private. For this reason, a poorly contrived republic is even worse than an absolute monarchy. In contrast, a good constitution prevents such an abuse of authority. A good republican constitution is best of all: it excludes both chance and abuse of power. All absolute governments must very much depend on the administration; and this is one of the great inconveniences attending that form of government. But a republican and free government would be an obvious absurdity, if the particular checks and controuls, provided by the constitution, had really no influence, and made it not the interest, even of bad men, to act for the public good. Such is the intention of these forms of government, and such is their real effect, where they are wisely constituted: As on the other hand, they are the source of all disorder, and the blackest crimes, where either skill or honesty has been wanting in their original frame and instruction. So great is the force of laws, and of particular forms of government, and so little dependence have they on the humours and tempers of men, that consequences almost as general and certain may sometimes be deduced from them, as any which the mathematical sciences afford us. (Essays 15-16)

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By reflecting on history (experience) Hume had worked out his political science. He had equipped himself with standards, rules, and axioms by which to evaluate the constitution (EHU 83-S4).6 Far from having to rely upon what he found established and revered, he was able to examine the British political scene with a critical eye. How well does the English constitution, a traditional constitution, measure up? Because the Crown does not have the power to raise revenue, but depends on Parliament for money, the strictest attention is given to the rule of law. With Parliament's protection and blessing, the press watches the government for unlawful acts like so many cats. The result is great liberty of speech and action for the population, far more than in most republics, where the legislatures have no reason to regard the executive government with suspicion. However, the constitution has serious, perhaps fatal, defects. First, the system can be made to work only by bribery, at election time and in Parliament. Given the fact that the Crown cannot pay its bills without the cooperation of both Houses, the ministers must subvert the independence of Parliament with places, pensions, and secret payments. Don't blame Walpole; he's only trying to make the system work. Second, because it is a mixed constitution—partly monarchical and partly republican—it fosters parties of principle: on the one hand is the Crown; on the other, the House of Commons, a body which the Opposition avers would be the champion of liberty if not suborned. By casting authority as the enemy of liberty, the constitution makes for division and strife. Finally, and even worse, the constitution probably lacks permanence. It is highly susceptible to incremental change brought on by shifts in wealth, by changes in the attitude of the people to kings, and by alterations in the nature of government activity. Neither a monarchy nor a republic, it teeters precariously on the saddleboard, and probably will slide down one side or the other, ending up initially with all power in the hands of an oligarchical group, the House of Commons, or those of the king. Of the alternatives, both very bad, the latter would be the better, for under an absolute monarchy there would be at least a possibility that the government would serve the public. In contrast, an absolute House of Commons, which very well might decide that elections are a nuisance, would be sure to govern in its own interest. In fact such a regime would be so "violent" that it soon would be overthrown, with absolute monarchy the ultimate outcome. Although he saw these great defects, Hume, writing in 1741, did not propose reforms. Instead he hoped that, now that he had shown that the real trouble was the customary constitution, not Walpole, the adversaries would cool down, let Walpole depart in peace, and agree not to put too much stress on the highly defective system.

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Walpole's retirement did not inaugurate the great Patriotic era promised by his enemies. On the contrary, it had the effect of liberating the king, George II, who, with Carteret as his favourite minister, proceeded to establish his own foreign policy, a Hanoverian, not a British, "blue water" foreign policy. Hume's friends, especially Oswald and William Mure, the latter elected to the House of Commons in a by-election in 1742, were among the outraged Members. In 1744 the Old Corps ministers, Walpole's former colleagues, bearded the king, forcing him to dismiss Carteret and to take in "New Ally" ministers. That, however, was not enough: the king continued to turn to Carteret for advice, and to ignore Newcastle, Pelham, Islay, and the other ministers. Consequently, the government was in disarray when the 'Forty-five took place. Finally, in February, 1746, the ministers, by mass resignation, drove home to the king the fact that Carteret really had to go; unless the king relied exclusively on his ministers, he would have none. With all this and more as background, it isn't surprising that Hume continued to fret about the constitution. In 1752 he published "Idea of a Perfect Commonwealth." This essay reveals the tension between his conviction that a well-contrived republican constitution would be best and his recognition that the existing constitution had widespread and strong support. He reconciles the two as follows: [W]ho knows, if this controversy [about the best form of government] were fixed by the universal consent of the wise and learned, but, in some future age, an opportunity might be afforded of reducing the theory to practice, either by a dissolution of some old government, or by the combination of men to form a new one, in some distant part of the world? In all cases, it must be advantageous to know what is most perfect in the kind, that we may be able to bring any real constitution or form of government as near it as possible, by such gentle alterations and innovations as may not give too great disturbance to society. (£ssays 513-514) Hume's political essays are full of general reasoning as well as examples drawn from classical history; yet almost always, often after much circling and hovering, he makes observations or recommendations of immediate practical relevance. The essay, "Idea of a Perfect Commonwealth," shows his technique. After taking us through the details of his well-contrived republic, and having propounded various truths of political science, he concludes by accepting the fact that it would be imprudent to try to transform the British constitution into a perfect republic. He then asks how it can be made as good a limited monarchy as possible. Hume recommends two fundamental changes, both highly republican. The House of Commons should cease to be a body which represents corporate

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entities such as the City of London, the universities of Oxford and Cambridge, the English boroughs, the Scottish burghs, and the counties, with their various franchises and great differences in population. It should be a body which represents the people. For electoral purposes the country should be divided into constituencies, each containing roughly the same number of citizens. All men who have attained the age of majority should be entitled to vote if they passed a high property test. (This reform, based on "the republican constitution" of 1653, would have made the House of Commons a body which represented the people, as does the United States House of Representatives, rather than the member bodies, as does the United States Senate.7) One result of this change would have been to reduce the capacity of "the great" to bribe and intimidate the electors. Hume's second reform was equally shocking to conservatives. The English nobility were to lose their right to sit as peers of Parliament. The sixteen Scottish representative peers were to go. Even the bishops were to go! (The Scots peers had come to be regarded as ministerial lackeys. Writing in 1733, James Erskine, found that "our peerage had...fallen into universal Contempt for their low and slavish Complyance to whatever was in power, and even a B[ishop] was not now a Name of more Reproach than a Scotch Lord.") All were to be replaced by peers selected on the basis of something like merit. Such a House would be strong and energetic enough to rein in the government, and to moderate the impetuosity of the Commons. Hume does not advocate anything like a democracy. Participatory democracy is tumultuous. As for the suffrage, there is nothing to be gained, and much to be lost, by giving the vote to the labouring poor. Busy making a living, they know nothing about governance; they are susceptible to the sway of "the great," of demagogues, and of the press. Moreover, there is no need for a wide suffrage. The function of "the people" in a good constitution is to prevent the politicians, be they kings, lords, members of the House of Commons, or senators in the perfect commonwealth, from acting as the knaves they are; and this can be done by a House that represents a relatively small "people." Hume saw the British constitution as fundamentally defective; yet he did not propose that it be razed to make way for a well-contrived republic. Instead, he recommended reforms, leaving the monarchy as the one element not replaced. He believed that an entirely new constitution would be far better if it could be achieved, but he opted for reform. He did so, not because he lacked confidence in his knowledge, but because of the conservatism of the multitude. Incidentally, recognition of the conservatism of the multitude was not new: Aristotle (Politics, 1296a) warns reformers of it, as does Machiavelli (The Prince, chap. 6). For Hume, moral philosophy is not only for entertainment; it is to instruct and reform mankind. Where it is possible and prudent to do so, a wise legislator reaches forth to control the future by establishing a sound

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constitution. Otherwise, he or she undertakes reforms, perhaps radical reforms, if to do so is both desirable and prudent.

Sound Economic Policy Much of what Hume writes about the British constitution is intertwined with his political science. In contrast, what he writes about economic policy rests on the institutions of property and contract as a house upon a foundation. Why this difference? The rights of proprietors and rulers alike are conditional, but while there is much to be said about forms of government and about rules of succession, there is relatively little to be said about the rights of property. Hume states that property rights are not absolute, but assumes that those rights will be set aside only in extraordinary circumstances, for example, during a siege or a famine. He begins the Political Discourses with a justification. Although the multitude dismiss general reasoning about economics as "metaphysics/' this is a subject in which sound understanding is attainable. For here our goal is true generalizations, not forecasts about particular transactions. Moreover, not only is accurate economic theory possible, but such theory bears directly upon the public interest. After this preamble, Hume proceeds to show how mistaken are most of the prevailing beliefs about economics. The pursuit of private gain and luxury, made possible by manufacturing and commerce, does not weaken the public; rather, it strengthens and improves it in many ways. The squirely notion than an old-fashioned rural economy—plain living, fox hunting, and on Sunday a good sermon on divinely-ordained social subordination—is but romance. The pursuit of private gain and luxury within limits is good: it fosters the mechanical and liberal arts; it promotes the sciences; it increases the humanity of the populace; it makes them happier; it spreads the fruits of labour so that every person may be able to acquire "all the necessaries, and many of the conveniences of life"; it makes for the rule of law; it reduces the sway of grandees; it strengthens the nation. Consider the conventional wisdom about the nature of money, the causes of high interest rates, the need for a favourable balance of trade, and taxation. On every major topic the old beliefs are wrong. Consider, also, the mercantile article of faith that wars should be waged to acquire colonies. The result of that policy is a crushing debt on the public, a debt contracted for the benefit of monopolists, purveyors, and navy towns. As early as 1752, shortly after the government had been denounced for the Peace of Aix-la-Chapelle, Hume laid down the anti-imperialist principles which later led him to advocate abandonment of the war against the American revolutionaries. He wrote in 1775, [If I had been in the Cabinet] I shoud have said, that this Measure only anticipates the necessary Course of Events a Few Years; that a

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forced and every day more precarious Monopoly of about 6 or 700,000 Pounds a year of Manufactures, was not worth contending for; that we shoud preserve the greater part of this Trade even if the Ports of America were open to all Nations; that it was very likely, in our method of proceeding, that we shoud be disappointed in our Scheme of conquering the Colonies; and that we ought to think beforehand how we were to govern them, after they were conquer'd.8 Livingston's interpretation, if I read him correctly, leaves the wise, who apply the experimental method to politics, out of the picture. He emphasizes process at the expense of content; moreover, his process is more judicial than legislative. "We must not depart from tradition/' says his conservative reformer. "What precedents can be adduced to legitimize this decision?" But as we have seen, Hume emphasizes content. Moreover, the Parliament has the constitutional right to make major changes. It should do so in the light of a sound understanding of what the public interest requires, bearing in mind, of course, that changes should not be so radical as to destabilize the multitude. In the case of France, the king has similar power, and he should use it. It is revealing to remember that as early as 1741 Hume saw the need for financial reform in France: If a prince or minister...should arise, endowed with sufficient discernment to know his own and the public interest, and with sufficient force of mind to break through ancient customs, we might expect to see these [revenue] abuses remedied;... (Essays 95)

The Wilkes Affair In all governments, even "free governments," Hume explains in the late essay, "Of the Origin of Government," there is "a perpetual intestine struggle, open or secret, between AUTHORITY and LIBERTY." Because liberty is a matter of degree while authority is essential to liberty, the latter has the better prima facie case for preference. Yet, he allows, we must recognize that while authority always will support itself, there is a real danger that liberty will be lost by reason of public apathy or ignorance. In 1768-1770 Hume had had occasion to ponder the danger ignorance and apathy can pose to liberty. The turmoil of the first decade of George Ill's reign was caused in large part by chance and faction, both explicable in terms of the customary constitution: at the start of his reign the young king clung to Bute, a personal favourite and a Scot; Pitt was incapable of serving long in a cabinet he did not control; Walpole's Old Corps, the backbone of ministries since 1725, was gone. In 1763 the Bute government made the Treaty of Paris, a peace which angered those who sought the complete destruction of France and Spain as oceanic trading powers. Subsequently, the scandalous wrong done by the new

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king in elevating Bute and his Scotch tail to offices which by right belonged to Pitt and Englishmen—a wrong which never would have been perpetrated if the king's mother had not been far too close to Bute—was fully exposed by John Wilkes, M.P., whose journal, the North Briton, was financed by Pitt's brother-in-law, Lord Temple. The Scots had robbed Pitt of his rightful place, and England of the fruits of the great Patriot's victories. When, in issue Number 45, the king was attacked for uttering falsehoods, the Grenville government, which two weeks earlier had taken over from Bute, obtained a general warrant for the arrest of unnamed persons, the author and the publishers of Number 45. Wilkes was taken into custody, but was released by the court because of his parliamentary immunity. Mr. Justice Pratt, a friend of Pitt, declared general warrants illegal. Late in 1763, with complex legal questions pending, it was revealed that Wilkes had written a salacious piece, "An Essay of Woman," thus exposing himself to prosecution. He fled to the continent. In 1768, bored and threatened with imprisonment for debt, Wilkes returned to England and sought election in the City of London. Unsuccessful there, he presented himself, the paladin of English liberty, to the electors of Middlesex, an electorate suffering from recession and unemployment, and thoroughly angry with a government still controlled, it was said, by Bute and the king's mother.9 He was elected. Immediately thereafter, expecting a pardon, he waived his parliamentary immunity and submitted himself to trial on the old charge of obscene libel. But after he had been sentenced, no pardon was proffered. Thereupon he began an anti-government campaign, conducted from prison. Early in 1769 the House of Commons expelled him. Middlesex reelected him; the House expelled him; Middlesex reelected him; the House expelled him. He headed the poll in the third by-election, but the House awarded the seat to his opponent on the ground that Wilkes had been ineligible for election. Clearly, the Grafton government had a tar baby on its hands. Delighted, the Pittites and Rockinghams roared with indignation. Pitt (now Earl of Chatham) rumbled; a major eruption was anticipated. Burke traced the discontents of the times to the secret influence of royal favourites. Finally, in 1770 a weak but adroit politician, Lord North, succeeded in forming a stable government. In the aftermath of the Affair the courts decided that the Houses could not arrest journalists for violating the ancient right of Parliament to sit in secret. Historian turned cook, Hume wrote sardonically about the failure of "the best constitution in the world" to protect the liberty of Britons from knaves, demagogues, journalists, factions, and mobs. He wrote to Gilbert Elliot in October 1769: I am delighted to see the daily and hourly Progress of Madness and Folly and Wickedness in England. The Consummation of these

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Qualities are the true Ingredients for making a fine Narrative in History; especially if followd by some signal and ruinous Convulsion, as I hope will soon be the Case with that pernicious People. He must be a very bad Cook indeed, that cannot make a palatable Dish from the whole. (HLII 208-209) A few days later he reported to William Strahan that he foresaw a truly glorious future: a public Bankruptcy, the total Revolt of America, the Expulsion of the English from the East Indies, the Diminution of London to less than a half, and the Restoration of the Government to the King, Nobility, and Gentry of this Realm. (HL II 210)10 To top off these great blessings, English rhetoric would be wonderfully enriched by the declamations on liberty uttered by Patriots departing by way of Tyburn. Livingston says that Hume's reaction to the Wilkes Affair shows that he would have joined Burke in exposing the French Revolution for what it was, the product of "metaphysics." Confronted by a choice between "the narrative order" and "foundational liberalism"—Livingston's argument excludes any other choice—Hume would have stood forth a conservative. Although Wilkes pleaded the rights of an Englishman, the process by which historic rights became "the rights of man" was underway, and Hume detected the intrusion of rationalistic metaphysics into British politics (HPCL 270, 308). In contrast, I see Hume's reaction as that of a disappointed Scot and a neglected reformer. He branded "the mad and wicked rage against the Scots" as barbarism. Why barbarism? Years earlier Hume had shown that the English constitution fosters systematic hostility to the government, no specific grievances being required. Behind a screen of Patriotism, one expression of that hostility, Pitt had gained power, a pension, and an earldom. Now Wilkes was on the ramparts defending English liberty against the king and the Scots. Years earlier Hume had shown that inherited monarchy leaves chance unfettered; now the obstinate young king was providing a surfeit of evidence. It came as no surprise to Hume that the unreformed Parliament gave power to packs of grandees, some far greater adepts at Newmarket than at Westminster. The debt Pitt (Chatham) had run up executing an imperialist policy would imperil the nation long after the ministers had lost America. All this Hume traced to the factiousness, the prejudices, the shallow understanding of the English—in a word, their barbarism. That Wilkes, Chatham, Burke, and many others blamed all the troubles of the reign on the king's friends, who included Oswald and Gilbert Elliot as well as William Mure's friend, Bute's brother, James Stuart Mackenzie, was disheartening, but predictable: Hume was

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thoroughly familiar with the vulgar Whig strategy of blaming villains, but never "the matchless English constitution/' for every botch and disaster. Paradoxically, Wilkes showed how right Hume was. His antics revealed dramatically the deficiencies of the constitution, thus starting the long march to reform. The Society of Supporters of the Bill of Rights developed an extensive reform program in 1769-1770. (Burke showed that their reforms were unnecessary; all England needed was a Rockingham government!) Then in 1779-1780 came the Yorkshire Congress and the Associations, to be followed ten years later by the Society for Constitutional Information. (Burke dismissed the Society; their ideas were foreign to the true, old English policy of relying on inheritance.)

Managing Popular Religion In eighteenth century Scotland the question of how to cope with religion was far from academic. In addition to the battles between fundamentalism and moderation, there was the problem of controlling the Episcopalian clergy. The latter had been expelled from their livings after the Episcopalian structure was supplanted by the Presbyterian in 1690; thereafter, as Hume says, Episcopalian chapels were seats of Jacobitism. Laws were enacted after the 'Fifteen to restrain them; after the 'Forty-five these were made far more stringent. Moreover, Hume saw in Ireland the diabolic effects of sectarian animosity: The country in EUROPE in which I have observed the factions to be most violent, and party-hatred the strongest, is IRELAND. This goes so far as to cut off even the most common intercourse of civilities between the Protestants and Catholics. Their cruel insurrections and the severe revenges which they have taken of each other, are the causes of this mutual ill will, which is the chief source of disorder, poverty, and depopulation of that country. (Essays 640) As analyzed by Hume, civil society is primarily an economic relationship, and the domestic task of government is to maintain the institutions fundamental to a healthy market economy. Alas, bad religion can wreck civil society. Superstition makes priests a power in the land. Enthusiasm is madness epidemic. What can be done? Hume has two basic answers. First, the government ought to establish a church, as Harrington had recommended. He found the Church of England far superior in its rites to the Church of Scotland; yet for his perfect commonwealth he recommends county churches supervised by the local civil authorities; this is consistent with the localized republicanism of the commonwealth. Second, the government ought to practice toleration. To persecute or penalize nonconformists in the old way is to reveal a profound

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misunderstanding, for penalties and persecution cause such sects to flourish. Conservative political theories usually had a strong religious component. Burke, for example, says: "We know, and, what is better, we feel inwardly, that religion is the basis of civil society,....1' When David Miller labels Hume a conservative he finds it necessary to ward off misapprehension by telling us that in Hume "a revolutionary philosophy is combined with an establishment ideology to yield what is probably the best example we have of a secular and sceptical conservative political theory." My submission is that Hume regards superstition and enthusiasm as characteristics of the vulgar mind, characteristics which he wants to see controlled by an appropriate religious establishment and by the sound education of youth.

The Prudence of the Wise Hume tells us that reason cannot reach beyond nature. Also, he tells us that the necessity to which we refer when we talk about physical or moral causes is not to be mistaken for demonstrative necessity. Having thus defined both the bounds and the method of human understanding, he urges us to test our beliefs assiduously. We are to be sceptical. Contrary to Livingston, the scepticism recommended by Hume requires, not deference to prevailing prejudices and customs, but a highly critical attitude to them. We are not to try to adopt Cartesian scepticism, which, if it were possible, as it is not, would prevent any reasoning from bringing us to "a state of assurance and conviction upon any subject." Rather, we are to question prevailing beliefs, for prejudice is destructive of sound judgment, and perverts all operations of the intellectual faculties (Essays 240). Such a sceptical attitude is a necessary preparative to the study of philosophy, by preserving a proper impartiality in our judgements, and weaning our mind from all those prejudices, which we may have imbibed from education or rash opinion. (EHU 150) Newton had it right: Cautious in admitting no principles but such as were founded on experiment; but resolute to adopt every such principle, however new or unusual. (HE VI 542) Hume's philosophers strive to acquire knowledge, thus enabling legislators to provide for the future. Unlike Minerva's owl, they are up at daybreak helping in the struggle against Fortuna. But they know that the multitude accept the prejudices and customs in which they have been steeped. Should the wise advocate that established right be changed whenever the public interest would be better served by different laws and institutions or new

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policies? Very early Hume saw that conflicts between the right and the good are inevitable. His wise man weighs several things: the status (authority) of the potential innovator; the merits of the status quo; how much better the reformed order would be; the damage the change would do to social stability; the strength of the vested interests; the danger of strife. In "Of the Original Contract" Hume makes the point that subjects should take the maxim, "Obey the government/' as their prime rule; if they do not, only force will command obedience. By definition, positive rights can be changed legitimately only by the legislature. Moreover, even the legislature ought to take great care to avoid shattering the cake of custom. Some innovations must necessarily have place in every human institution, and it is happy where the enlightened genius of the age give these a direction to the side of reason, liberty, and justice: but violent innovations no individual is entitled to make: they are even dangerous to be attempted by the Legislature....10 Hume's warning to the legislature against violent innovation does not follow from scepticism: the principles of economics and governance can be known. Rather, his warning follows from the fact that the credulous multitude, lacking the science for which scepticism is a necessary preparative, is governed "by authority, not reason, and never attributing authority to any thing that has not the recommendation of antiquity" (Essays 512). For the multitude the old and familiar is right, a truth Hume recognizes in his comment on education in the Treatise (116-117), a truth he hammers home repeatedly in his later writings. The History of England is replete with recognition of the power of prejudice and custom over the multitude; for example, Hume reports that duelling, part of "the ancient barbarous jurisprudence," was still practiced in his own day "notwithstanding the severity of law and authority of reason, such is the prevailing force of custom ..." (HE III 169). The view that Hume's epistemology entails conservatism may arise in part from the fact that he uses the word "custom" with different meanings in different contexts. In one passage in the Enquiry Concerning Human Understanding he concludes that, 'Custom, then, is the great guide of human life" (EHU 44). And in the Abstract "Tis not, therefore, reason, which is the guide of life, but custom" (T 652). In another passage in the Enquiry our attention is directed to the differences between the several national characters and cultures: We learn thence the great force of custom and education, which mould the human mind from its infancy and form it into a fixed and established character. (EHU 85-86)

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It is precisely because of the power of custom that Hume deplores thoughtless reliance on prejudice and habit and wants legislators to make provision for the future. Philosophers are not to forget that general virtue and good morals in a state...can never arise from the most refined precepts of philosophy, or even the severest injunctions of religion; but must proceed entirely from the virtuous education of youth, the effect of wise laws and institutions. (Essays 55) Deeply entrenched ranks or orders always have some positive or customary law on their side; consequently, they can argue that they are in the right." And argument from right is wonderfully persuasive, especially with the multitude: it preempts the assumption, thus imposing the burden of proof on the opposition. Accordingly, reformers and protesters often dress their complaints in cloaks of higher right. Even Hume does this when he wishes to emphasize the great importance of good government. He tells us that certain articles of Magna Carta provide for "the equal distribution of justice, and free enjoyment of property; the great objects for which political society was at first founded by men, which the people have a perpetual and unalienable right to recal, and which no time, nor precedent, nor statute, nor positive institution, ought to deter them from keeping ever uppermost in their thoughts and attention" (HE I 445). Again, he says: Where a civil law is so perverse as to cross all the interests of society, it loses all its authority, and men judge by the ideas of natural justice, which are conformable to those interests. (EPM 197n) In the Treatise (563-564) we are told that the people have an inalienable right of resistance. In yet another place we are told that the system of liberty creates mutual checks on both masters and servants "suitably to the inviolable and eternal laws of reason and equity" (Essays 384). And we are told that barriers to international trade are contrary to the will of "the Author of the world" (Essays 324). Livingston attributes to Hume the conservative mentality of "the ignorant multitude." But Hume is a philosopher, a writer of instructive essays and revisionist history. He has concluded that a society based on the system of liberty is best. He thinks that Parliament, the agency of the public interest, ought to realize that system by reforming the constitution, by replacing an imperalist policy with a free-trade policy, by repealing the disabilities of nonconformists, and by recognizing the legislative requirements of manufacturing and commerce. Parliament would do well to bear in mind that Rome's disasters proceeded from "an ill modelled government, and the unlimited extent of conquests" (Essays 276). In making those changes it

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should always be mindful of the fact that violent innovation is dangerous, even for a legislature.

Summation Now that the evidence has been adduced, we can sum up and conclude. Livingston contends that "foundational liberalism" is a form of "metaphysical rebellion" against the narrative order of common life, and labels "conservative" all not guilty of such a "metaphysical rebellion." This, I submit, spreads the conservative net far too wide, so wide indeed that it is likely to mislead the reader about the history of British social and political thought and about Hume's role in that history. Hume, I suggest, believed that, assuming sufficient evidence was available, "the experimental method of reasoning" could produce scientific principles, and as a result was quite ready to attack many prevailing notions and customs, notably in economics and politics. Simply to muddle along was to leave the future in the hands of Fortuna—as the French were to show. His concern was to reform institutions, law, and policies. True, he did not advocate a new, republican constitution for Great Britain, but this was not because he was sceptical about the validity of his idea; rather it was because he saw the conservatism of the vulgar as an obstacle to the achievement of such a constitution. "Metaphysics" is not the only enemy of wisdom. Another is prejudice, the control of the mind, private or public, by beliefs transmitted unexamined from one generation to another by custom and education. In "Of the Coalition of Parties" we are told that although the royalists of the early seventeenth century were right "according to the established maxims of lawyers and politicians/' those who sought the good at the expense of the right were justified by the outcome. To the success of the revolutionaries the kingdom owes its liberty; perhaps its learning, its industry, commerce, and naval power: By them chiefly the ENGLISH name is distinguished among the society of nations, and aspires to a rivalship with that of the freest and most illustrious commonwealths of antiquity. (Essays 495) The revolutionaries challenged the old order of right; they took on all its defenders. It was a near run thing, but with the help of the religious Puritans, they did achieved a new and better order. Certainly Hume was not a "foundational liberal." But does this mean that he deferred to the inherited and customary, and so was a conservative? Recognizing that Livingston's alternatives—"foundational liberalism" and conservatism—fail to accommodate Hume, we fall back to lower but more complex ground, to history. In that context we find that Hume's multifaceted

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effort to change the British mind—on philosophy, religion, ethics, economics, foreign policy, and the constitution—marks him as a leading reformer. Moderate scepticism, that great enemy of deference, had led him to test old beliefs and customs by the experimental method. As a result he pronounced many of those beliefs and customs wanting. The liberal tradition, the tradition in which I enroll Hume, arose as criticism of the old European order: the inherited monarchy, the hereditary nobility, the great entailed estates, the trade and manufacturing monopolies. I have called him a liberal because he anticipated much of the program of the Reform Whigs, later called Liberals, a program which was resisted by the Conservatives. NOTES 1 Donald W. Livingston, Hume's Philosophy of Common Life (Chicago: The University of Chicago Press, 1984), 339, 340; cited in the text as HPCL. 2 J. G. A. Pocock, Politics, Language and Time: Essays on Political Thought (London: Methuen, 1971), 202-232. 3 David Hume, The History of England from the Invasion of Julius Caesar to The Revolution in 1688 (Indianapolis: Liberty Fund, 1983), III 369; cited in the text as HE. 4 David Hume, Enquiries Concerning Human Understanding and Concerning the Principles of Morals, edited by L. A. Selby-Bigge, 3rd ed. revised by P. H. Nidditch (Oxford: Clarendon Press, 1975); cited in the text as EHU or EPM. 5 David Hume, Essays: Moral Political, and Literary (Indianapolis: Liberty Fund, 1985), 112; cited in the text as Essays. 6 Hume's insistence on the importance of experience (history) as the basis of political science allies him with Harrington against Hobbes. See Felix Raab, The English Face of Machiavelli (London: Routledge & Kegan Paul, 1964), 192-198. 7 Essays, 526, 647. In fact Hume's proposal went further towards voter equality than the Instrument of Government of 1653, which has been described as "the most ambitious reform of the electoral system undertaken before 1832." See John Cannon, Parliamentary Reform, 1640-1832 (Cambridge: Cambridge University Press, 1972), 13-19. 8 Letters of David Hume, edited by J. Y. T Grieg (Oxford: Clarendon Press, 1932), II 300; cited in the text as HL. 9 Wilkes attracted a great deal of support because of general anti-Court hostility. See John Brewer, "English Radicalism in the Age of George III," in Three British Revolutions: 1641,1688,1776, edited byj. G. A. Pocock (Princeton: Princeton University Press, 1980), 323-367. 10 Essays, 477. On natural and violent political causes Hume seems to have been reading Harrington. The latter had written: "Natural force consists in the vigour of principles, and their natural necessary operations." Also: "Unnatural force is an external or adventitious opposition to the vigour of principles and their necessary working, which, from a violation of nature, is called violence"

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(The Political Works of James Harrington, edited by J. G. A. Pocock [Cambridge: Cambridge University Press, 1977], 164, 834). 11 Livingston tells us (HPCL 310) that the first conservatives in France after the Revolution took the History of England and the Essays as "founding documents of the Counter-Revolution.11 Why they misread Hume is evident. In the History, Hume had shown that, contrary to bad Whig history, the first two Stuart kings of England had constitutional right on their side.

[5] Hume and Madison on Faction Mark G. Spencer

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AVID Hume's most significant impact on the American Enlightenment was achieved, we have repeatedly been told, when in 1787 James Madison turned to Hume's political essays while working out the argument of his celebrated Federalist^®. 10. The first historian to excavate this ground in depth was Douglass Adair. In his long unpublished but still often-cited Yale dissertation of 1943 and then in its subsequent recasting in published essays (later gathered together for a posthumous edition and since republished in various formats), Adair outlined his thesis that Hume's political essays provided the master key to unlocking the vault of Madison's political thought. Adair's analysis of this topic has been enormously influential, but it has not convinced everyone. Many Madison scholars, for instance, argue that to approach Madison's writings on faction in 1787 we need look to his experiences in Virginia, not to Hume's books. But the history of ideas is seldom as neat as Adair's story implied, nor is it as compartmentalized as his critics assume. A choice between books and experience—between theory and practice—is a false one that has seriously clouded our understanding of Hume's influence on Madison. Madison knew and absorbed Hume's writings as he experienced American factionalism in the early 17808. Hume was much more important to Madison than even Adair imagined. Hume's History of England, in particular, influenced Madison more significantly, and in different ways, than scholars have yet come to appreciate.1 Any attempt to illustrate how and why Hume's influence on Madison has been misconstrued must begin with an analysis of Adair's Mark Spencer is a postdoctoral research fellow at the University of Toronto, St. Michael's College. He thanks Roger L. Emerson, Jean V. Matthews, and Ian K. Steele for their assistance with earlier drafts of this article and is grateful for helpful comments from Samuel Fleischacker, John W. Danford, John Patrick Diggins, Jack N. Rakove, and Ralph Lerner. 1 For Adair's position see "The Intellectual Origins of Jeffersonian Democracy: Republicanism, the Class Struggle, and the Virtuous Farmer" (Ph.D. diss., Yale University, 1943), esp. 239-71; "The Tenth Federalist Revisited/' William and Mary Quarterly, 3d Ser., 8 (1951), 48-67; and "That Politics may be Reduced to a Science': David Hume, James Madison, and the Tenth Federalist," Huntington Library Quarterly, 20 (1957), 343-60. Adair's dissertation is now published as The Intellectual Origins of Jefferson Democracy, ed. Mark E. Yellin (Lanham, Md., 2000).

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seminal investigation. Adair maintained that Madison drew much of his thought on party from Hume's political essays. Most important of all, it was from Hume that Madison derived his political maxim that a republic might not only be established in a territory as extensive as that of the United States, but also that it could even thrive. Hume, wrote Adair, "had turned the small-territory republic theory upside down: //a free state could once be established in a large area, it would be stable and safe from the effects of faction/'2 The core of Hume's revisionist idea Madison found in the essay "Idea of a Perfect Commonwealth": Though it is more difficult to form a republican government in an extensive country than in a city; there is more facility, when once it is formed, of preserving it steady and uniform, without tumult and faction. . . . In a large government, which is modelled with masterly skill, there is compass and room enough to refine the democracy, from the lower people, who may be admitted into the first elections or first concoction of the commonwealth, to the higher magistrates, who direct all the movements. At the same time, the parts are so distant and remote, that it is very difficult, either by intrigue, prejudice, or passion, to hurry them into any measures against the public interest.3 It was this essay, which Hume wrote with "some distant part of the world" in mind, that Adair argued "most stimulated James Madison's thought on factions." Madison, according to Adair, "reexamined the sketch of Hume's perfect commonwealth," "quite easily traced out the origin of Hume's scheme," "thought over Hume's theoretic system," and must suddenly have seen that in this instance the troublesome corporate aggressiveness of the thirteen American states could be used to good purpose. There already existed in the United States local governing units to break the force of popular cur2 Adair, "'That Politics May be Reduced to a Science': David Hume, James Madison, and the Tenth Federalist," in Trevor Colbourn, ed. Fame and the Founding Fathers: Essays by Douglass Adair (Indianapolis, 1998; orig. pub. 1974), 142; hereafter, references to Adair's essays are to this edition. Adair primarily looked to 5 of Hume's essays: "Of the First Principles of Government," "Of the Independency of Parliament," "Of Parties in General," "Of the Parties of Great Britain," and "Idea of a Perfect Commonwealth." 3 Hume, "Idea of a Perfect Commonwealth," in Essays Moral, Political, and Literary, rev. ed., ed. Eugene F. Miller (Indianapolis, 1987), 527-28; hereafter, references to Hume's essays are to this edition. Although Adair doesn't say so, Madison, like Hume's other 18th-century readers, was most likely to meet this essay as the concluding piece in the Essays and Treatises on Several Subjects.

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rents. . . . The states themselves could serve as the chief pillars and supports of a new constitution in a large-area commonwealth. Here in Hume's Essays lay the germ of Madison's theory of the extended republic.4 Adair pointed to Madison's echo of Hume in Federalist No. 10: Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.5 Bringing this and other textual evidence to bear, Adair convincingly argued that, although "Madison had no capacity for slavish imitation" of Hume, "a sentence lifted almost in its entirety from the other's essay, and, above all, the exactly parallel march of ideas in Hume's 'Parties' and Madison's Federalist 10 show how congenial he found the Scot's way of thinking and how invaluable Hume was in the final crystallizing of Madison's own convictions."6 Garry Wills, in a book dedicated "To the memory of Douglass Adair who saw it first," notably has amplified Adair's thesis.7 Other scholars have since repeated and expanded on Adair's original insight so much that Adair's assertion of a Humean Madison might be thought to be established as a commonplace in scholarship on Hume, Madison, the Federalist, and even in broad surveys of the history of the early American Republic. One Madison scholar claims: "Adair proved his case by a 4

Hume, "Idea of a Perfect Commonwealth," 513; Adair, "That Politics May Be Reduced to a Science/" 139,142-44. 5 Madison, "The Federalist No. 10," [Nov. 22, 1787], in Robert A. Rutland et al., The Papers of James Madison, 17 vols. (Chicago and Charlottesville, 1962-1991), 10:269; hereafter cited as Madison Papers. 6 Adair, "That Politics My Be Reduced to a Science/" 147. See also Adair, "Intellectual Origins of Jeffersonian Democracy/' 261. 7 Wills, Explaining America: The Federalist (Garden City, N. Y., 1981), has not been well received. See Jacob E. Cooke's review in American Historical Review, 87 (1982), 532—33; Walter Nicgorski's review in American Political Science Review, 76 (1982), 155-56; Thomas L. Pangle, "The Federalist Papers'Vision of Civic Health and the Tradition Out of Which that Vision Emerges," Western Political Quarterly, 39 (1986), 581, which characterized Wills's writings as "free-wheeling"; Paul A. Rahe, Republics Ancient and Modern: Classical Republicanism and the American Revolution (Chapel Hill, 1992), 1057-58^ and Gary J. Schmitt, "Sentimental Journey: Garry Wills and the American Founding," Political Science Reviewer, 12 (1982), 117, where Wills's claims are said to be "long on bravado, [and] short on proof."

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process of literary detection, at which he was a past master." "That Hume influenced [Madison's] ideas on faction, representation, and the extended sphere," writes another, "is beyond dispute." But the question of Hume's impact on Madison is far from settled.8 In recent years Adair has also had his qualifiers and even his naysayers. Scholars have argued with increasing urgency that Hume's influence on Madison is "clearly subject to exaggeration and misconstruction" and even that it has been "greatly exaggerated and distorted."9 At the hard core of these attempts to temper Hume's Madisonian impact is a wholesale questioning of Adair's basic premise that Madison's mind and political theory might be entered through the books he read. For the development of Madison's political thought on faction, say Adair's critics, more important than Madison's reading of Hume (or anyone else) were Madison's practical experiences gained in the real training grounds of Virginian and national politics.10 Adair's doubters bring the debate on 8

Theodore Draper, "Hume and Madison: The Secrets of Federalist Paper No. 10," Encounter, 58 (1982), 34; Gary Rosen, American Compact: James Madison and the Problem of Founding (Lawrence, 1999), 107. See also Henry F. May, The Enlightenment in America (New York, 1976), 373-74^ "Adair's demonstration of Madison's indebtedness to Hume is brilliant." 9 Drew R. McCoy, The Last of the Fathers: James Madison and the Republican Legacy (Cambridge, 1989), 43n; Lance Banning, The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic (Ithaca, 1995), 467^5. See also Peter S. Fosl, "Hume, Skepticism, and Early American Deism," Hume Studies, 25 (1999), i86ni5: "There is, however, considerable contention about whether or not Madison actually drew his ideas from Hume"; Ralph Ketcham, review of Rahe, Republics Ancient and Modern, in WMQ, 3d Ser., 50 (1993), 425-28; and Robert A. Manzer, "Hume's Constitutionalism and the Identity of Constitutional Democracy," APSR, 90 (1996), 494. 10 See Marc M. Arkin, "'The Intractable Principle': David Hume, James Madison, Religion, and the Tenth Federalist," American Journal of Legal History, 39 (1996), 151-52; Banning, Sacred Fire of Liberty, esp. 204, 467—68; James Conniff, "The Enlightenment and American Political Thought: A Study of the Origins of Madison's Federalist Number 10," Political Theory, 8 (1980), 381-402; David F. Epstein, The Political Theory of "The Federalist" (Chicago, 1984), 102-03; Lacy K. Ford, "Inventing the Concurrent Majority: Madison, Calhoun, and the Problem of Majoritarianism in American Political Thought," Journal of Southern History, 60 (1994), esp. 25; Larry D. Kramer, "Madison's Audience," Harvard Law Review, 112 (1999), 630; Gary L. McDowell, "Madison's filter," Times Literary Supplement, May 24, 1996, esp. 12; Jack N. Rakove, "Hume, Madison, and the Vexatious Question of Influence" (paper presented at the "Hume and i8th-Century America" conference, Williamsburg, Va., Apr. 1995), 8-14; Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York, 1997), 19-20, 47; and Schmitt, "Sentimental Journey," 119. See also Joyce Appleby, "What Is Still American in the Political Philosophy of Thomas Jefferson?" WMQ, 3d Ser., 39 (1982), 292. For a counterpoint see Susan Dunn, "Revolutionary Men of Letters and the Pursuit of Radical Change: The Views of Burke, Tocqueville, Adams, Madison, and Jefferson," ibid., 53 (1996), 73i> 745~4^

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a Humean Madison full circle. They do so because near the heart of Adair's own revisionist project was a critique of Columbia University's Charles A. Beard and the "Progressives" who dominated the historical scholarship of Adair's early academic years. Adair, particularly in his dissertation, was concerned to show that books, not just economics or geography, were of essential importance to the development of Madison's political thought and our recovery of it.11 Indeed, Adair attempted virtually to recreate the scene of Madison's sitting down to write Federalist No. 10 with Hume's book "open on the table beside him." Hence it was that Adair could speak of Madison being "electrified" and "suddenly" enlightened as his eyes ran over Hume's pages, pages that provided the political insights for which Madison had been searching.12 Adair's most comprehensive challenge originated with Edmund S. Morgan. Morgan postulated that Madison's political problems, unlike Hume's, were real ones: "While Hume sought to correct the faults he found in Harrington's theoretical thinking, Madison sought to correct the faults he found in the practicing republics among which he lived."13 Challenging the intellectual integrity of Adair's position, Morgan did not aim simply to modify the degree of Hume's impact on Madison; he strove to show that Hume's books had no significant influence on Madison whatsoever. In the same journal that had published Adair's seminal essay almost thirty years earlier, Morgan now spoke not in Adairian terms of demonstrable "similarities" between Madison and Hume, but rather of a "direct contrast" between the two. For Morgan, "Madison's insight into the advantages of a large republic bears only a superficial resemblance to Hume's."14 This challenge is a weighty one, not only owing to Morgan's stature as a prominent historian of American thought and culture, but also because it is accompanied by one of the most thorough accounts of Madison's ideas on faction. The "insight that lent distinction to the tenth Federalist" wrote Morgan in his attempt to differentiate Madison from Hume, "did not lie 11

Adair was reacting in particular to Beard's An Economic Interpretation of the Constitution of the United States (1913); see Adair, "Intellectual Origins of Jeffersonian Democracy," esp. 13, 15-17, 24-25, 39, 62, and "Tenth Federalist Revisited," 119-26. 12 Adair, "Intellectual Origins of Jeffersonian Democracy," 252, 266n; Adair, "That Politics May Be Reduced to a Science/" 141. On this point see Rakove, "Hume, Madison, and the Vexatious Question of Influence," 6-8. 13 Morgan, "Safety in Numbers: Madison, Hume, and the Tenth Federalist" Hunting-ton Library Quarterly, 49 (1986), 99; see also 107: "Hume was engaged in an intellectual exercise." It is ironic that 20th-century commentators differentiated a "speculative" Hume from "pragmatic" 18th-century Americans. Hume's 18th-century American readers often praised him for the very realism modern scholars find lacking. 14 Ibid., 105; see also 107,109.

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in Madison's borrowed discussion of the causes of faction; it lay in the reasons he advanced for believing that factions were less of a menace in a large country under republican government than in a small one." Morgan grudgingly conceded that Madison was "indebted" to "Hume in his analysis of the causes of factions" and even that he "clearly borrowed from Hume in a similar outline." But, he argued, "where the two parted was in the proposed treatment" of factions. According to Morgan, "Hume would have overcome factions by trying to prevent their formation. Madison, instead, made a virtue of their abundance." For Morgan, "Madison's reasoning on the subject" of factions was not only "different from Hume's" but "in some ways the direct opposite of Hume's." It is inappropriate to think of Madison as a Humean, he wrote, because while Madison saw the answer to factions in diversity and a profusion of parties, Hume desired a homogeneous state and wished that all factions be eliminated: Hume wanted, so far as possible, to keep factions from forming. He does not locate the superiority of a large republic in its control of factions but in the greater likelihood "of preserving it steady and uniform, without tumult and faction." Not in spite of faction but without faction. Though he rooted factions in human nature, he emphasized prevention rather than control, uniformity rather than diversity. . . . Factions, in Hume's view, were . . . destructive of government, and the only solution was to prevent them from forming.15 Morgans analysis has proved extremely influential, but it is also very misleading.16 Morgan's reading of Madison was much better than his reading of Hume. Ironically, it is precisely where Morgan thought Madison differed most from Hume that the two were really at their closest. 15 16

Ibid., 96, no, 109.

For the influence of Morgan's analysis see Arkin, "Intractable Principle/' 168, 151, 157. Madison "clearly did not draw his solution to the problems presented by factions directly from Hume since, as Morgan observed, the philosopher attempted to keep factions from forming in the first place, while Madison based his analysis on the inevitability of factions in any body politic"; Madison "clearly rejected Hume's conclusion that factions inevitably led to the subversion of government and that the key was to prevent them from coalescing at all"; "Madison parted company with Hume's gloomy assessment that factions, once formed, necessarily led to the overthrow of government"; Banning, Sacred Fire of Liberty, 467^5; and Ellis Sandoz, A Government of Laws: Political Theory, Religion, and the American Founding (Baton Rouge, 1990), 174: "Not elimination but merely 'curing the mischiefs of faction' is the framers' hope. For Hume, however, factions are thoroughly bad, obnoxious 'weeds' he wishes 'to eradicate' from the political garden. For the uniquely American theory of free government, this contrast is critically important. Factions are not without merit for Publius."

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James Madison had come into contact with David Hume's writings long before November 1787. Just how long before is difficult to say for certain. Hume's Essays and Treatises on Several Subjects and his History of England were widely disseminated in the United States by the 17805 and Madison read them earlier than 1787, as had many of Madison's readers.17 When Madison first read Hume we do not know, but it was earlier than 1782. By all accounts Madison was an avid reader and he may first have read Hume as a young boy at Montpelier, his father's piedmont Virginia estate, or during the earliest years of his formal education, which was at the hands of Donald Robertson. Robertson, an Aberdeen and Edinburgh educated Scot, had moved to Virginia in 1753 and reportedly had Hume titles in his school library.18 If Madison was not introduced to Hume's books by Robertson or by his later tutor Thomas Martin, he certainly read Hume when his thirst for knowledge drew him north from Orange County, Virginia, to take up formal studies at the College of New Jersey.19 The president of the college, John Witherspoon, discussed Hume in the Moral Philosophy lectures that Madison attended. Perhaps more important, Witherspoon recommended the reading of Hume, including Hume's collected works, the Essays and Treatises on Several Subjects, in his list of extracurricular reading. It is highly likely that Madison, a voracious reader, would have followed Witherspoon's reading advice because by all accounts Madison was something of a prote'ge' of Witherspoon. The two got on so well that upon his graduation, Madison stayed on at Nassau Hall to study under Witherspoon directly, becoming, says the legend, America's first graduate student.20 17 On the circulation and reception of Hume's works in early America see Mark G. Spencer, "The Reception of David Hume's Political Thought in EighteenthCentury America," 2 vols. (Ph.D. diss., University of Western Ontario, 2001). See also Spencer, ed., Hume's Reception in Early America, 2 vols. (Bristol, 2002). 18 See C. William Hill, Jr., The Political Theory of John Taylor of Caroline (Rutherford, N. J., 1977), 38. 19 On Madison's early education and bookish habits see Adair, "James Madison," 179; Banning, Sacred Fire of Liberty, 76-77; Roy Branson, "James Madison and the Scottish Enlightenment," Journal of the History of Ideas, 40 (1979), 235—50, esp. 235-36; Irving Brant, James Madison: The Virginia Revolutionist (Indianapolis and New York, 1941), 57-60; Rutland, "Education," in Rutland, ed., James Madison and the American Nation, 1751-1836: An Encyclopedia (New York, 1994), 260-63; Rutland, "Madison's Bookish Habits," Quarterly Journal of the Library of Congress, 37 (1980), 176—91; Archie Turnbull, "Scotland and America, 1730-90," in David Daiches, Peter Jones, and Jean Jones, eds., A Hotbed of Genius: The Scottish Enlightenment, 1730-1790: (Edinburgh, 1986), 138; and Wills, Explaining America, 13-14. 20 See Dennis F. Thompson, "The Education of a Founding Father: The Reading List for John Witherspoon's Course in Political Theory, as Taken by James Madison," Political Theory, 4 (1976), 523-29. When Madison read Hume, he may

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We know that Madison's classmate and friend William Bradford took to heart Witherspoon's advice to read Hume. Bradford paraphrased Hume's An Enquiry Concerning Human Understanding in a letter that he sent to Madison in 1772, shortly after the two had graduated.21 That Bradford felt no need to identify the author from whom he quoted suggests that he, one of Madison's closest college companions, knew Madison had already read his Hume closely enough to identify the passage. In another exchange, Madison replied to the information that Bradford was soon to read Hume's History of England as if to suggest that the History of England, too, was a work with which he himself was already familiar. "I am pleased that you are going to converse with the Edwards and Henry's & Charles &c&c who have swayed the British Sceptre," wrote Madison, "though I believe you will find some of them dirty and unprofitable Companions unless you will glean Instruction from their follies and fall more in love with Liberty by beholding such detestable pictures of Tyranny and Cruelty."22 Samuel Stanhope Smith was another of Madison's Princeton classmates who followed Witherspoon's reading suggestions and read Hume closely. Smith, who was soon to have Witherspoon as a father-in-law and who would in 1779 be appointed Professor of Moral Philosophy on the way to becoming himself president of Princeton, wrote Madison in late 1777 or early 1778 to solicit Madison's opinions of Hume's philosophy. Smith hoped, he said in his letter, that "it may prove a relaxation" to Madison among his political duties "to attend to a few metaphysical ones" and that he "would not have troubled you [Madison] on such subjects, if I [Smith] had not known your taste for them." Smith clearly thought Madison a worthy commentator on Hume's philosophy, and declared that he wrote "with the prospect of my own improvement, & not of your information, & therefore beg in return your candid animadversions on my scheme with your own thoughts on the same subnot have been as rebellious as Wills, Explaining America, 20, assumed: "Naturally, Dr. Witherspoon's resentment of David Hume just whetted his students' interest in him."

21 Bradford to Madison, Oct. [13], 1772, in Madison Papers, 1:73; Bradford quoted from Hume: "Human nature is the same in every age if we make allowance for the difference of customs & Education, so that we learn to know ourselves by studying the opinions & passions of others." 22 Madison to Bradford, Jan. 24, 1774, in Madison Papers, 1:105. Madison was responding to Bradford to Madison, Dec. 25, 1773, ibid., 103: "I propose reading Hume['s] History as soon as time will permit;" Conniff, "Enlightenment and American Political Thought," 385, seems not to have considered these exchanges when he speculated that Witherspoon's teaching method was "to achieve synthesis from diversity" and "probably obscured the differences among his sources and discouraged the kind of close reading that Adair postulates Madison doing over Hume."

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ject." Unfortunately, Madison's response, if he wrote one, has not survived.23 In 1779 Madison quoted passages from Hume's Essays Moral, Political, and Literary in his "Observations written posterior to the circular Address of Congress in Sept., i779>" which eventually would appear in print in Philip Freneau's National Gazette many years later—in 1791. Madison on this occasion did not agree with Hume, but nevertheless referred to him as a "very ingenious writer." In particular, Madison challenged the theory he found in Montesquieu and Hume, arguing that the "value of money will be regulated by its quantity." Madison countered that moneys value "depends on the credit of the state issuing it." In criticizing Humes political/economic thought, Madison showed himself familiar with "Of the Balance of Trade," yet another of the essays from Hume's Essays and Treatises on Several Subjects, and, furthermore, showed that he considered Hume's arguments sufficiently well circulated and accepted by his eighteenth-century American audience to warrant rebuttal.24 A few years later, when Federalist No. 10 was still five years in the offing, Theodorick Bland appointed Madison in July of 1782 chairman of the committee to draw up a "list of books to be imported for the use of the United States in Congress Assembled." Given Madison's familiarity with Hume's writings and the general inclusion of Hume's political thought in the intellectual world of the American Enlightenment, it might have been somewhat of a foregone conclusion that Madison's core list of essential books would include Hume's Essays and Treatises on Several Subjects and his History of England—as it did.25 One should not attempt—as Adair did—to recreate the image of Madison pouring over Hume's political essays for new insight as he sat writing in November 1787 the text that would become Federalist No. io.26 23 Smith to Madison, [Nov. ijjy-Aug. 1778], ibid., 194-212. See Ketcham, "James Madison and Religion A New Hypothesis/* in Robert S. Alley, James Madison on Religious Liberty (Buffalo, 1985), 182-84. 24 See Madison, "Money," [Sept. 1779-Mar. 1780], in Madison Papers, 1:304. I find no evidence to suggest that Madison here "drew on Hume's writings" as Paul L. Brown says he did in "David Hume," in Rutland, ed., James Madison and the American Nation, 196. 25 See Madison, Madison Papers, 6:63, 80, 87. The evidence considered above supports a claim stronger than Ketcham, "Notes on James Madison's Sources for the Tenth Federalist Paper," Midwest Journal of Political Science, i (1957), 23, that there was "the possibility that Madison had direct access to Hume's essays," but weaker than Wills, Explaining America, 183, unsubstantiated speculation that Hume's Essays was Madison's "favorite book." 26 Adair, "Intellectual Origins of Jeffersonian Democracy," 266n, wrote that when Madison wrote Federalist No. io, "Hume's book was open on the table beside him." Adair returned to this rhetorical image in "That Politics May Be Reduced to a Science,'" 143, writing, for instance, that "Madison quite easily traced out the origin of Hume's scheme. He found it in the essay entitled 'Of the First Principles of

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Madison had known Hume's Essays Moral, Political, and Literary for a long time before 1787. Just as important, Madison also had a lengthy acquaintance with Hume's History of England, a book that was much more popular in the eighteenth century than it is today. Did Hume's observations about faction in a historical framework influence Madison's thinking about faction in America? Despite the heightened debate about Hume's impact on Madison, that question has not yet been answered because it seems never to have been asked.27 It was in the widely read History of England, not the political essays, that Hume presented his most extended discussion of faction. All six volumes of the History of England have numerous passages that deal with the topic of faction. Hume tellingly wrote to Adam Smith that he had begun his narrative with the Stuart dynasty because "the Factions, which then arose, . . . form the most curious, interesting, & instructive Part of our History."28 From the History's inception, Hume was concerned with identifying the causes, nature, and remedy for faction. The history of England as he knew it and eventually wrote it provided Hume's readers Government/" Adair's notion of the immediacy of Madison's Humean epiphany is in need of serious revision, largely because it has been very influential. See William Lee Miller, The Business of May Next: James Madison and the Founding (Charlottesville, 1992), 53: "1787, when (we may assume) James Madison was sitting in his rooms in New York with a printed copy of David Hume's essays in his hand." Winton U. Solberg, The Constitutional Convention and the Formation of the Union, id ed. (Urbana, 111., 1990), xcviii, writes, "But it was Madison who led the way to the solution, the key to which—enlarging the sphere of government—he found on the eve of the Convention in reading Hume." Kramer, "Madison's Audience," 629, sees a similar moment of realization for Madison, but places it during the writing of the "Vices" memorandum: "Most of what he says here is familiar from its later incarnation as the Federalist No. 10, but one can sense Madison's excitement, even at a distance of two centuries, as he realizes for the first time that the 'prevailing Theory' has things backwards and that size provides an answer to the problem of faction"; see also ibid., 636. 27 Adair set that trend by concentrating on Hume's political essays to the exclusion of the History. Wills explained that he aimed to trace Madison and Hamilton's debts "to Hume's political essays"; "Plan of the Series," Explaining America, [ix]. "Hume's primary discussion of faction" is not to be found in his essay "Of Parties in General," as Arkin,"Intractable Principle," 159, says and others assume, but in the History of England. Jennifer A. Herdt, Religion and Faction in Hume's Moral Philosophy (Cambridge, 1997), is one of the most detailed published studies of Hume on faction, but she concentrates almost exclusively on Hume on religious faction and gives short shrift to the History. Hume's interest in history was well formed by the time he came to write A Treatise of Human Nature (1739-1740), which contains many references to historians both ancient and modern. 28 Hume to Smith, Sept. 24, 1752, in J.Y.T. Greig, ed. Letters of David Hume, 2 vols. (Oxford, 1932), 1:167-68. See also Hume, "My Own Life," Essays Moral, Political, and Literary, xxxvi, where he wrote that he began his History "with the accession of the House of Stuart, an epoch when, I thought, the misrepresentations of faction began chiefly to take place."

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with the historical evidence that lurked behind the seemingly theoretical discussions of Hume's political essays. Reading the History of England in conjunction with the Essays and Treatises on Several Subjects, Hume's eighteenth-century audience might flesh out Hume's earlier published and episodic thoughts with his most mature reflections on the topic of faction. What did that reading impart? Hume considered the propensity for faction to be a driving and powerful force in the history of mankind. That theme is implicit in all of Hume's writings on political subjects and also explicitly stated in the History of England, such as when Hume argued that the factional strife occasioned by the Scottish Reformation documented in detail "the operation of those principles, which are inherent in human nature." Like Hume, Madison came to believe that the "causes of faction" were "sown in the nature of man." For Hume, different causes produced different kinds of factions. In "Of Parties in General" Hume argued that factions "may be divided into PERSONAL and REAL" or, as he explained, those "founded on personal friendship or animosity among such as compose the contending parties, and into those founded on some real difference of sentiment or interest." And he further argued that "real factions may be divided into those from interest, from principle, and from affection." Commentators have noted this aspect of Hume's discussion of faction, but they have been less attentive to the fact that Hume also thought of factions on a differentiated scale where they could be more or less "reasonable" and "excusable."29 Hume thought extreme factions of all sorts ought to be avoided and prevented, as far as possible, from forming in the political state. In a passage from the History of England that Madison took to heart, Hume explained that it was not surprising "that faction is so productive of vices of all kinds: For, besides that it inflames all the passions, it tends much to remove those great restraints, honour and shame; when men find, that no iniquity can lose them the applause of their own party, and no innocence secure them against the calumnies of the opposite."30 29

Hume, The History of England from the Invasion of Julius Caesar to The Revolution in 1688, 6 vols. (Indianapolis, 1983; orig. pub. 1778), 4:19. Madison, "FederalistNo. 10," 264, 265; Hume, "Of Parties in General," 56, 63, 59. Hume here also drew an example from ancient Roman history to illustrate mankind's "strong propensity" to faction (see 57n) and argued that "such is the nature of the human mind, that it always lays hold on every mind that approaches it; and as it is wonderfully fortified by an unanimity of sentiments, so is it shocked and disturbed by any contrariety. Hence the eagerness, which most people discover in a dispute; and hence their impatience of opposition, even in the most speculative and indifferent opinions. This principle, however frivolous it may appear, seems to have been the origin of all religious wars and divisions"; ibid., 58, 60-61. 30 Hume, History of England, 6:438. For Madison's echo see Madison Papers, 10:213. For Hume's position see also ibid., 3:228, 6:411, and Hume to Adam Smith,

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Hume singled out fanatical religious factions that "in modern times" were "more furious and enraged than the most cruel factions that ever arose from interest and ambition." He famously contrasted the founders of extreme, destructive factions with their foil, the givers of rules of law. That is the context in which we need to read Hume's oft-cited statement that "as much as legislators and founders of states ought to be honoured and respected among men, as much ought the founders of sects and factions to be detested and hated; because the influence of faction is directly contrary to that of laws." "Factions," concluded Hume, "subvert government, render laws impotent, and beget the fiercest animosities among men of the same nation, who ought to give mutual assistance and protection to each other."31 If that were all Hume had to say about faction, he would not have been saying anything terribly unique. As Bolingbroke had put the eighteenthcentury consensus, "party is a political evil, and faction is the worst of all parties." Characterizing faction in negative terms was common practice throughout the eighteenth-century English Atlantic world. An American almanac at the end of the century, for instance, paraphrased Bolingbroke s maxim under the heading "FACTION AND PARTY": "Faction is to party what the superlative is to the positive: party is a political evil, and faction is the worst of all evils. Parties, even before they degenerate into absolute factions, are still numbers of men associated together for certain purposes." But on closer inspection Hume s thought on faction is different from this common version and more complex than Morgans and other commentators' readings allow. Hume blurred the distinctions between parties and factions and even used the words interchangeably. Hume, like Madison, saw in faction a potential for good that is absent from eighteenth-century accounts typified by Bolingbroke s dark picture. To an eighteenth-century audience that was attuned to the constitutional thought in Hume's History of England, Hume's novelty would have been clearer than to modern readers who focus on the Essays Moral, Political, and Literary only.32 Feb. 13, 1774, in Letters of David Hume, ed. Greig, 2:286: "Faction, next to Fanaticism, is, of all passions, the most destructive of Morality." 31 Hume, "Of Parties in General," 63, 55. Adam Smith, The Theory of Moral Sentiments, ed. D. D. Raphael and A. L. Macfie (Indianapolis, 1976), 232, seems to have picked up Hume's point: "The leader of the successful party . . . if he has authority enough to prevail upon his own friends to act with proper temper and moderation (which he frequently has not), may sometimes render to his country a service much more essential and important than the greatest victories and the most extensive conquests. He may re-establish and improve the constitution, and from the very doubtful and ambiguous character of the leader of a party, he may assume the greatest and noblest of all characters, that of the reformer and legislator of a great state; and, by the wisdom of his institutions, secure the internal tranquillity and happiness of his fellow citizens for many succeeding generations.*' 32 See Henry St. John, Viscount Bolingbroke, The Idea of a Patriot King, in The Works of Lord Bolingbroke, 4 vols. (Philadelphia, 1841), 3:83, and Starry Calculator;

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In the History of England, extreme factions are criticized, but moderate party affiliation is shown to be innocuous and even praiseworthy. Hume could give high praise to a historical agent like General Monk, who had emphatic party affiliation, but who was "remarkable for his moderation in party." Similarly, Hume argued that France's Henry IV was an "excellent prince" because he "was far from being a bigot to his sect," striving to keep "theological disputes entirely subordinate to the public good." In "Of the Parties of Great Britain" Hume remarked on the historical inevitability and reasonableness of England's political factions, writing that they were "involved in the very nature" of the English constitution. "The just balance between the republican and monarchical part of our constitution is really, in itself, so extremely delicate and uncertain, that, when joined to men's passions and prejudices, it is impossible but different opinions must arise concerning it, even among persons of the best understanding."33 And, Hume continued, "though all reasonable men agree in general to preserve our mixed government; yet, when they come to particulars, some will incline to trust greater powers to the crown . . . and to guard against its encroachments with less caution, than others who are terrified at the most distant approaches of tyranny and despotic power." Hume did not consider all factions to be harmful—only extreme ones. Moderate factions were not only inevitable, they could be beneficial. "To abolish all distinctions of party," wrote Hume, "may not be practicable" nor even "desirable, in a free government." The History of England illustrated, in a systematic way, that it was through the operation of moderate concessions between parties that England's history took its wavering and uncertain steps from being an Almanac for the Year of Our Lord 1709 (Shippensburgh, Pa., 1798). On the prevalence in the i8th century of the view that party was "dangerous and destructive" see Gordon S. Wood, The Creation of the American Republic, 1776—1787 (Chapel Hill, 1969), 58-59. Hume's thought on party has been categorized mistakenly as "representing the prevailing view" on party in James Pierson, "Party Government," Poll. Sci. Reviewer, 12 (1982), 2. For a better assessment see Geoffrey Marshall, "David Hume and Political Scepticism," Philosophical Quarterly, 4 (1954), 253. 33 Many years after writing Federalist No. 10, Madison made a point similar to Hume's but about the Constitution of the United States; see Madison to Henry Lee, June 25, 1824, in Letters and Other Writings of James Madison, Fourth President of the United States, 4 vols. (Philadelphia, 1865), 3:441-42: "Besides the occasional and transient subjects on which parties are formed, they seem to have a permanent foundation in the variance of political opinions in free States, and of occupations and interests in all civilized States. The Constitution itself, whether written or prescriptive, influenced as its exposition and administration will be by those causes, must be an unfailing source of party distinctions. And the very peculiarity which gives preeminent value to that of the United States, the partition of power between different governments, as well as between different departments of government, opens a new door for controversies and parties."

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barbarism to refinement. England's parties of Court and Country, although "they oft threaten the total dissolution of the government," were nevertheless "the real causes of its permanent life and vigour."34 Hume, then, did not envision politics (either ideal or real) operating in an homogeneous state "without faction," as Morgan and others have written. Rather, he thought that the political factions in the Britain of his day might be reasonably defended and, as he put it, "with some zeal too." "The only dangerous parties are such as entertain opposite views with regard to the essentials of government." Hume "would only persuade men not to contend, as if they were fighting pro arts & focis, and change a good constitution into a bad one, by the violence of their factions." As he put it in the "Preface" to the 1741 Essays Moral, Political, and Literary, "public spirit should engage us ... to bear an equal affection to all our countrymen, and not to hate one half of them under pretext of loving the whole." That lesson would prove an apt one for Americans in the 17805 and was spelled out in the History of England time and time again, not only in the Stuart volumes, but also in those volumes dealing with earlier times. Hume wrote disparagingly of ancient England as a barbarous place where "each state was divided into factions within itself." The attempt of the ancient Britons to defend themselves against the invading Danes, Hume explained in another passage, had "all hopes of its success . . . disappointed by the factions, animosities, and dissentions" that then existed. These extreme divisions even led Hume uncharacteristically to praise the clerics, whose religion, though superstitious, "served to unite together a body of men who had great sway over the people, and who kept the community from falling to pieces, by the factions and independant power of the nobles."35 It was because he abhorred extreme factionalism that Hume criticized much of the constitutional thought of his contemporaries. Hume 34

Passages quoted from Hume, History of England, 6:123, 4:290; "Of the Parties of Great Britain," 64-65; "Of the Coalition of Parties," 493; and "Notes to the Fifth Volume," History of England, 5:556. Hume explained as a note to this note that it "was in the first editions a part of the text; but the author omitted it, in order to avoid, as much as possible, the style of dissertation in the body of his history. The passage however, contains view so important, that, he thought it might be admitted as a note"; ibid., 559. 35 Hume, "Of the Coalition of Parties," 493. He made a similar point in "Of the Populousness of Ancient Nations," 407: "to exclude faction from a free government, is very difficult, if not altogether impracticable"; Hume, "That Politics May be Reduced to a Science," 31; "Preface," quoted in Marshall, "David Hume and Political Scepticism," 253; Hume, History of England, 1:5,117, 2:14. Hume, ibid., 311, also wrote that "the ancient history of England is nothing but a catalogue of reversals: Every thing is in fluctuation and movement: One faction is continually undoing what was established by another." Of England at the midpoint of the i6th century, Hume, ibid., 325, remarked, "When no faction or division prevailed among the people, there was no foreign power that ever thought of invading England."

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disliked the extremes to which those in the inevitable and inevitably opposed Whig and Tory parties had taken their political arguments. In his essay "That Politics May be Reduced to a Science," Hume wrote that the extremist views of Walpole's admirers as well as those of his detractors "beget an extraordinary ferment on both sides, and fill the nation with violent animosities." In language reminiscent of Thomas Gordon and John Trenchard, Hume wrote: There are enow of zealots on both sides who kindle up the passions of their partizans, and under pretence of public good, pursue the interests and ends of their particular faction. For my part, I shall always be more fond of promoting moderation than zeal; though perhaps the surest way of producing moderation in every party is to increase our zeal for the public. "Let us therefore try," he recommended, "to draw a lesson of moderation with regard to the parties, into which our country is at present divided." In other essays, notably "Of the Coalition of Parties" and also throughout the History of England, Hume expanded on these conciliatory ideas. For Hume, moderate factions promoted a hesitantly improving process, but extreme factionalism threatened it all. These were views Madison came to accept.36 Madison in Federalist No. 10 writes of the causes of faction in language that closely approaches Hume's in "Of Parties in General" and in the History of England: A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have in turn divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other, than to co-operate for their common good.37 36 Hume, "That Politics May be Reduced to a Science/' 27-28. On Trenchard and Gordon see Ronald Hamowy, ed., Cato's Letters: Or, Essays on Liberty, Civil and Religious, and Other Important Subjects, 2 vols. (Indianapolis, 1995), 2:583—87. See also Hume, History of England, 1:324, apropos the factious division between the civil and spiritual powers in 12th-century Scotland: "it was not impossible, but by moderation on both sides, government might still have been conducted, in that imperfect and irregular manner which attends all human institutions." 37 Madison, "Federalist No. 10," 265. It is hard to over-emphasize the importance of this position to Madison's political thought. As we shall see, he described in similar terms in other writings the fragmented interests of civilized societies.

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For both Hume and Madison, human nature's propensity for antisocial and anticommunal actions was exacerbated by a basic propensity for faction. The "spirit of faction," wrote Hume, is so strong that it is "difficult for [even] a social and sanguine temper to guard against" it. "So strong is this propensity of mankind to fall into mutual animosities," echoed Madison, "that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions, and excite their most violent conflicts."38 Madison also described factions in Humean terms when he argued that factions might be less or more extreme and that it was only extreme factions—those which interfered with the "common good" of society— that were noxious. Madison's now-famous definition of faction in Federalist No. 10 was constructed so that it denoted only parties that were destructive of the wider community. His definition was Humean. Factions, wrote Madison, were composed of "a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community." Madison, like Hume, unambiguously thought extreme factions to be dangerous and, also like Hume, considered that "among the numerous advantages promised by a wellconstructed union, none deserves to be more accurately developed than its tendency to break and control the violence of faction."39 Both Madison and Hume argued that extreme factions presented the gravest danger of dividing the society that harbored them when the multifaceted interests within that society became aligned so that two separate factions were created within a single political community. Hume's most explicit discussion of the dangerous consequences of polarized factions is found in his narrative of the events leading to the English Civil War. Illustrative of the different kinds of factional motivations he identified in "Of Parties in General," Hume observed in the History ofEnglandy that the appellation puritan stood for three parties, which, though commonly united, were yet actuated by very different views and motives. There were the political puritans, who maintained the highest principles of civil liberty; the puritans in discipline, who were averse to the ceremonies and episcopal government of the church; and the doctrinal puritans, who rigidly defended the speculative system of the first reformers. 38 39

Hume, History of England, 3:19-20; Madison, *'Federalist-No. 10," 265. Madison, "Federalist No. 10," 263-65.

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On the opposed side stood a faction comprised of a coalition of "the court party, the hierarchy, and the Arminians." Humes point was that "as the controversies on every subject grew daily warmer, men united themselves more intimately with their friends, and separated themselves wider from their antagonists." When Madison came to write of the consequences of extreme factions, he too stressed the dangers of polarization.40 Most often Madison couched his discussion of a two-party polarization in terms of the division between a majority and a minority. In Federalist No. 10, he defended a large republic because it made polarization more difficult: "Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens/'41 In other surviving writings dating from April to October 1787, Madison made similar points when he discussed faction at least three times before he came to publish Federalist No. 10 in late November of that year.42 Each time Madison prefaced his defense of the Humean extended sphere with a discussion that pointed to the ill-effects of polarized factions. In "Vices of the Political System," Madison identified the majority as the law giver in a republican government and asked: "Whenever therefore an apparent interest or common passion unites a majority what is to restrain them from unjust violations of the rights and interests of the minority, or of individuals?" On the floor of the Constitutional Convention, Madison again identified the threat of factional polarization: All civilized Societies would be divided into different Sects, Factions, & interests, as they happened to consist of rich & poor, debtors & creditors, the landed the manufacturing the commercial interests, the inhabitants of this district or that district, the followers of this political leader or that political leader, the disciples of this religious Sect or that religious Sect. 40

Hume, History of England, 5:212, see also 4:19, 6:176. Hume's discussion of two-party polarization is interesting in light of his assessment of the History's reception. Writing to the comtesse de Boufflers, May 15,1761, in Letters of David Hume, ed. Greig, 1:344, Hume remarked that "the spirit of faction, which prevails in this country, and which is a natural attendant on civil liberty, carries every thing to extremes on the one side, as well as on the other; and I have the satisfaction to find, that my performance has alternately given displeasure to both parties. I could not reasonably hope to please both: such success is impossible from the nature of things; and next to your Ladyship's approbation, who, as a foreigner, must necessarily be a candid judge, I shall always regard the anger of both as the surest warrant of my impartiality." 41 Madison, "Federalist No. 10," 269. 42 See Madison, "Vices of the Political System of the United States," in Madison Papers, 9:345-58; Madison, speech to the Federal Convention, June 6, 1787, ibid., 10:32-34; and Madison to Jefferson, Oct. 24,1787, ibid., 205-20.

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"In all cases where a majority are united by a common interest or passion," he concluded, "the rights of the minority are in danger."43 In the i/Sos, when Madison looked about him at the political landscape of Virginia and the other United States of America, he did so through eyes that had been reading Hume. Like Hume, Madison thought that factions "propagate themselves faster in free government," and he worried about the potential for factional polarization under the "league of friendship" that was the Articles of Confederation. Daily he saw evidence that squabbling over political and economic issues, such as western policy, border disputes, and government finances, would lead to polarized political factions within and between the individual states. The potential of an extended sphere to break factional polarization had great appeal for Madison. If "there must be different interests and parties in Society," he declared to Jefferson, "and a majority when united by a common interest or passion can not be restrained from oppressing the minority, what remedy can be found in a republican Government, where the majority must ultimately decide, but that of giving such an extent to its sphere, that no common interest or passion will be likely to unite a majority of the whole number in an unjust pursuit." Madison thought that in a "large Society" polarization might be avoided because "the people are broken into so many interests and parties, that a common sentiment is less likely to be felt, and the requisite concert less likely to be formed, by a majority of the whole." This portrait of Madison's intellectual development does not create as sharp a divide from Hume as many commentators have assumed. It is clear now, much more than when Adair first drew the connection, that the spirit and details of Madison's Federalist No. 10 are Humean with respect to the causes and nature of faction.44 But did Hume and Madison share other ground, yet unexplored, on the topic of faction? Religious factions and their consequences were of utmost interest to both Hume and Madison. For Hume, when opposed religious considera43 Madison, "Vices of the Political System of the United States," 355; Madison, speech to the Constitutional Convention, June 7, 1787, 33. Madison returned to this theme in "The Federalist No. 51,*' in Madison Papers, 10:479, where he employed terms from Hume's "Of the Coalition of Parties": "In the extended republic of the United States, and among the great variety of interests, parties and sects which it embraces, a coalition of a majority of the whole society could seldom take place upon any other principles than those of justice and the general good." 44 Hume, "Of Parties in General," 55-56; Madison to Jefferson, Oct. 24, 1787, Madison Papers, 10:214. For the context of the threat of polarization in the 17805 see Banning, Sacred Fire of Liberty, 43-57; Rakove, The Beginnings of National Politics: An Interpretive History of the Continental Congress (New York, 1979), passim, and Original Meanings, 25-34.

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tions were added to any party mix, factional polarization became almost a moral certainty. Hume thought that "theological principles" typically had "small influence" on men, but "when they become symbols of faction, and marks of party distinctions, they concur with one of the strongest passions in the human frame, and are then capable of carrying men to the greatest extremities." In his account of the English Civil War, Hume maintained that religion was the primary point of difference and that it was the one difference that "was the least susceptible of composition or moderation between the contending parties." The results of this factional divide were devastating to English politics and society: No people could undergo a change more sudden and entire in their manners than did the English nation during this period. From tranquillity, concord, submission, sobriety, they passed in an instant to a state of faction, fanaticism, rebellion, and almost frenzy. The violence of the English parties exceeded any thing, which we can now imagine: Had they continued but a little longer, there was just reason to dread all the horrors of the ancient massacres and proscriptions. . . . No social intercourse was maintained between the parties; no marriages or alliances contracted. . . . The manners of the two factions were as opposite as those of the most distant nations. When extreme religious polarization took hold, allegiance to the wider community was threatened invariably and to the breaking point. Hume illustrated similarly disastrous chains of events drawing historical examples not only from English history, but also from the histories of Ireland and France. Historical experience, and the world within which he lived, suggested to Hume that religious factions were a breed apart.45 45 Hume, History of England, 6:389; 5:526, 6:141. See also ibid., 2:295-96, 4:55, 167-68, 387 Note [B]: "Calumnies easily arise during times of faction, especially those of the religious kind, when men think every art lawful for promoting their purpose." On Hume's perception of the religious spirit in 18th-century Britain, see Spencer, "The Dialogues Concerning Natural Religion: Hume's Response to the Dogmatic and Intolerant," Western Journal of Graduate Research, 9 (2000), 1-19; see also Hume, A True Account of the Behaviour and Conduct of Archibald Stewart, Esq; Late Lord Provost of Edinburgh, in John Valdimir Price, The Ironic Hume (Austin, 1965), 171-72. Hume, History of England, 5:67, considered religion's influence on politics to be beyond human control: "it is an observation, suggested by all history, and by none more than by that of James and his successor, that the religious spirit, when it mingles with faction, contains in it something supernatural and unaccountable; and that, in its operations upon society, effects correspond less to their known causes than is found in any other circumstance of government." Religious factions were a long way from serving for Hume "as a paradigm for faction" as Arkin suggests, "Intractable Principle," 174.

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That is why Hume wrote a "Digression concerning the ecclesiastical state" in the History of England, in which he maintained "there must be an ecclesiastical order, and a public establishment of religion in every civilized community." Without an established church every "ghostly practitioner" leading a different religious faction would inspire his followers "with the most violent abhorrence of all other sects, and continually endeavour, by some novelty, to excite the languid devotion of his audience." In that scrimmage of all-against-all, "no regard will be paid to truth, morals, or decency in the doctrines inculcated. Every tenet will be adopted that best suits the disorderly affections of the human frame. Customers will be drawn to each conventicle by new industry and address in practising on the passions and credulity of the populace." The only policy to disarm religious fanatics, concluded Hume, was for civil authorities "to bribe their indolence, by assigning stated salaries to their profession, and rendering it superfluous for them to be farther active, than merely to prevent their flock from straying in quest of new pastures." Historical experience and contemporary practice suggested to Hume that the mechanism of an established church was the only way to control the destructive force of religious faction.46 Madison clearly differed from Hume when he argued against an established church and for complete religious liberty. In some respects, Madison was closer here to Adam Smith. Smith famously took exception to Hume's lines on an established church when he quoted them, in order to rebut them, in his Wealth of Nations. Contra Hume, Smith argued that it was better to allow "every man to chuse his own priest and his own religion as he thought proper." Fanatical "religious teachers can be dangerous and troublesome only where there is, either but one sect tolerated in the society, or," wrote Smith employing Hume's language of polarized factions, "where the whole of a large society is divided into two or three great sects." Unlike Hume, Smith thought that the leaders of many small religious sects "finding themselves almost alone" would be led to respect the teachers of "almost every other sect." He concluded that "the concessions which they would mutually find it both conve46 Hume, History of England, 3:134-36. In the Natural History of Religion, 337, Hume had argued that "the intolerance of almost all religions, which have maintained the unity of God, is as remarkable as the contrary principle of polytheists. The implacable narrow spirit of the JEWS is well known, MAHOMETANISM set out with still more bloody principles; and even to this day, deals out damnation, though not fire and faggot, to all other sects. And if, among CHRISTIANS, the ENGLISH and DUTCH have embraced the principles of toleration, this singularity has proceeded from the steady resolution of the civil magistrate, in opposition to the continued efforts of priests and bigots." Elsewhere in the History of England, 2:379, Hume argued "that toleration is none of the virtues of priests in any form of ecclesiastical government/'

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nient and agreeable to make to one another, might in time probably reduce the doctrine of the greater part of them to that pure and rational religion, free from every mixture of absurdity, imposture, or fanaticism." Looking to the American theatre, Smith saw evidence for his position in Pennsylvania where "though the Quakers happen to be the most numerous, the law in reality favours no one sect more than another, and it is there said to have been productive of this philosophical good temper and moderation." Smith believed in 1776, as did Madison, that religious factions in America were less extreme than the British and European examples Hume had documented.47 Religious factional strife was a topic that interested Madison long before 1787 and even before 1776. Since at least the early 17708 and most likely dating from his days with Witherspoon at Princeton, religious liberty appears as a regular topic in Madisons surviving letters. It may even have been a sprouting desire to breathe the religious freedom at Princeton that attracted Madison there in the first place. Certainly the College of William and Mary at Williamsburg would have been the more natural choice, but one Madison possibly decided against because of the school's connections to the established church in Virginia.48 By early December of 1773, Madison had begun to think about religious toleration in a more systematic way. He wrote to William Bradford (in Philadelphia) that the "principles & Modes of Government are too important to be disregarded by an Inquisitive mind" and asked Bradford for "a scetch of the plan you have fixed upon for your studies, the books & the order you intend to read them in; and when you have obtained sufficient insight into the Constitution of your Country and can make it an amusement to yourself send me a draught of its Origin & fundamental principals of Legislation; particularly the extent of your religious Toleration." In a question that may have been prompted by his reading of Hume's History of England, Madison asked of Bradford, "Is an Ecclesiastical Establishment absolutely necessary to support civil society 47

Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, 2 vols., ed. R. H. Campbell and A. S. Skinner (Oxford, 1979), 2:790-94, quotations on 793. For an excellent expanded discussion of Smith's influence on Madison see Samuel Fleischacker, "Adam Smith's Reception among the American Founders," WMQ, 3d Sen, 59 (2002), 897-924. 48 See Brant, "Madison: On the Separation of Church and State," WMQ, 3d Ser., 8 (1951), 4, and Madison: Virginia Revolutionist, 67-70. For the context of Virginia as a state with "both a church established by law and a religiously diverse society," where dissenters were persecuted with effect, see Thomas E. Buckley, Church and State in Revolutionary Virginia, 1776—1787 (Charlottesville, 1977), 6; see also Charles F. James, Documentary History of the Struggle for Religious Liberty in Virginia (Lynchburg, 1900), and Marvin K. Singleton, "Colonial Virginia as First Amendment Matrix: Henry, Madison, and Assessment Establishment," in Alley, James Madison on Religious Liberty, 157-72.

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in a supream Government?" Later, when six Baptists who had preached without a license were imprisoned in Virginia in 1773-1774, Madison lamented to Bradford that he had "squabbled and scolded abused and ridiculed" against "that diabolical Hell conceived principle of persecution" without avail. Bradford replied that he was "sorry to hear that Persecution has got so much footing" in Virginia, and that he had always "looked on America as the land of freedom when compared with the rest of the world, but compared with the rest of america Tis Pennsylvania that is so." Madison hoped that Virginia might acquire religious freedom comparable to Pennsylvania, but feared that the Anglican establishment would not "hear of the Toleration of Dissentients."49 "You are happy," wrote Madison, in dwelling in a Land where those inestimable privileges are fully enjoyed and public has long felt the good effects of their religious as well as Civil Liberty. Foreigners have been encouraged to settle amg. you. Industry and Virtue have been promoted by mutual emulation and mutual Inspection, Commerce and the Arts have flourished and I can not help attributing those continual exertions of Gen [i] us which appear among you to the inspiration of Liberty and that love of Fame and Knowledge which always accompany it. Religious bondage shackles and debilitates the mind and unfits if for every noble enterprize every expanded prospect.50 In the summer of 1775, at the same time that Madison and Bradford were corresponding about Hume's works, Madison was eager to acquire other books that discussed religious toleration, like Josiah Tucker's An Apology for the Present Church of England and Philip Furneaux's An Essay on Toleration.1*1 All of this proved preparation for Madison's involvement 49 Madison to Bradford, Dec. i, 1773, in Madison Papers, 1:101; Madison to Bradford, Jan. 24, 1774, ibid., 106; Bradford to Madison, Mar. 4, 1774, ibid., 109: Bradford continued: "Persecution is a weed that grows not in our happy soil: and I do no[t] remember that any Person was ever imprisoned here for his religious sentiments however heritical or unepiscopal they might be." 50 Madison to Bradford, Apr. i, 1774, ibid., 112-13. 51 Tucker, Apology for the Present Church of England as by Law Established, occasioned by a Petition said to be preparing by certain Clergymen, and Others, to be laid before Parliament, for abolishing Subscriptions, in a letter to one of the Petitioners (Gloucester, 1772); Furneaux, An Essay on Toleration: with a particular view to the late application of the Protestant Dissenting Ministers to Parliament, for amending and rendering effectual the Act of the first of William and Mary, commonly called the Act of Toleration (London, 1773). See also Madison, "Article on Religion Adopted by Convention," June 12,1776, Madison Papers, 1:175.

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in the long debate over establishment in Virginia. In that debate, Madison supported the free practice of religion, arguing against statechurch supporters like Patrick Henry. Scholarship on Madison has long appreciated Madison's commitment to religious freedom. As Ralph Ketcham has observed, "There is no principle in all of Madison's wide range of private opinions and long public career to which he held with greater vigor and tenacity than this one of religious liberty." Madison's contribution to the Virginia establishment debate, "A Memorial and Remonstrance against Religious Assessments" (1785), repeatedly and rightly has been hailed as "a cornerstone in the American tradition of religious freedom."52 The best Madison scholarship has also begun to discern links between Madison's early thoughts on religious diversity and his later thoughts on political faction. "All Madison's most famous presentations of the case for an extension of the sphere of republican government," wrote Banning, "list differing opinions in religion as a 'latent cause' of faction, often as the first of several potential sources of majority oppression." Written a full "two years before he wrote the Tenth Federalist" in the "Memorial and Remonstrance" Madison "made the argument that a great multiplicity of divergent groups ensured government stability." The "Memorial and Remonstrance" is seen as the linchpin of Madison's political thought and especially of his political thought on faction. Madison scholars make a strong case when they argue that Madison's thoughts on religious faction illuminate his thoughts on political faction in Federalist No. 10. They are ill-advised, however, to see any of this as creating an inseparable divide between Madison's thought and Hume's. When we note similarities between Madison's ideas on religious liberty and his ideas on political faction, we should not immediately conclude that this severs his thought from Hume's or that Madison's ideas arose in Virginia in the 17805. If "Memorial and Remonstrance" is a key document connecting Madison on religious and political faction, it also helps link the Madison of 1787 and the young man who had read Hume by the early I78os.53 52 Ketcham, "James Madison and Religion," 187; Banning, Sacred Fire of Liberty, 91. See also Brant, James Madison: The Nationalist, 1780—1787 (Indianapolis and New York, 1948), 343-55; Anson Phelps Stokes, Church and State in the United States, 3 vols. (New York, 1950), 1:391. The "Memorial and Remonstrance" (June 20, 1785) has been reprinted often; besides Madison Papers, 8:295-306, see, for instance, Joseph L. Blau, ed., Cornerstones of Religious Freedom in America, rev. ed. (New York, 1964), 84-90. For a contemporary reprinting see "A MEMORIAL and REMONSTRANCE," The American Magazine, i (June 1788), 479-84. 53 Banning, Sacred Fire of Liberty, 131. Banning continued: "On several occasions, he was quite explicit in suggesting that the struggle for religious freedom was the model he had had most centrally in mind when he envisioned how the great

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Religion was a topic on which Hume wrote often and at length. Madison may very well have been familiar with Hume s Natural History of Religion and his Dialogues concerning Natural Religion, both of which arguably have the topic of liberty of religious thought as central themes and certainly as implicit conclusions. In the dedication to his Four Dissertations Hume wrote longingly of the "liberty of thought" in ancient times "which engaged men of letters, however different in their abstract opinions, to maintain a mutual friendship and regard; and never to quarrel about principles, while they agreed in inclinations and manners." Madison possibly read that passage as a young boy when it was reprinted in America in a periodical we know he was very familiar with.54 Less speculatively, in a book Madison knew, the Enquiry Concerning Human Understanding, Hume wrote that in "such complicated and sublime subjects" as accounting for the nature of God "every one should be indulged in the liberty of conjecture and argument."55 These sentiments are ones with which Madison increasingly came to agree. Hume's historical studies suggested, we have seen, that complete religious liberty would lead to extreme religious factions. But that same evidence also led Hume to argue for a multiplicity of dissenters to be tolerated within any state. In an early version of "Of the Liberty of the Press," an essay that was extremely popular in America, Hume proposed that religious "toleration" was compatible with good government. Hume's argument was one grounded on historical experience, experience that showed "that the people are no such dangerous monster as they have been represented, and that it is in every respect better to guide them, like rational creatures, than to lead or drive them, like brute beasts." It was possible, wrote Hume, with a nod to the Dutch, "that a number of religious sects could live together in harmony and peace, and have all of them an equal affection to their common country, and to each other." That Hume considered the principle of religious toleration to be one of republic would Control the violence of faction."* See also Ketcham, "James Madison and Religion," 188; Arkin, "Intractable Principle," 173; and Rahe, Republics Ancient and Modern, 590-92. The editors of Madison Papers, 8:297, offer a false choice when they ask of the origins of Madison's thought in the Remonstrance "whether JM gleaned his arguments from a growing number of volumes in his personal library or drew upon experience and practical politics as his guides." 54 Hume's "Dedication" was reprinted in The American Magazine and Monthly Chronicle for the British Colonies, i (Feb. 1758), 203-09; for a modern reprinting and commentary see Spencer, ed., Hume's Reception in Early America, 1:9-20. Madison copied into his commonplace book passages from the July 1758 issue of The American Magazine; see Madison Papers, 1:6,18-20, 29n. 55 Hume, Enquiries Concerning the Human Understanding and Concerning the Principles of Morals (Oxford, 1975), 139.

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"the enlarged and generous sentiments that do honour to human nature," would have been clear to Madison and any other reader of the History of England. There, Hume's discussion of toleration was part and parcel of his discussion of faction and he put it in terms that were to stick in Madison's mind.56 Hume argued that the lesson of tolerating dissenting sects had been a long time in the learning, and his History of England aimed, in part, to demonstrate the slow emergence of that laudable principle. The "practice, nay the very doctrine of toleration," wrote Hume of the midsixteenth century, "was, at that time, equally unknown to all sects and parties. To dissent from the religion of the magistrate, was universally conceived to be as criminal as to question his title, or rebel against his authority." Toleration was "a term at that time extremely odious." Writing of the "State of Europe" during the reformation, Hume noted "extreme animosity" that existed "between the adherents of the opposite religions" and the failure of civil magistrates who, for the sake of prudence, embraced "one party, to declare war against the other, and to exterminate, by fire and sword, those bigots, who, from abhorrence of his religion, had proceeded to an opposition of his power, and to a hatred of his person." "If any prince possessed such enlarged views as to foresee, that a mutual toleration would in time abate the fury of religious prejudices," wrote Hume, "he yet met with difficulties in reducing this principle to practice; and might deem the malady too violent to await a remedy, which, though certain, must necessarily be slow in its operation."57 An entire section of the History of 'Englandwas given to "Reasons for and against Toleration." There, Hume compared the arguments of Cardinal Reginald Pole and Bishop Stephen Gardiner and considered 56

Hume, note to "Of the Liberty of the Press,'* 604-05; "Of the Coalition of Parties," 501. See also "Of Parties in General," 6m: "For it is a vulgar error to imagine, that the ancients were as great friends to toleration as the ENGLISH or DUTCH are at present." 57 Hume, History of England, 3:390, 5:115, 4:54. See also ibid., 2:379, 4:I4> 2O> 5:206, 3:282: "A toleration, though it is never acceptable to ecclesiastics, might, they said, be admitted in other cases; but seemed an absurdity, where fundamentals were shaken, and where the possessions, and even the existence of the established clergy were brought in danger. But though the church was thus carried by policy, as well as inclination, to kindle the fires of persecution, they found the success of this remedy very precarious, and observed, that the enthusiastic zeal of the reformers, inflamed by punishment, was apt to prove contagious on the compassionate minds of the spectators. The new doctrine, amidst all the dangers, to which it was exposed, secretly spread itself everywhere; and the minds of men were gradually disposed to a revolution in religion." During the reign of Charles I, Hume, ibid., 5:240, considered that liberty of the press "was generally deemed, as well as religious toleration, incompatible with all good government."

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how "each side supported, or might have supported, their scheme of policy/' The historian argued that "never enterprize was more unfortunate than that of founding persecution upon policy, or endeavouring, for the sake of peace, to settle an entire uniformity of opinion, in questions which, of all others, are least subjected to the criterion of human reason/' The only way to maintain uniformity of religious belief, he postulated, was by "banishing for ever all curiosity and all improvement in science and cultivation," a remedy that was clearly worse than the disease. Furthermore, "a people, who never were allowed to imagine, that their principles could be contested, fly out into the most outrageous violence, when any event (and such events are common) produces a faction among their clergy, and gives rise to any difference in tenet or opinion." Toleration was the only way to quell the strife of religious faction: Open the door to toleration, mutual hatred relaxes among the sectaries; their attachment to their particular modes of religion decays; the common occupations and pleasures of life succeed to the acrimony of disputation; and the same man, who, in other circumstances, would have braved flames and tortures, is induced to change his sect from the smallest prospect of favour and advancement, or even from the frivolous hope of becoming more fashionable in his principles. Hume stated, unequivocally, that "an unlimited toleration, after sects have diffused themselves and are strongly rooted, is the only expedient, which can allay their fervour, and make the civil union acquire a superiority above religious distinctions."58 For Hume, "toleration" was "the true secret for managing religious factions." That theme he returned to again and again, perhaps nowhere with more effect than in his important "Appendix to the Reign of James I." There Hume summarized his historical survey: "In all former ages," he wrote, "not wholly excepting even those of Greece and Rome, religious sects and heresies and schisms, had been esteemed dangerous, if not pernicious to civil government, and were regarded as the source of faction, and private combination, and opposition to the laws." "The magistrate, therefore," continued Hume, "applied himself directly to the cure of this evil as of every other; and very naturally attempted, by penal statutes, to suppress those separate communities, and punish the obstinate innovators." "But," Hume concluded, "it was found by fatal experi58

Ibid., 4:352 (quotation), 3:431, 432-35, 6:322. Hume's use of the qualifying phrase "or might have supported" hints at the polemical nature of his historical discussion of toleration.

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ence, and after spilling an ocean of blood in those theological quarrels, that the evil was of a peculiar nature, and was both enflamed by violent remedies, and diffused itself more rapidly throughout the whole society. Hence, though late, arose the paradoxical principle and salutary practice of toleration."59 Reading the historical experience of religious faction in a similar way to Hume, Madison pushed Hume's thought a step further. Extending Hume's "true remedy" for the "disease" of religious factions that had resulted in the "spilling" of an "ocean of blood," Madison wrote in 1785: Torrents of blood have been spilt in the old world, by the vain attempts of the secular arm, to extinguish Religious discord, by proscribing all difference in Religious opinion. Time has at length revealed the true remedy. Every relaxation of narrow and rigorous policy, wherever it has been tried, has been found to assuage the disease. The American Theatre has exhibited proofs that equal and compleat liberty, if it does not wholly eradicate it, sufficiently destroys its malignant influence on the health and prosperity of the State. Madison's "Memorial and Remonstrance" used some of the exact words of Hume, in an identical context and to argue for ends of a similar spirit. Like Hume, Madison believed that a progressive relaxation of religious restrictions had decreased the virulence of religious factions. That reality was documented in Hume's History of England and it was illustrated in the American theatre where Madison was a player. Together, Madison's readings and observations allowed him to leave behind Hume's "religious toleration" for a more capacious "complete religious liberty." Madison aimed to divide church and state in Virginia so that religion could be treated like any other Humean faction.60 59

"Appendix to the Reign of James I," ibid., 5:129-30; ibid., 6:322. Hume often used medical metaphors; for another example see ibid., 5:194: "Faction and discontent, like diseases, frequently arise in every political body"; 4:352; and 5:129—30. See also "Of Parties in General," 62: The "principles of priestly government . . . have engendered a spirit of persecution, which has ever since been the poison of human society, and the source of the most inveterate factions in every government." 60 Madison, "A Memorial and Remonstrance against Religious Assessments," 302—03. It is interesting and telling to note that the commentators on Madison's "Memorial and Remonstrance" have most often assumed that Locke, not Hume, was Madison's primary source on toleration. Banning, Sacred Fire of Liberty, 91-92, argued that Madison drew "on the body of his knowledge rather than on a few specific sources" but that "if Madison was specially indebted to a single source for his remonstrance, this indebtedness was principally to Locke." An "Editorial Note," in

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In his political thought, Madison employed ideas he derived from Hume. But Madison's borrowing was neither of an unreflective sort nor without variant. In A Treatise of Human Nature, a book that Madison may or may not have read by 1787, Hume laid out a guiding principle informing his own career as a social scientist: the science of man is the only solid foundation for the other sciences, so the only solid foundation we can give to this science itself must be laid by experience and observation. . . . We must therefore glean up our experiments in this science from a cautious observation of human life, and take them as they appear in the common course of the world, by men's behaviour in company, in affairs, and in their pleasures. Where experiments of this kind are judiciously collected and compared, we may hope to establish on them a science, which will not be inferior in certainty, and will be much superior in utility to any other of human comprehension.61 James Madison clearly learned much from David Hume about the topic of faction. Had the American been more passive and less reflective in his reading and absorbing of Hume's books, the Scot's impact could not have penetrated Madison's mind so deeply. Political and social theory always needed to be tested against, and refined by, historical experience and contemporary practice. That attitude, rather than the idea that Hume's theory provided the sudden solution to Madison's practical political problem in 1787, was what allowed the Scottish social thinker and the American statesman to share so much common ground. Madison Papers, 8:297, suggests that "a comparison between the Memorial and Remonstrance and John Locke's 'Letter on Toleration' (1685) leads to the speculation that JM had occasion to use Locke's treatise in preparing his own." Prefacing what they themselves admit to be "strained" similarities between the two texts, the editors plead that "assertions of intellectual dependence are often based on slender textual coincidences." Rutland makes the same claim for Locke in "James Madison's Dream: A Secular Republic," in Alley, James Madison on Religious Liberty, 203. Rahe, Republics Ancient and Modern, 594-95, identifies the Humean flavor to Madison's thought on religious faction but, missing the textual links documented above, argues for Hume's indirect impact on Madison through Smith. 61 Hume, "Introduction," A Treatise of Human Nature (Oxford, 1978), xvi, xix. As Madison, "The Federalist'No. 43," in Madison Papers, 10:415, explained, "theoretic reasoning . . . must be qualified by the lessons of practice."

[6] Selfish and Moral Politics: David Hume on Stability and Cohesion in the Modern State Jeffrey Church

The University of Notre Dame

In Hume's dialogue with the Hobbesian-Mandevillian "selfish system" ofmoralsy Hume seems to reject its conclusions in morals, but accept them in politics. No skeptic of moral claims like Mandeville, Hume sought to ground objective moral standards in his moral sentiment philosophy, yet, like Mandeville, Hume argued that in political life human beings act based largely on self-interest and a limited generosity. I argue that Hume, however, is ultimately ambivalent about the selfish system's conclusions in politics. He puts forth both a nonmoral and a moral solution to the problem of cohesion in modern liberal states. First, he agrees with the selfish system's nonmoral tactic of channeling the self-interest of citizens through well-constructed institutions toward salutary ends. Second, arguing that the first solution is insufficient for the health of a political regime, Hume seeks to expand the limited moral sense of citizens through moral and aesthetic education and through an empowerment of local politics. Hume's second solution is a means within liberalism to combat its own tendencies toward the dissolution of communal ties and the creation of conditions ripe for the emergence of "sensible knaves."

U

nlike many contemporary political theorists, William Wollaston.11 trace an alternative story of the David Hume sought to ground his political relationship between Hume's moral and political philosophy on epistemological and moral thinking. Rather than beginning with Hume's often foundations. He also claimed that a political science cited critique of the rationalists, I start with Hume's intended to ensure the healthy functioning of political less well known criticism of the selfish theory, a theory life through wise institutional design must be supplethat claims all human actions can be explained in mented not just by nonmoral institutional knowledge, terms of self-interest.2 but moral knowledge as well. In this paper, I focus on Hume devotes much more attention to his critithe relationship between Hume's moral arguments cism of the rationalists and comparatively less to the and his political views. The following question guides criticism of the proponents of the selfish system. Aside this discussion: How and in what way does Hume's from scattered criticisms of Mandeville, Hume devotes moral philosophy inform his political philosophy? one essay and one appendix to a criticism of the selfish Commentators on Hume's moral philosophy system.3 We can surmise that Hume paid less attention often focus on his critique of the rationalists' foundato the selfish hypothesis, that all human action can be tions of morality, such as those of Samuel Clarke and explained in terms of self-interest, because his

^ee Krause (2004), 630; Whelan (1985), 13. See, however, Whelan's (2004) extensive and helpful discussion of the convergence of the views of Machiavelli and Hume. Stewart (1992) discusses Hobbes and Mandeville, but he focuses on their turn from natural law to the human sciences. My concern here is with the moral thought of the selfish thinkers. Norton sees "Hume's moral theory... as a part of [the] antisceptical moral tradition" (1982,43). I agree with his assessment that "although Hume attempts to show that Hobbes and Mandeville are wrong to claim that all acts are selfishly motivated... he nevertheless agrees with them in part" (147). Norton is concerned primarily with retrieving Hume's moral thought from the traditional interpretations of Hume as a skeptic (Thomas Reid) on the one hand, and as a naturalist (Norman Kemp Smith) on the other. I build on Norton's insightful interpretation of Hume's moral philosophy by comparing Hume's antiskepticism to his politics. 2

The well-known proponents of the selfish system were Thomas Hobbes and Bernard Mandeville.

3

"Of the Dignity or Meanness of Human Nature" (Hume 1985,80-86; Hume 1998, Appendix 2).

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170 immediate predecessor, Francis Hutcheson, had in Hume's eyes demolished the theory.4 However, upon examining Hume's moral and political views, the reader faces a paradox: Hume repudiates the selfish theory in his moral philosophy, but he claims that the selfish theory is a reasonable premise for a political scientist or a statesman (1985, 42).5 At first glance, it seems as if Hume's moral arguments thus have no bearing on his political philosophy. I argue that although Hume did not spill much ink in discussing the selfish system, his dialectical relationship with this skeptical moral theory greatly influences his political views. In its assumption about the utility-maximizing character of individuals, rational choice theory has roots in the selfish system.6 The rational choice account of the origins of politics and its institutional solutions to the problem of the "sensible knave" bear striking resemblances to the eighteenth-century predecessor.7 Although rational choice theory does not assume selfishness but is rather a formal theory that assumes a set of goals that the individual wants to achieve (these goals can be selfish or not), it does take these sets of goals or preferences as given. Hume argues that an 4

This assumption is reasonable because whenever Hume attacks the selfish theory, his arguments are often taken wholly from Hutcheson's Inquiry Concerning the Original of Our Ideas of Beauty and Merit, part II (Hutcheson 2004). Hutcheson responded to Mandeville's selfish theory in Fable of the Bees; Mandeville was himself attacking Shaftesbury's proto-moral sense theory in the Characteristics; Shaftesbury criticized the ur-egoist, Hobbes. No selfish system defender arose after Hutcheson, so no new criticisms were warranted. 5 See Whelan's interesting account of the selfish system hi Hume. Whelan's account is that Machiavelli and Hume shared a common view of "political realism " a view which emphasizes and tries to come to terms with the practical, the historical, and the contingent through prudence rather than by erecting "political principles that conform to abstract ethical requirements" (2004, 2). Whelan argues in chapter 2 that Machiavelli and Hume shared a "methodological assumption" of institutional design that human beings are knaves, a realist assumption that is appropriate and pressing for large-scale commercial republics. Moreover, Whelan points out that it is an assumption that is intended to avoid the utopianists or religious fanatics who expect too much of human beings in politics and end up causing more problems than they solve. Whelan claims that Hume and Machiavelli complicate the simplistic assumption of motivation by pure self-interest in historical transition periods. They posit that the people are able to be "astonished and swept along by extraordinary political events" and politicians may be motivated by pride over simple self-interest (48). See also Moore's (1977) reading of Hume's "experimental" political science as a response to the classical republican tradition and the criticism of their reliance on political virtue to ensure the health of regimes.

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investigation of the psychological and social foundations of these preferences forces human beings to bring morality back in to politics.8 Hume remains ambivalent about the selfish system and the nonmoral, institutional solutions that it and rational choice theory rely on, because, as he concludes after his moralpsychological analysis, these theories express valuable truths about modern political life, but in terms of institutional design they are also dangerously insufficient, threatening the stability of a healthy regime.

Norms and Obligations: Hume's Rejection of the Selfish Theory in Morals The Natural Virtues Hume's critique of the selfish system has two parts. Each part takes on one of the arguments of Mandeville, Hume's main target: the first is the anthropological-psychological claim that egoism motivates all human action, and the second is the genealogical claim that seeming objective moral standards are simply the result of egoistic individuals jostling for power. First, the selfish theory claims that all human action can be explained in terms of a calculation of self-interest. That is, Mandeville is making an anthropological-psychological claim: before acting, an agent deliberates as to which course of action will maximize the agent's happiness, or, more broadly, fulfill her own interest as far as possible. In response, Hume, following Hutcheson, attempts to establish the reality of nonegoistic moral behavior that arises naturally from human nature. His argument is that the moral judgment that precedes action cannot be plausibly explained away as a pure calculation of selfinterest. Following the Baconian scientific method of "crucial experiments" (and this method of argument directly follows Hutcheson),9 Hume confronts the selfish system proponent with two tough cases. Since the selfish theory is an empirically verifiable thesis, it must account for all empirical data. Hume believes that these two cases defeat the selfish theory. The first kind of example is that area of human experience in which it would be perverse or implausible to explain virtuous activity in terms of self-

'Whelan (2004,108) and Pettit (1996,72) draw the parallel as well between the selfish system's theory of the knave and rational choice theory.

8

7

9

See Shepsle and Bonchek's (1997,201-204) allusion to Hume.

On the necessary psychological foundations of rational choice, see Zuckert's (1995) criticism. Hutcheson (2004), section 1.

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interest. Hutcheson and Hume both employ the example of a mother's love for her child in this class of altruistic activity.10 The second kind of example stems from human beings' ability to approve morally of activity that is either irrelevant to one's self-interest or directly contrary to it. In deploying this kind of example, Hume distinguishes between interest and morality.11 We still admire an enemy general's brilliance even if he is about to sack our city. These two examples serve not just a negative purpose, to show that the selfish thesis is wrong— moral distinctions cannot be reduced to a mere egoistic calculus—but they also serve a positive purpose. Hume intends with the first example to establish that human beings are capable of acting based on certain virtues that are natural to human beings like benevolence. The motivations of these actions are not reducible to interest. The second example points toward, but does not establish, objectivity in moral judgment. Hume's ultimate intention is to show that we can escape from our private interests and judge moral activity based on an objective moral standard.12

The Artificial Virtues Mandeville, Hume's primary interlocutor in the discussion about the selfish system, anticipated and responded to these arguments of both Hutcheson and Hume. His tactic was to investigate the origin of this moral standard and then to show that objective, normative claims are illusory: they either arose arbitrarily over time out of the struggle of egoistic individuals or were posited by the self-interested machinations of "great" legislators.13 Either way, Mandeville concluded, moral claims are stripped of their objective authority and become once again the contingent product of selfinterested men. Hume's response constitutes the second part of his critique of the selfish system, and it is original to Hume; he departs from Hutcheson at this point. 10

Hutcheson (2004,112-14); Hume (1998, Appendix 2.9.167).

"Hume illustrates this distinction in the story of Themistocles and Aristides (2000,272). 12 In this article, I bracket the relativist challenge to Hume's claim of moral objectivity and universality, a challenge Hume himself takes on (1998, "Dialogue"). See Danford (1990, chapter 6) and Yenor (2002) for defenses of Hume against relativism. 13

See Fable of the Bees (2:319 and 1:46-47, respectively) (Mandeville 1988). See Goldsmith (1985) for an elaboration of Mandeville's two genealogies of morals. Hume seems to be aware of only the latter genealogy of morals, the one based on the great legislator, although his argument can be extended to the other genealogy as well; see Hume 2000,3.2.2.25.

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Hume defends the objectivity of moral values first by critiquing Mandeville's history of morals and second by offering his own account of the origin of objective value in human nature. Hume argues first of all that moral distinctions cannot be willfully created by shadowy politicians and then implanted into citizens' minds. The artifices of politicians can only guide and assist our natural propensity to approve of agreeable or useful behavior and to disapprove of disagreeable or harmful behavior. Without a foundation in the natural tendencies of human nature, the terms "honorable or dishonorable, praise-worthy or blameable" would be "perfectly unintelligible" (2000, 3.2.2.25.321). We would not be able to make sense of these ideas, because we could not trace them back to antecedent impressions. Hume's epistemology explicitly denies the existence of any such free-floating ideas, detached from a ground in immediate impressions.14 Second, Hume counters Mandeville's history of morals with one of his own in order to establish the objectivity of moral claims. As Stewart has shown, Hume's tactic is to examine a situation "where the effects of natural motivation cannot be mistaken for the effects of moral obligation at least some of the time" (1992, 118). He puts aside the examples of the natural benevolence and love (such as the love of a mother for her child) and takes a more difficult case, justice. Hume argues that although human beings have no clear natural urge or interest to be just, justice is nonetheless an objective moral claim.15 Since justice is not a natural virtue, it developed in history. Yet in Hume's history of the development of the "artificial" virtue of justice, he claims that justice is far from factitious or arbitrary, but developed necessarily. In his conjectural history, Hume argues that human beings in a hypothetical state of nature were inclined to accept a system of private property laws, what Hume calls "justice," out of interest for themselves and their friends and relatives. The account is a familiar argument from enlightened self-interest—I refrain from appropriating your property, so that you refrain from appropriating mine. These rules of justice are necessary because, first, human beings do not possess boundless benevolence, but only limited

"See, for example, 2000,1.1.1.8.9. 15 See Krause (2004) for a helpful discussion of the tensions implicit in Hume's account of justice. She also appeals to the gap between motivation and judgment, which she believes Hume fills hi with the immediately agreeable qualities of personal character or integrity. I believe Hume developed, hi addition to this solution, institutional solutions to the problem of this gap.

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172 natural benevolence, and, second, resources are scarce. If either humans were equipped with a wider scope of natural virtue, or were provided with a natural plenum, then there would be no need for rules, since human beings would either respect what is mine or thine, or would not have to resort to appropriating another's resources, due to the natural bounty of resources (2000, 3.2.2.14-18.316-318). However, Hume claims that this is the natural origin of justice; that is, the above account is a nonmoral explanation as to why human beings spontaneously came to accept the artificial rules of justice. He goes on to claim, pace Mandeville, that there is a moral obligation to follow the rules as well. Hume illustrates the difference between the moral and nonmoral obligations with the following observation. In some cases, justice is contrary to my interest, or the interest of someone close to me. I may even think that breaking a rule of justice may promote my interest more than following it in this case. Nevertheless, I can still recognize that there is a difference between my interest and my moral duty.16 What, then, is the foundation for the moral obligation of justice? What is the source of this moral claim? Hume argues that the moral claim is founded on human sympathy. Sympathy allows us to get outside of our own parochial interests. Hume's famous image of sympathy is that all human beings are like "strings equally wound up, [so that] the motion of one communicates itself to the rest" (2000, 3.3.1.6.368). Sympathy is receptive in that the impressions of pain or pleasure in one are communicated to another through one's facial expressions or actions,17 but it is also active in that it prompts one to judge based on the sentiment one receives. In the case of justice, Hume's explanation of the effect of sympathy has two parts. First, we disapprove of an injustice that is distant from us, so that it does not interfere with an unbiased judgment. This action displeases us because we sympathize not just with the immediate sufferers of this injustice, but also with the public interest, which is also threatened by this 16 As Whelan (1985,218 ff.) has argued, one can even express the difference in terms of competing moral claims, rather than the difference between interest and justice. That is, one's moral obligation to feed one's family may conflict with one's moral obligation as a law-abiding citizen when one must steal a loaf of bread for one's starving family. 17 Hume's technical explanation is that the effect of person A's pain or pleasure, her facial expression, becomes an idea in person B. Person B then infers the cause of this idea, which is an impression of pain or pleasure, and thereby person B experiences that same impression. See 2000,2.1.11.2-8.206-208.

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infringement on its fragile system of laws.18 Since everyone else in a similar position of impartiality is moved by sympathy, they too will disapprove of this unjust action. Second, the discussion among many different similarly situated observers will generate a "general inalterable standard" according to which we all approve of just actions and disapprove of unjust ones (2000, 3.3.3.2.385). The judgment of one impartial spectator is filtered and purified through the discussion with many others in order to produce a shared moral standard, one that is subsequently approved by all.19 As I will show, Hume's account of the development of moral norms will have direct bearing on political education.20 Hume thus counters Mandeville's genealogical account of the origin of moral values by first pointing out that his account is impossible given the strictures of human behavior. Second, Hume argues that some moral virtues may be artificial, but this does not mean 18 Hume states that we have "sympathy with public interest" which is the source of "moral approbation." Hume, I believe, is not being inconsistent in his use of sympathy here. Hume often uses sympathy is a more narrow sense, as sympathizing with the plight of a particular vagrant, and so forth. He also employs sympathy in a more expansive way. This sympathy is coupled with our ability to reflect on the long term effects of an action. In the case of an unjust action, we see that this action undermines the stability of the laws, and this thought leads to an image of the crumbling of property laws themselves and a return to the anarchic state of nature. Although this reasoning is abstract and distant from the passions, it still affects the sympathetic taste (2000, 3.2.2.24.321). 19 See Hume's "Of the Standard of Taste" which is concerned with finding a "rule, by which the various sentiments of men may be reconciled" (1985, 229). Hume admits, first, that we obviously recognize human sentiment to be variable, due to various temperaments and different points of view toward the same object. However, when many observers communicate to one another their respective views about this object, a general shared standard emerges to achieve moral consensus and reconcile the different views and filter out the particular sentiments or temperaments of the individuals. This shared standard escapes subjectivity and prefigures the theoretical "impartial spectator" developed at length in Adam Smith, The Theory of Moral Sentiments. In such a short article, I cannot defend Hume's claim to establishing the stronger claim of moral realism, or universality, or an objective moral standpoint, which would require a long foray into Hume's epistemology. There is a large debate on the grounding and the specifics of Hume's moral philosophy, a debate that I must sidestep for lack of space. I direct the reader to two fine pieces of moral philosophy: both Norton (1982,109), and Korsgaard (1996, 51 ff.), explicate and, in Norton's case, defend Hume's moral "realism" as opposed to the "voluntarism" of the selfish theorists. Defending Hume, Norton claims that "vice and disapprobation are not identical and that moral qualities are not merely sentiments but, rather, the objective correlates of sentiments" (1982, 111). 20

Essential to this process of moral education for Hume will be the development of a sense of duty which motivates individuals toward this shared moral sense. See Hume's account (2000,3.2.1, 307-311).

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they are arbitrary. In fact, the rules of justice are necessary for the maintenance of human society. Hume grounds the objective moral claims of justice on our shared moral sentiments, which approve of just actions and disapprove of unjust actions.

Taste and Passion: Hume's Return to the Selfish Theory in Political Philosophy I have shown that Hume attempts to counter the skepticism of the selfish theorist by arguing for the objectivity of moral values with a theoretical appeal to a shared moral sentiment, a claim that is based on two assumptions. First, Hume believes that we possess a common human nature with a shared moral sense, that due to the similar constitution of human beings, we will all judge the same phenomenon somewhat similarly. Second, Hume claims that a condition of the possibility of objective moral judgment is sympathy which allows us not only to share in the plight of others, thereby eliciting our own moral reaction, but also to engage in a dialogue with other similarly situated moral observers, thereby purifying each individual moral reaction and producing a moral norm according to which we all can judge characters and actions. These moral evaluations are made by what Hume calls "taste" (1998, 74). He prefers the usage of moral "taste" to moral "judgment" because the word "judgment" traditionally employs reason, whereas taste relies on sentiment for its conclusions.21 Since taste relies on human sentiments of pleasure and pain, it seems at first strange that Hume contrasts taste with passion, which also relies on sentiments of pleasure and pain. In section 3.2.2 of the Treatise which I have been examining, Hume claims that sympathy is able to influence our "taste" to elicit our moral judgment, but sympathy is "too weak to control our passions" (2000, 3.2.2.24.321). 21

I disagree, then, with Miller (1981, part I), who argues that judgment is a strand that runs throughout Hume's philosophy—I prefer the usage of "taste." However, I agree with his more fundamental point that the relationship between taste and passion is contingent. We do not always act according to what our taste deems as right. Taste, I believe, is the appropriate term for Hume's moral judgment because it, first, emphasizes the connection to the sentiments, and, second, picks up on the trend in eighteenthcentury moral philosophy and aesthetics that taste is something that can be developed but is something that is also universally shared among human beings. This trend finds its culmination in Kant's Critique of the Aesthetic Power of Judgment. In Kant, see especially First Section, First Book (Kant 2001). See Dickie's (1996) very helpful account of taste in the eighteenth century.

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Since both taste and passion are motivated by sentiments, what is the difference between the two? Hume argues that although taste is able to approve of a just action because of its distant consequences for the good of society, the passions, which are what really move us to action, do not always listen to the counsel of taste. The difference between the two is that reason does not influence the two to the same degree. The passions, like beasts, are naturally much more susceptible to the vivacity of immediate gratification, not heeding the counsel of reason, that one's desires can be better fulfilled by forgoing short-term for a long-term good. Cooler and more reflective than passion, taste is by contrast able to be moved by the long-term benefits provided by an enlightened reason.22 Taste tells us what we should do, but often we "are not able to regulate our actions by this judgment, but yield to the solicitations of our passions, which always plead in favor of whatever is near and contiguous" (2000,3.2.7.2.343). Our passions, governed by immediate sentiment, move us to act either selfishly or altruistically within our limited sphere of friends and family. The passions, then, are either egoistic or engage in natural virtue. Although taste approves of the artificial virtue of justice, the passions do not always move us to act justly. In Hume's conjectural history of the origins of human society, he claims that human beings pass through three kinds of society. The first kind of society is the familial, which arises because of the natural appetite of the sexes for one another (2000, 3.2.2.4.312). Natural virtue holds the family together. In the second kind of society, when families begin to come into conflict with one another over scarce resources, natural virtue does not extend to these strangers (2000, 3.2.2.6.313). However, through edu22

Hume certainly limits the province of reason in his philosophy, calling it the "slave of the passions" (2000, 2.3.3.4.266). As many commentators have pointed out, however, reason does have an important role to play in moral judgment and action. See Hume's more moderate assessment of reason's role: "thus the distinct boundaries and offices of reason and taste are easily ascertained. The former conveys the knowledge of truth and falsehood: the latter gives the sentiment of beauty and deformity, vice and virtue" (1998, Appendix 1.21.163). I am indebted to the following interpretations of the relationship between the passions and reason— these scholars offer a deep analysis of the mechanics of the moral sense, a theme that I cannot plumb deeply, for lack of space. See Maclntyre (1988, 317 ff.) for a discussion of the role of practical reason in Hume. See Norton: "while it is true that Hume gives to sentiment the central role in founding morals, it is also true that he gives to reason an essential part hi morals" (1982, 101). Stewart puts the difference nicely—reason discovers the "true," whereas sentiment dictates the "good" (1992, 7). To summarize: reason is the "scout and spy" of sentiment (Hobbes 1991; I. Chapter 8), which discovers the means to the ends that sentiment dictates.

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174 cation and the influence of enlightened reason, the passions yield to following the rules of justice without government. These societies Hume likens to the ancient polis, as in Aristotle's Politics.23 So far in this conjectural history, the difference between taste and passion is not evident to human beings. However, when people enter into the third kind of society, large modern nation-states with a vast market economy, taste and passion diverge radically. Our taste can still discern that it is morally incumbent upon us to be just. However, our passions, motivated largely by selfishness and limited generosity of natural virtue, become less and less likely to move us to act justly as the state grows larger and larger. Our natural benevolence simply cannot be moved by the normative claims of a vast impersonal market that requires stable property law, because our parochial passions are not stimulated by the increasingly distant, long-term benefits of such a system. Hume's example is this: when I only have one neighbor with whom I need to drain a common swamp, my passions can be convinced to help in the draining process, even though it requires an afternoon of hard, painful work, because I can see quite clearly that this draining will help me in the long run. However, when I have a thousand neighbors with whom I must drain a common swamp, my passions can hardly be inspired to move me to help, since I know others will pick up the slack, or they will not. In the former case I can free ride, whereas in the latter case any effort I make will be futile (2000, 3.2.S.8.345).24 Thus, in a large modern state, the natural virtues seem to become less relevant to political demands, such as building bridges, opening harbors, dredging canals, equipping fleets, disciplining armies, and so forth (2000, 3.2.8.8.345). More problematic for the statesman, however, is that the natural virtues are not just irrelevant but also militate against the maintenance of the common rules of justice. The rules of justice rest on shaky grounds indeed, because even though my taste may morally approve of just actions, my passions move me to flout the laws to benefit me and my family. Thus seemingly by a kind of reverse alchemy, Hume's view of human behavior has been transformed from gold to lead, through the movement from simple to complex societies. In simple societies, ^Politics 1.1 (Aristotle 1984). See Hume's essay "On the Populousness of Ancient Nations (1985,401)" for a discussion of the political institutions of the Roman republic. 24

Rational choice theorists call this a "collective action problem." See Olson (1965) and Shepsle and Bonchek (1997; chapter 9).

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the natural virtues are able to maintain cohesiveness, since individuals know, love, and identify with all the others. In more complex societies, the natural virtues coupled with enlightened self-interest keep the group together, since everyone can see that stable property laws are useful to maintain for all. In the most complex societies, taste cannot properly convince the passions that they should not move us to flout the laws with impunity. What was able to maintain cohesiveness in simple societies undermines the cohesiveness in complex ones. Although Hume began his moral philosophy with a critique of the selfish system, he returns to the selfish hypothesis in his political philosophy. Hume the political philosopher shows that as human beings enter modern societies, they effectively become "knaves" from the point of view of the statesman or political scientist (1985,42).25 That is, from the point of view of the statesman, whose interest it is to preserve justice, all citizens fundamentally follow their own private passionate interests rather than the dictates of moral taste. Hume thus seems to accept Mandeville's system in the end, when he claims that "sovereigns must take mankind as they find them, and cannot pretend to introduce any violent change in their principles and ways of thinking... it is [their] best policy to comply with the common bent of mankind" (1985, 260). Mandeville had claimed that we should not treat human beings as they ought to be, but rather as they are. He claims that idealistic moral demands of priests and philosophers are foolish and ineffectual given the limitations of human nature and really only serve to hide the depraved machinations of those who deploy these demands (1988, 39-40). The task, then, of statesman and political scientists is to construct institutions around self-interested individuals so that these institutions channel the self-interest of the citizens toward a salutary end.

25

Note Hume's important qualification here: he says that statesmen or political scientists should understand political actors as knaves, but in reality they are not (1985,42-43). As I have shown, these actors are not knaves in the context of their local community in which their natural virtue guides them to be benevolent. However, within the context of a large political society, they are effectively knaves. Qua friends or family, human beings are not knaves, but qua political agents they are. As Whelan puts it, the "knave assumption is appropriate in the context of designing political institutions. Other assumptions may be more appropriate in other contexts" (2004,107).

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Institution and Education: Hume's Ambivalence about the Selfish Theory in Politics Hume begins his moral philosophy by repudiating Mandeville, but he seems to accept his theory in his political philosophy. Hume reasons that although individuals in a large modern state will continue to make correct moral judgments, they will not be moved to obey justice and the other artificial moral norms, since their passions are fundamentally limited in nature. What, then, does Hume counsel the statesman or political scientist to do with human beings' tendency to "selfishness and confin'd generosity" (2000, 3.2.2.18.318)? Is Hume's moral philosophy irrelevant to his politics? I argue that it is not. Since human nature is not the solution, but the problem, in modern societies, Hume claims that we must rely on human artifice, namely, political institutions.26 Three institutions, according to Hume, mitigate the problems resulting from the parochial passions of citizens: first, the constitutional division and balance of powers of different strata of society; second, moral and aesthetic education; and third, the decentralization of administrative power.27 As I will show, these institutional suggestions can be read as in dialogue with the selfish theorists' own suggested political reforms. I argue that in the end Hume is ambivalent to the selfish system—he accepts the theory to a degree in his political science, but rejects the theory in his project of moral and political education, opting to return to his moral philosophy for bolstering the latter. Of the three reforms cited above, the first is wholly influenced by the selfish system, the second is intended to follow his moral philosophy, whereas the third is a mixture of the two.

Division and Balance of Powers Rather than bemoaning the political nature of human beings as self-interested, Hume shows that the reduction of human behavior to self-interest in politics can be salutary for two reasons. First, as we have seen, ^Hume also argues that economic institutions can help preserve civil society. In this paper, however, I focus on the specifically political measures Hume counsels. See Skinner (1993) for a helpful discussion of both Hume's contribution to the theory of political economy, and Hume's arguments for the political benefits of a strong market economy. 27

This phrase is Tocqueville's in Democracy in America. Hume's "The Idea of a Perfect Commonwealth" contains striking similarities to Tocqueville's account.

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politics is particularly susceptible to the evil of faction due to the various and often conflicting parochial interests of individuals. However, Hume claims that factions founded on interest are less destructive than factions based on principle, and thus the "most excusable" (1985, 59). They are less destructive because, in order to appease them, statesmen must merely satisfy (or promise to satisfy) their interest Factions based on principle can never be satisfied, except for a wholesale revolution of the established order (1985, 60-62).28 These latter factions battle against one another, losing sight of and threatening to undermine the main purposes of political society: industry, stability, and security (2000, 3.2.2.3.312). The second reason that politics founded on interest is good is that interest is predictable. When human behavior can be explained based on one principle, a science of politics is possible, with consequences "almost as general and certain... as any which the mathematical sciences afford us." The political scientist can construct a constitution, a rule of law, under which human beings will act predictably "for the public good" (1985, 16), provided that the original legislator has designed institutions so as to harmonize public and private interests. Citizens thus need not leave the health of the regime up to the contingent character, the "humours and tempers" (1985, 16), of whoever is in charge. Instead, they can expect predictable results from an impartial, inflexible rule of law. Examples of this kind of political science abound in Hume's essays. "That Politics May be Reduced to a Science" contains three maxims which assert the best kind of political arrangement within each stratum: the people must have representatives, the nobles cannot have vassals, and the monarch cannot be elected. These three maxims all assume the selfish thesis and strive to circumscribe the contingent jealousies and interests unleashed in an imperfect system (1985, 16-18) Furthermore, the political power of the different strata must be balanced effectively in a mixed regime, so that one stratum does not overcome the others, and "ambition is made to counter ambition."29 Interest can be manipulated by wisely constructed institutions. In gratifying their own interests, citizens and statesmen ensure the public interest at the same time. This is Hume's essentially nonmoral solution to the problem of the political knave. In this solution, 28

See Livingston (1984, chapter 12) for a helpful discussion of Hume's rejection of politics based on metaphysical principles.

"The Federalist 51 (Hamilton, Madison, and Jay 2003). It is wellknown that David Hume's political science was immensely influential to the American Founders. See, for example, Adair (1976).

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Hume follows Mandeville's "Private Vices, Public Benefits" theory of political success. For Hume, however, this nonmoral solution is necessary but not sufficient to the health of the polity. He does not believe as Kant does that political institutions can secure a "society of devils."30 Hume argued that there are limits to a purely "rational choice" solution to politics. First, knaves can always find a way to circumvent the law with impunity. Second, no matter how many "sanctions" or "benefits" one employs, the collective action problem persists. Contemporary rational choice theorists have been unable adequately to account for why, for example, rational actors vote. Hume argues that moral action must supplement selfinterested action in order to secure political stability.

Moral and Aesthetic Education Hume also follows Mandeville, to a small degree, in his educational institutions. Mandeville had suggested that politicians essentially indoctrinate salutary virtues on the populace so that they can reap the benefits produced by a benighted public (1988, 43-45). However, moral ideas are meaningless to the public unless they are already rooted in experience. Hume goes on to argue that moral distinctions are real distinctions, discovered by our shared moral sentiment. Education can, however, "extend the natural sentiments beyond their original bounds" (2000, 3.2.2.25.321). Education can lead youths* taste to approve of the moral norms that are immanent in human nature.31 It is important to notice when talking about Hume on education that education should be taken in a very general sense. It includes classroom learning, but also includes the introduction of the youth into the shared moral standards of the family, of polite society, and of economic and political life. 30

Immanuel Kant, Metaphysics of Morals (Kant 1996). In the withdrawn essay "Of Moral Prejudices" Hume claims that if the selfish system's moral skepticism were to garner widespread acceptance, then "all the bonds of society must be broke, to make way for the indulgence of a licentious mirth and gaiety... and men shall have so little regard to any thing beyond themselves, that, at last, a free constitution of government must become a scheme perfectly impracticable among mankind, and must degenerate into one universal system of fraud and corruption" (1985, 538-39). Without objective moral norms, taste loses its grounding and thus its ability to keep the passions in check. 31 After canvassing and rejecting the possibilities of enlightened self-interest and sympathy as solutions to the problem of limited benevolence, Whelan (1985) argues that Hume is committed to the solution of education. I disagree with Whelan in his claim that education is the sufficient or sole institutional means of ameliorating this problem.

The family is the origin of society, but it is also a microcosm of it. Parents establish general rules of moral behavior both to regulate family life, but also to prepare their children for success in civil society. Society itself has a number of mores by which we must regulate our behavior so as to attain success and praise with our honor and wit. The market and the regime set down certain laws which we must obey in order to maintain a thriving business or get reelected into orifice. All of these forms of education operate with the same mechanism that we examined above: sympathy. First, we enter into a society and confront the preestablished rules of parents, businessmen, statesmen. Second, we approve of these rules with our taste, which is influenced by our sympathy and our reason, comprehending the long-term goods of obeying rules rather than breaking them. Third, since human beings are social animals, we listen to a lecture, engage in conversation, read a book or a newspaper column, and we can't help but sympathize with the taste of the other. Our taste is then refined as we engage with others, and we come to accept the shared moral standard that emerges out of these interactions. In order to illustrate the general form of education, I examine a more particular form of public education, education in the arts. Hume's theory of the arts closely resembles his moral theory so it will illuminate not only the development of moral norms, but also the education of youths in these moral norms. For Hume, human nature is constructed in such a way as naturally to approve of certain good artwork and good character and disapprove of bad artwork and bad character. Beauty, like morality (and, for that matter, color, smell, etc), exists in the observer as a so-called secondary quality, added to the object we are viewing by our natural frame. However, just like the moral taste, the aesthetic taste can be refined by expanding one's aesthetic experiences beyond what is naturally given by nature. Hume sometimes combines the two senses, aesthetic and moral, as if they were one (1998, 76, "moral beauty"). Hume seems to have understood the boundary between the moral and aesthetic modes to be porous.32 The aesthetic taste is parallel to the moral sense in its refinement and operation. Hume takes the next 32

Many commentators point out the resemblance of the moral and aesthetic tastes, but no one to my knowledge has argued that Hume felt aesthetic refinement could lead to moral refinement. Cf. Salkever (1980) and Yenor (2002) who touch on this point, but do not elaborate on it. Cf. Nussbaum (1997) for a contemporary approach to this idea.

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step and argues that a refinement in the aesthetic taste can improve our moral sense. In "Of the Delicacy of Taste and Passion," he claims, first, that a refined aesthetic taste can improve our moral taste, and, second, that a refined aesthetic taste can temper the violent passions. What is a delicacy of taste? Delicacy of taste "makes us sensible to pains as well as pleasures, which escape the rest of mankind" (1985, 5). It first enlarges the sphere of our sympathy, thus improving our sentiment, but also secondly it makes us more attentive to the interconnections between the whole and the parts of the artistic work, thus improving our reason. First, when we read novels about distant people's suffering, we are transported far beyond our immediate circumstances, and we sympathize with the plight of strangers. More deeply, when we read many novels, many poems, we are able to be touched by the subtleties of the author—in the case of a painting, we feel the power of every brush stroke (1985,4). Secondly, we are able to understand why the artist placed this particular word in this place in the stanza: how this word works with the meter, with the figurative language, and how it contributes to the whole meaning of the poem. Our rational discovery of the interconnection of parts and wholes also increases our feeling for the work—think of someone without a refined taste for Shakespeare reading a sonnet, confused, scampering through a foreign text. By contrast, a Shakespeare scholar reading a sonnet for the thousandth time is overwhelmed with feeling with each line, given his knowledge of the whole meaning of the poem, and how the parts fit together. Hume argues that this delicacy of aesthetic taste can refine the moral taste in two ways. First, by improving our ability to see how parts and wholes fit together in artwork, we can easily transfer this ability to understand the parts and wholes of human life, thereby refining our taste. We learn that in politics the parts, the individuals, and the whole, the public good, are interconnected. We learn to appreciate the just action as strengthening the whole, claiming that this action has a "moral beauty" within the whole of the state (1998,1.9.76). Like Plato in the Republic (book 6, 484b-d) (Plato 1997), Hume claims, first, that the parts and whole of the regime must harmoniously go together in order to ensure healthy political life, and, second, that once we see the regime in terms of parts and wholes, it becomes like a work of art. Through education in Hume's political philosophy, one can gain knowledge of how parts and wholes go together. By examining great artwork or the just actions of great men, "our judgment will strengthen by this exercise: we shall form juster notions of life" (1985,6).

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Second, the delicacy of aesthetic taste, Hume states, refines the passions as well. As we have seen, taste is temperate and reflective in judging moral and aesthetic goodness. Passion, by contrast, is violent and unreflective in acting. We have seen that in an advanced modern state, these two faculties diverge. I have shown that Hume's task throughout has been to cope with this divergence. Hume's argument is that a refined aesthetic taste tempers the passions by redirecting the satisfaction of them. We begin to prefer the satisfactions of the study of art, of watching a play, or reading a poem. We begin to find the "hurry of business and interest" with its violent emotions unfulfilling (1985, 7). We "cherish reflection; [are] dispose [d] to tranquility; and [we gain] an agreeable melancholy, which, of all dispositions of the mind, is the best suited to love and friendship" (1985, 7). We are more prone to cool tempers and to moral habituation, rather than erratic and violent outbursts of passion. Education in aesthetics, then, refines our taste, which, in turn refines and cools our passions, making us more pliable and susceptible to salutary moral habituation.33 In his political science discussed above, Hume sought to channel the natural passions through institutions to salutary ends. Here, with aesthetic education, Hume attempts to refine the passions and make them more sedate and reflective, less prone to violent and destructive outbursts. To use a well-worn phrase, beauty soothes the savage beast. Thus, through these different forms of education, our moral and aesthetic taste is developed, but, more importantly, our passions are developed as well. Education forms moral habits and a sense of duty through constant repetition, through observing, approving, and imitating moral exemplars. Our passions are thus transformed into a kind of "second nature," so that we

33

Hume similarly argues in his essay "Refinement of the Arts" that refinement in the arts cools the passions and leads to ages that are "both the happiest and most virtuous" (1985, 269), because the arts increase human knowledge, which leads to the desire to communicate that knowledge to others in conversation, which in turn cultivates a more refined temper, an "encrease of humanity" (1985, 271). This moderation in social interaction leads to moderation in politics (1985,273). Hume also argues that refinement in the arts has two further advantageous effects: first, the increase of industry and economic state power that necessarily accompanies greater human interaction and commerce (1985, 272), and second, the increase of courage on the battlefield that arises as a result of an emphasis on honor, rather than anger, and a cultivation of military science. See Danford's (1990,148-55) discussion of the myth of the viciousness of luxury. Danford emphasizes Hume's discussion of the advantages of strength and liberty in this essay.

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178 shirk the immoral but immediate gratification out of habit.34

Decentralized Administrative Authority I have shown that Hume employs both a nonmoral and moral solution to the problem of selfishness and limited benevolence. Hume argues that statesmen should improve the passions of the citizenry, but, given the inevitable limits of moral education, statesmen should arrange institutions so they do not need to rely on the contingent passions of citizens. In his third solution to the problem of the limitations of human nature, Hume combines the institutional and moral solutions of the previous two sections. This solution appears in Hume's essay "Idea of a Perfect Commonwealth."35 This essay is somewhat complex and technical, but we can glean a few lessons from it. First, Hume's institutional solution is evident—the nonmoral reliance on the rule of law to channel self-interested behavior to the public benefit. The people's erratic passions are controlled by its representatives, the representatives are checked by a veto from the senate, and the senate is checked by its answerability to the people at every election and by institutional checks internal to the senate itself.36 Second, within this system of checks and balances, Hume suggests a decentralization of legislative power. A country the size of England or Ireland, for example, 34

See Berry (1982, chapter 5), who emphasizes habituation to general rules as the central means of political and social cohesion. I believe Berry overemphasizes habit at the cost of neglecting the effects of sympathy. See Manzer (1996) for an alternative account of a solution to this problem. Manzer claims that for Hume pride can be a corrective to political knavery. 35

Commentators are divided on the question of Hume's intention in this essay: is it merely a flight of fancy, a jeu d'esprity an ironic jab at Utopian writers such as James Harrington? Or ought this essay be taken seriously, as Hume's central teaching concerning the best regime and the object of reforms? See Miller (1981, 158) and Whelan (1985, 342) for the former interpretation, Stewart (1992, 283) and Robertson (1986, 169-74) for the latter. I agree with Stewart and Robertson. Hume begins the essay with a qualification, that existing regimes have an infinite advantage over theoretical regimes, because their rules are deeply rooted in the habits of the citizenry. Hume rejects any drastic change in politics, opting instead for gradual change over time, due to the always limited passions of people and the fragile habits that keep the system secure. Hume does admit that in "some future age" an "opportunity might be afforded of reducing theory to practice" (1985,513); the experience of the United States bore this prediction out. Hume also implies that gradual reform might take this blueprint as its eventual goal. ^Hume enumerates at least seven: three against the whole senate's oppression of the people ("combination") and four against the internal factions within the senate ("division"): see 1985,524.

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should be divided into 100 counties, and each county divided into 100 parishes. The principle of the allocation of power is that which contemporary theorists call "subsidiarity": legislative and administrative decisions should be made at the most local level possible. The everyday decisions relevant only to the parish should be made there; decisions about the long-term interest of the county should be made by county representatives, and the most distant interests of the country as a whole should be made by the senate (1985, 517, 525). Why does Hume call for this diffusion of political power? He argues that the "small commonwealth is the happiest government in the world" (1985, 525) because "every thing lies under the eye of the rulers" (1985, 525). The local representatives of the parish have the best knowledge as to the interests of their constituency. Furthermore, the small republics mimic, for Hume, the simple societies of the ancients, in which as Aristotle claimed in the Nicomachean Ethics (Book 8, chapter 1.1155a) (Aristotle 1926), the regime is held together from the natural friendship or familiarity among all its citizens. Here we have an important insight buried in this technical essay: Hume argues that we can employ the natural, parochial passions and virtues for a salutary political end, without resorting to the artificial virtues and the concomitant refinement and expansion of the passions.37 The localized natural passions that became irrelevant and even destructive in the large modern state now serve an important political purpose of tremendous stability and cohesion. Hume argues that human beings' strongest passions, the passions for themselves and their immediate surroundings, can ground modern political life provided the institutions are arranged to foster these passions. When power is taken out of the hands of parochial society, and a vast impersonal network of laws is constructed, the passions of human beings cannot be moved to follow these laws. These laws have no discernible bearing on the immediate parochial interests, and so breaking them would seem not to have far-reaching effects. By contrast, when power is returned to the local level, individuals are able to see directly and immediately the interest they have in preserving the laws. Furthermore, individuals themselves are able to identify with and take pride in these laws that are close to them, which

37

This interpretation runs counter to the prevailing view in the Hume scholarship, expressed by Berry: "the 'natural virtues' of pity, etc. cannot fulfil [sic] the necessary task of social cohesion" (1982, 75).

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they conceive as their own products.38 The natural virtues are thereby marshaled to stabilize these small republics, allowing these republics to flourish.39 One defect of these small republics, however, is that they "may be subdued by great force from without" (1985, 525). We may add another defect Hume alludes to, that these local communities do not possess the "wisdom" of the long-term interests of the country as a whole (1985, 523). Local community members are limited to an understanding of the life of their own small part of the whole, with no understanding of how the part fits to the whole. To remedy these defects, Hume suggests a stratified society based on the principle of subsidiarity. First, although each parish should maintain its own militia, the country as a whole should control how and where these militias are to be combined and marshaled. Second, the local communities must be shown that they must defer to higher authorities on decisions that affect not just the local level, but also the county or even the national level. That is, the natural virtues are not sufficient to maintain the cohesiveness of the nation as a whole, but rather just for the local community. The artificial virtues are necessary to train people to see themselves as part of this larger whole, with which they might not feel as immediately connected. At this point we can again see the value of aesthetic education, which can show individuals how their particular part, their locality, can fit into the whole. The "Idea of a Perfect Commonwealth" brings into focus one way in which Hume combines both moral and nonmoral means of ameliorating the problem of limited benevolence in a large commercial republic. First, Hume shows how natural morality and

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passion can serve political ends by educating the citizens through political action and immediate, comprehensible laws. Second, institutional structures can create what previous thinkers, such as Montesquieu, thought was impossible: combine the ancient republic with a large modern state.40 This rapprochement is possible because of the principle of subsidiarity and institutional checks of the contingent passions of the people who populate these institutions.

Conclusion Hume's relation to the selfish system now takes on greater focus. On the one hand, Hume, like Mandeville, thought it necessary to channel the contingent, self-interested passions of citizens through wisely constructed institutions. On the other hand, unlike Mandeville, Hume saw that a regime's stability depends on the proper moral education of individuals. This education is only possible because, first, moral distinctions are real and implicit in human nature, and, second, human beings are social animals so they have access to these shared moral standards through discussion. Unlike his predecessor Hutcheson, who thoroughly repudiated the selfish system, Hume remained ambivalent about it, accepting its institutional solutions while rejecting its moral assumptions. In this article, I have examined the effect of Hume's moral views on his political philosophy. I have not defended or deeply examined how the moral sense theory actually works or how Hume grounds his moral philosophy—these are tasks for other papers.

M

See Hume's discussion of pride, which involves "a double relation of impressions and ideas'* (2000,2.1.2). An example maybe helpful here: a father takes pride in his son's accomplishments because (1) he takes pleasure in the accomplishment, the good effects of the son's deed, but (2) he also takes pleasure because the son resembles his own self. Similarly, one can extend this analysis to local laws: one may identify with good local laws because first, they have good effects, which gives me pleasure, and second, they bear the impression of my self. 39

Hume's "Idea of a Perfect Commonwealth" may have influenced Jefferson's republicanism, despite Jefferson's distaste for Hume's alleged Toryism. Jefferson's ward republics resemble Hume's parishes both in size, but also in effect: these ward republics were, for Jefferson, the best kind of education. Jefferson's republics have the same two educational effects that Hume's parishes do: they first show directly and immediately the interest one has in maintaining the laws, and second they are the creations of local individuals, who take pride in and thereby preserve their own work. Jefferson, letters: To Samuel Kercheval, 12 July 1816, p 210ff (Jefferson 1999). Cf. also Tocqueville's (Volume 1, Part 1, chapter 5) discussion of the New England township, which contains the same logic (Tocqueville 2000).

^See Danford (1990,145-48) for a helpful discussion of Hume's critique of the ancient republic, on the grounds that they denied liberty in the form of slaves and they repressed commerce and thus progress in the arts and sciences. Hume sided with the modern commercial state, but, I argue, sought to retrieve—to the degree possible—the natural cohesiveness of the ancient polis. One difficulty with this interpretation is that the ancient polis, according to Aristotle, was supposed to arise naturally from family relations to the extended family to the polis (Politics 1.1). Hume's ideal republic, on the other hand, seems to have artificial delimitations, which would not necessarily coincide with Aristotle's rather organic developmental story of the polis. I believe that Hume does not have any hopes that these parishes will possess the strongly unified character of the polis of ancient Greece, precisely because the organic development of small scale communities is impossible in a large market economy. What Hume attempts, however, is to cultivate through these artificial but small communities the kind of cohesiveness that would maintain the stability of the large modern republic from the ground up. As I have argued, however, Hume does not entirely rely on these small communities—to do so would be a mistake. This tactic of institutional design must be supplemented by the two other forms I discussed above.

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Instead I attempted to bring out what I see to be a neglected area of research not just in Hume scholarship, but also in contemporary political theory and science. That is, I attempt to bring moral thinking back into politics. Contemporary rational choice political science, still the reigning methodological system in the discipline today, bears striking resemblances to the "selfish system," the thesis that claims that all human behavior is a matter of self-interest. This thesis is therefore skeptical of any claims that morality influences politics. Through an examination of the moral and political philosophy of David Hume, I have shown how Hume thoroughly engages with the skeptical selfish system and shows how their commitments to a nonmoral political science is both explanatorily insufficient, but also dangerous to the health and stability of political life.

Hume, David. 1985. Essays: Moral Political Literary, ed. Eugene F. Miller. Indianapolis, IN: Liberty Fund Press. Hume, David. 1998. An Enquiry Concerning the Principles of Morals, ed. Tom L. Beauchamp. Oxford: Oxford University Press. Hume, David. 2000. A Treatise of Human Nature, eds. David Fate Norton and Mary J. Norton. Oxford: Oxford University Press. Hutcheson, Francis. 2004. An Inquiry into the Original of Our Ideas of Beauty and Virtue, ed. Wolfgang Leidhold. Indianapolis, IN: Liberty Fund Press. Jefferson, Thomas. 1999. Political Writings, eds. Joyce Appleby and Terence Ball. Cambridge: Cambridge University Press. Kant, Immanuel. 1996. Metaphysks of Morals. Trans. Mary Gregor. Cambridge: Cambridge University Press. Kant, Immanuel. 2001. Critique of the Power of Judgment. Trans. Paul Guyer. Cambridge: Cambridge University Press. Korsgaard, Christine. 1996. The Sources ofNormativity, ed. Onora O'Neill. Cambridge: Cambridge University Press. Krause, Sharon. 2004. "Hume and the (False) Luster of Justice." Political Theory 32 (5): 628-55.

Acknowledgements Many thanks to Paul Babbitt, Scott Yenor, John Danford, Michael Zuckert, and the three anonymous reviewers for reading drafts of this essay and providing helpful comments and guidance. Manuscript submitted 19 December 2005 Manuscript accepted for publication 22 April 2006

References Adair, Douglass. 1976. " "That Politics May be Reduced to a Science': David Hume, James Madison, and the Tenth Federalist." In Hume: A Re-evaluation, eds. Donald Livingston and James T. King. New York: Fordham University Press, 40717. Aristotle. 1926. Nicomachean Ethics. Trans. H. Rackham. Cambridge, MA: Harvard University Press. Aristotle. 1984. Politics. Trans. Carnes Lord. Chicago: University of Chicago Press. Berry, Christopher J. 1982. Hume, Hegel and Human Nature. The Hague: Martinus Nijhoff Publishers. Danford, John W. 1990. David Hume and the Probkm of Reason: Recovering the Human Sciences. New Haven, CT: Yale University Press. Dickie, George. 1996. The Century of Taste. Oxford: Oxford University Press. Goldsmith, M. M. 1985. Private Vices, Public Benefits: Bernard Mandeville's Social and Political Thought. Cambridge: Cambridge University Press.

Livingston, Donald. 1984. Hume's Philosophy of Common Life. Chicago: University of Chicago Press. Mandeville, Bernard. 1988. Fabk of the Bees: or Private Vices, Publick Benefits, ed. F. B. Kaye. Indianapolis, IN: Liberty Fund Press. MacIntyre,Alasdair. 1988. Whose Justice? Which Rationality? Notre Dame, IN: University of Notre Dame Press. Manzer, Robert A. 1996. "Hume on Pride and Love of Fame." Polity 18. Miller, David. 1981. Philosophy and Ideology in Hume's Political Thought. Oxford: Clarendon Press. Moore, James. 1977. "Hume's Political Science and the Classical Republican Tradition." Canadian Journal of Political Science 10 (4): 809-39. Norton, David Fate. 1982. David Hume: Common-Sense Moralist, Sceptical Metaphysician. Princeton, NJ: Princeton University Press. Nussbaum, Martha. 1997. Poetic Justice: The Literary Imagination and Public Life. Boston: Beacon Press. Olson, Mancur. 1965. The Logic of Collective Action. Cambridge, MA: Harvard University Press. Pettit, Philip. 1996. "Institutional Design and Rational Choice." In The Theory of Institutional Design, ed. Robert E. Goodin. Cambridge: Cambridge University Press, pp. 5489. Plato. 1997. The Republic. In Plato: Complete Works, ed. John M. Cooper. Indianapolis, IN: Hackett Publishing, pp. 9711224. Robertson, John. 1986. Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment. Cambridge: Cambridge University Press. Salkever, Stephen. 1980. " 'Cool Reflexion' and the Criticism of Values: Is, Ought, and Objectivity in Hume's Social Science." American Politkal Science Review 74(1): 70-7.

Hamilton, Alexander, James Madison, and John Jay. 2003. The Federalist Papers, ed. Clinton Rossiter. New York: Signet Classic.

Shepsle, Kenneth A., and Mark S. Bonchek. 1997. Analyzing Politics: Rationality, Behavior, and Institutions. New York: W.W. Norton & Company.

Hobbes, Thomas. 1991. Leviathan, ed. Richard Tuck. Cambridge: Cambridge University Press.

Skinner, Andrew. 1993. "David Hume: Principles of Political Economy." In The Cambridge Companion to David Hume, ed.

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David Fate Norton. Cambridge: Cambridge University Press, pp. 222-54. Stewart, John B. 1992. Opinion and Reform in Hume's Political Philosophy. Princeton, NJ: Princeton University Press. Tocqueville, Alexis de. 2000. Democracy in America. Trans. Harvey Mansfield and Delba Winthrop. Chicago: University of

Yenor, Scott. 2002. "Between Rationalism and Postmodernism: Hume's Political Science of our 'Mixed Kind of Life'." Political Research Quarterly 55 (2): 329-50.

Whelan, Frederick G. 1985. Order and Artifice in Hume's Political Philosophy. Princeton, NJ: Princeton University Press. Whelan, Frederick G. 2004. Hume and Machiavetti: Political Realism and Liberal Thought. Boston: Lexington Books.

Jeffrey Church is a Ph.D. candidate at Department of Political Science, The University of Notre Dame, Notre Dame, IN 46556.

Zuckert, Catherine. 1995. "On the 'Rationality' of Rational Choice" Political Psychology 16:179-98.

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[7] David Hume's Political Philosophy: A Theory of Commercial Modernization CARL WENNERLIND

Introduction While David Hume explicitly elaborated on the development of a modern commercial society in the Political Discourses and the History of England, it is more difficult to discern whether Hume had a specific time period or societal transformation in mind when he laid out his political philosophy in A Treatise of Human Nature. In the Treatise, Hume unambiguously states that he did not believe in the existence of a pre-social stage of human developmenthe considered such elaborations mere philosophical fiction.1 The lack of an abrupt demarcation between the pre-social and the social in Hume's thought makes his political philosophy incongruent with an original contract or a first social formation. In this sense, Hume's social theory might be considered a foundational theory for all human coexistence2 and the Treatise would thus read as an ahistorical text. However, it is plausible that Hume was instead providing a discussion of a particular historical transformation—that of commercial modernization—by emphasizing the construction of a new set of social institutions and ignoring or downplaying the social forms that came before. This paper challenges the ahistorical interpretations and suggests that Hume was indeed providing a philosophical elaboration of the Carl Wennerlind is Term Assistant Professor, Department of Economics, Barnard College, 3009 Broadway, New York, NY 10027, USA. e-mail: [email protected]

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central conventions of the nascent commercial society.3 This argument emerges from a recent reinterpretation of Hume's treatment of the conventions in Book 3 of the Treatise.4 Whereas most scholars interpret Hume as theorizing the conventions of property, exchange, and promises, I argue that Hume is discussing property, exchange, and money. Considering that these three conventions constitute the core of modern society and Hume describes them as being formed by the middling sorts in an evolutionary process, it is reasonable to conclude that Hume was in fact theorizing the process whereby a unified modern commercial society emerged from the scattered remnants of various medieval social forms. The plausibility of this interpretation of the Treatise is then gauged by juxtaposing it to Hume's historical account of England in the History. We find that, in an important sense, the History describes the process of commercial modernization within the parameters set out in the Treatise, which strongly suggests that Hume's political philosophy is primarily applicable to the modern commercial society, and not to an ahistorical social form. Property, Markets, and Money Writing in the aftermath of the agricultural and financial revolutions and during the midst of an astonishing expansion in national and international commerce, Hume was one of the earliest modern thinkers to theorize the deep structure of the emerging commercial order. Hume supported commercial expansion as he thought it would promote politeness, prosperity, liberty, and civilization. He argues in the Treatise that commerce extends the division of labor, improves technology and techniques, and stabilizes society. He elaborates further on the importance of commerce in the essays "Of Commerce" and "Of Refinement in the Arts," suggesting that its most important benefit is that it stimulates the industriousness of people and enlarges the "stock of labor." Since the stock of labor constitutes "all real power and riches" (Essays, 288) and "men and commodities are the real strength of any community" (293), the expansion of industry is the basis of "the greatness of the state, and the happiness of its subjects" (255). The "greatness" and "happiness" refers not only to improvements in the standard of living associated with capital expansion, but also to a general societal improvement. For Hume, industrysystematic, methodical, and productive work—plays the role of social and moral police, as well as contributes new vigor to the mind, makes people more sociable, increases humanity, and limits drink and debauchery and other appetites "nourished by ease and idleness" (272). As a civilizing force, industry also contributes to public order by making men more dependent on each other,

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thus increasing stability by softening men's tempers, making "factions less inveterate, revolutions less tragical, authority less severe, and seditions less frequent" (274). Hence, proper laws, order, police, and discipline can only be fully established once a society flourishes with industry (273). This meant, for Hume, that commerce and industry provide the necessary conditions for the promotion of prosperity, order, liberty, and civilization. Hume claims that the process of modernization was natural. However, naturalness does not necessitate inevitability. While he argues that the fundamental parameters of human nature are universal,5 he does not assert that it always produces uniform behavior.6 As human nature has the capacity to express and manifest itself in a variety of ways, there is a wide array of feasible social outcomes, some more preferable than others. Hence, Hume is not suggesting that a commercial society is natural in the sense that it is inevitable or that it is the only possible social form. Instead Hume argues a weaker position, suggesting that a commercial society is natural in the sense that it is the most preferable feasible social form compatible with the capacities and limitations of human nature. The rhetoric of naturalness enables him to show that a commercial society is not contradictory to human nature; as such, he mounts a defense of the moral worth and acceptability of commerce against the moralists who claimed that trade and commerce were corrupting influences. By providing a convincing philosophical argument for the legitimacy of commerce, Hume doubtlessly hoped to contribute to the acceleration of commercial modernization. Hume posits his political philosophy in Book 3 of the Treatise. Considering that this section discusses the establishment of justice in an explicitly commercial context, it is possible to read it as an elaboration on the necessary conditions for the development of a commercial society. Positing scarcity and self-love as given, Hume suggests that a Hobbesian chaos can only be avoided if people restrain their "insatiable, perpetual, [and] universal" (T 3.2.2.12; SBN 492) acquisitive drives so that they may act in ways that preserve the commercial order and promote justice. Since Hume finds no real or universal motives for justice embedded in the human mind, he concludes that certain conventions must be established so that positive incentives will spur people to redirect their self-interest toward virtuous ends. The internalization of these artificial virtues as behavioral codes must be grounded in the most forceful passion, that of self-love or love of gain. Since this passion is the source of all injustice and violence when unchecked, it must be harnessed and transformed in order to generate an artificial virtue. When the passion is redirected in a manner that transcends its immediate motive, people realize upon reflection that their desire for economic gain

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"is much better satisfy'd by its restraint, than by its liberty, and that by preserving society, we make much greater advances in the acquiring possessions" (T 3.2.2.13; SEN 492).7 Hence, if our "insatiable, perpetual, and universal" acquisitive drive is restrained in the near term, it will be better satisfied in the long run. Hume suggests that this restraint is made possible primarily through conventions. Hume posits three conventions as the basis for a just and civilized society, or what amounts to the same thing, a commercial society. The meaning of the first two conventions, private property and market exchange, is somewhat self-evident, while the third convention, discussed in the section "Of the obligation of promises," requires further elaboration. This section is most frequently read as a treatment of promises in general,8 but it has also been interpreted as an elaboration on promises and obligations that form the kernel of the legal system9 and commercial contracts,10 or, alternatively, as a critique of social contract theory.11 However, as will be shown below, this section can also be interpreted as dealing with a subset of commercial contracts, namely, money. More precisely, it can be viewed as an analysis of money in general or a treatment of modern forms of fiduciary money, such as bills of exchange, promissory notes, and private bank notes—the primary means of exchange in merchant transactions during the time Hume was writing.12 Hume begins his elaboration on political philosophy by establishing that private property and markets are the foundational conventions of a commercial society. He then proceeds to analyze the exchange mechanism in greater detail. He focuses on transactions in which commodities are delivered in return for promises of reciprocation and inquires whether any binding obligations arise from such promises. That is, if a commodity is received in return for a promise of reciprocation, what is the source of the obligation to honor this promise? Hume argues that "no action can be required of us as our duty, unless there be implanted in human nature some actuating passion or motive, capable of producing the action" (T 3.2.5.6; SEN 518). After some analysis, Hume concludes that there are no such immediate motives to observe promises either from nature or reason, which by extension means that "fidelity is no natural virtue, and that promises have no force, antecedent to human conventions" (T 3.2.5.6; SEN 519). However, given that a modern society cannot function properly without a well-functioning mechanism for making, keeping, and trusting promises, fidelity in commercial relations must be encouraged through a convention. If not, people would find that "here then is the mutual commerce of good offices in a manner lost among mankind, and every one reduced to his own skill and industry for his well being and subsistence" (T 3.2.5.8; SEN 520).

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The issue of credibility of promises arises only in particular forms of trade. In barter exchange, where all obligations are discharged at the moment of exchange, promises do not figure. But, as Hume points out, in order for a commercial society to develop, a mechanism must evolve whereby goods and services can be delivered safely and orderly in exchange for promises of repayment. Hume states: The invention of the law of nature, concerning the stability of possession, has already rendered men tolerable to each other; that of the transference of property and possession by consent has begun to render them mutually advantageous: But still these laws, however strictly observed, are not sufficient to render them so serviceable to each other, as by nature they are fitted to become . . . The transference of property . . . can only take place with regard to such objects as are present and individual, but not to such as are absent or general. One cannot transfer the property of a particular house, twenty leagues distant; because the consent cannot be attended with delivery, which is a requisite circumstance. Neither can one transfer the property of ten bushels of corn, or five hogsheads of wine, by the mere expression and consent; because these are only general terms, and have no direct relation to any particular heap of corn, or barrels of wine. Besides, the commerce of mankind is not confined to the barter of commodities, but may extend to services and actions, which we may exchange to our mutual interest and advantage. (T 3.3.5.8; SBN 520; italics in original) Hence, in order to transcend the inconveniences of barter, a system of deferred payments must be established in which goods are exchanged for promises of resolution. But as Hume has already pointed out, promises have no force in themselves, as people are under no intrinsic moral obligation to honor them. Consequently, the lack of surety associated with non-barter trade could prevent the establishment of a commercial society. The solution to this credibility problem is the development of an artifice that gives "new direction to those natural passions, and teach us that we can better satisfy our appetites in an oblique and artificial manner, than by their headlong and impetuous motion" (T 3.2.5.9; SBN 521). In commerce between friends and family, people simply perform and return favors out of love or generosity. However, in commerce between strangers, a commitment mechanism is required, one that allows people to communicate their motives by the very act of participating in the convention.13 That is, by using a ucertain

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form of words" (T 3.2.5.10; SEN 522; italics in original)—a symbol—a person signals to the larger community a commitment to the rules of the convention. Hume claims that such a sign or symbol can function as a tangible representation of promises, thus increasing trust and confidence, so that a functional artifice may develop. He argues: A resolution is the natural act of the mind, which promises express: But were there no more than a resolution in the case, promises wou'd only declare our former motives, and wou'd not create any new motive or obligation. They are the conventions of men, which create a new motive, when experience has taught us, that human affairs wou'd be conducted much more for mutual advantage, were there certain symbols or signs instituted, by which we might give each other security of our conduct in any particular incident. After these signs are instituted, whoever uses them is immediately bound by his interest to execute his engagements, and must never expect to be trusted any more, if he refuses to perform what he promised. (T 3.2.5.10; SEN 522; italics in original) Here, Hume argues that when a good has been delivered in return for a promise of repayment, the promise given in return only reflects an initial motive. At the time of reciprocation, it is in the interest of the receiver to renege on the promise. However, through experience, people acquire an understanding of the pernicious effects of such precarious commerce, leading them to standardize the exchange of symbols for goods and services. The symbol signifies an incomplete transaction and serves as a guarantor of the promise, and as such, increases the confidence and security that the artificial virtue will be upheld, the promise honored, and the transaction completed. It is the motive communicated through the symbol that induces the delivering party to accept the exchange. In this sense, the symbol gives meaning to the promise of resolution, much in the same way as a promissory note. Through experience and observation, participants in commerce realize the convenience of this commitment mechanism and decide to join, leading to a gradual enlargement of the exchange network. As the symbol begins to function as a universal representation and mediator, and signifies the promise to deliver a certain quantity of any commodity to any participant, it becomes anonymous. Depersonalized, it now communicates14 a claim on the general commercial community, like a promissory note on which the name of the drawee has been removed and substituted by the phrase "pay on demand to the holder of this note." Hume argues that people "are naturally induced to

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lay themselves under the restraint of such rules, as may render their commerce more safe and commodious" (T 3.2.2.24; SEN 499). Self-interest should therefore maintain the institution, as it enables people to take advantage of expanded trade, extended division of labor, and economic growth. Since no other symbolic system can function as an efficient commitment mechanism in non-barter trade, Hume's analysis of promises inevitably gravitates toward the concept of money. More precisely, Hume's exposition proposes a fiduciary concept of money, as the symbolic system is built upon trust and confidence.15 Even though Hume did not explicitly state in the Treatise that the symbol is money, he makes a revealing clarification about the link between promises and money in An Enquiry concerning the Principles of Morals. While discussing the three institutions of justice—property, trade, and "contracts and promises"—he exemplifies the latter by referring to bills of exchange16 and promissory notes17 (EPM 3.2.33; SEN 196), two of the primary forms of modern money used by merchants in the eighteenth century.

Hume's Historically Specific Social Theory From the above discussion of Book 3 of the Treaties we conclude that Hume viewed private property, markets, and money as the constitutive institutions of a modern commercial society. Hume thought that once this framework was solidified, an appropriate milieu for commerce, industry, and technological advancement would be established, promoting a polite and civilized society and the possibility for political and constitutional liberty. In addition to focusing on the historically specific conventions of private property, markets, and money, the Treatise contains further clues suggesting that Hume was primarily concerned with analyzing the process of commercial modernization. As will be shown below, a close reading of the Treatise reveals that Hume specified (i) that the conventions are generated in an evolutionary process, (ii) wherein the middling sorts play the primary constitutive role, and (iii) a system of laws is required to ensure compliance from those who do not voluntarily conform to the new social order. That is, Hume did not believe in a universal ahistorical subject—his analysis centers around the newly emerging middle class as the primary historical agent—and he viewed commercial modernization as a gradual development partly engineered by the middling sorts and partly imposed on others through the rule of law. In order to examine the plausibility of this interpretation of the Treatise, we can compare it to Hume's historical analysis in The History of England. Such a comparative approach reveals that the dynamics of Hume's political philosophy closely resembles that of the actual process of commercial modernization described

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in the History, to the extent that it seems beyond doubt that his political philosophy was developed to illustrate this historical moment. Hume suggests in the History that the process of commercial modernization had an early beginning at the end of the fifteenth century, but that polices pursued by the Tudor regime retarded its progress.18 Therefore, it was not until the seventeenth century that the social fabric experienced a fundamental transformation and the pace of commercial modernization accelerated. He writes, "during no preceding period of English history, was there a more sensible encrease, than during the reign of this monarch [James I], of all the advantages which distinguish a flourishing people. Not only the peace which he maintained, was favourable to industry and commerce: His turn of mind inclined him to promote the peaceful arts: And trade being as yet in its infancy, all additions to it must have been the more evident to every eye, which was not blinded by melancholy prejudices" (History of England, 5: 142). Subsequent periods experienced an even greater acceleration of economic growth: "the commerce and industry of England encreased extremely during the peaceable period of Charles I's reign" (6: 148), while "the commerce and riches of England did never, during any period, encrease so fast as from the restoration to the revolution" (5: 537). In the Treatise, Hume argues that the formation of a commercial society is an evolutionary process that "arises gradually, and acquires force by a slow progression" (T 3.2.2.10; SEN 490).19 People are not immediately disposed to abide by the laws of justice (defined in the commercial context of property, markets, and money);20 indeed a sense of justice and injustice "is not derived from nature, but arises artificially, tho' necessarily from education, and human conventions" (T 3.2.1.17; SEN 483). Only when a population reaches a "civilized state, and when trained up according to a certain discipline and education," (T 3.2.1.9; SEN 479) are the rules of commerce internalized as behavioral norms. However, this evolutionary process is imperfect, as all people cannot be counted on to participate voluntarily in the creation and recreation of the conventions. Although a breach of justice may be remote, "they are, however, never the less real for being remote; and as all men are, in some degree, subject to the same weakness, it necessarily happens, that the violations of equity must become very frequent in society, and the commerce of men, by that means, be rendered very dangerous and uncertain" (T 3.2.7.3; SEN 535). Hume suggests in the History that the reign of Henry VIII experienced rampant violations of property rights, with seventy-two thousand people executed for crimes against property. However, he continues, "if these facts be just, there has been a great improvement in morals since the reign of Henry VIII. and this improvement has been chiefly owing to the encrease of

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industry and of the arts, which have given maintenance, and, what is almost of equal importance, occupation to the lower classes (History of England, 3: 329). Hence, private property and commerce are symbiotically related, the more secure property rights are the greater commerce will be and vice versa. Consequently, people who spark industry and further trade are crucial to the commercialization process. These agents of change included merchants, entrepreneurs, financiers, agricultural improvers, and manufacturers, whom Hume groups together as the "middling rank of men" (Essays, 277-8). Not only were these men the impetus behind trade and industry, they also had the strongest incentives to temper their passion for immediate gratification and thus abide by the rules of the property exchange system. As the middling sorts gradually acquired more political authority, they were able to transform the nation's legal system in ways that codified the changes generated by the commercialization process. As such, the middling rank of men "are the best and firmest basis of public liberty. . . . They covet equal laws, which may secure their property, and preserve them from monarchical, as well as aristocratical tyranny" (Essays, 277-8). Hence, it was through the rule of law that the middling sorts, "who, in order to govern men more easily, and preserve peace in human society, have endeavoured to produce an esteem for justice, and an abhorrence of injustice" (T 3.2.2.25; SEN 500), that is, respect for property, exchange, and money. By providing an analysis in which the middling rank of men are responsible for weaving the new social fabric, Hume's social theory accurately represents the agency implicit in the construction of commercial institutions. For Hume, these revolutionary subjects serve as engines of commerce and industry, and thus provide the basis for liberty and progress. As such, this process tends to be self-reinforcing and cumulative in that improvements in commerce, industry, and the arts have the capacity to transform the nonproductive members of society, both high and low, to become more like the middling sorts. He explains how the nobility, instead of vying with each other, in the number and boldness of their retainers, acquired by degrees a more civilized species of emulation, and endeavoured to excel in the splendour and elegance of their equipage, houses, and tables. The common people, no longer maintained in vicious idleness by their superiors, were obliged to learn some calling or industry, and became useful both to themselves and others. And it must be acknowledged, in spite of those who declaim so violently against refinement in the arts, or what they are pleased to call luxury, that... an industrious tradesman is both a

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Hume further elaborates on how the refinements of the arts and the habits of luxury further precipitated this social transformation. He describes how, as the new methods of expence gave subsistance to mechanics and merchants, who lived in an independant manner on the fruits of their own industry, a nobleman . . . retained only that moderate influence, which customers have over tradesmen, and which can never be dangerous to civil government. The landed proprietors also, having a greater demand for money than for men, endeavoured to turn their lands to the best account with regard to profit, and either inclosing their fields, or joining many small farms into a few large ones, dismissed those useless hands, which formerly were always at their call in every attempt to subvert the government, or oppose a neighbouring baron. By all these means the cities encreased; the middle rank of men began to be rich and powerful. (4: 384) Hume suggests that the Age of Discovery afforded additional opportunities for people to elevate themselves into the middling ranks. He writes, "the enlargement of commerce and navigation encreased industry and the arts every where.... Men of an inferior rank both acquired a share in the landed property, and created to themselves a considerable property of a new kind, in stock, commodities, art, credit, and correspondence" (History of England, 3: 80). For this reason, the middling sorts should be given open access to all cities and "parliament had done better to have encouraged foreign merchants and artizans to come over in great numbers to England; which might have excited the emulation of the natives, and have improved their skill" (3: 328). However, it was not until the seventeenth century that it was finally recognized that men of commerce serve as an important force for social improvement and only then was the merchant profession considered "honourable" and country gentlemen began to "bind their sons apprentices to merchants" (6: 148). Endowed with the potential to emancipate society from barbarism and poverty, the middling sort was the most central agent for Hume to consider.21 Other segments of society, high and low, noble and poor, that did not actively contribute to the establishment of modern society or fought against it, were simply denied agency and subjectivity in Hume's social theory. In so far as Hume considers other classes, he does so only in terms of how they can be

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transformed into something closer to the middling sorts.22 As such, it is only once the commercialization process is complete and all people have been transformed into the middling ranks that a universal subject is created. However, during the time period Hume considered, there were still multiple social groups who did not share the behavioral specificities and motivations of the middle class, e.g., the aristocracy, beggars, Diggers, pirates, commoners, counterfeiters, etc. Now that we have established that, for Hume, commercial modernization is a gradual process, is primarily engineered by a certain segment of society, and necessitates a legal system to ensure universal compliance, we turn to his description, in the History, of how the core conventions emerged in England. This parallel reading reveals how Hume's account of economic history in the History and the Political Discourses expands and clarifies his political philosophy articulated in the Treatise.

Private Property Hume argues that the philosophical fiction of a golden age, where property rights were not required, never existed and points out that every society must have restraints and rules regarding the use and distribution of its resources in order to function. However accurate this statement is, Hume's argument that a society needs some property rules is different from insisting that a society can function only under private property rules.23 Nevertheless, he presents a case for individualistic exclusionary property rights that grant the owner full right to possess, use, manage, alienate, transfer, acquire income flows, and exclude others from access.24 For Hume, individualistic exclusionary property rights, where "land marks between my neighbor's field and mine" (EPM 3.6; SBN185)25 are strictly defined are best suited for establishing proper incentives for industry and commerce. He asks rhetorically, "who sees not... that whatever is produced or improved by a man's art or industry ought, for ever, to be secured to him, in order to give encouragment to such useful habits and accomplishments?" (EPM 3.28; SBN 195). He also warns that if we "render possessions ever so equal, men's different degrees of art, care, and industry will immediately break that equality. Or if you check these virtues, you reduce society to the most extreme indigence; and instead of preventing want and beggary in a few, render it unavoidable to the whole community" (EPM 3.25; SBN 194). For Hume, societal progress could only begin once the convention of individualistic exclusionary property rights was established. In the History, he dates the advent of this process to the end of the fifteenth century, when the nobility and gentry "acquired the power o f . . . alienating their estates. By

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means of this law, joined to the beginning luxury and refinement of the age, the great fortunes of the barons were gradually dissipated, and the property of the commons encreased in England" (History of England, 3:77). Property rights became generalized and more strictly enforced during the sixteenth century, when "a more regular police was established in the reign of Henry VIII. than in any former period, and a stricter administration of justice; an advantage which induced the men of landed property to leave the provincial towns, and to retire into the country ... [which was] proof of the encrease of riches" (3: 229-30). Hence, the establishment of private property rights coincided with, or rather contributed to, the definite elimination of the remnants of England's medieval society. Hume suggests in the Treatise that the convention of private property evolves gradually as more and more people become interested in enjoying its benefits. However, he also points out that education, socialization, and political coercion are necessary in order to expand and maintain the convention. As such, he correctly suggests that the history of private property rights is written in the annals of mankind in the letters of both self-interest and violent imposition, a dual explanation of the genesis of private property still prominent in today's historical debates. While many economic historians focus on how clearer definitions and more efficient execution of property rights create incentives for improved productivity and increased trade,26 social historians tend to focus on the contestation and resistance to the establishment of private property.27 Forms of resistance include anti-enclosure riots and peasant uprisings—which often encountered extensive state violence, but on occasion forced the state to implement and enforce antienclosure measures—and attempts to circumvent property rights altogether through theft28—a crime that was punished with particular severity in earlymodern England. While Hume focused primarily on the smooth organic evolution of property rights in the Treatise, he considered the grievances against the enclosures in the History. He states that when pasturage had become more profitable than "unskilful" English farming in the sixteenth century, "whole estates were laid waste by inclosures: The tenants regarded as a useless burden, were expelled their habitations: Even the cottagers, deprived of the commons, on which they formerly fed their cattle, were reduced to misery" (History of England, 3: 369). Enraged by their immizeration, the populace frequently took up arms and disturbed the public peace. Ket's Rebellion, one of the most famous anti-enclosure insurrections of the century, in which more than twenty thousand peasants came together and seriously threatened the public order and the new system of land ownership, figures prominently in Hume's account.

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Hume was utterly unsympathetic to the anti-enclosure riots and opined that "the law enacted against inclosures... scarcely deserves... high praises" (History of England, 3: 79). In fact, he thought that the English peasantry ultimately benefited from the initial misery produced by the enclosures, as it forced them to become more industrious and frugal—"[it was] difficult for the people to shake off their former habits of indolence; and nothing but necessity could compel them to such an exertion of their faculties" (3: 370). In general, Hume thought that limitations on ownership and exchange would never promote employment and prosperity. Hence, the enclosures should be allowed to proceed unchecked, because as long as "husbandmen understand agriculture, and have a ready vent for their commodities, we need not dread a diminution of the people, employed in the country" (3: 79). The Diggers, or the True Levellers, who in 1649 sought to regain the commons by cultivating the waste lands,29 consequently came under Hume's criticism. Although the Diggers' project, led and formulated by Robert Everard and Gerrard Winstanley, was destroyed by a local militia organized by the land-lords and aided by parliamentary troops, their politically subversive vision of communal property rights lingered on as a threat to the commercial modernization project.30 Hume denounces the Diggers' project and philosophy for this very reason. He describes how Everard, a disbanded soldier, having preached that the time was now come when the community of goods would be renewed among Christians, led out his followers to take possession of the land. . . . What seemed more dangerous: The army itself was infected with like humours. Though the levellers had for a time been suppressed by the audacious spirit of Cromwel, they still continued to propagate their doctrines among the private men and inferior officers. (History of England, 6: 12) In the Enquiries, Hume further considers "the levellers, who claimed an equal distribution of property" (EPM 3.24; SEN 193), as fanatics who quixotically believed that "dominion is founded on grace, and that saints alone inherit the earth" (EPM 3.23; SEN 193). He consequently seemed pleased to note that "the civil magistrate very justly puts these sublime theorists on the same footing with common robbers, and teaches them by the severest discipline, that a rule, which, in speculation, may seem the most advantageous to society, may yet be found, in practice, totally pernicious and destructive" (EPM 3.23; SEN 193). The "very just and severest discipline" the state used to teach respect for private property was founded on a plethora of capital punishments.31

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Markets In as much as Hume's discussion of private property reveals that the History is written within the same theoretical structure as the Treatise and Enquires, we find a similar pattern in Hume's discussion of markets. In the Treatise, Hume shows that the establishment of private property rights is not sufficient to ensure that people are as serviceable to each other as they have the capacity to become. Hume points out that "different parts of the earth produce different commodities; and not only so, but different men both are by nature fitted for different employments, and attain to greater perfection in any one, when they confine themselves to it alone. All this requires a mutual exchange and commerce" (T 3.2.4.1; SEN 514). While some form of exchange has always existed, whether it was barter, gift giving, administrative trade, or market exchange, an international market society with a developed division of labor, in which all important features of society are distributed through markets, is a more recent institution.32 The market expansion was the result of a gradual process whereby merchants, entrepreneurs, and manufacturers extended their activities to include more facets of human life and to cover additional regions, to the point when nearly anything could be sold almost anywhere in the world.33 Hume argues in the History that markets should be open to all members of society, as trade "ought to be common to all" (History of England, 4: 376). All restrictions on commerce, whether domestic or international, are detrimental to all parties involved. He argues that "the enlargement of commerce and navigation encreased industry and the arts every where . . . [and] in all places, the conditions of the people . . . received great improvement, and they acquired, if not entire liberty, at least the most considerable advantages of it" (3: 80). Hume therefore viewed the mercantile state's practice of raising revenues through the sale of monopoly rights to specific trade routes as a particularly pernicious policy, as it "enslaved the nation to those exclusive companies, which confined so much every branch of commerce and industry" (5:144). The state should also abstain from the temptation to regulate market interaction domestically. In the spirit of the invisible hand, Hume argues that "most of the arts and professions in a state are of such a nature, that, while they promote the interest of the society, they are also useful or agreeable to some individuals; and in that case, the constant rule of the magistrate, except, perhaps, on the first introduction of any art, is, to leave the profession to itself, and trust its encouragement to those who reap the benefit of it" (3: 135).

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As in the case of private property, there was a significant number of people who resisted the establishment of markets. With the accelerated confluence of modernizing forces and the elimination of Tudor paternalism,34 there was a sharp increase in the number of people who became dependent on the market for access to their basic needs. However, the poorer sorts did not passively accept the new logic of the market, as they viewed Tudor paternalism as a common-right substitute ensuring their sustenance in periods of food shortages. Hume acknowledged their resistance to the market, noticing that during economic depressions the destitute often became "tumultuous for want of bread" (3: 327), and resorted to bread riots,35 or what Eric Hobsbawm called "collective bargaining by riot."36 Although the state generally used force to quell such unrest, occasionally they were pressured into alleviating the people's grievances by regulating exports, prices, and wages.37 Hume, however, did not view the vicissitude of the market as a problem necessitating government intervention, but rather thought that an increase in the prices of basic commodities would provide an incentive for the poor to exert more industry. Accordingly, attempts to fix wages and prices to protect the poor only served to protect the idleness and laziness of the English working class and thus dilute the benefits of commercial modernization. Hume exemplifies this phenomenon by referring to Henry VIIPs statutes to fix prices on poultry, cheese, butter, and beef. While these measures were intended to "remedy the evil... [of a] decay of commerce, and industry" (History of England, 3: 330), the statutes ended up only exacerbating the problem. This led Hume to conclude that "it is evident, that these matters [wage and price setting] ought always to be left free, and be entrusted to the common course of business and commerce"(3: 78).38

Money Like private property and markets, money was established through a process that was partly organic and partly imposed. As outlined above, Hume argues that the crucial ingredients in the establishment of money, both metallic and paper, is trust and confidence in the continued exchangeability of the money object. Consequently, any action that threatens the fiduciary component has the capacity to undermine the entire convention. The process Hume describes in the Treatise, whereby the middling sorts of men established a system of exchange based on fiduciary symbols, closely resembles the financial apparatus established during the seventeenth-century financial revolution. As merchants, tradesmen, entrepreneurs, manufacturers, and agricultural improvers sought ways to expand commerce, industry, and capital accumulation,

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they devised a system of financial instruments that could mediate their transactions. The bill of exchange, a holdover from the medieval fairs in Europe, continued to grow in importance,39 while goldsmiths and pawnshops began to issue promissory notes designated for business use. Goldsmiths also allowed depositors to draw upon their accounts in writing and to use these checks to pay creditors,40 while private banks soon after began to issue bank notes.41 In addition, numerous forms of money were issued by the state, including Bank of England notes, tallies, and Exchequer orders. At the time Hume wrote, the bulk of domestic commerce in Britain was transacted by means of paper money and certainly "by the time Adam Smith's Wealth of Nations was published in 1776, bank money clearly exceeded metallic money."42 Considering that Hume's History ends prior to the financial revolution, it does not provide a suitable occasion for Hume to elaborate on the expansion of the monetary system. However, the essay "Of the Balance of Trade" contains additional reflections on the introduction of new forms of paper-money. In this essay, Hume argues that the new financial instruments "render paper equivalent to money, circulate it throughout the whole state, [and] make it supply the place of gold and silver " (Essays, 316). Hence, paper-money has the capacity to partly substitute for precious metals without damaging the nation's commerce and industry, since "it is only in our public negociations and transactions with foreigners, that a great stock of [metallic] money is advantageous ... as our paper is there absolutely insignificant" (316-17). Hume notes the existence of different forms of paper-money—bills of exchange, private bank note, and Bank of England bills—and describes the underlying credit mechanisms that secure each instrument.43 In addition, Hume provides a detailed account of the formation of bank-credit, or what we today would call checking-credit, by the banks in Edinburgh.44 Calling it "one of the most ingenious ideas that has been executed in commerce" (Essays, 319), Hume claims that "the advantages, resulting from this contrivance, are manifold" (319). He suggests that, as a man may find surety nearly to the amount of his substance, and his bank-credit is equivalent to ready money, a merchant does hereby in a manner coin his houses, his household furniture, the goods in his warehouse, the foreign debts due to him, his ships at sea; and can, upon occasion, employ them in all payments, as if they were the current money of the country. (319) However, there is always a possibility that paper-money could be overissued, a problem experienced by several companies of merchants in Glasgow

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who "associated themselves into different banks, and issued notes so low as ten shillings, which they used in all payments for goods, manufactures, tradesmen's labour of all kinds; and these notes, from the established credit of the companies, passed as money in all payments throughout the country" (320). This expansion of credit came at the cost of banishing a third of Scotland's precious metals and "at the risk of losing all by the failing of that credit, as must happen upon any violent shock in public affairs" (317). In order to avoid compromising the credibility of paper-money, credit expansion had to be disciplined. In a letter to Abbe Morellet, Hume proposes that the preferred mechanism to ensure adequate discipline is to require money to consist of or be backed by "some materials, which have intrinsic value, otherwise it would be multiplied without end, and would sink to nothing."45 Hence, only if paper-money is governed by a legal code that requires all bills to be backed by some asset, such as precious metals, merchandise, or land, can we avoid situations similar to that of our colonies in America, [which] for want of specie, used to coin a paper currency; which were not bank notes, because there was no place appointed to give money in exchange: yet this paper currency passed in all payments, by convention; and might have gone on, had it not been abused by the several assemblies, who issued paper without end, and thereby discredited the currency. (Letters 1: 204) In addition to overissuance posing a threat to the exchangeability of money, the work of counterfeiters also has the capacity to compromise the trust and confidence in money. As counterfeiters seek access to unearned property, they insert a virus-like moment of doubt and insecurity that has the capacity to undermine the fiduciary component of money. Counterfeiters had always been a threat to the functionality of money, but with the rapid development of financial instruments in the eighteenth century, new possibilities for committing crimes against the currency were now available. In fact, forgeries of the various forms of paper-money were viewed as "more serious than coining on account of the greater sums involved and the greater difficulty of detecting the spurious notes."46 Although great efforts were made to outsmart the forgers of paper-money, such as altering the type and quality of the paper and experimenting with the engraving and watermarks, it was quickly considered necessary to pronounce counterfeiting a capital offence.47 Hume was adamantly in favor of applying the most draconian punishment to convicted money-manipulators. In his celebration of Henry I's "rigorous" execution of justice, he describes how "False coining, which was then a very

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common crime, and by which the money had been extremely debased, was severely punished by Henry" (History of England, 1: 277). He proceeded to claim that these laws were well received by the population and, despite not being carried out universally, yielded rather favorable results. He writes, "Near fifty criminals of this kind were at one time hanged or mutilated; and though these punishments seem to have been exercised in a manner somewhat arbitrary, they were grateful to the people, more attentive to present advantages, than jealous of general laws" (1: 277-8)

Conclusion This paper argues that Hume's political philosophy centers around the process of commercial modernization. It interprets the Treatise as containing a theory of social change in which the middling sorts transform the social fabric in ways that allow them to better pursue their aims. In the process, they would transform the old political and economic order—an insight about which Adam Smith would later write: "Mr. Hume is the only writer who, so far as I know, has hitherto taken notice of."48 While Hume presents his theory of social change in the Treatise without directly referencing any specific time or place, in the History and the Political Discourses he implicitly uses the same theoretical framework in describing the evolution of property rights, markets, and money in England. This means that the Treatise and the History can usefully be read as companion texts, and when they are, it becomes clear that Hume's political philosophy is an explicit treatment of the process of commercial modernization.

NOTES The author is grateful for comments provided during the 2001 meeting of the 18th Century Scottish Studies Society at George Mason University and the 2000 meeting of the Hume Society at the College of William and Mary. Thanks also to Andrew Cunningham, Samuel Fleischacker, and two anonymous referees for valuable suggestions. This work was partly financed by a grant from Handelsbankens Forskningsstiftelser. 1 Hume notes in the Treatise; "this state of nature, therefore, is to be regarded as a mere fiction, not unlike that of the golden age, which poets have invented" (T 3.2.2.15; SEN 493). Passages from the Treatise (hereafter T) are identified by book, part, section, and paragraph number, and are quoted from David Hume, A Treatise

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of Human Nature, ed. David Fate Norton and Mary J. Norton (Oxford: Oxford University Press, 2000). I also provide page references to the second edition prepared by L. A. Selby-Bigge and P. H. Nidditch (Oxford: Clarendon Press, 1978), cited as SEN. 2 This matter is frequently discussed in the literature on Hume's social theory. See, for example, L. A. Scaff, "Hume on Justice and the Original Contract" Philosophical Studies 33 (1978): 101-8; Rachel Cohon, "Hume's Difficulty with the Virtue of Honesty," Hume Studies 23 (1997): 91-112; and Michael Gill, "Hume's Progressive View of Human Nature," Hume Studies 26 (2000): 87-108. 3 Loren Gatch suggests that "there is, in Hume's writing, no 'smoking gun' such as the famous chapter 5 of Locke's Second Treatise that has inspired scholars from Laski to Appleby to regard Locke as a theorist of bourgeois capitalism" ("To Redeem Metal with Paper: David Hume's Philosophy of Money," Hume Studies 22 [1996]: 169-92; 171). Although a smoking gun may be missing, this paper argues that Hume's analytical framework is, as much as Locke's, a theory of commercial modernization. 4 Carl Wennerlind, "The Link between David Hume's A Treatise of Human Nature and his Fiduciary Theory of Money," History of Political Economy 33 (2001): 139-60. 5 Hume notes in An Enquiry Concerning Human Understanding, "It is universally acknowledged that there is a great uniformity among the actions of men, in all nations and ages, and that human nature remains still the same, in its principles and operations. The same motives always produce the same actions: the same events follow from the same causes. Ambition, avarice, self-love, vanity, friendship, generosity, public spirit: these passions, mixed in various degrees, and distributed through society, have been, from the beginning of the world and still are, the source of all the actions and enterprises, which have ever been observed among mankind" (EHU 8.7; SEN 83). Passages from An Enquiry concerning Human Understanding (EHU) are cited in the text by section and paragraph number, and quoted from the edition prepared by Tom L. Beauchamp (Oxford: Oxford University Press, 1999). I also provide page references to the third edition of the Enquiries concerning Human Understanding and concerning the Principles of Morals prepared by L. A. Selby-Bigge and P. H. Nidditch (SBN) (Oxford: Clarendon Press, 1975). 6 Hume exemplifies this notion in his discussion of the diversity of national characters in "A Dialogue." He metaphorizes: "The Rhine flows north, the Rhone south; yet both spring from the same mountain, and are also actuated, in their opposite directions, by the same principle of gravity. The different inclinations of the ground, on which they run, cause all the difference of their courses" (EPM, "A Dialogue," paragraph 26; SBN 333). Passages from An Enquiry concerning the Principles of Morals (EPM), including "A Dialogue," are cited by section and paragraph number, and are quoted from the edition prepared by Tom L. Beauchamp (New York: Oxford University Press, 1998). I also provide page references to the third edition of the Enquiries prepared by L. A. Selby-Bigge and P. H. Nidditch (SBN) (Oxford: Clarendon Press, 1975). The same idea appears in "The Platonist": "To some philosophers it appears matter of surprise, that all mankind, possessing the same nature, and being endowed with the same faculties, should yet differ so

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widely in their pursuits and inclinations" (Essays: Moral, Political, and Literary, ed. Eugene L. Miller [Indianapolis: Liberty Fund, 1985], 155). Hume seems to suggest that it is only after people are organized within a well-defined societal structure with incentives for particular behavior, that their actions become predictable and tractable. He notes in the essay "That Politics May be Reduced to a Science," "so great is the force of laws, and of particular forms of government, and so little dependence have they on the humours and tempers of men, that consequences almost as general and certain may sometimes be deduced from them, as any which the mathematical sciences afford us" (Essays, 16). 7 Albert Hirschman, in The Passions and the Interests (Princeton, N.J.: Princeton University Press, 1977), elaborates on this facet of Enlightenment reasoning. For Hume, the process of redirecting the passions was not just beneficial from the point of view of increasing output; it was fundamental to the very constitution of the modern social form. 8 Knud Haakonssen, The Science of Legislator: The Natural Juisprudence of David Hume and Adam Smith (Cambridge: Cambridge University Press, 1981); William Vitek, "The Humean Promise: Whence Comes Its Obligations?," Hume Studies 12 (1986): 160-76 and Anthony Pitson, "Hume on Promises and their Obligations," Hume Studies 14 (1988): 176-90. 9 Haakonssen, Science of a Legislator, 29-35, and F. A. Hayek, "The Legal and Political Philosophy of David Hume," in Hume, ed. V. C. Chappell (London: University of Notre Dame Press, 1966), 346-7. 10 John Stewart, The Moral and Political Philosophy of David Hume (New York: Columbia University Press, 1963), 119-20. 11 James Moore, "Hume's Theory of Justice and Property," Political Studies, 24 (1976): 103-109, 107. 12 Glyn Davies, A History of Money (Cardiff: University of Wales Press, 1994), 238. 13 Hume notes that "it is only a general sense of common interest; which sense all the members of the society express to one another, and which induces them to regulate their conduct by certain rules" (T 3.2.2.10; SEN 490). 14 Hume was an early semiotician of money. He suggests that money is a language of morality, a signaling mechanism that facilitates the maintenance of sociability and commerce between strangers. This communicative capacity of money was later theorized by the Austrian economists. For an analysis of various types of semiotic theories of money, see Carl Wennerlind, "Money Talks, but what is it Saying? The Semiotics of Money and Social Control," Journal of Economic Issues 35 (2001): 357-574. 15 The conceptualization of money as a subset of contracts was not unique to Hume. His discussion of contracts and obligations resembles that of Francis Hutcheson in A System of Moral Philosophy (Glasgow: Foulis Press, 1755). Hutcheson discusses the necessity of contracts for a society to function and suggests that "breaches of faith, were they frequent in society, must destroy all social commerce"

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(3). For Hutcheson, promises and intentions can be communicated through language, spoken or written, but they can "also be declared abundantly by any other signs previously agreed upon by the parties as evidences of consent. When any sign is agreed upon and used with that professed design, it is an express[ed] contract" (6, emphasis added). Much like Hume, Hutcheson claims that these communication signs or commitment signs are instituted through custom and that people maintain the fiduciary solidity of the sign once they realize that failure to do so means loss of mutual confidence and an end of the institution. What is most important for the purposes of this discussion, however, is that Hutcheson then goes on to discuss money as a subset of the general category of signs used in contracts. He discusses various forms of commercial exchange and notes the importance that the sign used in monetary exchange should not be manipulated, either by the state or by counterfeiters (53-77). 16 The bill of exchange functions in the following way, "a merchant writes a short note asking another merchant to make a specific payment to yet another merchant who can, if he wishes, sell it and assign it to another, and so on, until payment falls due" (Henry Roseveare, The Financial Revolution, 1661-1760 [New York: Longman, 1991], 107). 17 Promissory notes "made payable only to the depositor on his order, were invariably endorsed, and the endorsement often witnessed by a third party. Gradually, however, the practice of making them payable to a named payee or bearer increased, and by the year 1729 . . . a space was left on the form for the name of the payee, and also for 'order' or 'bearer' to be inserted in manuscript as required, showing that at that time bearer notes had become common" (Albert Feavearyear, The Pound Sterling [Oxford: Oxford University Press, 1963], 108). It would take another few years before these notes were payable simply to the bearer, without any payee's name appearing at all. 18 Hume argues that the breakup of feudal social relations during the fifteenth century initiated the modernization process. At this point, the state also became more interested in the promotion of commerce. However, Hume points out that "trade and industry were rather hurt than promoted" by the laws enacted (The History of England, 6 vols. [Indianapolis: Liberty Fund, 1983], 3: 77). However, this was only to be expected, since "the principles of commerce are much more complicated, and require long experience and deep reflection to be well understood in any state" (3: 74). Hereafter, references to Hume's History will be provided in the text, by volume and page number in the Liberty Fund edition. 19 Haakonsson notes that this process evolves slowly through the ages and he takes it "as self-evident that Hume is talking of the extension of justice to more and more people, not to the extension of the concept of justice to new areas" (Science of a Legislator, 193). 20 Hume clarifies in the essay "Of the Original Contract" that men are not naturally disposed to abide by the laws of commerce. He suggests that "were all men possessed of so inflexible a regard to justice, that, of themselves, they would totally abstain from the properties of others; they had for ever remained in a state of absolute liberty, without subjection to any magistrate or political society: But

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this is a state of perfection, of which human nature is justly deemed incapable" (Essays, 474). 21 Emma Rothschild, in Economic Sentiments, Adam Smith, Condorcet, and the Enlightenment (Cambridge: Harvard University Press, 2001), describes just how revolutionary Hume (and Adam Smith) viewed the middling sorts, in terms of their catalytic role in transforming the economy, politics, morals, and culture. 22 Constant Stockton reads even more into Hume's class analysis and suggests that "Hume offers an almost Marxist dialectic" ("Economics and the Mechanism of Historical Progress in Hume's History," in Hume: A Re-evaluation, ed. Donald Livingston and James King [New York: Fordham University Press, 1976], 315). Although this proposition may extend beyond the textual evidence, Stockton is correct in pointing out that "Hume sees the struggles between the old nobility and the new middle class and clearly sympathizes with the latter. . . . But, like most writers of his day and class, he felt less sympathy for the common people. Assuming that they are naturally lazy and need the threat of imminent starvation to goad them into increased productivity, Hume concluded that the sufferings of the poor during this period of economic growth were beneficial to the nation as a whole" (315). 23 Scaff suggests that "Hume only succeeds in demonstrating the necessity of a convention, not the particular kind of convention it should be" ("Hume on Justice and the Original Contract," 211). 24 Hume suggests that "we are said to be in possession of any thing, not only when we immediately touch it, but also when we are so situated with respect to it, as to have it in our powers to use it; and may move, alter, or destroy it, according to our present pleasure or advantage" (T 3.2.3.7; SEN 506). He further adds, "an object must either be in the possession of one person or another" (T 3.2.6.8; SEN 530). 25 Hume discusses the impossibility of collective property rights in both the Treatise (Book 3) and the second Enquiry. 26 For example, Douglass North, Structure and Change in Economic History (New York: Norton, 1981), and Nathan Rosenberg and L. E. Birdzell, How the West Grew Rich (New York: Basic Books, 1986). 27 For example, Rodney Hilton, Class Conflict and the Crisis of Feudalism (London: Verso, 1990), and Christopher Hill, Reformation to Revolution (Harmondsworth: Penguin, 1967). 28 E. P. Thompson, Whigs and Hunters (Harmondsworth: Penguin, 1977). 29 Christopher Hill, The World Turned Upside Down (London: Penguin, 1972). 30 David Petegorsky, Left-wing Democracy in the English Civil War: Gerrard Winstanley and the Digger Movement (Oxford: Alden Press, 1940). 31 See Peter Linebaugh, The London Hanged: Crime and Civil Society in the Eighteenth Century (Cambridge: Cambridge University Press, 1992), and Leon Radzinowicz, A History of English Criminal Law and its Administration from 1750

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(London: Stevens and Sons, 1948), vol. 1, for analyses of capital punishment for property crimes. 32 Karl Polanyi, The Great Transformation (Boston: Beacon Press, 1944). 33 Throughout the History, Hume notes the first appearance in England of a number of new commodities. For example, he records that silk knit stockings, pocket watches, and coaches were first introduced during the reign of Elizabeth (4: 380), while the first mention of tea, coffee, chocolate, asparagus, artichokes, and cauliflower occurs during the reign of Charles II (6:148). 34 Tudor paternalism refers to laws for consumer protection, such as regulations against forestalling for speculative purposes, priority of use-value motivated purchases before millers and bakers, and officially standardized weights and measures (Buchanan Sharp, In Contempt of All Authority [Berkeley: University of California Press, 1980]). 35 Food riots took on different forms: (1) blockages of grain intended for exports, (2) taxation populaire, where people expropriated grain and sold it to the locals for a just price and then returned the revenues to the merchant who had been dispossessed, (3) market riots in which grain was forcefully removed without payment, and (4) looting of warehouses (John Walton and David Seddon, Free Markets and Food Riots: The Politics of Global Adjustment [Oxford: Blackwell, 1994], 25). 36 Hobsbawm, "The Machine Breakers," in Labouring Men: Studies in the History of Labour (London: Weidenfeld and Nicolson, 1964), 9. Food riots rapidly became "one of the most common forms of popular protest" (Sharp, In Contempt of All Authority, 10), prompting E.P. Thompson to claim that the marketplace was as much a terrain of class war as the factory and mine became during the industrial revolution (Customs in Commons [New York: New Press, 1993], 239). 37 All price increases were not met by rioting. It appears that little unrest occurred in direct response to high prices caused primarily by bad harvests, while shortages generated by enclosures (John Walter and Keith Wrightson, "Dearth and the Social Order in Early Modern England," Past and Present 71 [1976]: 22-42, 30) and by exports (Charles Tilly, "Food Supply and Public Order in Modern Europe," in The Formation of National States in Western Europe, ed. Charles Tilly [Princeton: Princeton University Press, 1975], 389) more frequently served as instigators. Such profit motivated causes of shortages were viewed as unjust and in violation of the moral economy. David Underdown points out that "food rioters and petitioners were inspired by the value of a vaguely sensed 'moral economy/ in contrast to the values of the market economy now [seventeenth century] being adopted by increasing numbers of the middling sort" (Revel, Riot, and Rebellion: Popular Politics and Culture in England, 1603-1660 [Oxford: Oxford University Press, 1987], 118). 38 This concern was also present in Hume's condemnation of the corn laws during his own lifetime. In a recently surfaced manuscript, Hume argues that we should regard "the Merchant who deals in that Commodity [corn], as a very useful Member of Society. His Purpose, no doubt, is to acquire Profit: But how can he acquire it? By buying Corn where it is cheap, and selling where it is dear.

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Now can any thing be more useful than to make thus an equal Distribution of that Commodity, so essential to Life, and thereby enabling one Part of the Community to assist another" (untitled, ed. David Raynor, TLS, [Aug. 14,1998]: 22). 39 Roseveare describes the bill of exchange as the principal means of transferring payments between merchants during the seventeenth century (The Financial Revolution, 107). 40 In describing these early checks, Feavearyear explains that "at first the banker sometimes required some token such as a signet ring, in addition to the written draft, before he would pay" (The Pound Sterling, 109). 41 Charles Kindleberger informs that "these notes were not intended for handto-hand circulations, but as a substitute for gold in large transactions" (The Financial History of Western Europe [London: George Allen, 1984], 76-7). Feavearyear corroborates this, suggesting that "in the first half of the eighteenth century credit currency was confined to large business transactions" (The Pound Sterling, 160). 42 Davies, History of Money, 238. 43 Hume writes that "it is well known of what advantage it is to a merchant to be able to discount his bills upon occasion; and every thing that facilitates this species of traffic is favourable to the general commerce of a state. But private bankers are enabled to give such credit by the credit they receive from the depositing of money in their shops; and the bank of ENGLAND in the same manner, from the liberty it has to issue its notes in all payments" (Essays, 318-19). 44 Hume describes the system of bank-credit in the following way: "A man goes to the bank and finds surety to the amount, we shall suppose, of a thousand pounds. This money, or any part of it, he has the liberty of drawing out whenever he pleases, and he pays only the ordinary interest for it, while it is in his hands. He may, when he pleases, repay any sum so small as twenty pounds, and the interest is discounted from the very day of the repayment" (Essays, 319). 45 The Letters of David Hume, ed. J. Y. T. Grieg (Oxford: Oxford University Press: 1932), 2 vols., 1:204. 46 Henry Rhodes, The Craft of Forgery (London: John Murray, 1934), 85. 47 Counterfeiting Bank of England notes became a capital offence in 1697, only three years after the notes were first issued (8 & 9 Will. 3, c. 20, s. 36). Three decades later, false making, forging, or counterfeiting of any bill of exchange or promissory note were made punishable by death (2 Geo. 2, c. 25, s. 1). For a discussion of the role of the death penalty against clipping and counterfeiting during the financial revolution, see Carl Wennerlind, "The Death Penalty as Monetary Policy: The Practice and Punishment of Monetary Crime, 1690-1830," History of Political Economy, 36 (2004): 2. See also George Caffentzis, Clipped Coins, Abused Words and Civil Government: John Locke's Philosophy of Money (New York: Autonomedia, 1989). 48 An Inquiry into the Nature and Causes of the Wealth of Nations (Chicago: University of Chicago Press, 1976), 433.

[8] Hume, modern patriotism, and commercial society A.B. Stilz Department of Government, Harvard University, Cambridge, MA, USA

Abstract

Contemporary liberal thought is increasingly baffled by the question of what kinds of moral obligations we ought to attribute to our common civic ties. Liberal patriotism is often seen as an obsolete inheritance, fundamentally in tension with values of liberty, equality, and impartiality. This paper examines the moral theory of David Hume in order to counter this assertion of incompatibility and uncover the roots of a view of modern patriotism that can incorporate impartiality, interest, and partial benevolence. Keywords: David Hume; Alasdair Maclntyre; Patriotism; Commerce; Virtue; Sentiment; Allegiance

Alasdair Maclntyre, in his 1984 Lindley Lecture, "Is Patriotism a Virtue?" ends by diagnosing American patriotism as "a history of confusion and incoherence".1 He defends the notion that patriotism is fundamentally in conflict with modern morality, the central characteristic of which is impartiality. On his view, patriotism is a "loyalty-exhibiting virtue," like marital fidelity or love of one's family, grounded in the association of country with self. We love our country simply because it is ours, and not because of any impartial assessment of its particular merits. This partiality has a "peculiar action-generating regard... founded upon a particular historical relationship of association".2 Consistent with his other work, Maclntyre maintains that patriotism is additionally important because our community is constitutive of our moral beliefs as such, because they shape the goods we see as important, and the rules by which this particular set of goods is attained. It is the case that, "detached E-mail address: [email protected] (A.B. Stilz). Alasdair Maclntyre, "Is Patriotism a Virtue?" The Lindley Lecture, University of Kansas, 1984, p. 19. 2 Maclntyre, p. 4.

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from my community, I will be apt to lose my hold upon all genuine standards of judgment".3 Yet, despite its alleged incoherence, patriotism continues to be a palpable, if controversial, feature of contemporary life in liberal democracies, even for those who are not committed to a renunciation of impartiality or modern morality, as is Maclntyre. Various advocates of "liberal nationalism" have attempted some reconciliation of the traditions Maclntyre outlines,4 and one might inquire if such a project is tenable, or if patriotism is an artifact of now-obsolete social formations, to be transcended in favor of a more modern cosmopolitanism,5 or of a politics of competing economic interests, or to be purified of its particularist content into an impartial allegiance to the rule of law.6 In order to determine the moral status of liberal patriotism, it might be useful to inquire what, if anything, distinguishes it from the kind of civic virtue Maclntyre describes. Is it loyalty to our country merely because it is ours? Or does it involve an additional loyalty to the principles of liberty and justice in which it is grounded? It is from an interest in this contemporary question that I turn to examine David Hume, a thinker who is both committed to the importance of impartiality and interest in modern politics and who shares an equally considered regard to our natural moral sentiments, those passions that interest us in the welfare of those particular persons and places with whom we are closely connected. While patriotism and civic allegiance are central categories for ancient republican thought,7 republican revivalists in the early modern period faced major obstacles to any direct appropriation of ancient politics into a 17th and 18th century European context. The ancient republic was based on slavery as a form of production, allowing it a free and leisured citizen class with the ability to participate actively in politics and war, whereas the moderns confronted an emerging bourgeois class, too occupied with trade to undertake such a high level of political activity. Second, early modern Europe witnessed the full-scale predominance of the large national state over other competing political forms, as it was more successful at defense in an expensive and technologically driven military competition. This made the small size of ancient republics a deficiency to be overcome. Finally, the breakdown of appeals to shared moral and religious beliefs in the wake of the Reformation was evidenced both in the religious wars of the 17th century and in the internal struggles of monarchies to suppress heretical views. The discovery of the New World and increasing interaction with foreign peoples through trade and colonization only exacerbated skepticism in

3

Maclntyre, p. 11. David Miller's On Nationality (OUP, 1995) and Yael Tamir's Liberal Nationalism (Princeton, 1993) are two examples of this recent effort. 5 see Nussbaum, Martha, For Love of Country: Debating the Limits of Patriotism (Beacon Press, 1996), Charles Beitz, Political Theory and International Relations (Princeton, 1979). 6 see Jurgen Habermas, Between Facts and Norms (MIT Press, 1996). 7 One might think of Aristotle's claim that the city is prior to the individual, or of Cicero's claim in the De Officiis that our highest moral duties are to the republic. 4

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the potential for appeals to a shared conception of a highest good as a ground for politics. One attempted solution to this problem was of course the modern natural law tradition, which attempted to ground standards in a thin core of shared goals centered on self-preservation. But for 18th century authors who began to attack this tradition (and especially Hobbes), the attempt to ground conventional values simply in an appeal to natural self-interest appeared to sacrifice too much. First, it did not seem to present an adequate view of political obligation: surely it is not the case that most of us regard our allegiance to government as the result of a contractual obligation? Second, it seemed to give short shrift to the full range of human moral psychology: much of our benevolence to friends, family, even strangers does not seem to be derived from self-interest. A rehabilitation of the "social" passions began to get underway.8 While 17th century political thought showed a good deal of liberating potential, especially by beginning to free politics from the oppressive authority of the church, and by giving new pride of place to individuals, it might be the case that by reducing principle and obligation to interest, it had thrown out the resources to account for benevolence and social obligation. One way of reading much of 18th century British political thought is as a struggle to articulate a political and moral theory that would allow for obligation beyond self-interest, yet not fully reengage Britain in a web of traditional social relations that had been firmly shaken by the Civil War, the Exclusion Crisis, and the Glorious Revolution. Somehow this theory had to be one which allowed for individual liberty and pursuit of happiness without sacrificing the customary and sentimental foundations of moral virtue and political stability. One way of seeing this dilemma is in terms of an attempted republican revival: what kinds of civic ties and obligations could be appropriate for a modern republic? I want to defend an interpretation of Hume as grappling with this sort of problem. As several commentators have noticed,9 Hume treats justice as a different kind of moral obligation than benevolence or social duty, which gives him an affinity with modern natural lawyers. Yet he consistently refuses to see our obligations to justice as grounded in any kind of social contract, and offers an analysis of our moral sentiments as based in sympathy and sociability. A more full treatment of Hume's attempted reconciliation of justice with natural moral sentiment may help to articulate an answer to Maclntyre's challenge. Is liberal modernity irreconcilable with patriotism and partiality? Is the history of American patriotism therefore a history of incoherence? Or can we find some resources in the 18th century, and here in Hume, with which to defend a reconciliation of impartial justice with partial moral sentiment?

This new emphasis on sociability centered in the "sentimentalist" tradition, associated with Shaftesbury and Hutcheson, of which Hume was a partial inheritor. 9 see Knud Haakonssen, Natural Law and Moral Philosophy (Cambridge, 1996).

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Hume's Moral Theory Hume's first order ambition in his works on morals is to establish that morality is natural to humans, and that our moral distinctions arise not through the operation of reason but instead through sentiment. Fundamental to explaining the effect of moral sentiment upon us is a curious fact of our mental constitution: we are susceptible to the sensation not only of our own passions, but to the passions of others, through what Hume calls sympathy. Reason, properly understood as the logical analysis of the relations of ideas, cannot itself provide any motivation to action, although it may at times provide a necessary adjunct to our moral determinations, as for instance "when it informs us of the existence of a proper object of passion or when it discovers the connections of causes and effects, so as to afford us the means of exerting any passion".10 Basing our morality on our passions would not be possible for Hume without the intervention of a natural human sociability. Morality supposes the interaction between more than one human being, and a morality based on sympathy supposes humans whose interactions with one another are not of a purely conflictual nature. In all creatures, that prey not upon others, and are not agitated with violent passions, there appears a remarkable desire of company, which associates them together, without any advantages they can ever propose to reap from their union.11 Hume often accounts for the operation of sympathy as "a communication of inclinations and sentiments" using metaphor: "the minds of men are mirrors to one another," or "as in strings equally wound up, the motion of one communicates itself to the rest".12 Sympathy enables us to broaden our judgments beyond those qualities that give us pain or pleasure, in order to understand the pain or pleasure of others. The very constitution of our mental faculties, on this view, gives us a natural interest in the good of others. This original quality, though it may not be explicable in terms of other, more foundational principles, simply is an observed characteristic in human nature. "We have found instances, in which private interest was separate from public; in which it was even contrary: and yet we observed the moral sentiment to continue, notwithstanding this disjunction of interests... It is needless to ask why we have a humanity or fellow-feeling with others. It is sufficient, that this is experienced to be a principle in human nature".13 Hume's discussion of the natural character of our moral sentiments can be seen as an attempt to partially rebut the well-known views of Hobbes and Mandeville,14 in 10

'Treatise of Human Nature, ed. Selby-Bigge (Oxford, Clarendon Press, 1978), p. 414. Treatise, p. 363. Treatise, p. 365. 13 An Enquiry Concerning the Principles of Morals (Hackett, 1983), p. 43. 14 Hume tended to associate the two when he spoke of theories that attributed morality to "self-love," which he sought to rebut. See Enquiry, Appendix 2. 11

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which self-love or self-preservation are seen as the primary motive for engagement in social and political relations. On a Mandevillian view, as self-interested individuals, we realize that the help of others is necessary for the fulfillment of our needs and desires, and we can learn to mask our self-love in order to appeal to them. Against this, Hume tries to vindicate the idea of a natural sympathy with our fellowcreatures—Humean benevolence is not a creation of human society but a fundamental part of our nature.15 I will argue that it is important to remember Hume's emphasis on the natural basis of morals because it leads to important political consequences. Because interest is not the basis for sociability, Hume presents his theory as an account of virtue, both natural and artificial, and not of rights. This allows him to deflect the force of interest away from politics and into the realms of history-as new interests arise, societies have developed new artificial virtues to accommodate them-and of economics. I shall develop this view of Hume over the following pages. There is a problem with Hume's account of the natural operation of morality in the Treatise, such that our moral judgments need correction in order to allow for politics in large and civilized societies. The problem with sympathy as an accurate arbiter of morality is that sympathy, like the categories of space, cause and effect, and external existence discussed in Hume's epistemological work, is an element of our imagination, and as such is substantially affected and distorted by the properties of resemblance and contiguity which also distort our customary categories of the understanding. Thus, while pity, the feeling of concern for a stranger who is connected to us only as a fellow human being, is the most impartial exercise of sympathy we can experience, it is still dependent "in great measure on the contiguity, and even sight, of the object; which is a proof, that 'tis derived from the imagination".16 Similar disturbances are caused in the operation of sympathy by resemblances. We find that where, beside the general resemblance of our natures, there is any particular similarity in our manners, or character, or country, or language, it facilitates sympathy. The stronger the relation is between ourselves and any 15 In Hume's eyes, the connection of morals with self that Mandeville notices does not contradict their virtue. "What say you of natural affection? (I subjoin) Is that also a species of self-love? Yes. All is selflove. Your children are loved only because they are yours. Your friend for a like reason: And your country engages you only so far as it has a connection with yourself: Were the idea of self-removed, nothing would affect you: You would be altogether unactive and insensible: Or, if you ever gave yourself any movement, it would only be from vanity, and a desire of fame and reputation to this same self. I am willing, reply I, to receive your interpretation of human actions, provided you admit the facts. That species of self-love, which displays itself in kindness to others, you must allow to have great influence over human actions, and even greater, on many occasions, than that which remains in its original shape and form." ("Of the Dignity or Meanness of Human Nature," Essays, 45). It is not that Hume denies that partiality is a striking feature of man's moral condition, but that he refuses to accept the claim that partiality undermines morality. We cannot rid ourselves of the passional constraints we experience, but this is no reason to reduce all our passions to the lowest common denominator. 16 Treatise, p. 370.

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object, the more easily does the imagination make the transition... The sentiments of others have little influence, when far removed from us...17 Partiality has such an overwhelmingly corrupting effect on our natural moral judgments that a corrective to it needs to be institutionalized, in order to allow for social cooperation beyond small communities of descent. For this Hume turns to his second order ambition in explaining morals: he asserts that our political virtues are artificial and that our original motive toward them is self-interest. The turn to artificial virtue

Partiality, although it is a necessary feature of the sympathy which makes our moral judgments possible at all, necessitates an alternative system of morality when it comes to external goods. Now it appears, that in the original frame of mind, our strongest attention is confined to ourselves; our next is extended to our relations and acquaintance; and 'tis only the weakest reaches strangers and indifferent persons... From all of which it follows, that our natural uncultivated ideas of morality, instead of providing a remedy for the partiality of our affections, do rather conform themselves to that partiality, and give it additional force and influence... The remedy, then, is not derived from nature, but from artifice; or more properly speaking, nature provides a remedy in the judgment and understanding, for what is irregular and incommodious in the affections.18 Justice differs from natural virtue in several important ways. First, the need for justice is occasioned by the scarcity and instability of external goods. Man, unlike animals, is not naturally proportioned to secure the external goods he needs for his subsistence alone: his natural wants extend far beyond his individual means of provision. For this weakness, society is the remedy: "by the conjunction of forces, our power is augmented: by the partition of employments, our activity increases: and by mutual succour we are less expos'd to fortune and accidents".19 But larger and more mutually beneficial societies do not establish themselves immediately but are instead presented with an important obstacle occasioned by the limits of the human mind. On this view, partial benevolence, the foundation of our natural moral sentiments, is as great a problem to be reckoned with as human selfishness. This conflict necessitates an artificial remedy. How do we know that the remedy provided by justice is not an effect of our natural constitution, like the other virtues? Hume declares that we can find evidence of the artificiality of justice in the fact that there is no motive for it which we can ascertain apart from a general regard to duty. But duty presupposes a prior contract or obligation. All actions of natural virtue are approved of because we approve of 17

Treatise, pp. 322-4. Treatise, pp. 488-9. 19 Treatise, p. 485. 18

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their motives. In order for this to be the case, there must be a natural motive in the human constitution leading us to perform actions of this kind: we approve of parents' attention to their children because we share a natural human impulse to care for our offspring. Hume enlarges on this problem of explaining the motivation to justice by pointing out that justice's advantages make themselves felt only upon a view of the salutary effects of the application of the general scheme to all of society. In particular cases, an attention to justice may well be immoral, in our natural sense of that word, as for instance when we must return a borrowed sum of money to "a miser or a seditious bigot," though we know that the money would be better used by someone else. Our natural morality is thus an obstacle to artificial virtue. For if it be allowed (what is, indeed, evident) that the particular consequences of a particular act of justice may be hurtful to the public as well as to individuals; it follows that every man, in embracing the virtue, must have an eye to the whole plan or system, and must expect the concurrence of his fellows in the same conduct and behavior. Did all his views terminate in the consequences of each act of his own, his benevolence and humanity as well as his self-love, might often prescribe to him measures of conduct very different from those, which are agreeable to the strict rules of right and justice.20 It is clear from Hume's description of justice that the motive for its adoption cannot be natural sympathy of any kind. Neither our private benevolence towards a particular individual nor our public benevolence towards society can ground justice, because any given act of justice might contradict either of these concerns. But we must be careful to note that this does not mean that justice is in any way contrary to the natural passions; rather, its establishment is a precondition for their more secure fulfillment. We are induced to enter into conventions to better gratify our natural passions, but the motive to these conventions cannot be a natural one. What is the motive to artificial virtue? This is the central difficulty of Hume's account and he recognizes it to be so. What controls the interested passions—selfinterest and the interests of those near and dear—is the interested passion itself, "by an alteration of its direction".21 All the other passions either inflame the love of external goods or (like benevolence) are too weak to control it. With a better understanding of our self-interest, we are induced to control both it and our partial affections in favor of a scheme of general and universal rules. Now this alteration must necessarily take place upon the least reflection; since 'tis evident, that the passion is much better satisfied by its restraint, than by its liberty, and that in preserving society, we make much greater advances in the acquiring possessions, than in the solitary and forlorn condition, which must follow upon violence and an universal license. The question, therefore, concerning the wickedness or goodness of human nature, enters not in the least into that other 20

Enquiry, p. 95. Treatise, p. 492.

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question concerning the origin of society; nor is there anything to be considered but the degrees of man's sagacity or folly. For whether the passion of self-interest be esteemed vicious or virtuous, 'tis all a case; since itself alone restrains it: so that if it be all virtuous, men become social by their virtue; if vicious, their vice has the same effect.22 This passage highlights the Mandevillian side of Hume. Although Hume has been anxious to prove the natural propensity of humans to moral sentiments, the partial nature of these sentiments makes us unfit for large and cosmopolitan societies. The only motive to form such societies cannot be our natural benevolence, even our pity, toward other human beings, but must instead be found in our selfinterested reckoning of the increased benefits and security such societies might provide. This artificial interest in justice establishes itself by convention, but it is a convention entirely unlike the social contract. It evolves over time in society, rather than being the result of a single act of will; it cannot be a promise, for the fulfillment of promises presupposes an antecedent regard to the principles of justice. Rather, it manifests itself gradually "and acquires force by a slow progression, and by our repeated experiences of the inconveniences of transgressing it".23 Examples of the kinds of non-contractual conventions Hume has in mind are customary norms: as when men pull the oars of a boat in tandem, rather than against one another; when languages evolve to be a common standard of communication; or the use of gold and silver as a means of exchange. What is particularly to be noted in Hume's explanation of artificial virtue is that it requires reference to a historical process in order to justify itself. Artificial virtue comes about not through the imposition of rules that refer to some exterior and universal standard of value, as natural law, or revealed religion. Since justice is the offspring of accumulated experience, it requires reference to a history to understand it. But neither is justice static or particularist—it presupposes a certain degree of change which occurs through interaction with new and wider sets of communities. There is no prescribed rule to govern this interaction; the rule is the outcome of accumulated experience of interactions of this type, slowly modified to include new interactions and new, wider interests. While Hume's ideas of the origin of justice have a clearly conservative quality, we should not assume that they do not allow for change. But change cannot be a thorough and immediate remodeling. It is always the offspring of the experienced inadequacies of the current system, which becomes gradually revised to include new interests. Access to knowledge of these experienced inadequacies is available to all: the rules are "simple" and "obvious," and we gradually begin to apply them to a widening society of persons. It is in this sense that Hume is able to claim that we ourselves "create" the laws of nature.24 Because artificial virtue does not require reference to an extra-human standard, it must be allowed that there is no given content to justice, apart from its generality. 22

Treatise, p. 492. Treatise, p. 490. 24 Treatise, p. 526. 23

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We must ever distinguish between the necessity of a separation and constancy in men's possessions, and the rules, which assign particular objects to particular persons. The first necessity is obvious, strong, and invincible: The latter may depend on a public utility more light and frivolous, on the sentiment of private humanity and aversion to private hardship, on positive laws, on precedents, analogies, and very fine connections and turns of the imagination.25 There is a universality to the necessities which arise from the human condition, and which make justice essential for society, but laws themselves may differ considerably in particulars without rendering them "unjust" in any foundational sense.26 Instead of articulating a natural standard for justice, Hume presents a genealogy of how laws might come to be created, with reference to the natural principles of our imagination. Hume is willing to countenance the idea that mere custom played a substantial role in deciding what sort of general rules of justice to construct, largely because it is easiest to construct a rule from status quo relations. For this reason, stability of present possession becomes an important first principle. "Such is the effect of custom, that it not only reconciles us to anything we have long enjoy'd, but it even gives us an affection for it, and makes us prefer it to other objects, which may be more valuable, but are less known to us".27 Though interest shows us the necessity of forming a general rule, we rely on fancy to determine its content. Since we soon perceive that while present possession is the closest natural relation in the imagination, relying upon it as a general rule would legitimize theft and create negative social consequences, the imagination passes from this most obvious initial consideration in the allotment of property to other relations, which, though more attenuated, are still customary: viz. occupation, prescription, accession, and succession. But once governments are instituted, our perception of our personal interest in the impartiality of justice may become weak. Because we are not directly exposed to the inconveniences of a society without general rules, we might be induced to disregard them, for personal profit or from private benevolence toward particular persons. Hume thus presents an account of how our natural moral sentiments can be used to supplement the demands of interest. We are induced to feel a moral sympathy for the welfare of our society by our education, by our regard to the public welfare, and by the instructions and artifices of politicians. We partake of the uneasiness of others involved in any breach of these rules by means of sympathy for the public community which is presented to us, and this leads us to a wider perception of the public interest. So "self-interest is the original motive to the establishment of justice: but a sympathy with public interest is the source of the moral approbation, which attends that virtue".28 This sympathy is extended through civic education and through public rhetoric of vice and virtue. 25

Enquiry, p. 98. J.B. Schneewind offers a similar interpretation of the conventionality of the content of justice for Hume. See The Invention of Autonomy (Cambridge, 1998), p. 373. 21 Treatise, p. 503. 28 Treatise, p. 500. 26

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Thus far it appears that although Hume believes that a regard to interests makes more extensive society both necessary and possible, pure interest alone is not an adequate explanation of the genesis of our moral obligations. Because our moral and social obligations are founded in a feeling of sympathy and not in reason, any attempt at a politics based in reason runs the risk of destroying the foundations of moral sentiment entirely. Interest is a safer bet, since it is itself a passion, but Hume is unwilling to take the Hobbesian step of ceding all social obligation to interest, for the same reason-it throws out what is redeemable about human nature. This motivates his steadfast opposition to contractualist theories of political obligation, as we shall see. Any attempt at moral or political progress then, must come to terms with the limitations imposed by the foundation of morality in sentiments which are partial and subject to distortion. Hume does not think we can ever model ourselves anew. Nor does he believe that such progress is impossible, that humankind rests static in the barbarism of its natural state. But moral and political progress is characterized by a dialectic of influence between our natural sentiments and our interests, in which natural attachments must be co-opted in order to lend support to a gradually evolving and ever more artificial social arrangement. This gradual widening of justice is borne out by human history. Suppose that several families unite together into one society, which is totally disjoined from all others, the rules, which preserve peace and order, enlarge themselves to the utmost extent of that society; but becoming entirely useless, lose their force when carried one step further. But again suppose, that several distinct societies maintain a kind of intercourse for mutual convenience and advantage, the boundaries of justice grow still larger, in proportion to the largeness of man's views, and the force of their mutual connexions. History, experience, reason sufficiently instruct us in this natural progress of human sentiments, and in the gradual enlargement of our regards to justice, in proportion as we become acquainted with the extensive utility of that virtue.29 This idea of a "progress of sentiment" defines itself in opposition to natural law theories. The rules of justice we require to regulate interactions among small communities of sympathy are not arrived at by abstraction away from these attachments (as in the state of nature, for example), but by an evolution of these attachments. But this ever-widening civilization is fragile and must be supported not only by interest, but by a quasi-natural set of moral obligations. This occurs (1) in the customary content of general laws, (2) in the indoctrination of sympathy with the wider society and sentiments of public duty, and (3) in the moral character of our allegiance to government. Although Hume is often caricatured as a theorist who emphasizes only self-interest in politics,30 I do not think such a description does him justice. This position captures some large part of his thought, for self-interest is the 29

Enquiry, p. 26.

30

This is Alasdair Maclntyre's view of him in Whose Justice? Which Rationality? (Notre Dame, 1988). See also J.L. Mackie, whose interpretation in Hume's Moral Theory (Routledge, 1980), brings him quite close to Hobbes.

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driving force behind civilization and progress on Hume's account. But such civilization could not exist for long if naked self-interest was allowed and acknowledged as its sole foundation, because there would be no obligation to abide by the rules of this wider society as soon as they are at odds with individual selfinterest or the interest of our smaller group. It is very important for Hume that we have another, and an equally binding support for obedience to the rules of justice, and it is for this reason that natural sentiment does not perish with the departure from natural societies, but is allowed back in. Allegiance to government

What Hume needs to do is to articulate a modern theory of political obligation, one which does not rest on the objective or the supernatural, and one which will allow for historical change. Allowing too much of a role to interest as the source of our political obligation might lead to instability. Instead, Hume makes use of a distinction between our self-interested obligation to the rules of justice and our artificial moral obligations (the sentiments of public interest and duty fostered by sympathy, education, and the artifice of politicians). But 'tis not only the natural obligations of interest, which are distinct in promises and allegiance; but also the moral obligations of honour and conscience: nor does the merit or demerit of the one depend in the least upon that of the other. And indeed, if we consider the close connexion there is between the natural and moral obligations, we shall find this conclusion to be entirely unavoidable... As there are here two interests entirely distinct from each other, they must give rise to two moral obligations, equally separate and independent. Tho' there was no such thing as a promise in the world, government wou'd still be necessary in all large and civiliz'd societies; and if promises had only their own proper obligation, without the separate sanction of government, they would have but little efficacy in such societies. This separates the boundaries of our public and private duties, and shews that the latter are more dependant on the former, than the former on the latter. Education, and the artifice of politicians, concur to bestow a further morality on loyalty, and to brand all rebellion with a greater degree of guilt and infamy.31 We have not only natural interests in society but artificial moral duties to it as well. These moral obligations are the product of a history of association with society and lead us to form the opinion that allegiance is warranted, separate from any view of self-interest or of justice which might induce us either to maintain or to subvert the social order. "In a word, OBEDIENCE is a new duty which must be invented to support that of JUSTICE; and the tyes of equity must be corroborated by those of allegiance".32 It is for this reason that Hume is able to claim that opinion is the 31 32

Treatise, pp. 545-6. "Of the Origin of Government," p. 37.

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correct foundation for political obligation. There is "a moral obligation to submit to government because everyone thinks so".33 Men are constrained to obey government not only from interest but from an added layer of obligation that is social in character, just as our natural moral sentiments, but which is created by us, and founded on no external or absolute standard. Sentiments remain important to Hume because they are the only real source of virtue in human life. We may be induced to widen them or to redirect them out of a regard to interest, but they must reform themselves around a community if our moral and social obligations are to retain meaning. This is the reason why "we find, that magistrates are so far from deriving their authority, and the obligation to obedience in their subjects, from the foundation of a promise or original contract, that they conceal, as far as possible, from their people, especially from the vulgar, that they have their origin from hence".34 Just as custom influences the general laws of property, we should not expect too much of a regard to reason in determining to whom our allegiance is owed—if the ruler fulfills our interest in stability and protection, no great regard to his title is necessary. Therefore relations of the imagination such as long possession, present possession, conquest, and succession are adequate titles to political authority, just as they were to property. "Time and custom give authority to all forms of government, and all successions of princes; and that power, which at first was founded only on injustice and violence, becomes in time legal and obligatory".35 By giving customary sentiments such force in determining the content of law, Hume attempts to divest reason of much of its claim to authority in political matters.36 Instead, he substitutes interest, still an artifact of passion, but of calm and moderate passion. The application of reasonable interests to political affairs is what allows for historical progress and the establishment of wider societies, but these societies are overlain with a set of moral duties that appeal to our natural social passions, and which have independent force. Although Hume has postulated a theory of the evolution of general and impartial rules as necessary to the effectiveness of society, he continues to defend natural moral standards that may not be so impartial. He does this strikingly in the Essays through a critique of Stoicism in moral philosophy. Hume dismisses the Stoic idea that partiality has no moral weight and should therefore be eliminated from a properly moral life. In "Of Moral Prejudices", Hume attacks "that grave philosophic endeavour after perfection, which, under pretext of reforming prejudices and errors, strikes at all the most endearing sentiments of the heart, and all

33

Treatise, p. 547. Treatise, p. 547. 35 Treatise, p. 566. 36 Hume's unwillingness to cede much pride of place to reason in politics is rooted in his epistemological skepticism, which I cannot treat in any depth here. What is most striking about his view, as articulated in Book I of the Treatise, is that a thorough deconstruction of all the foundations of our claims to knowledge leads him not to reject a commonsensical attitude toward the world, but to embrace it more fully. 34

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the most useful byasses and instincts, which can govern a human creature. The Stoics were remarkable for this folly among the Antients...37 Hume finds the Stoic ideal of detachment unnatural and deleterious, for two reasons. First, it undermines all virtuous human impulses in an attempt to purify the soul of passion and desire. Second, it is unable to motivate any improvement in human affairs—the detachment required by apatheia provides no reason to strive to better one's insignificant corner of the world. Any real benevolence to a particular person would necessitate a regard to that individual at the expense of the universal community, and so is untenable on Stoic ideals. Hume criticizes the inhumanity of this stance. But does the sage preserve himself in this philosophical indifference, and rest contented with lamenting the miseries of mankind, without ever employing himself for their relief? Does he constantly indulge this severe wisdom, which, by pretending to elevate him above human accidents, does in reality harden his heart, and render him careless of the interests of mankind, and of society? No; he knows that in this sullen Apathy, neither true wisdom nor true happiness can be found.38 Although Hume defends the necessity of general rules founded in interest for modern politics, he is unwilling to allow that this means the abandonment of more natural moral motivations. In fact, he maintains that these natural prejudices may need to be harnessed in order to render any such system of moral rules stable and capable of commanding obedience. From the philosophical to the political

The principles of natural and artificial virtue which Hume sets out in his Treatise are not referred to by those names in any of his other works. Yet I think it can be argued that these ideas were not discarded but rather reformulated in his views on politics and economics as expressed in the Essays. I have offered an interpretation of Hume's project in the philosophical works as staking out a middle ground between what he saw as the destabilizing force of reason and interest in politics, and the potential for insularity and stagnation that can be the result of too great a deference to tradition and authority. Progress is the result of the proper balance between these two forces: we are drawn to a recognition of the inadequacies of our customs by a regard to our interests, and we gradually create more generalized systems of rules, which are then concealed behind a layer of artificial moral obligations. One can read the Essays as Hume's attempt to defend this precarious project of civilization within contemporary British politics. This defense rests on two pillars. In keeping with his discussions of allegiance in the Treatise, Hume claims that reverence for constitutional tradition in the face of reformist aspirations is essential for defending 37 38

"Of Moral Prejudices," Essays, p. 539. "The Stoic," Essays, p. 451.

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liberty and the rule of law. But he additionally advocates the full and unfettered operation of natural self-interest in the realm of economics as necessary for social progress, claiming that the interplay between the two goals is both stable and desirable. The importance of history to Hume's politics leads him to articulate a kind of constitutional patriotism, which takes as its object the constitution as a process-the outcome of a history of slow and gradual innovations, all concealed under a blanket of authority. But as human society is in perpetual flux, one man every hour going out of the world, another coming into it, it is necessary, in order to preserve stability in government, that the new brood should conform themselves to the established constitution, and nearly follow the path, which their fathers, treading in the footsteps of theirs, had marked out for them. Some innovations must necessarily have place in every human institution, and it is happy where the enlightened genius of the age give these a direction to the side of reason, liberty, and justice: but violent innovations no individual is entitled to make: they are even dangerous to be attempted by the legislature: more ill than good is ever to expected from them: and if history affords examples to the contrary, they are not to be drawn into precedent, and are only to be regarded as proofs, that the science of politics affords few rules, which will not admit of some exception. (See footnote 38, p. 477). Any successful innovations in political practice must therefore accommodate themselves to a continuous historical tradition, without which there can be no opinion of the duty of allegiance, and therefore no legitimacy. Thus the constitution can never represent a set of principles which are universalizable and applicable to all polities everywhere. Rather, it is the embodiment of a particular history, which gives rise to general principles, but which roots these principles in the lessons of experience. The balance of powers at the heart of the British constitution, on this view, is the embodiment of much received wisdom about the right way to balance partial interests to most closely approximate the common good. Hume's theory emphasizes the independence of the constitution from the virtue or vice of any particular ruler—in fact, if any rules of politics can be drawn from experience, for Hume, it is the necessity of wisely balanced institutions to free law from any dependence upon the virtue of magistrates. Hume extends his view of the importance of particular histories to the legitimacy of the rule of law in other nations as well. He is wary of cosmopolitan views of liberty as detached from particular peoples and places. Because the justice which allows for liberty requires an added moral obligation of allegiance to be effective, politics is necessarily a continuing struggle between the forces of liberty and authority. This means that liberty can only be successfully defended within the particular histories that give it weight and obligation. When the interests of one country interfere with those of another, we estimate the merits of a statesman by the good or ill, which results to his own country from his

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measures and councils, without regard to the prejudice which he brings to his enemies and rivals. His fellow-citizens are the objects, which lie nearest the eye, while we determine his character. And as nature has implanted in every one a superior affection to his own country, we never expect any regard to distant nations, where a competition arises. Not to mention, that while every man consults the good of his own community, we are sensible, that the general interest, of mankind is better promoted than by loose indeterminate views to the good of a species, whence no beneficial action could ever exert themselves.39 Hume's defense of love of country rests on his contention that we can have no liberty without partiality. To undermine love of country is to divest us of our moral obligations of fellowship without substituting anything new in their place, and to open the door to the possibility of tyranny. The importance of partial attachments for political stability leads Hume to displace much of the more obvious influence of artificial virtue from the realm of politics to the realm of economics. Our national political allegiances are a spur to development, because they drive innovation and improvement. Nations compete with one another, and this competition is to the greater good of all. Hence in "The Rise of Arts and Sciences," "nothing is more favorable to the rise of politeness and learning, than a number of neighboring and independent states, connected together by commerce and policy. The emulation which naturally arises among these neighboring states, is an obvious source of improvement: But what I would chiefly insist on is the stop, which such limited territories give both to power and to authority".40 National political communities present an obstacle to the threat of universal monarchy, which would destroy liberty, industry, and economic progress. Yet Hume is concerned that this patriotic moral obligation not spill over into blind prejudice; it is here that the artificial virtue of economic self-interest can provide a useful corrective. Most of Hume's arguments about the national partiality's corrosive effect on a proper understanding of interest come in the form of criticisms of mercantilist economic policy. While our nation may be the proper site for moral allegiance in an international conflict, Hume alleges that we perceive conflict where more often there is an underlying harmony of interest. While he views a balance of power in international relations as the best prevention against the threat of universal monarchy, he is at pains to demonstrate that balancing must be conducted with a view to prudence, not passion. He criticizes Britain for its constant warring with France: while many of these wars may have been necessary checks on Louis XIV's imperial ambitions, in Hume's view, they were often prosecuted beyond the necessary bounds as passion won out over prudence. Similarly, he faults British monopoly trade practices for allowing national prejudices to cloud a proper view of interest, to the detriment of the populace. "The increase of riches and commerce in 39 40

Footnote, Enquiry, p. 46. Essays, p. 119.

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one nation, instead of hurting, commonly promotes the riches and commerce of all its neighbors, and that state can scarcely carry its trade and industry very far, where all the surrounding states are buried in ignorance, sloth, and barbarism".41 A correct view of the relation between European countries would note that the success of one elevates the rest, because innovations are transmitted from country to country, and all share a common underlying interest in the progress of the arts, of industry, commerce, and civilization. "I shall therefore venture to acknowledge, that, not only as a man, but as a British subject, I pray for the flourishing commerce of Germany, Spain, Italy, and even France itself. I am at least certain, that, Great Britain and all those nations, would flourish more, did their sovereigns and ministers adopt such enlarged and benevolent sentiments towards each other".42 Hume bases his claim that there is a harmony of interests among nations on the prior postulate that the interests of nations are identical with the interests of the populace as individuals. On this view, mercantilism was in effect substituting a partial interest for a general one—the interest of the merchant class in artificially elevated profits from monopoly trade won out over the less politically influential interests of the producer and consumer classes. Hume attempts to demonstrate that a free system of commerce conduces to the interests of all peoples, if one sees the aggregated strength of individuals as the strength of the community. While Hume emphasizes the necessity of national allegiances to the proper structuring of our moral and political duties, he declares their irrelevance in the field of economics, where a proper regard to self-interest will produce the most favorable outcome for all.

The incoherence of modern patriotism?

Alasdair Maclntyre spends a substantial portion of Whose Justice? Which Rationality? attacking Hume for occasioning the demise of the "patriotic" worldview outlined above. It should be clear from what is presented above that I disagree substantially with this interpretation. While Maclntyre's analysis of Hume and of the Scottish Enlightenment generally is quite erudite, at points it becomes too tainted with a regard to his larger ideological project. Hume is cast in the role of the "Anglicizing Subverter"—skeptic, atheist, advocate of a politics based purely in selfinterest, in what Maclntyre characterizes as a North Briton's insecure flattery of a more powerful society. One might question the historical accuracy of this portrait. Certainly it is true that 18th century Scotland was a more parochial society than England, but the subversion, if there was one, took place not because of Hume but because of the Acts of Union. Maclntyre does not discuss the incident of the Scottish colonization of 41 42

"Of the Balance of Trade,"E&swy,s, p. 328. "Of Jealousy of Trade," Essays, p. 331.

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Darien (present-day Panama), in which Scotland's attempt to gain world trading power and a stake in geopolitics was thwarted, partly by the efforts of England and Spain, partly through its own unpreparedness. Commercial success and an entry into global society was already something much of Scotland saw as necessary to its future, largely because of the overwhelming poverty that so concerned republican authors like Andrew Fletcher and remains central for Hume and for Adam Smith. This led to a majority consensus to the view that commercial power was only achievable through union, in which Scotland did retain a separate church and legal code, but not the independent parliament and restrictions on the Crown that Fletcher envisioned. The vision of Scotland as a separate and traditional society was already dead by the Acts of Union, because Scotland was too poor to sustain it. But second, and more importantly, I simply do not think "subversion" is what Hume is aiming at. If our moral evaluations do not reflect some natural, universal standard, which Hume agrees is not the case, then one is left with two equally unpleasant alternatives for the modern republic. Either one can place one's hopes in small, cohesive, and poor republics in which agreement on obligation is secured in virtue of shared traditions or a civil religion; or one can adopt a pure politics of interest, which might hold some disagreeable implications for moral life. While eschewing the idea of metaphysical moral standards, Hume seeks to root the possibility of impartiality within the conditions of our ordinary moral existence. We become capable of impartiality not through renouncing our particular perspectives, but by marshalling the resources already contained within these perspectives to accommodate new and previously unconsidered people and situations. We create universality, not in abstraction from particularity, but through a broadening of it. The modern commercial republic, on this view, needs both sympathy and selfinterest. The larger goal of this project is to think seriously about the place of partial moral sentiments and civic ties in a liberal, modern world. I believe it is possible to chart a history of "liberal patriotism" in modern political thought, which could include Hume and Smith, as well as the American Founders. While I think such a history might go some distance toward answering Maclntyre's accusation of "incoherence"—these thinkers clearly thought that impartiality could, and should, be rooted in particular traditions and histories—it may not go all the way. One way to think further about this is to address Hume's attempted displacement of self-interest from politics to economics. He clearly thought that patriotism did not have to spill over into economic prejudice, because there is an objective harmony of interest from which all nations could benefit. But one might ask whether this understanding of the relationship between politics and trade has ever been securely established. It seems that special ties to fellow citizens have often led to concessions toward protectionism or special interests, and that the current trend toward supranational economic regulation is an effort to institutionalize impartiality on a regional or even global scale. Liberty and moral obligation may be best fostered in limited political communities, larger than ancient republics, but still founded in an appeal to shared history and custom. But the modern republic must also be founded on rules of justice

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that are general and founded in interest, in order to secure the material preconditions for a free politics. Can we trust that our partial dedication to these communities will do nothing to impede our wider interest in justice and the pursuit of material wellbeing everywhere? This, it seems to me, is the question that contemporary politics has to pose to Hume's Enlightenment conception of modern patriotism.

[9] THE EUROPEAN, OR COSMOPOLITAN, DIMENSION IN HUME'S SCIENCE OF POLITICS

Duncan Forbes If one tries to understand Hume's political science as the work of a Scotsman and European, one is able to get a clearer view of things that have traditionally been distorted by an essentially parochial view of his allegedly 'Tory' political outlook. Thus a phrase like 'plaguy prejudices of Whiggism', which at first glance seems so quintessential^ English and Tory, may be seen to represent a philosophical or scientific stance aware of the dangers and limitations of socio-political self-enclosure or political solipsism, and is a pointer to a struggle in Hume himself between true science and (local) prejudice, the dialectic of which constitutes his personal political education. There are passages in Malebranche's Recherche de la Verite, a book well-known to Hume, that may illuminate this. And the notorious outbursts in the letters of the late 60's and early 70's in connection with Wilkes and liberty, look different when seen in the light of a comparative science of politics concerned with the investigation of political civilization ( = 'liberty') as a European and not exclusively English phenomenon, its essential characteristic being the 'regularity' of government made necessary by the rise of commerce and manufactures and the 'middling rank' of men. This was what Hume meant by a 'civilized monarchy': it is an ancestor of Hegels' Rechtsstaat, in which the state runs itself, and thus also of Max Weber's modern bureaucratic state. Of this type of 'regular' government England was a very advanced model: the 'perfection of liberty', in which the rule of law was absolute, and the ruler without discretionary powers to a uniquely dangerous degree, and in which the form of government involved certain ineradicable disadvantages. Hume's programme of bringing philosophy to bear in order to promote moderation in politics thus had an external or international aspect: its target was as much parochial prejudice as the animus of the political parties: it applied to foreign as well as domestic politics. It was directed against the sort of Francophobia that could be, and at times in the 18th Century had been, self-defeating in war and commerce. Hume seems to have thought that extremism was an especially English trait; his dislike of this when it took the form of chauvinism and unreasoning hatred of

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France was perfectly compatible with his appreciation of the danger of French hegemony in Europe. That was a warning Hume sounded in his Essays: it was in fact related to his alarm about the growing national debt. The danger of French power was real enough, but anti-French extremism was not only illiberal and unphilosophical, but impolitic. Science could teach lessons of moderation here too, by showing that British and French were not so irreconcilably divided by their political experience as Englishmen and Anglophiles assumed: the difference in their forms of government was not qualitative, not a question of virtually unalloyed good over against virtually unalloyed evil, liberty versus slavery. The comparative politics that is to be found mostly in the Essays made that point; made nonsense of the English liberty versus continental slavery rhetoric. Three types of government are involved in Hume's analysis: the British, a mixture of monarchy and republic, the absolute monarchies of modern Europe, and the republics of modern Europe. Not that his study of the latter two can be described as very detailed or specific; it is not easy to tell how much he knew about their political institutions and law: e.g. what he thought of the French parlements, and, say, the Parlement of Paris and its struggle with the king and so on. Hume's point of view is very general, a broad panoramic one of the progress of civilization. The important thing is that he provides if not a detailed comparison, at least an attitude that makes possible a science of comparative politics. It is not the detail that matters, but the trend of the argument. Hume's comparative study of the British and the other governments of Europe had a historical dimension, and moreover the graph curves discernible in the past could be tentatively projected into the future: it was a dynamic not merely static comparison. Thus looking back, the historian could see that the divergence between England and Europe was fairly recent, dating from the early 17th century, when England, for various reasons and as the result of historical accidents, began to take its own peculiar road to a uniquely absolute rule of law or liberty, while on the continent the progress of political civilization, in the large states at any rate, took the form of absolute monarchs extending their authority, and the transformation of this absolute rule into the present civilized monarchies; a transition which was much 58

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smoother because it involved no violent innovations, and was simply an extension and regularity of what the people were used to anyway, because the monarchs knew precisely what they wanted, and possessed the standing armies that made their programme feasible. It is the European dimension of the progress of civilization that gives Hume's History of England, as a whole, such thematic unity as it has, which is invisible to any one whose standpoint is exclusively English, and which the English constitution cannot provide, because that, as Hume sees it, is not one, but many, i.e. a succession of essentially different constitutions. And looking back, the historian discovers a curious paradox about the development of modern English liberty: viz, that at the beginning of the 17th century the government, even if its powers were large and ill-defined, was supported by public opinion only, whereas now its powers were strictly defined and confined but it possessed a large standing army and revenue. So if liberty was more secure in one sense, insofar as the absolute supremacy of the rule of law had been won, it was less so in another, especially as for most of his life Hume subscribed to the commonplace that standing armies were a menace to liberty. One can see the European dimension in Hume's account of what was for vulgar Whigs the domestic event par excellence: Magna Carta. Its importance for Hume is not as a palladium of English political liberty, but as marking a crucial stage in the development of personal liberty: the liberty that is for him the object of government as such. It can be seen in his emphasis on the discovery of Roman Law, and in his account of the granting of liberty to the towns, which is the take-off point of commerce and liberty: this was a French expedient copied by English kings. And tentatively trying to predict future developments, the political scientist could point to evidence which suggested that the two systems, the dotted lines on the graph representing the possible future of English and French political experience, were likely to converge. At the moment the English system was superior, Hume never denied that; it had reached a plateau of perfection as a system of liberty, but, as has been seen, the system of government involved had certain ingrained and necessary defects, whereas the absolute governments had been improving fast and their disadvantages, e.g., and most importantly, the French system of taxation, were remediable. The English experiment, which had reached its term, 59

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was unique: there had literally been nothing like it in world history before, which was why its birth pangs in the 17th century were so painful: the civil war was the result of ignorance more than anything else, in the final analysis; the form of government that emerged was unique and therefore dangerously insecure. (And there was much in Montesquieu too to suggest this reading of the situation.) And further the British system of government was threatened by the National debt; a spectre which loomed in Hume as in nearly all his contemporaries. And because the republican form of government was not practical politics in Britain, the eventual outcome was most likely to be absolute monarchy, which was the true euthanasia of the British constitution. Hume said that in one of his essays—the one on the Protestant Succession—he had shown himself a sceptical Whig. This sceptical Whiggism has many facets and one of them is that far from England being taken as the political norm and Europe found wanting or eccentric, it is rather the reverse. And Hume's optimism, in so far as it hinges on his definition of liberty and view of the progress of society, is Europocentric, not Anglocentric: the tide of political improvement that was running fast was a continental tide and carried the absolute civilized monarchies . . . . Duncan Forbes Cambridge

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[10] Laws Not Men: Hume's Distinction between Barbarous and Civilized Government NEILMcARTHUR

1. Introduction Hume uses the adjectives "civilized" and "barbarous" in a variety of ways, and in a variety of contexts. He employs them to describe individuals, societies, historical eras, and forms of government. These various uses are closely related. Hume thinks that cultural and political development are intimately connected, and are mutually dependent. Civilized government goes together with civilized society. A wise ruler cannot emerge before "refinements have taken place" in the society at large and "science [becomes] known in the world." At the same time, the policy of a monarch who is "ignorant and uninstructed... for ever prevents all improvements."1 This intimate connection, however, is not an identification. A civilized government is not simply that which produces, or results from, a civilized society. When discussing forms of government, Hume uses the terms "barbarous" and "civilized" consistently and somewhat narrowly, to describe governments that possess certain specific characteristics. It is striking that these characteristics are explicitly divorced from the abilities or characters of the rulers. While a nation requires wise and refined leadership to achieve its civilized status, Hume thinks it is a crucial feature of civilized government that, once established, it depends Neil McArthur is at the University of Manitoba, Winnipeg, Manitoba R3T 2M8, Canada, e-mail: [email protected]

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entirely on its institutional structure, and not on the talents or intentions of any individual or group. To understand Hume's distinction between these two kinds of government, it is useful to abstract away from his discussion of more general issues of cultural development, and to lay temporarily aside the causal question of what social and economic conditions are necessary to produce a civilized government. I propose to explain Hume's concepts of barbarous and civilized government just in terms of the institutional characteristics possessed by each. Hume's choice of adjectives is not, of course, accidental. The complex causal questions of how a civilized government comes about, and what is its relation to civilized society, are large and important ones. However, I do not propose to take them up here.2 The crucial feature dividing civilized and barbarous government is their relation to law. In his essay "Of Civil Liberty" Hume says: "It may now be affirmed of civilized monarchies, what was formerly said in praise of republics alone, that they are a government of Laws, not of Men."3 "Barbarous government" are thus "governments of men"—he also calls them governments "of will."4 Scholars of Hume's political theory have noted the importance of the rule of law in defining "civilized government."5 However, they have not made clear precisely what Hume thinks precisely defines a "government of laws." I submit that such a government must (for Hume) possess three characteristics. It must have: 1. A clear separation between the legislative and magisterial "powers" of the state; 2. A rigid subordination of the magisterial to the legislative power, such that the "discretion" of magistrates is restricted by "general laws"; 3. Self-sufficient laws and institutions, such that they are able to operate regardless of the intentions or abilities of individual rulers or officeholders. To this end, a government of laws must possess fixed rules governing the succession of officers, including (in a civilized monarchy) succession to the throne. Hume thinks specific governments may meet these criteria to varying degrees through time (with regression also possible). His use of the term "civilized government" nevertheless implies that it exists as a distinct, and achievable, ideal. An examination of Hume's theory of civilized government shows his understanding of the rule of law to be more subtle and complex than has previously been acknowledged. Hume moves beyond traditional Whig panegyrics on the rule of show to show how the law must operate if it is to protect people from oppression in the local theatres in which it is most acute. He articulates a theory of "civilized monarchy" that provides a middle path between republican and absolutist theories of government, and that is consistent his philosophy as a whole.

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2. Barbarous Government In the Treatise of Human Nature Hume gives an account of humanity's emergence from the state of nature, and its establishment of government. There he describes "the persons whom we call civil magistrates, kings and their ministers, our governors and rulers" as people who "being indifferent persons to the greatest part of the state, have no interest, or but a remote one, in any act of injustice; and, being satisfied with their present condition, and with their part in society, have an immediate interest in every execution of justice, which is so necessary to the upholding of society."6 They are thus empowered to enforce the conventions for the protection of property that people have developed for their collective benefit. Thanks to these people, "men acquire a security against each other's weakness and passion, as well as against their own, and, under the shelter of their governors, begin to taste at ease the sweets of society and mutual assistance."7 Hume offers another account of the emergence of government in his essay "Of the Rise and Progress of the Arts and Sciences." This second account, while following the same general lines as the first, is much darker in tone. There he describes the emergence of a ruler he describes as a "barbarous monarch." "In the first ages of the world," he says, when men are as yet barbarous and ignorant, they seek no farther security against mutual violence and injustice, than the choice of some rulers, few or many, in whom they place an implicit confidence, without providing any security, by laws or political institutions, against the violence and injustice of these rulers.8 In the Treatise, Hume suggests that such security from the rulers themselves should not be necessary. There he says that because the "observance of justice" becomes "the immediate interest" of the magistrates, "and its violation their more remote [,] These persons, then, are... induced to observe those rules in their own conduct."9 In "The Rise and Progress," however, Hume takes a markedly different view. As society grows, he says there, the sovereign finds it necessary to "delegate his authority to inferior magistrates, who preserve peace and order in their respective districts."10 (When Hume speaks of "lesser" or "inferior" magistrates, he has in mind primarily judges of the law courts, though he also considers tax collectors, military generals and "governors of provinces."11) Because the monarch is (at this stage) not a "legislator," he leaves the magistrates to make what Hume calls "summary decisions of causes."12 "As experience and education have not yet refined the judgments of men to any considerable degree," he says, "the prince, who is himself unrestrained, never dreams of restraining his ministers, but delegates his full authority to every one, whom he sets over any portion of the people."13

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This delegation of the monarch's "full authority" entails that the people have no more security from the "violence and injustice" of these magistrates than they do from the sovereign himself. Hume gives no indication in this text that the observance of justice is inevitably in the immediate interest of these lesser magistrates, as (according to the Treatise) it is supposed to be in that of the sovereign. On the contrary, he suggests that violence and injustice at their hands is not only possible, but inevitable, where they are left without restraint. He uses imperial Russia as an example of a barbarous monarchy "where the judges are not restrained by any methods, forms or laws." He says: Arbitrary power, in all cases, is somewhat oppressive and debasing; but it is altogether ruinous and intolerable, when contracted into a small compass; and becomes still worse, when the person, who possesses it, knows that the time of his authority is limited and uncertain. Habet subjectos tanquam suos; viles, utalienos. He governs the subjects with full authority, as if they were his own; and with negligence or tyranny, as belonging to another. A people, governed after such a manner, are slaves in the full and proper sense of the word; and it is impossible they can ever aspire to any refinements of taste or reason. They dare not so much as pretend to enjoy the necessaries of life in plenty or security.14 In discussing barbarous monarchies, Hume focuses consistently on the unbounded authority given to the public officials charged with enforcing justice. For him, this delegation of authority is clearly an important characteristic in defining such a monarchy. He says: "An absolute prince, who is barbarous, renders all his ministers and magistrates as absolute as himself."15 "Such a form of government," he says of monarchy, "ere [i.e. before it becomes] civilized, knows no other secret or policy, than that of entrusting unlimited powers to every governor or magistrate, and subdividing the people into so many classes and orders of slavery."16 The results of this barbarous policy are invariably dire. Hume says that "a scene of oppression and slavery... always results from barbarous monarchies, where the people alone are restrained by the authority of the magistrates, and the magistrates are not restrained by any law or statute."17 Hume's comment that people living under barbarous regimes are "slaves in the full and proper sense of the word" may leave us to wonder if he thinks such regimes are legitimate at all. Let us recall what Hume says in the Treatise about the right of resistance. There he says that "in the case of enormous tyranny and oppression, it is lawful to take arms even against supreme power; and that, as government is a mere human invention, for mutual advantage and security, it no longer imposes any obligation, either natural or moral, when once it ceases to have that tendency."18 If the test of legitimacy is the absence of "enormous tyranny and

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oppression," a barbarous government, which always creates "a scene of oppression and slavery," does not seem to pass. Does Hume think we are therefore justified in rebelling against it? He cannot believe that we are. He thinks that over the course of history, nearly all governments have qualified as barbarous. He notes that republics have been rare, and have been confined to small states. And he thinks civilized monarchy is by and large a modern invention.19 If we read Hume's description of barbarous government as providing legitimate grounds for resistance, we would attribute to him a radicalism that is supported by no other passages in his writings. When Hume describes barbarous regimes as scenes of "oppression and slavery," he must be indulging in rhetorical exaggeration. His purpose in "Progress" is to show that barbarous government is fatal to cultural development. He says that the "barbarous policy" of "delegating] full power to all inferior magistrates... debases the people, and for ever prevents all improvements."20 It therefore serves his polemical purpose to portray barbarous monarchies in the harshest possible terms. But such governments nevertheless seem to serve the most basic purpose for which government is founded. Hume's explanation for why people established the barbarous monarch in the first place, to give themselves "security against mutual violence and injustice," clearly echoes the passage in the Treatise, where he says people establish government to give them "security against each other's weakness and passion, as well as against their own."21 And he never suggests that the unbounded power of the magistrates, however dire the threat it presents, leaves the people without protection from one another. Justice is still enforced, after a fashion—through the "summary decisions of causes." Barbarous regimes are therefore not anarchies. We can, I believe, make the best sense of Hume's texts if we conclude that there are two levels of security that a government can provide. First of all, it can give the people "security against mutual violence and injustice"—its most basic task, as defined by men in the "first ages of the world." A government that could not guarantee its people such security would not be legitimate at all. Second, it can offer them "security, by laws or political institutions, against the violence and injustice of [the] rulers." Without the second, it seems, the people "dare not so much as pretend to enjoy the necessaries of life in plenty or security." Given Hume's view that "men's happiness consists not so much in an abundance of [the commodities and enjoyments of life], as in the peace and security with which they possess them," blessings which he says "can only be derived from good government," a government that provides no security against the magistrates themselves is clearly not the best possible.22 It is this second level of security that marks a civilized government (though, as we shall see, Hume allows that, under certain conditions, the people may be left without security from the monarch herself, without being rendered slaves). But a barbarous government is not, as I have said, an anarchy, and therefore it does not give us grounds to "resist supreme power."

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Hume's insistence that the people living under a barbarous monarchy are "slaves, in the full and proper sense of the word" should thus be taken as a polemical rather than analytic claim—albeit one he repeats several times in his writings. His considered view seems to be that such subjects are actually slaves in a lesser, secondary sense of the word. Elsewhere in his writings he distinguishes two forms of slavery: "public" or "civil slavery," on the one hand, versus "real" or "domestic slavery" on the other.23 "Real slavery" renders the people "incapable of all property."24 If a barbarous government reached the point of leaving its people in such a state, it would presumably merit rebellion. But while civil slavery is less than civilized, it does not sink to this level, and therefore does not justify resistance.

3. The Perils of Discretion Another question immediately arises, however. Why should the second, greater level of protection afforded by civilized government be necessary at all? In the Treatise, Hume argues that "civil magistrates" are able to act impartially as judges because they, "being indifferent persons to the greatest part of the state, have no interest, or but a remote one, in any act of injustice; and, being satisfied with their present condition, and with their part in society, have an immediate interest in every execution of justice, which is so necessary to the upholding of society."25 Why is this satisfaction not protection enough? Let us recall the nature of the threat presented by the magistrates in a barbarous monarchy. The problem, according to Hume, is that the sovereign grants "full discretionary powers [to] every magistrate," rather than establishing "general laws."26 Judges are left to make "summary decisions of causes."27 Hume's contrast between discretionary power and general laws echoes his treatment of the need for conventions of justice in section 3.2.6 of the Treatise, which immediately precedes his discussion of the foundation of government. In this section, Hume argues that "general and universal rules" are necessary to regulate property. He says that a person's motives—"let [them]," he says, "be what they will"—are "a very improper foundation for... the laws of justice."28 The very principles of human nature lead people to make iniquitous judgments, so long as they allow these judgments to be guided by their own discretion. "If we consider the ordinary course of human actions," he says, we shall find that the mind restrains not itself by any general and universal rules, but acts on most occasions as it is determined by its present motives and inclination. As each action is a particular individual event, it must proceed from particular principles, and from our immediate situation within ourselves, and with respect to the rest of the universe. If on some

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occasions we extend our motives beyond those very circumstances which gave rise to them, and form something like general rules for our conduct, it is easy to observe that these rules are not perfectly inflexible, but allow of many exceptions.29 Hume applies this insight to judgments concerning property. As an example, he imagines himself contemplating the sort of situation a judge would face every day: "two persons who dispute for an estate; of whom one is rich, a fool, and a bachelor; the other poor, a man of sense, and has a numerous family: the first is my enemy; the second my friend." Even, he says, were my natural motives determined entirely by public interest, "I must be induced to do my utmost to procure the estate to the latter," regardless of "any consideration of the right and property of the persons." He concludes: "Were men, therefore, to take the liberty of acting with regard to the laws of society, as they do in every other affair, they would conduct themselves, on most occasions, by particular judgments, and would take into consideration the characters and circumstances of the persons, as well as the general nature of the question."30 Such considerations are the basis for his conclusion, stated earlier in the Treatise: "It follows, therefore, that the general rule, that possession must be stable, is not applied by particular judgments, but by other general rules, which must extend to the whole society, and be inflexible either by spite or favour."31 It is easy to see the implication for civil magistrates. No matter how wellintentioned the judge, no matter how thoroughly his natural motives conform to public interest, any attempt to decide cases on a discretionary basis, "by particular judgments," must lead to injustice, since it is of her very nature to consider "the characters and circumstances of the person." In the Essays, speaking of laws, Hume uses precisely the same adjectives—"general and inflexible"—as he does in the Treatise, speaking of the rules for property, except that in the Essays he makes the contrast with magisterial discretion explicit. He says the British government "is obliged, for its own preservation, to maintain a watchful jealousy over the magistrates, to remove all discretionary powers, and to secure every one's life and fortune by general and inflexible laws."32 We should therefore see Hume's account (in Treatise 3.2.7) of the magistrates' indifferent position as implicitly qualified by the argument of the preceding section. The magistrates can act from a position of impartiality just so long as "general, inflexible laws" exist to restrict their discretion. In his political essays, he shifts the emphasis of the argument, to the dangers presented where such laws are absent. This shift in emphasis becomes important because the essays deal more concretely with actual existing societies, and Hume now tells us that, in the real world, the process of establishing these laws is a long and difficult one. "To balance a large state or society," Hume says,

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A barbarous monarchy represents the stage in a society's development when such general laws either do not exist, or are not imposed on judging magistrates. Hume emphasizes at several points in his writings that a barbarous state is distinguished from a civilized one by the absence or presence of general laws. (I have added emphasis to all the following passages.) He says of a monarch who is "ignorant and uninstructed": "not having knowledge sufficient to make him sensible of the necessity of balancing his government upon general laws, he delegates his full power to all inferior magistrates."34 In a republic, by contrast, "the necessity of restraining the magistrates, in order to preserve liberty, must at last appear, and give rise to general laws and statutes."35 Similarly, in a civilized monarchy, "every minister or magistrate, however eminent, must submit to the general laws, which govern the whole society, and must exert the authority delegated to him after the manner, which is prescribed."36 4. General Laws and the Civilized Society It thus becomes of crucial importance what Hume means by "general laws," as well as how he thinks they are established by a civilized government and imposed on its magistrates.371 have already argued they seem to be equivalent to the kind of "general inflexible rules" that, in the Treatise, he says must govern property. He gives a more detailed description of general laws in the Enquiry concerning the Principles of Morals, where he says that such laws "regard alone some essential circumstances of the case, without taking into consideration the characters, situations, and connexions of the person concerned, or any particular consequences which may result from the determination of these laws, in any particular case which offers."38 This passage explicitly echoes the passage in the Treatise that (I have argued) identifies one of the key perils of discretion, our natural tendency to "take into consideration the characters and circumstances of the persons" rather than "the general nature of the question."39 General laws, then, are formalized versions of the general rules that allowindeed, force—magistrates to escape what I have called the perils of discretion. Thus, if a civilized government is able to "balance" its state on such laws, its people will be free from these perils. Such a government will fit Hume's description of

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a monarch who acquires a new territory: "all his subjects are to him the same, except the few friends and favourites, with whom he is personally acquainted. He does not, therefore, make any distinction between them in his general laws."40 General laws are thus general in their formulation—they pick out classes of people, without regard to individuals or to specific circumstances. In modern terms, they contain no indexicals. One of the quotations I cited above provides two further senses in which the laws of a civilized society are general. First, they "govern the whole society"—"every minister or magistrate, however eminent, must submit" to them. In A. V Dicey's famous formulation: "Every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen."41 This makes the laws general in their application. (As we shall see, in a civilized monarchy, the monarch herself constitutes a unique exception.) Second, general laws govern the way in which officials may execute their official duties. Hume says that under general laws, every magistrate "must exert the authority delegated to him after the manner, which is prescribed." This makes the laws general—that is, uniform—in their execution, for instance by pre-determining the sentence judges must pass in punishing a given class of offenses. This aspect of the laws is crucial in ensuring that the perils of discretion are avoided. As Hume says in the second Enquiry: "Among all civilized nations, it has been the constant endeavour to remove every thing arbitrary and partial from the decision of property, and to fix the sentence of judges by such general views and considerations, as may be equal to every member of the society."42 A comment Hume makes in another context suggests that the body of such laws should also include regulations, what he calls "stated forms and methods," specifically designed to govern the conduct of magistrates in performing all of their duties, beyond just the final judgment rendered in courts of law. "In the smallest court or office," he says, "the stated forms and methods, by which business must be conducted, are found to be a considerable check on the natural depravity of mankind."43

5. Civilized Government As we have seen, Hume thinks the presence or absence of general laws in a particular society will be closely tied to its form of government. Civilized government comes in two forms: republics, and civilized monarchies. Hume thinks that republics necessarily establish general laws that limit the powers of their rulers. He defines a republican government as one "where the authority is distributed among several assemblies or senates." In such a government, there exist "checks and controuls" that create a "balance or counterpoise" between different branches of state power. He says: "a republican and free government would be an obvious absurdity, if

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the particular checks and controuls, provided by the constitution, had really no influence."44 This need not rule out the existence of a monarch; it is required only that his authority be limited by some kind of balance of power. Hume says: "It is possible so to constitute a free government, as that a single person, call him doge, prince, or king, shall possess a large share of power, and shall form a proper balance or counterpoise to the other parts of the legislature."45 Hume thinks that, in a republic, the "checks and controuls" placed on the central authority will, over time, necessarily be extended to the lesser magistrates as well. "It may happen," he says, "that a republic, in its infant state, may be supported by as few laws as a barbarous monarchy, and may entrust as unlimited an authority to its magistrates or judges. B u t . . . it is impossible, but, in time, the necessity of restraining the magistrates, in order to preserve liberty, must at last appear, and give rise to general laws and statutes."46 If a republic does not restrain its magistrates, it loses its liberty, and thereby ceases to be a republic. Hume never explicitly explains why a republic cannot survive without such restrictions on its magistrates—though one passage points towards at least a partial explanation. He thinks that the legislative power simply cannot operate unless legislators are free to propose laws, without fear of prosecution by the magistrates. "No political maxim can, at first sight," he says, "appear more undisputable, than that he [the member who proposes a particular motion] must, at least, be secured from all inferior jurisdiction; and that nothing less than the same supreme legislative assembly, in their subsequent meetings, could make him accountable for those motions and harangues, to which they had before given their approbation."47 He says Athens provides a counter-example to this maxim, but it is the exception that proves the rule—Athenian democracy failed because of just these sorts of imbalances of power. Thus, Hume thinks that a republican government must have a specific and regulated jurisdictional division of powers in order to safeguard its legislators. Whatever the full explanation, the term "civilized republic," which Hume never uses, would effectively be a redundancy for him, at least if we exclude those republics that are doomed and fleeting. "Though a republic should be barbarous," he says, "it necessarily, by an infallible operation, gives rise to LAW— A republic without laws can never have any duration."48 A civilized monarchy is distinct from a republic that happens to give "a single person... a large share of power." In such a government, rather, the "doge, prince, or king" possesses all the power. Hume's conception of civilized monarchy appears on its face to be an extremely curious one. In a republic, as we have seen, there is a balance between the various "powers" of government, such that none is left without restraint. In a civilized monarchy, on the other hand, it is only the lesser magistrates whose power is restrained. The monarch himself is (uniquely) exempt from such limitations. Hume says:

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In a civilized monarchy, the prince alone is unrestrained in the exercise of his authority, and possesses alone a power, which is not bounded by any thing but custom, example, and the sense of his own interest. Every minister or magistrate, however eminent, must submit to the general laws, which govern the whole society, and must exert the authority delegated to him after the manner, which is prescribed.49 We might think, as many people in Hume's day did think, that matters are more simple than this. According to most republican theorists, there is a basic opposition between two kinds of government: those that possess some form of checks and balances, and those that do not. On this view, if the sovereign's power is restricted by nothing except "custom, example, and the sense of his own interest," such a sovereign becomes a tyrant. (This is the view of those writers Hume refers to as "passionate admirers of the ancients, and zealous partizans of civil liberty" who "brand all submission to the government of a single person with the harsh denomination of slavery."50) And if we accept the need to constrain the power of public officials, why should we except the monarch—who, being human, is surely as fallible and power-hungry as any of his ministers? Hume justifies this exception by claiming that in a civilized government, the sovereign "is so far removed from [the people], and is so much exempt from private jealousies or interests, that [their dependence on him] is scarcely felt."51 This is in line with what he says in the Treatise about magistrates in general, that they, "being indifferent persons to the greatest part of the state, have no interest, or but a remote one, in any act of injustice; and, being satisfied with their present condition, and with their part in society, have an immediate interest in every execution of justice, which is so necessary to the upholding of society."52 But there, it is meant to distinguish the position of all magistrates, not just the sovereign. And indeed in this very section of the Treatise Hume says without apparent concern that "if it be necessary, [the rulers] may also interest others more immediately in the execution of justice, and create a number of officers, civil and military, to assist them in their government." Surely, we might think, it is the case that unfettered power is either benign (as the Treatise suggests) or pernicious (as Hume says in his essays)—and whichever it is, it is so for all magistrates, the sovereign included. On what grounds can Hume now try to single out the sovereign alone as being immune to what I have called the perils of discretion? And, worse yet, how can he single out the civilized sovereign alone? He tells us that the civilized monarch is "far removed" from the people. But he surely cannot be suggesting there is some uniquely great distance between such monarchs and their subjects, that distinguishes their position from that of history's catalogue of tyrants, many of whom make starring appearances in Hume's History of England.

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There is a solution to the problem available to Hume, which I believe he has in mind though he fails to spell it out clearly. Hume thinks we may divide the two functions of a governor, as he does when comparing God to an earthly ruler. There he contrasts the Deity "considered as a legislator" with His actions in his "magisterial capacity."53 Hume applies this distinction to terrestrial government as well. He says: "Among a people, who lived in so simple a manner as the AngloSaxons, the judicial power is always of greater importance than the legislative."54 I submit that in a civilized government, by contrast, the legislative power is both separate from and superior to the magisterial or judicial power. Hume complains, for instance, that, during the reign of Richard II, "the house of lords seem not at that time to have known or acknowledged the principle, that they themselves were bound, in their judicial capacity, to follow the rules, which they, in conjunction with the king and commons, had established in their legislative."55 In a civilized monarchy, where the king holds the entire legislative power, this means that there is an essential difference between the monarch and the lesser magistrates: in such a government the monarch acts solely as a legislator, whereas the magistrates act as judges. Left to rule on particular, concrete cases, the mind of even a distant and disinterested sovereign will be guided by its "particular judgments" rather than general rules. And of course any monarch left to exercise magisterial power will rarely be disinterested. But the perils of discretion do not carry over into the exercise of his legislative capacity. Historically, cases of royal oppression arise precisely when the monarch uses instruments such as the Court of Star Chamber to act as a magistrate, passing judgment in particular cases. It is, Hume suggests, "a high exerted prerogative" that "render [s] property sensibly insecure."56 But the civilized monarch never lowers himself to intervene in such mundane matters. In a civilized government, the ruler recognizes that his task is to craft laws, not to execute them. He occupies himself with formulating and implementing general laws, and in doing so he distances himself sufficiently from specific cases that he is able to act equitably. So long as he confines himself to this function, then, the danger of oppression is remote. When Hume says a civilized monarch "is so far removed" from the people as to be "exempt from private jealousies or interests," he is not speaking of mere physical distance, or difference in station. Rather, he is saying that such a ruler is, as it were, functionally removed—the distance is created by the nature of his office itself, which does not allow him to take any part in particular disputes. It is in this sense that a civilized monarchy is a "government of laws"—Hume means not merely, as his readers often assume, that it is a government subject to the rule of law. He is also telling us that such a monarchy governs entirely by means of law-making. Hume's texts support the view that a barbarous monarch owes his uncivilized status to his unwillingness, or inability, to act as a law-maker. Hume laments the

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impossibility "before science were known in the world" that "a monarch could possess so much wisdom as to become a legislator, and govern his people by law, not by the arbitrary will of their fellow-subjects."57 "It is not... to be supposed," he says elsewhere, "that a barbarous monarch, unrestrained and uninstructed, will ever become a legislator."58 This interpretation is also confirmed by many concrete examples Hume provides of royal tyranny, which can be explained as instances of the king stepping from the legislative to the magisterial role. For instance, he condemns "the barbarous policy of Edward" in ordering the Scottish rebel William Wallace "to be carried in chains to London; to be tried as a rebel and traitor, though he had never made submissions or sworn fealty to England; and to be executed on Tower-hill."59 Hume has sharp words for the discretionary magisterial power that the monarchy assumed during the Tudor period: One of the most ancient and most established instruments of power was the court of Star-chamber, which possessed an unlimited discretionary authority of fining, imprisoning, and inflicting corporal punishment, and whose jurisdiction extended to all sorts of offences, contempts, and disorders, that lay not within reach of the common law. The members of this court consisted of the privy council and the judges; men, who all of them enjoyed their offices during pleasure: And when the prince himself was present, he was the sole judge, and all the others could only interpose with their advice. There needed but this one court in any government, to put an end to all regular, legal, and exact plans of liberty. For who durst set himself in opposition to the crown and ministry, or aspire to the character of being a patron of freedom, while exposed to so arbitrary a jurisdiction?60 The absence of such discretionary instruments in the continental governments seems to ground Hume's hope that such governments are on their way to becoming civilized monarchies. "I much question," he says, "whether any of the absolute monarchies in Europe contain, at present, so illegal and despotic a tribunal."61 He praises the Long Parliament for finally abolishing the Star Chamber. "The parliament justly thought," he says, that the king was too eminent a magistrate to be trusted with discretionary power, which he might so easily turn to the destruction of liberty. And in the event it has hitherto been found, that, though some sensible inconveniences arise from the maxim of adhering strictly to law, yet the advantages overbalance them, and should render the English grateful to the memory of their ancestors, who, after repeated contests, at last established that noble, though dangerous, principle.62

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6. The Autonomy of Law in the Civilized Society There is a further sense in which a civilized government is a government of laws not men. For a state to be truly civilized, according to Hume, the government, and its laws, must be self-supporting and self-perpetuating. This means that a civilized monarchy is not simply a state ruled by a wise and equitable monarch. On the contrary, its legal system must not depend for its execution on the abilities or intentions of the sovereign. Hume says in his History: "The kingdom of Scotland had not yet attained that state, which distinguishes a civilized monarchy, and which enables the government, by the force of its laws and institutions alone, without any extraordinary capacity in the sovereign, to maintain itself in order and tranquillity."63 He says elsewhere that the peaceful accession of William Ps son Richard was "a sure proof, that the Normans were already somewhat advanced in civility, and that their government could now rest secure on its laws and civil institutions, and was not wholly sustained by the abilities of the Sovereign."64 Abarbarous nation, dependent on the "abilities of the Sovereign," perpetually faces a dual threat, of despotism and anarchy. Where general laws are absent and the monarchy is weak, the higher aristocrats—as Hume calls them, in one of his favourite phrases, the "haughty barons"—who are wealthy possessed of armies of retainers, can ignore the law at will, and make themselves rivals to the crown. "There is," says Hume, another power still more important than either the judicial or legislative; to wit, the power of injuring or serving by immediate force and violence, for which it is difficult to obtain redress in courts of justice. In all extensive governments, where the execution of the laws is feeble, this power naturally falls into the hands of the principal nobility."65 The threat from these aristocrats in turn creates a countervailing one: the monarch can maintain order only by asserting himself to the point of tyranny. Hume says that, at the time of Henry II, because the country had "no regular idea of a constitution": the sovereigns, in some instances, approached [very near] to despotism, though in others they seemed scarcely to possess any authority. If a prince, much dreaded and revered like Henry, obtained but the appearance of general consent to an ordinance, which was equitable and just, it became immediately an established law, and all his subjects acquiesced in it. If the princes was hated or despised... the fullest and most authentic assembly had no authority. Thus all was confusion and disorder."66

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He says that this "strange mixture of regal tyranny... and of aristocratical liberty or rather licentiousness ... is observable in all the ancient feudal governments; and both of them proved equally hurtful to the people."67 Hume's texts suggest that the development from barbarous to civilized government takes place in two parts. First, a monarch of sufficient abilities must appear to become a "legislator"—that is, to formulate and implement general laws, and thereby suppress this "aristocratical licentiousness." In the English case, we see this process happening (not surprisingly) by fits and starts, according to the talents of particular kings. Hume says of Edward I: "He considered the great barons both as the immediate rivals of the crown, and oppressors of the people; and he purposed, by an exact distribution of justice, and a rigid execution of the laws, to give at once protection to the inferior orders of the state, and to diminish the arbitrary power of the great, on which their dangerous authority was chiefly founded."68 Hume says that during Norman times "the lesser barons, finding that the annihilation of royal authority left them exposed without protection to the insults and injuries of more potent neighbours, naturally adhered to the crown, and promoted the execution of general and equal laws."69 He says that the people were grateful for the "rigour" with which Henry I "executed justice," being "more attentive to present advantages, than jealous of general laws."70 (The jealousy seems to have come from the fact that his punishments were harsh.) Only once such general laws have been imposed on the society and acquired a hold on people's imagination—and the reasons they acquire this hold are not mysterious, given their evident tendency towards public utility—do they become self-sustaining. Hume says of England between the accession of Edward I and the death of Richard III: It required the authority almost absolute of the sovereigns, which took place in the subsequent period, to pull down those disorderly and licentious tyrants [i.e. the aristocracy], who were equally averse from peace and from freedom, and to establish that regular execution of the laws, which, in a following age, enabled the people to erect a regular and equitable plan of liberty.71 Hume associates this notion of "regular liberty" or a "regular plan of liberty" with the self-sufficiency of the laws. Speaking of the Tudor era, Hume says: "After the power of alienations, as well as the encrease of commerce had thrown the balance of property into the hands of the commons, the situation of affairs and the dispositions of men became susceptible of a more regular plan of liberty; and the laws were not supported singly by the authority of the sovereign."72 Hume suggests that England's gradual progression, with a series of strong monarchs gradually building up the structure of the laws before this structure

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ultimately becomes self-sufficient, is only to be expected. He says that "any true or regular liberty ... must grow to perfection during several ages of settled and established government."73 The English case is nevertheless anomalous in certain important respects. Hume thinks the self-sufficiency of the laws in England only came about when the government became a mixed one, with liberty finally assured by the emergence of the commons as a genuine political force. He says that while it "is ridiculous to consider the English constitution before [the Stuart] period as a regular plan of liberty,"74 finally, during Charles Ps hapless reign, "the incapacity of Buckingham encouraged the free spirit of the commons to establish in England a regular system of liberty."75 England's complex development illustrates another point about civilized government: the two-stage progression towards it that I have outlined need not be (and will probably rarely be) steady or uni-directional, nor will the achievement of it necessarily happen at a single stroke across an entire state. For instance, a republic may be civilized at its core, yet leave barbarous governors in charge of its provinces.76 And a state that has begun its progress may find itself regressing.77 But while it would thus not be inaccurate to speak of barbarous and civilized tendencies within a state, this should not lead us to deny what I believe Hume's texts show, that for him civilized government is nevertheless a distinct and achievable ideal, not just a relative description. We might think of an analogy to democracy. While there are clearly states in the world today that are only imperfectly democratic, or democratic only in certain of their parts, we can nevertheless imagine a set of criteria that, if met, would lead us to declare a state to be a democracy in the fullest sense of the term, and we could still hold up the ideal of such a state before those who have not yet achieved it.

7. Succession For the laws to be truly self-sufficient, they must possess one final characteristic: they must contain provisions to govern the succession of officers. In the passage I quoted above, Hume says the fact that "on the death of William, his son, Richard, though a minor, inherited his dominions" was "a sure proof, that the Normans were already somewhat advanced in civility."78 Hume thinks that a failure to solve the problem of succession accounts for much of the turmoil incident to barbarous monarchies. He says, in his survey of Anglo-Saxon government: It is easy to imagine, that an independant people, so little restrained by law, and cultivated by science, would not be very strict in maintaining a regular succession of their princes. Though they paid great regard to the royal family, and ascribed to it an undisputed superiority, they either had no rule, or none that was steadily observed, in filling the vacant throne;

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and present convenience, in that emergency, was more attended to than general principles [Possession, however obtained, was extremely apt to secure their obedience, and the idea of any right, which was once excluded, was but feeble and imperfect. This is so much the case in all barbarous monarchies, and occurs so often in the history of the Anglo-Saxons, that we cannot consistently entertain any other notion of their government.79 Hume praises the sixth century Saxon king Hermenric, who "performed nothing memorable during a reign of thirty-two years; except associating with him his son, Ethelbert, in the government, that he might secure the succession in his family, and prevent such revolutions as are incident to a turbulent and barbarous monarchy."80 In a republic, because there is no natural principle of the imagination to govern the succession of officers, it must be determined by what Bacon, in a speech Hume quotes, calls a "law precedent": It is evident... that all other commonwealths, monarchies only excepted, do subsist by a law precedent. For where authority is divided amongst many officers, and they not perpetual, but annual or temporary, and not to receive their authority but by election, and certain persons to have voices only in that election, and the like; these are busy and curious frames, which of necessity do presuppose a law precedent, written or unwritten, to guide and direct them.81 Without such a precedent, no republic could long survive without descending into civil war, set off by clashes over the legitimacy of officers. It is possible that a monarchy may also require such a formal "law precedent" governing the succession, in particular where the rule of primogeniture is not followed. Hume does not think a stable monarchy requires any particular type of succession—he says simply that it "should be fixed one way or other."82 However, primogeniture has such a particular hold on our imaginations that, in those states where the eldest son does not automatically succeed, an established precedent will often be necessary to ensure a stable transition. This is particularly true in the case of an elective monarchy, where Hume emphasizes that each succession can easily lead to civil war.83

8. Conclusion Hume's doctrine of civilized government qualifies the dichotomy he presents in his essay "That Politics May Be Reduced to a Science." There he takes issues with the thesis that "that the goodness of all government consists in the goodness

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of the administration." According to the view he rejects, "all governments are alike, and that the only difference consists in the character and conduct of the governors." Hume is paraphrasing Pope here, who says in the Essay on Man: "For forms of government let fools contest;/ whatever is best administered is best."84 Hume argues that there is an essential difference between "absolute governments" and republics, with Pope having been right only about the former. "All absolute governments must very much depend on the administration;" he says, "and this is one of the great inconveniences attending that form of government."85 This apparently leaves no room for civilized monarchy. It is hard to deny such a government is an absolute one—its sovereign is, as we have seen, "not bounded by any thing but custom, example, and the sense of his own interest." Yet, I have argued, its laws are general and self-sufficient—they thus do not depend on "the character and conduct of the governors." It is not possible to know why Hume does not mention his distinction between civilized and barbarous monarchs here. (The essay where he first discusses these concepts was published only a year after this one.) I suspect he may simply not have wanted to complicate a short and elegant argument with so complex a distinction. In any case, the qualification is easily added: a civilized monarchy, like a republic, depends on the "force of laws" rather than "on the humours and tempers of men."86 I have argued that, in a civilized monarchy, the sovereign becomes a legislator. The link between law-making and civilized government explains why Hume says: "Of all men, that distinguish themselves by memorable achievements, the first place of honour seems due to LEGISLATORS and founders of states, who transmit a system of laws and institutions to secure the peace, happiness, and liberty of future generations."87 A similar place would seem to be due to those who, while not founding a state from scratch, are able to transform a barbarous into a civilized monarchy. However, such a process will not normally be traceable to a single person. Credit will be due rather to a long succession of rulers who instituted effective general laws and ensured their enforcement. I have described Hume's use of the terms "barbarous" and "civilized" with reference to government as if they were technical terms that he uses in no other contexts. But of course, this is not true, and as I have said, his choice of these terms is not accidental. Hume's interest in the differences between "barbarism" and "civilization" is one he shared with numerous other Enlightenment-era historians, including his friends Henry Home (Lord Kames) and Adam Ferguson, as well as Montesquieu. However, by turning his attention away from the centre of power and towards the more local sites of oppression, Hume makes an original contribution to the discussion. His analysis of the dangers of judicial discretion may well have helped informed the thought of his friend Adam Smith, and further research may yet uncover other important lines of influence.88

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NOTES 1 David Hume, Essays Moral, Political andLiterary y ed. Eugene F. Miller (Indianapolis: Liberty Fund, 1985), 117. (Hereafter "Essays.") 2 The most extensive treatment of this question can be found in Donald Livingston, Philosophical Melancholy andDelerium: Hume's Pathology ofPhilosophy (Chicago: University of Chicago Press, 1998). See, for instance, 217 for a discussion of barbarism and civilization as Hume understands these concepts in general. While I do not think my own account contradicts Livingston's analysis, I believe it adds an important nuance to it. Livingston does not provide an elaboration of what characterizes civilized governmentperse, beyond noting the importance of the rule of law. Claudia M. Schmidt also discusses Hume's general views on civilization and barbarism in David Hume: Reason in History (University Park: Pennsylvania State University Press, 2003). See for instance 405-8. 3 Essays, 94. 4 His contrast between government of will and government of law is at David Hume, The History of England, ed. William B. Todd, 6 vols. (Indianapolis: Liberty Fund, 1982), 2:174. (Hereafter "History.") 5 See for instance Frederick G. Whelan, Order and Artifice in Hume's Political Philosophy (Princeton: Princeton University Press, 1985), 349-54; Duncan Forbes, Hume's Philosophical Politics (Cambridge: Cambridge University Press, 1975), 152-60; Livingston, Philosophical Melancholy, 181-2; David Miller, Philosophy and Ideology in Hume's Political Thought (Oxford: Clarendon Press, 1981), 142-62. 6 T 3.2.7.6; SEN 537. 7 T 3.2.7.8; SEN 538. 8 Essays, 115. 9 T 3.2.7.3; SEN 535. 10 Essays, 178. 11 Essays, 122 n 13. In speaking of the various public officials, Hume often seems to imply a modern style of government, where such people are officers of the crown. However, he is well aware that historically, duties such as justice-keeping and revenueraising have very often been the province of powerful aristocrats. Where these people retain such powers, they and their retainers present a greater threat than any officeholder whose position is dependent on the monarch. See, for instance, History 1:485. I discuss the more general problem presented by such high aristocrats below. 12 Essays, 178. 13 Ibid. 14 Essays, 117. 15 Essays, 623 fn. B (appears in editions C to P). 16 Essays, 124. 17 Essays, 118. 18 T 3.2.10.16; SEN 563

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19 Essays, 94; emphasis added. 20 Essays, 117. 21 T 3.2.7.8; SEN 538. 22 Essays, 54-5. 23 Essays, 383; see Essays, 62 for an apparent contrast between public liberty and public slavery. 24 Essays, 191. 25 T 3.2.7.6; SEN 537. 26 Essays, 16. 27 Essays, 179. 28 T 3.2.6; SEN 538. 29 T 3.2.6.9; SEN 531-2. 30 T 3.2.6.9; SEN 532. 31 T 3.2.3.3; SEN 502. 32 Essays, 96; cf. EPM Appendix 3.6; SEN 305. 33 Essays, 124. 34 Essays, 179. 35 Essays, 117. 36 Essays, 125. 37 I examine Hume's doctrine of general laws in greater detail in my article "David Hume's Legal Theory: The Significance of General Laws," History of European Ideas 30 (2004): 149-66. 38 EPM Appendix. 3.6; SEN 305. This is a puzzling passage, as Hume says that "all the laws of nature, which regulate property, as well as all civil laws, are general." This seems hard to square with his belief, which I cited above, that states "balanced on general laws" are rare, and require "great penetration and experience" on the part of their rulers. I attempt to resolve this issue in my article "David Hume's Legal Theory," cited above. 39 T 3.2.6.9; SEN 532. 40 Essays, 18; original emphasis. 41 A. V. Dicey, Law of the Constitution, 9th ed. (London: MacMillan, 1950), 194. 42 EPM Appendix 3.10; SEN 308. 43 Essays, 24. 44 Essays, 99. 45 Essays, 17. 46 Essays, 117. 47 Essays, 366-7.

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48 Essays, 180. 49 Essays, 125. 50 Essays, 383. 51 Essays, 125. 52 T 3.2.7.6; SEN 537. 53 T 2.3.2.6; SEN 410. 54 History 1:173. 55 History 2: 302-3. 56 History 4: 370. 57 Essays, 117 58 Essays, 116 59 History 2:135. 60 History 4: 356. 61 History 4:356. In a less than civilized state, the monarch may indeed need to retain certain discretionary powers merely to maintain the social order. But Hume is clear that such a state of affairs is less than ideal, and we should seek (as a society) to get beyond the need to grant such powers. See History 3: 469 note B; History 2: 330ff.) 62 History 5: 329-30. 63 History 3:24. 64 History 1:115. 65 History 1:173. The threat presented by the "turbulent barons" is noted by Eugene F. Miller, "Hume on Liberty in the Successive English Constitutions," in Liberty in Hume's History of England, ed. Nicholas Capaldi and Donald W. Livingston (Boston: Kluwer, 1990), 53-104, 75. 66 History 1:361-2. 67 History 2: 31. Hume seems to use the term "feudal" as a chronological one, to designate a particular historical era, whereas "barbarous" is his analytical term to describe a form of government. He here asserts that, as an empirical matter, all feudal governments are barbarous. All barbarous governments, however, are not feudal. 68 History 2: 75. 69 History 1:464. 70 History 1:278. 71 History 2: 525. 72 History 5: 40. The association of liberty with the regularity of law is noted in Miller, 149. This notion of regularity bears an obvious affinity to the "order, method and constancy" that Hume praises in civilized monarchies (Essays, 94)—characteristics that, as Richard H. Dees notes, themselves bear an obvious affinity to Hume's favoured epistemic principles. See "Hume and the Contexts of Politics," Journal of the History of Philosophy 30 (1992), 233, note 39. Perhaps the most thorough discussion of Hume's

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concept of liberty is Donald Livingston, "Hume's Historical Conception of Liberty," in Capaldi and Livingston, 105-54.1 take my understanding of this concept to be consistent with Livingston's treatment, which argues that liberty is compatible with strong central authority so long as this authority rules according to law. See also, in this same volume, Nicholas Capaldi, "The Preservation of Liberty," 195-224, and Eugene F. Miller, "Hume on Liberty," 53-104, esp. 75. 73 History 1:254. 74 David Hume, "My Own Life," in Philosophical Works, ed. T. H. Green and T. H. Grose, 4 vols. (London: Longmans, Green, 1874-75), 1:5. 75 History 5:182. Hume thinks England's government has ended up a sort of hybrid between a republic and a civilized monarch. See, for instance, his essay "Whether the British Government inclines more to Absolute Monarchy, or to a Republic." (Essays, 47-53.) 76 See Essays, 18-21. 77 We may compare Hume's comment at History 1:115, about the Norman government being "somewhat advanced in civility" (quoted above), to an observation on the English government only a century later. Hume says that Henry IV "by his valour, prudence, and address,... obtained a greater ascendancy over his haughty barons, than the law alone, not supported by these active qualities, was ever able to confer." (History 2:344.) 78 History 1:115. 79 History 1:161. 80 History 1:25. 81 History 5: 35. 82 T 3.2.6.8; SEN 530. 83 It has been suggested to me that the laws governing succession do not, because they single out particular persons, meet Hume's criteria for general laws. I think it is safe to conclude that such laws are merely sui generis in this respect, without presenting a threat to the equity of the legal system as a whole. However, Hume certainly thinks these laws can be strengthened if they are seen as applications of a more general rule, as primogeniture can be. See History 1: 486.1 would like to thank Kenneth Winkler and Elizabeth Radcliffe for raising this point. 84 Alexander Pope, An Essay on Man, ed. Maynard Mack (London: Methuen, 1950), 123-4. 85 Essays, 15. 86 Essays, 16. 87 Essays, 54. 88 In her book Economic Sentiments, Emma Rothschild analyses the importance of Smith's term "vexation." She says: "Vexation is the sort of oppression which flourishes in the circumstances of an uncertain jurisprudence, in which men use the power of their offices to pursue their personal grievances. It is the oppression in which one's oppressor knows one's name, and one's weaknesses, and where one lives" (Economic Sentiments [Cambridge: Harvard University Press, 2001], 27). As we have seen, this is just the sort of oppression Hume thinks defines barbarous regimes.

[11]

DAVID HUME AND THE COMMON LAW OF ENGLAND NEIL Me ARTHUR University of Southern California

Before Blackstone, and in the absence (by and large) of extensive law courses or modern textbooks, aspiring lawyers in England struggled to learn their law through recondite texts such as Coke's Institutes, while the public as a whole was left to glean what they knew of the law from other sources, such as books of history. (English law is, after all, by nature an historical entity). Hume's History of England was hugely popular during his lifetime and afterwards, and Hume takes as a central concern the development of law in Britain. It is therefore not outlandish to suggest that at least a generation of Britons gained a significant portion of their knowledge of English law from Hume - and, as the History of England remained influential for decades, it may also be conjectured that Hume's views on the law continued to shape later opinion in subtle but profound ways. Thus, it should be a matter of keen interest to legal historians just what his views on English law were, not just in the History but in his almost equally popular books of essays. In addition, I believe that an examination of Hume's views provides important insight to his political philosophy a whole. Yet the topic has been comparatively neglected in Hume scholarship - as well as, I believe, misunderstood. In the rare cases where Hume's work has been considered in relation to the common law, scholars have read his account of law and justice as naturally supportive of the views of England's common lawyers. (I use this term in its nowconventional sense, to denote those who subscribe to and promote what was at the time the orthodox view of the common law). Postema calls Hume's theory of justice "a sophisticated generalization of Common Law conventionalism" (Postema 1986: 117; cf 132-133). Whelan says, somewhat more tentatively, that Hume "has close affinities to the 'long tradition of sceptical and conservative empiricism in English social thought' that is sometimes associated with the pervasive influence

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of common law and the comparatively high degree of continuity in traditional institutions and modes of thought in England" (Whelan 1985: 31. The quote is from Pocock 1973: 215). It is not hard to see why such a reading might emerge. The common lawyers are deeply conservative in their view of social institutions, emphasizing, as Hume does, the need for stability and slow evolution through time. Also, their emphasis on custom seems to fit easily with Hume's broader philosophy, which makes custom the principle source of our beliefs about the world. Finally, Hume's distinction between natural and artificial virtues has, at the very least, a verbal kinship with Coke's distinction between natural and artificial reason. Yet there are equally apparent reasons to be cautious about such an assimilation. Pocock emphasises that what he calls the 'common law mind' provided the philosophical underpinning for England's various Whig factions, who fought to limit the authority of the crown, and he observes that it was intimately bound up with the Whiggish belief in an original contract (Pocock 1986: 52). Hume makes no secret of his rejection of the philosophical version of the original contract, which describes the purported origins of civil government, a doctrine he associates with the Whigs of his day (Hume 1777, 1985: 486). Indeed, he made it a general rule to avoid falling victim to what he called uthe plaguy Prejudices of Whiggism" (Hume 1932: 1.379).1 A careful examination of Hume's views on the common law has not been carried out. I propose, by means of such an examination, to show that Hume rejects key tenets held by the common lawyers. While he is sympathetic to the value they place on liberty, and on careful evolution and slow adaptation in the development of the law, he dissents from the prevalent common law account of how England's laws originated. Beneath this factual dispute lies a deeper, philosophical one. Hume's account of English law implies a rejection of the common law belief in history and custom as the ultimate source of the law's authority. I will argue that Hume is, however, equally keen to avoid endorsing the views of absolutist writers such as Hobbes and Filmer, who trace the source of the law's authority to the will of some sovereign. Hume's writings on the law suggest that he thinks both camps misguided in the emphasis they place on the origins of the law. For Hume, it is the nature and functioning of a country's legal system, not the provenance of that system - be it either in the will of an individual or in the customs of the realm - that provides the foundation of its authority. Hume provides a startling redefinition of a favourite Whig slogan, the call for a government 'of laws, not men'. Hume judges government by its ability to fulfill the basic purpose for which civil society was founded - to protect property in a reliable and equitable way - and considers any government that does this to be a government of laws, regardless how those laws originated. He takes positions on the role of equity in the law, on artificial reason and the esoteric nature of the law, and on the role of judges in the legal system, that are all consistent with his basic commitments, but at odds with those of the common lawyers.

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While such an interpretation of Hume's relationship to common law represents a departure from past readings, it nevertheless fits easily with, and supports, a widely-influential interpretation of his political philosophy as a whole. In his book Hume's Philosophical Politics, Duncan Forbes argues that Hume seeks to replace the 'vulgar Whiggism' of his predecessors with a new 'scientific Whiggism' that tries to replace the factional prejudices that have influenced the study of society with a new, more impartial methodology (Forbes 1975: 142-3, 153ff. For further discussion of scientific Whiggism in the Scottish Enlightenment, see Forbes 1954: 643-670). In line with this interpretation, I believe that Hume's treatment of the common law reveals a desire to see the establishment of a new, non-partisan and 'scientific' approach in the field of jurisprudence.

II Hume was certainly aware of the principal figures in shaping, and opposing, what Pocock calls "the common law mind". He cites nearly all of them - Coke, Hale, Selden, and (on the other side) Spelman and Brady - as authorities at various points in his History of England.2 His observations on the origins of English law, in the early volumes of this work, make his allegiance on this historical question clear. He thinks that English law begins, for all intents and purposes, with the Norman invasion, as William imposed a system of property and government that replaced that of the Saxons which preceded it. Following the "feudal principles" that prevailed on the continent, William took personal possession of the entire territory, which he then distributed to his followers in exchange for "stated services and payments" (Hume 1778,1982: 1.460. See also Hume 1778, 1982: 1.461; Hume 1778, 1982: 1.203). This account places Hume on the side of the anti-Whig revisionists Spelman and Brady, against common lawyers who either ignore feudalism altogether, or else insist that feudalism preceded the conquest, and that William replaced only those who held the feudal tenures, not the manner in which they were held.3 The logic of the common law position demands as much. Because the common law was above all a law regulating the tenure of land, to argue that land tenures were transformed by the conquest is to argue that English law originated with the Normans. This is just what Hume does argue. He thinks Norman feudalism transformed the nature of the society - he calls it a "revolution of principles" - replacing the basic principle (which in the Treatise of Human Nature has the status of a "law of nature") that people own their property and can expect to be protected by government, with a very different one, that property can only be held by a vassal as a "military benefice" from a lord (Hume 1778, 1982: 1.279). As a result of this relationship of dependence, in a feudal system the barons hold "the civil jurisdiction within themselves" (Hume 1778, 1982: 1.149). They operate the courts within their domain, and they use their control of the judicial power to protect or punish their military vassals according to their whim. The rest of the population is

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divided between serfs, who "lived in a state of absolute slavery or villainage", and others who "paid their rent in services, which were in a great measure arbitrary; and they could expect no redress of injuries, in a court of barony, from men, who thought they had a right to oppress and tyrannize over them" (Hume 1778, 1982: L463). Hume duly drives the knife in deeper against the common lawyers by insisting that, in the period following the conquest, changes in the law were the result of continental influence. These came thanks both to the ascendancy of "French manners" among the new English nobility, and also by way of church clerics, who learned "the Roman jurisprudence" through their training in canon law (Hume 1778, 1982: 1.463), Despite his low opinion of feudalism in general, he thinks these external influences were all to the good. "The imitation of their neighbours", he says, "made the English gradually endeavour to raise their own law from its original state of rudeness and imperfection" (Hume 1778, 1982: 371). Hume acknowledges that, during the Norman period and beyond, the English certainly believed themselves to be possessed of a unique and ancient set of laws, which they tried to preserve. It would be hard to deny - the Normans had conceded as much to grant themselves legitimacy, and English kings promised in their coronation oath, up till 1688, to uphold the laws of 'St Edward'. Anti-royalists equally drew on the myth of Edward, claiming they desired only to see his laws restored. But Hume questions whether any such laws really were passed down intact through the centuries, let alone remained in practice. "What these laws were of Edward the Confessor, which the English, every reign during a century and a half, desire so passionately to have restored", he says, is much disputed by antiquaries, and our ignorance of them seems one of the greatest defects in the ancient English history. The collection of laws in Wilkins, which pass under the name of Edward, are plainly a posterior and an ignorant compilation. Those to be found in Ingulf are genuine; but so imperfect, and contain so few clauses favourable to the subject, that we see no great reason for their contending for them so vehemently. It is probable, that the English meant the common law, as it prevailed during the reign of Edward; which we may conjecture to have been more indulgent to liberty than the Norman institutions. The most material articles of it were afterwards comprehended in Magna Charta. (Hume 1778, 1982: 1.493. Hume is incidentally, wrong about Ingulf, purportedly an eye-witness to William's confirmation of Edward's laws, but whose text was actually written at a much later date. Hume is in any case more inclined to give credit for originating the lost common law to another Saxon king, Alfred. See Hume 1778, 1982: 1.78). In crediting the Saxon's "indulgence to liberty", Hume accepts an account of the Germanic peoples that is rooted in Tacitus's Germania, and that was endorsed by Montesquieu (among others). This Tacitean picture portrays the northerners as a

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race enamoured of liberty (Hume 1778, 1982: 1.15). Hume thinks the "invaluable possession" of these Germanic "principles of independence" came to the island with the Saxon invaders (Hume 1778, 1982: 1.161). These principles of independence excluded the feudal system the Normans would later impose (Hume 1778, 1982: 1.181). Like Hume's account of Norman feudalism, his endorsement of the Tacitean myth must be anathema to an orthodox account of common law. Coke is no more willing to see English law rooted in the practices of the Saxon invaders than in those of the Normans. (See Pocock 1986: 57) In any case, it is worth noticing that the verb Hume uses is 'conjecture'. The proposition that the Saxon law was more indulgent to liberty is a matter of speculation, as is the question of whether there are any continuities between it and later law. But both questions are rendered moot by the fact that, as Hume says, the "most material articles" of the Saxon common law were "comprehended in Magna Charta". in

Hume describes the process by which the Saxon "indulgence to liberty" came to be incorporated into the law of post-conquest England, through the imposition of this "Great Charter" on King John by the nation's most powerful nobles. Magna Carta was the culmination of an evolution in the feudal government - and specifically, in the role of the nobles. Hume thinks the upper aristocracy came to reconceive of their role partly thanks to a tradition of aboriginal liberty - but, again, thanks also to continental influence. The Norman barons, he says, in a passage guaranteed to make an orthodox Cokean seethe, aspired to the same liberty and independance, which they saw enjoyed by their brethren on the continent, and desired to restrain those exorbitant prerogatives and arbitrary practices, which the necessities of war and the violence of conquest had at first obliged them to indulge in their monarch. That memory also of a more equal government under the Saxon princes, which remained with the English, diffused still farther the spirit of liberty, and made the barons both desirous of more independance to themselves, and willing to indulge it to the people. (Hume 1778, 1982: 1.372) Even Magna Carta, then, is not an entirely English invention, but rather the result of a convergence of Saxon memory with continental innovation. Hume is in fact inclined to credit the continental influence as the salient one. "It was probably the example of the French barons", he says, which first emboldened the English to require greater independance from their sovereign: It is also probable, that the boroughs and corporations of

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As will become clear, however, Hume thinks the source of Magna Carta is much less important than the nature of its articles. Describing how the charter took its final form, he says that the barons, in order to earn "the concurrence of the people," were obliged to make certain provisions that, "in order to ensure the free and equitable administration of justice, tended directly to the benefit of the whole community" (Hume 1778, 1982: 1.444). These provisions principally concerned the protection of property and the equitable distribution of justice. They guaranteed that "the goods of every freeman shall be disposed of according to his will". Also: "The king's courts of justice ... shall be open to every one; and justice shall no longer be sold, refused, or delayed by them". Everyone was to be guaranteed due process and a fair trial. The barons were bound to guarantee the same legal protections to their vassals that the king guaranteed to them. These provisions, Hume says, involve all the chief outlines of a legal government, and provide for the equal distribution of justice, and free enjoyment of property; the great objects for which political society was at first founded by men, which the people have a perpetual and unalienable right to recal, and which no time, nor precedent, nor statute, nor positive institution, ought to deter them from keeping ever uppermost in their thoughts and attention We may, now, from the tenor of this charter, conjecture what those laws were of king Edward, which the English nation, during so many generations, still desired, with such an obstinate perseverance, to have recalled and established. They were chiefly these latter articles of Magna Charta; and the barons, who, at the beginning of these commotions, demanded the revival of the Saxon laws, undoubtedly thought, that they had sufficiently satisfied the people, by procuring them this concession, which comprehended the principal objects, to which they had so long aspired. (Hume 1778, 1982: 1.445-446) Again, Hume qualifies as a "conjecture" the view that the beneficent articles of the charter mirror the laws of Edward the Confessor. There is in any case nothing mysterious or especially original about them. Hume's account of Magna Carta suggests that the portion of the common law of the Saxons that has been preserved by later generations, if anything has, is little more than a reflexion of the fundamental laws of nature that he insists must govern any civil society. When Hume says that the useful provisions of the charter are equivalent to "the chief outlines of a legal government, [providing] for the equal distribution of justice, and free

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enjoyment of property; the great objects for which political society was at first founded by men ..." he clearly means to echo the view he offers in Book III, Part 2 of the Treatise of Human Nature, 'Of justice and injustice'. There, Hume spells out his "three fundamental laws of nature", on the "strict observance" of which "the peace and security of human society entirely depend" (THN 3.2.6.1: SBN 526). This explains why Hume thinks it is reasonable, even in the absence of direct evidence, to conjecture that the articles of Magna Carta in some way reflect the Saxon laws. He thinks these pre-conquest laws were themselves essentially an expression of the basic principles of equity that find expression in the laws of any society at the early stages of its development. As he says, describing the policies of the "northern conquerors" (that is, the Saxons): "Law, in its commencement, was not an intricate science, and was more governed by maxims of equity, which seem obvious to common sense, than by numerous and subtile principles, applied to a variety of cases by profound reasonings from analogy" (Hume 1778,1982:1.459). Such "maxims of equity" are, for Hume, the source of the authority bestowed on civil governors. In the Treatise, he says government is instituted to "enforce the dictates of equity through the whole society" (THN 3.2.7.6: SBN 537; cf Hume 1777,1985: 38; Hume 1778,1982:6.423). These dictates provide law-makers with straightforward guidance in designing a stable society. "The more simple ideas of order and equity," he says, "are sufficient to guide a legislator in every thing that regards the internal administration of justice" (Hume 1778, 1982: 3.74. 'Internal justice' here is in contrast to that governing 'commerce', in this context meaning foreign relations, where such simple ideas are unfortunately not sufficient). This sounds suspiciously like a criticism of Coke's 'artificial reason', which deploys principles that, far from being simple, are available only to a small group of expert judges. 'The Common Law," says Coke, "it selfe is nothing else but reason, which is to be understood of an artificiall perfection of reason gotten by long studie, observation and experience and not not every mans naturall reason, for nemo nascitur artifex [no one is born skillful]" (Coke 1628: 97b). Equity as Hume understands it, as a simple concept accessible to untrained reason, is anathema to Coke. As Cromartie argues: "Coke's enemy was always "natural" reason, reason unguided by professionals .... It was impossible, in principle, to arrive at a legal conclusion without the use of legal argument. It necessarily followed that there was no such thing as equity, if equity was an independent science, a form of natural justice which might correct and supplement the law" (Cromartie 1995:21). Other common lawyers took a somewhat less extreme view, one superficially closer to Hume's: that the English common law was an expression - in fact, in their view* the perfect expression - of the principles of equity. However, the resemblance is more apparent than real. As Postema says, paraphrasing Blackstone (though stating a view he attributes to common lawyers in general): "In so far as equity has any place in the law ... it must be identified with the spirit of reason which runs through the law. the spirit in which all Common Law judges, if

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they are doing their job properly, approach the law. But if equity is understood as a body of rational principles which stands in judgment of the law, it must be rejected" (Postema 1986: 36-37). The key principle, in other words, is that equity and natural justice cannot act as external constraints on the validity of the law. But Hume thinks they do just that. "Where a civil law is so perverse as to cross all the interests of society", he says, "it loses all its authority, and men judge by the ideas of natural justice, which are conformable to those interests" (EPM 3.2.13 fn 12: SBN 197). Hume's view, that all people are possessed with sufficient 'natural reason' to pass judgement on the law, implies as its corollary that we should oppose all esotericism in the law. Hume says it is one of the advantages of free governments that they normally "must act by general and equal laws, that are previously known to all the members [of government] and to all their subjects" (Hume 1777, 1985: 41). The esoteric nature of English law was feature highly prized by the common lawyers, and closely tied to the notion of artificial reason. IV

The Charter did not in itself provide a complete legal code, to which no further legislation needed to be added. Hume acknowledges that the law continued to evolve and adapt. For instance, it was followed soon after, under Henry III, by a second charter, giving people right of access in the royal forests, and Hume praises Edward I for "the correction, extension, amendment, and establishment of the laws" (Hume 1778, 1982: 2.141). And it would be absurd to think Magna Carta ushered in a never-to-be-interrupted age of happiness and liberty, where the law was never again abused or ignored, the king never again challenged the rights of the people, nor did the barons ever cause disorder. Hume does not think this. In fact, he thinks feudal England was faced with an ever-present dual threat of royal tyranny or, under a weak king, aristocratic rebellion, both of which are "equally hurtful to the people" (Hume 1778, 1982: 2.31). Hume does, however, think that the Charter stood as the basis and touchstone that laid down the fundamental principles of the law, against which the validity of particular laws - even customary laws - could be tested. Hume's vision of the Charter's authority thus seems to suggest it came to operate in a fashion not totally distant from that in which, in our day, the U.S. Bill of Rights or Europe's Charter of Fundamental Rights operate. From the time of Edward I, he says, "though arbitrary practices often prevailed, and were even able to establish themselves into settled customs, the validity of the Great Charter was never afterwards formally disputed; and that grant was still regarded as the basis of English government, and the sure rule by which the authority of every custom was to be tried and canvassed" (Hume 1778, 1982: 2.122). This last comment - that the Charter was "the sure rule by which the authority

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of every custom was to be tried and canvassed" - practically begs to be read as a challenge to orthodox views of the common law. Common lawyers were certainly not reluctant to acknowledge the importance of Magna Caita. J.C. Holt gives Coke and his fellow common lawyers credit for re-instating it "as a document of political importance in the seventeenth century" (Holt 1992: 2). But Coke considered the Charter "for the most part declaratory of the principal grounds of the fundamental laws of England" (Coke 1642, quoted in Holt 1992:4). These "fundamental laws", representing the settled customs of the English people, are not susceptible to reduction to their basic principles. There should therefore be no way to formulate "a sure rule" to test their authority, let alone formulate such a rule in a written charter. The difference with Hume's view is subtle but fundamental. It turns on the source of the laws' authority. For Hume, while the Charter indeed may have reflected older, customary laws, what it declares is not such customs, but rather the "the great objects for which political society was at first founded by men". It is these that "no time, nor precedent, nor statute, nor positive institution, ought to deter them from keeping ever uppermost in their thoughts and attention". The Charter therefore derives its authority from them. Inasmuch as it reflects and institutionalizes the basic laws of nature, the authorizing relationship between the Charter and customary law runs, in a sense, in the reverse direction from that in which the common lawyers construe it to do. While the implication of the Cokean position is that the Charter derived its authority from its conformity to traditional laws, and that the customary status of a law is sufficient to grant it binding authority, for Hume, the "authority of every custom" comes to be "tried and canvassed" for conformity to the Charter. Hume's comment that the Charter seems to supersede custom reveals a prejudice against customary law that is, given the importance of custom to his epistemology, perhaps somewhat surprising. It is, however, rooted in his view of the law's purpose. For Hume, both natural and positive laws have as their object "the convenience and necessities of mankind" (See EPM 3.2.8: SEN 195. For positive laws, see EPM Appendix 3.10: SEN 308). He is deeply suspicious of any laws, however well established, that do not tend towards this goal. I quoted above his statement that the laws in Ingulfs collection, though genuine survivals from Saxon times, are "so imperfect, and contain so few clauses favourable to the subject, that we see no great reason for their contending for them so vehemently". This may be merely a psychological observation, pointing out a rather puzzling phenomenon: why would subjects agitate to restore laws that are harmful to their interests? But even as such it is loaded. For the common lawyers, the antiquity of a law is evidence that the people have granted it their consent. Hume's comment on Ingulf suggest, in conformity with his view of Magna Carta, that where antiquity and custom run (for whatever reason) against convenience and necessity, it is the customary and antique we should expect to yield.

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Hume provides a rather dramatic illustration of this view, that equitable law should take precedence over custom, in his description of northern Ireland's final subjugation under James I. According to Hume's description of this 'civilizing' process, James completed the work of his predecessors, who realized it was "necessary to abolish the Irish customs, which supplied the place of laws, and which were calculated to keep that people for ever in a state of barbarism and disorder" (Hume 1778, 1982: 5.47). The English king finished the task of abolishing such pseudo-legal customs and "substituting English law in their place". As a result, Hume says, "Ulster, from being the most wild and disorderly province of all Ireland, soon became the best cultivated and most civilized" (Hume 1778,1982: 5.49). V

I have already said that Hume does not think English law remains static, even after Magna Carta. It continues to evolve and adapt. The Charter enshrined the basic principles of equity on which the law must be founded. But an optimal legal system cannot be created at a single moment in time. It is the result of a long process of "trials and experiments". "The judgments of many must unite in this work", he says. "Experience must guide their labour: Time must bring it to perfection: And the feeling of inconveniencies must correct the mistakes, which they inevitably fall into, in their first trials and experiments" (Hume 1777,1985:124. Hume's use of the terms 'convenience' and 'inconveniencies' are largely synonymous with utility and disutility. See EPM 3.2.6, 8: SEN 194-195). The best evidence for whether a law passes this 'convenience' test will thus be historical. We judge a law by its effect - whether or not it is useful to the community - and we can be most certain about the effects of those laws we have actually seen in operation. Hume says that "frequent trials and diligent observation can alone direct [the laws'] improvements" (Hume 1777,1985: 116). Describing Henry Fs cautious approach to legal reform, he says: "All advances towards reason and good sense are slow and gradual" (Hume 1778, 1982: 1.359). It might seem that such passages bring Hume's views, at least on the topic of legal change, close to that of the common lawyers. On their view, the law develops gradually as judges observe which laws have benefited the community in the past. Those laws that prove durable are those that the judges continue to endorse, collectively and cumulatively, by using them as the basis for their judgements. There is an additional reason to suspect that such an affinity may exist. The fact that Hume says, in the passage quoted above, that the laws' inconveniencies are 'felt' suggests a parallel to moral and aesthetic response - a suggestion that is supported by his use of the term 'refinement' to describe improvement in the laws (Hume 1777, 1985: 116). And his view of aesthetic standards is indeed very close to the common lawyers' view of the law. In his essay 'Of the Standard of Taste', Hume says that "the joint verdict" of those he calls "true judge[s] in the finer arts ...

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wherever they are to be found, is the true standard of taste and beauty" (Hume 1777, 1985: 241). He says that true beauty is discovered by the "durable admiration" it elicits from such judges (Hume 1777,1985:233). If Hume's views on the law in fact parallel his views on aesthetic standards, then my attempt to distance him from the common lawyers will have proved premature. There is, however, a crucial disanalogy between Hume's views of the law and his views of aesthetics. The source of this disanalogy reveals the extent of his differences with the common lawyers. For Hume, those states he considers 'civilized' are distinguished from those he considers 'barbarous' by their establishment of what he calls "general laws". Such laws, unlike the standards of taste, are "rigid" and "inflexible". "In the best civil constitution", he says,"... every man is restrained by the most rigid laws ..." (Hume 1777,1985: 31). He calls the laws of justice "perfectly inflexible" (THN 3.2.6.9: SBN 531. He uses these same adjectives elsewhere, for instance: THN 3.2.6.10: SBN 533; EPM Appendix 3.6: SBN 305; Hume 1777, 1985: 12). As I shall argue, such inflexibility is incompatible with what the common lawyers take to be the role of judges. Like his comments on the role of equity in the law, Hume's emphasis on general laws is clearly rooted in his account of the origin of justice in the Treatise. There, he says: "Property must be stable, and must be fixed by general rules" (THN 3.2.2.22: SBN 497). The reason, according to Hume, that such "general and universal rules" are necessary to regulate property is because a person's motives "let [them]", he says, "be what they will" - are "a very improper foundation for... the laws of justice" (THN 3.2.6: SBN 538). The very principles of human nature lead people to make iniquitous judgements, so long as they allow these judgements to be guided by their own discretion. (THN 3.2.6.9: SBN 531-532.) Such considerations are the basis for his conclusion, stated earlier in the Treatise: The convention concerning the stability of possession is entered into, in order to cut off all occasions of discord and contention; and this end would never be attained were we allowed to apply this rule differently in every particular case, according to every particular utility which might be discovered in such an application. Justice, in her decisions, never regards the fitness or unfitness of objects to particular persons, but conducts herself by more extensive views ... It follows, therefore, that the general rule, that possession must be stable, is not applied by particular judgments, but by other general rules, which must extend to the whole society, and be inflexible either by spite or favour. (THN 3.2.3.3: SBN 502) It is only when property in a society is governed by such general rules, that society fulfills the purpose for which it was founded, to protect property, in a fair and reliable way. This view has profound implications for how one should conceive of the role of

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the judges. Hume thinks their discretion must be restricted to the fullest extent possible, such that their sentences are "fixed". "Among all civilized nations", he says, "it has been the constant endeavour to remove every thing arbitrary and partial from the decision of property, and to fix the sentence of judges by such general views and considerations, as may be equal to every member of the society" (EPM Appendix 3.10: SEN 308). His comments elsewhere make clear that this does not merely mean that judges should choose to be guided by "general views and considerations" in making their judgements. Rather, it means they should, to the extent possible, be prevented by higher authorities from exercising their discretion at all. For Hume, there is an opposition between general laws and magisterial discretion. He emphasizes that the "inconviencies" that come when general laws are "applied to particular cases ... are fewer than what result from full discretionary powers in every magistrate" (Hume 1777, 1985: 115).Hume says the British government "is obliged, for its own preservation, to maintain a watchful jealousy over the magistrates, to remove all discretionary powers, and to secure every one's life and fortune by general and inflexible laws" (Hume 1777, 1985: 96; cf EPM Appendix 3.6: SBN 305). Describing an early stage of society, he says of its ruler, who is "ignorant and uninstructed": "not having knowledge sufficient to make him sensible of the necessity of balancing his government upon general laws, he delegates his full power to all inferior magistrates. This barbarous policy debases the people, and for ever prevents all improvements" (Hume 1777, 1985: 179).4 Those governments he describes as "civilized" are defined by their ability to restrict the discretion of magistrates by means of general laws (See: Hume 1777, 1985: 117; Hume 1777, 1985: 125). Common lawyers could only recoil at the limits on judicial discretion that Hume expects to be imposed by the higher, central power. For them, the judge's reasoning is almost a sacred act, not subject to outside interference. While they would not suggest he uses pure 'discretion', in the sense of making whatever judgement he sees fit without reference to any external standard, they would object strongly to the notion that he needs to be "restrained" by a system of "rigid general laws". They would say that such laws and statutes exist to guide him, by declaring the settled customs of the people, not to 'fix' his sentence in a pre-determined way. Hume is equally clear what should be the source of legal innovation. Again, it is the society's central legislative power (guided always by the fundamental maxims of equity). Though (as I have said) he makes numerous references in his writings to beneficial changes and evolution in the law, it is always with reference to a 'legislator' such as Edward I, whom he thinks deserves the title of 'English Justinian', or James I, who so radically reformed Ireland's custom-based legal system.5 For Hume, legislators ideally aim (as he puts it in his praise of Edward I's reforms) to establish a system of laws that will bring the judges "to a certainty in their determinations", rather than - as in the common law view of legal evolution - allowing them to reform the law piecemeal, judgement by judgement (Hume 1778, 1982: 2.141).

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Hume provides the clearest expression of his view, that legal reform should be carried out by legislation rather than court precedent, in his discussion of how Edward IIFs treason law was abused under Charles II. He notes that, to better obtain convictions, the courts chose to confound "by a sophism, two species of treason, which the statute had accurately distinguished" (Hume 1778,1982:6.432). Hume says that Lord Russell, accused of conspiracy against the king, "had reason to complain of this "artificial confounding of the two species of treason, though a practice supported by many precedents ..." (Hume 1778, 1982: 6.433; emphasis added). He says of the 'inconvenience' the courts' sophism was meant to address: "it had been better to remedy [it] by a new law" (Hume 1778, 1982: 6.432). Hume ultimately qualifies the apparent dogmatism of his position against judicial discretion by conceding that a complete system of rigid general laws cannot be achieved. He says it is doubtful "whether human society could ever reach that state of perfection, as to support itself with no other controul than the general and rigid maxims of law and equity" (Hume 1778,1982:5.329). This means that in our imperfect world, the judges must retain a valuable, and difficult, role beyond passively executing the society's general laws: If one pleader bring the case under any former law or precedent, by a refined analogy or comparison; the opposite pleader is not at a loss to find an opposite analogy or comparison: And the preference given by the judge is often founded more on taste and imagination than on any solid argument. Public utility is the general object of all courts of judicature; and this utility too requires a stable rule in all controversies: But where several rules, nearly equal and indifferent, present themselves, it is a very slight turn of thought, which fixes the decision in favour of either party. (EPM Appendix 3.10: SBN 308-309) While this accords an important role to judicial reasoning, there is nevertheless considerable distance between this view - that the judges need to exercise careful judgement in deciding which rule to apply, where the answer is not obvious - and the common law one, that the rules exist only to guide the judge's own reasoning. Also, though we may admit that an ideal is impossible to achieve, or nearly so, this does not obviate the need to keep the ideal before us, to guide us in our less-thanperfect attempts to improve our existing society. (It is thus relevantly similar to Hume's proposal for a 'perfect commonwealth'. See Hume 1777,1985:513-514). VI

An understanding of Hume's views of general laws and magisterial discretion allows us to locate his place in the history of jurisprudence. In his monumental textbook of Scottish law, written less than a century before Hume, Lord Stair

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advocates judicial decisions over statutes in Scots private law. "Yes, and the nations are more happy*', he says, "whose laws have entered by long custom, wrung out from their debates upon particular cases". He contends that attempts to govern society through legislation are doomed to failure, because legislators cannot hope to predict all the contingencies that will come into play in particular case. "In statutes", he says, "the lawgiver must at once balance the conveniences and inconveniences; wherein he may and often doth fall short; and there do arise casus incogitati [unforeseen cases], wherein the statute is out..." In such "unforeseen cases", "recourse must be had to equity" - by which Stair means the reasoning of judges in particular cases, guided as necessary by past precedents (Stair 1681, 1981: 1.1.15;'Fifthly'). We can now see Hume's views - with their emphasis on the greater "convenience" of general laws, as developed and systematized by statute - as a challenge to Stair's, and as a re-assertion of the more traditional Civilian view of legal principles as prior to and restrictive of judicial discretion. Hume writes at a time when common law principles were beginning their steady encroachment into Scottish legal thought, and he can be seen as resisting this trend - one which manifested itself in other contemporary writers such Lord Kames, Adam Smith, and John Millar (all of whom he knew personally).6 With his view on the basis of positive law in the principles of equity, however, Hume avoids the opposite extreme of the absolutist writers. For these writers, the laws derive their authority from the sovereign will of the legislator. As Filmer puts it: "When every custom began, there was something else that made it lawful, or else the beginning of all custom were unlawful. Customs at fist became lawful only by some superior power which did either command or consent unto the beginning" (Filmer 1949: 106-107. Cf. Pocock 1986: 188-190). Hume clearly knew of the debate between the common lawyers and absolutists on this issue, since he cites Brady's reply to Petyt as a source several times in his History, and the Brady-Petyt debate turned on just this question.) For Hume, on the contrary, it is the generality and equity of the laws that give them their authority, not their origins - though these will normally, as a matter of fact, indeed lie in the will of an enlightened legislator. Crucially, as we have seen, Hume does not think, as the absolutists do, that we are bound to recognise the authority of any law however unjust. Rather, he thinks our basic notions of equity and justice set an external constraint on what laws we must obey. I have suggested that Hume's approach to English law shows him to be (in Duncan Forbes's sense) a scientific rather than vulgar Whig. In line with such a reading, Hume offers a commendation of England's current government that shows his distance from the common lawyers with whom he agreed about the value of liberty. "A civilized nation, like the English", he says, "who have happily established the most perfect and most accurate system of liberty that was ever found compatible with government, ought to be cautious in appealing to the

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practice of their ancestors, or regarding the maxims of uncultivated ages as certain rules for their present conduct" (Hume 1778, 1982: 2.525.). We are now in a position to understand how Hume conceived of the alternative to such historical appeals. For him, it is the successful operation of the system - the felicitous results it is able to deliver - that gives it legitimacy, not its history. [email protected] REFERENCES

Beitzinger, Alfons (1975) The Place of Hume in the History of Jurisprudence/ American Journal of Jurisprudence 20, pp 21—37. Bongie, Laurence L (1965) David Hume: Prophet of the Counter-revolution, Oxford: Clarendon Press. Boyer, Allen D (2003) Sir Edward Coke and the Elizabethan Age, Stanford: Stanford University Press. Coke, Edward (1628) Institutes of the Laws of England, part 1, London: Society of Stationers. (1642) Institutes of the Laws of England, part 2, London: M, Flesher and R. Young. (1826-1827) The Reports of Sir Edward Coke, Knt.: In Thirteen Parts, eds John Henry Thomas and John Farquhar Fraser, 8 vois, London: Joseph Butterworth and Son. Cromartie, Alan (1995) Sir Matthew Hale, 1609-1676, Cambridge: Cambridge University Press. Filmer, Robert (1949) Patriarcha and Other Political Writings, ed. Peter Laslett, Cambridge: Cambridge University Press. Forbes, Duncan (1975) Humes Philosophical Politics, Cambridge: Cambridge University Press. (1954) 'Scientific Whiggism: Adam Smith and John Millar/ Cambridge Journal 1, pp 643-670. Hayek, FA (1958) The Legal and Political Philosophy of David Hume,' in V. Chappell, ed., Hume, Notre Dame, Ihd.: University Press of Notre Dame, pp 335-360. Holt, JC (1992) Magna Carta, 2nd ed, Cambridge: Cambridge University Press. Hume, David (1975) Enquiries concerning Human Understanding and concerning the Principles of Morals, ed. L. A. Selby-Bigge, revised by P. H. Nidditch, Oxford: Clarendon Press, 1975. (Abbreviated EHU and EPM.) (1777,1985) Essays: Moral, Political and Literary, ed. Eugene F. Miller, Indianapolis: Liberty Fund, 1985. (1982, 1778), The History of England, ed. William B. Todd, 6 vols, Indianapolis: Liberty Fund. (1932), The Letters of David Hume, ed. J.Y.T. Greig, 2 vols, Oxford: Oxford University Press. (1978) A Treatise of Human Nature, ed. L.A. Selby-Bigge, revised by P.H. Nidditch, Oxford: Oxford University Press. (Abbreviated 'TON'.) Lieberman, David (1989) The Province of Legislation Determined, Cambridge: Cambridge University Press. McArthur, Neil (2004) 'David Hume's Legal Theory: The Significance of General Laws/ History of European Ideas 30, pp 149-166. Miller, Eugene F (1990) 'Hume on Liberty in the Successive English Constitutions/ in Nicholas Capaldi and Donald W Livingston, Liberty in Hume s History of England, Boston: Kluwer Academic Publishers.

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Pocock, J.G.A (1973) 4Burke and the Ancient Constitution: A Problem in the History of Ideas/ in Politics, Language, and Time: Essays in Political Thought and History, New York: Atheneum Press. (1986) The Ancient Constitution and the Feudal Law, 2nd ed., Cambridge: Cambridge University Press. Postema, Gerald J (1986) Bentham and the Common Law Tradition, Oxford: Clarendon Press. Simpson, AWB (1973) The Common Law and Legal Theory/ in Oxford Essays in Jurisprudence', 2nd series, Oxford: Clarendon Press, pp 77-97. Stair, James Dairy mple, Viscount of (1681,1981) The Institutions of the Law of Scotland, New Haven: Yale University Press. Stein, Peter (1957) 'Legal Thought in Eighteenth-Century Scotland,' The Juridicial Review 1, pp 1-20. Stoner, James R, Jr (1992) Common Law and Liberal Theory, Lawrence, Kansas: University Press of Kansas. Whelan, Frederick G (1985) Order and Artifice in Hume's Political Philosophy, Princeton, N.J.: Princeton University Press. Whitty, Niall R (2003) 'From Rules to Discretion: Changes in the Fabric of Scottish Private Law,' Edinburgh Law Review 1, pp 281-339. NOTES 1

Miller 1990 provides an excellent account of Hume's engagement with Whig constitutional theories in his History. My focus is different from his, but we agree that Hume's account of feudalism is at odds with that of the common lawyers, as I explain below. 2 In addition to Pocock's work, and the relevant primary sources, I have, in working to understand the views of the common lawyer, benefited most from Postema's book, cited above, as well as Boyer (2003), Cromartie (1995), Stoner (1992), Holt (1992), Lieberman (1989), Simpson (1973). 3 For the common lawyers and the debate over feudalism, see Pocock 1986: 65-68; Pocock 1986: lOOff. For Hume's views, see Miller (1990): 67. For Coke's, see Coke 1826-1827: 5.xxi-xxii. 4 I have discussed elsewhere (McArthur 2004) what precisely I think Hume means by "general laws", and how to make sense of his apparently conflicting claims about them. The importance of this aspect of the law is recognized by Beitzinger (1975: 32,37.) See also Hayek 1958. 5 For Edward I, see Hume 1778,1982: 2.141. For James I's reforms, referred to above, see Hume 1778, 1982:5:46-49. 6 For a full discussion of the competing roles of general principles and judicial discretion in the history of Scottish law, see Whitty 2003. For the seventeenth and eighteenth century context, including Stair's views, see pp 288-290. See also Stein 1957.

[12] Utility and Humanity: The Quest for the Honestum in Cicero, Hutcheson, and Hume JAMES MOORE

Concordia University, Montreal Hume considered An Enquiry Concerning the Principles of Morals (1751) incomparably the best of all his writings. In the argument advanced here, I propose that Hume's preference for the Enquiry may be linked to his admiration of Cicero, and his work, De Officiis. Cicero's attempt to discover the honestum of morality in De Officiis had a particular relevance and appeal for philosophers of the early eighteenth century who were seeking to establish what they called the foundation of morality. One of those philosophers was Francis Hutcheson; his differences with his contemporaries and with Hume are reviewed in the second and third parts of the essay. In the fourth and final section, I examine Hume's attempt to reconcile the foundation of morality, as he understood it, the sentiment of humanity, with the principles of utility and agreeableness. And an attempt is made, finally, to explain why Hume's critics (James Balfour, Thomas Reid) perceived Hume's Enquiry to be the work of an Epicurean and a sceptic.

Hume was a notoriously diffident and self-critical writer. He was inclined to blame himself for publishing too hastily; he was eager to find opportunities to restate his ideas more clearly and convincingly. He hoped to delay his death long enough to revise his writings for a new edition of his works. Given his characteristic anxiety and concerns about his own literary productions, it is remarkable that from the moment of publication to the end of his life, he took a particular satisfaction in the succinct exposition of moral philosophy he entitled An Enquiry Concerning the Principles of Morals (1751).1 He wrote not long after publication of the book: 1 must confess that I have a Partiality for that Work, and esteem it the most tolerable of anything I have composed.'2 And in 'My Own Life* he wrote that *in my own opinion (who ought not to judge on that subject) [it] is of all my writings, historical, philosophical or literary, incomparably the best: ...'3 What prompted Hume to entertain such a good opinion of the Enquiry? In the following paper I suggest that the Enquiry may have represented for Hume the fulfilment of an ambition which he shared with many of his contemporaries: to rewrite the moral philosophy of Cicero in a manner relevant for readers of his generation. I will argue 1

David Hume, An Enquiry Concerning the Principles of Morals, ed. Tom L. Beauchamp, Oxford, 1998. References to sections, parts, and page numbers of this edition are placed in parentheses in the text. 2 Letter to Sir David Dalrymple, Bart, 3 May 1753, The Letters of David Hume, ed J. Y. X Greig, Oxford, 1932, vol. 1, pp. 174 f. 3 'My Own Life', prefaced to Letters, vol. 1, p. 4.

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366 James Moore that it was a particular work of Cicero's that Hume had in mind as he wrote: the De Officiis or Offices, as it was known in the early eighteenth century. I will propose further that Hume's reworking of Cicero's Offices represents an expression of a long standing disagreement with his senior contemporary, Francis Hutcheson.4 Their differences turned in part on their respective readings of the writings of Cicero. In his moral and political treatises, and particularly in his most widely read work, De Officiis, Cicero had posed questions which would be taken up by successive moralists of the early eighteenth century. How should one define the honestum or that which is honourable even when it is not honoured or that which is praiseworthy even when it is never praised? Is it possible to reconcile the honestum with the utile, that which is honourable and good in itself with that which is useful? The search for the meaning of the honestum preoccupied British moralists of the second quarter of the eighteenth century in their attempts to discover what they chose to call the foundation of morality. In the course of this essay, I will offer an account of the circumstances in which the foundation of morality controversy arose. I will also attempt to illustrate how Hutcheson and Hume appealed to the authority of Cicero in their respective contributions to that controversy and how their inquiries eventuated in different understandings of the honestum.

I Cicero was a symbolic figure in early eighteenth-century Britain. In the political pamphlet literature of Great Britain in the early eighteenth century he seemed to represent in his political writings and by his career an example of moderation in politics. In contrast with the stern, implacable ideal of virtue, personified in the life of Cato the younger, Cicero provided an example of worldliness, of a more balanced and practical approach to public life. He became the effective hero of the political establishment, the followers of Sir Robert Walpole and the Court Whigs, in opposition to Bolingbroke and the Country Party who were perceived to be not only Catos, but also Catilines and

4

There are many scholarly interpretations of the moral philosophies of Hutcheson and Hume. Among the scholars who have written on this subject are Norman Kemp Smith, David Daiches Raphael, Arthur N. Prior, Charles W. Hendel, William Frankena, David Fate Norton, and James King. For a more complete bibliography, I would invite the reader to consult my essays 'Hume and Hutcheson', Hume and Hume's Connexions, ed. M. A. Stewart and John Wright, Edinburgh, 1994 and in which it ['natural1] is taken! (Tn475) The concept of natural obligation in the sense of interested motivation is also necessary, if we are to understand Hume's ideas that moral obligation varies in proportion with the natural obligation. This idea comes up in various places, but particularly clearly in the Section Of the laws of nations in the Treatise. He there points out that men in fact more easily go along with transgressions of the natural laws between states and their sovereigns than between private men (T568). He ascribes this to the fact that whereas justice between states arises out of self-interest on the part of the states, just as is the case with individual men, and whereas this likewise gives rise to a moral obligation, this self-interest

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will often not be so strong and, indeed, necessary as between individuals, and consequently the moral obligation must be weaker as well: ...tho ' the intercourse of different states be advantageoust and even sometimes necessary, yet it is not so necessary nor advantageous as that among individuals, without which 'tis utterly impossible for human nature ever to subsist. Since, therefore, the natural obligation to justice, among different states, is not so strong as among individuals, the moral obligation, which arises from it, must partake of its weakness• (T569) The interest involved consists of a regard to the utility of certain kinds of actions (and their motives), and it is through sympathy with this utility that our moral evaluations and obligations arise. So when the utility varies, s"o do the evaluations and the obligations: the moraI obligation holds proportion with the usefulness. (EPM206)7 Hume states the same idea when he treats of the virtues of chastity and allegiance to governments. But he there also points out that the direct connection between utility and obligation may be off-set by the influence of general rules. When people have become used to a pattern of behaviour in accordance with certain rules, they do not automatically and immediately change that behaviour when the rules prove not to be useful any longer. Thus women still stick to the rules of chastity when they are past the child-bearing age, though the rules then no longer serve their specific purpose (T572-573J E 207-208); and men do not instantly rebel against a government, as soon as it does not quite serve their interests (T551-553)„ Thus one natural principle, namely the adherence to general rules, overrules another, namely the motivating force of utility, in certain cases. And in both the cases mentioned

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he points out that this is as well, for in general the longterm effect of adherence to the general rules is more useful than it would be to follow the ideas of utility at any given moment (T552-553, 572-573; E207-208). In other words/ an unintended, but useful result is created by thwarting motives which intended useful results. Knud Haakonssen Monash University 1.

References are to the pages of the Treatise in SelbyBigge's edition.

2.

This is very well-known from Professor Ardal's work and needs no further argument in the present context. See Ardal's Passion and Value in Hume's Treatise (Edinburgh, 1966)and his Introduction and Notes to his edition of Treatise, Books II and III (Fontana paperbacks, 1977JT

3.

On this point see Prof. Ardal's Introduction (cf. previous note). The * marked word 'principle1 is one of Hume's marginal text corrections. The word printed was 'motive1. For these corrections, see R. W. Connon, "Some MS Corrections by Hume in the Third Volume of his Treatise of Human Nature", Long Room, No. 11, SpringSummer, 1975.

4.

See Duncan Forbes*s excellent treatment of this in his Hume's Philosophical Politics {Cambridge, 1975), ch.4.

5.

See Prof. Ardal's treatment of sympathy in chs. 3 and 6 of his book (see note (2) above).

6.

There is at least one other place where Hume hints that actions rather than motives can be the important thing in seeing how obligation arises. See (T479), where he ends his treatment of obligation, saying, Actions are at first only considerrd as signs of motives: But 'tis usual* in this case, as in all others, to fix our attention on the signs, and neglect, in some measure, the thing signify'd.

7.

References are to the pages of the Enquiries in SelbyBigge's edition.

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[16] Hume's Account of Social ArtificeIts Origins and Originality Annette Baier WHY HUME'S THEORY IS IMPORTANT Hume makes his account of social artifices, and of the artificial virtues that consist in conformity to their constitutive rules, the centerpiece of Book 3 of the Treatise. He devotes to that topic twice as much space as to the natural virtues, and almost four times as much as to the antirationalist preliminaries of Part 1. I think that, had Hume written an abstract of Book 3 and raised there his questions of what might "intitle the author to so glorious a name as that of inventor,"1 he would have judged the best candidate in Book 3 to be the account of social artifice, of how what he half but only half ironically calls "the three laws of nature," namely, stability of possessions, their transfer by consent, and performance of promises, are "entirely artificial, and of human invention" (T, p. 526). The originality is threefold: first, in the claims concerning what it is that we collectively invent—the very possibility of ownership, of loan, of gift and barter, of promise, of authority over others, and so of the obligations and rights these involve; second, in the details of the account of how we are able to do this inventing; and third, in the account of the relation of these rights and obligations to the rest of morality. My claims about originality are an invitation to correction, and I make them diffidently and tentatively. It is because I find the Humean account the best account we have of these rights and obligations and their relation to the wider field of morality when that is seen as cultivation of virtues that I am interested in its genesis. My corrigible and correction-inviting claim is that Hume's account of human collective "inventions" or artifices, along with his account of their relation to what we did not need to invent, make him a glorious inventor in moral and social theory. 1. A Treatise of Human Nature, ed. L. A. Selby-Bigge and P. H. Nidditch (Oxford: Clarendon, 1978), p. 661. Future references to this work will be given in the text as T. Other works referred to in the text by Hume are E (Enquiries, ed. L. A. Selby-Bigge and P. H. Nidditch [Oxford: Clarendon, 1975]); Es (Essays, ed. E. Miller [Indianapolis: Liberty Classics, 1985]); L (The Letters of David Hume, ed. J. J. T. Greig [Oxford: Oxford University Press, 1969]). The numbers cited in references to L are letter numbers. I also refer to The Life of David Hume Esq. Written by Himself (London: W. Strahan & T. Cadell, 1777).

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This assessment is of course influenced by my own evaluations and prejudices, and it is well if I make some of these explicit. What I look for in a moral theory is a demystifying account of the deontological component in morality as decent people recognize it, an account which does not subordinate the gentler tones of that morality to its sterner deontological voice, along with a plausible explanation of our persistent tendency to mystify moral matters. Hume's account satisfies these demands. Virtues theories such as Aristotle's typically fail to do justice to the deontological aspects of morality, fail to explain why some ways of behaving ("adultery, theft, murder" are Aristotle's examples at 1107a 11-12 of Nicomachean Ethics) are just plain ruled out, not, like vices, merely discouraged. But Natural Law and Kantian theories go to the other extreme, reducing all of morality to the stern voice of duty (perfect or imperfect) or to overtones of that voice. There were of course some mixed or nonreductive theories before Hume's—Aquinas's and Locke's—but these were theological or partly theological theories that derived the richness and many-sidedness of morality, its combination of love and mercy with justice, from the stipulated amplitude of a divine creator who was both loving father and stern lawgiver and judge, demanding from us both obedience and freely given return love. Aquinas has a more or less coherent story about how we can be guided both by the virtues we have been helped to cultivate and by a moral law, but the coherence is bought at the cost of a theological foundation, and one that simply takes it for granted that fathers, and so divine fathers, have authority over the children they have sired. Authority, the most troubling moral concept, is assumed not explained (or maybe it is merged into authorship), and all obligations are derived from that of obedience to authoritative commands. Hume's theory secularizes and demystifies the concepts of obligation and of authority, and does so in a nonreductive distinction-preserving way. The full variety and complex interdependence of different grounds of obligation are recognized, along with the fuller variety of the gentler moral pressures to be a decent person and a good companion as well as a conscientious doer of one's duty.2 The most influential modern moral theories that avoid resting morality on a religious base are contractarian and so reductive theories, resting all obligations and sometimes all of morality on the obligation arising from contract or mutual voluntary agreement. Hume gives voluntary agreement its due as a source of obligation, but he also gives us a fine stock of anticontractarian arguments. His theory banishes not merely ancient but also modern superstitions in moral theory. The demystification of property rights, promissory rights, and rights to command obedience that Hume provides is contained in his account 2. I discuss this virtue of Hume's theory in Annette Baier, "Hume—the Women's Moral Theorist?" in Women and Moral Theory, ed. Eva Kittay and Diana Meyers (Totowa, N.J.: Rowman & Allanheld, 1987).

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of the social artifices whereby the problem caused by the fact that "the opposite passions of men impel them in contrary directions" (T, p. 491) is given at least a partial solution, through a redirection and coordination of those same passions. Hume anticipates Feuerbach and Marx in his account of how "the mind has a great propensity to spread itself on external objects" (7^ p. 167), and then to fail to recognize its own handiwork, both when they are the "fictions of the understanding" and when they are the "artifices" of convention and social inventiveness. We typically fail to acknowledge our own collective handiwork, both in metaphysics and in morality. Hume is fully aware of the resistance his readers will put up to his shocking claim: "See if you can find that matter of fact or external existence which you call vice . . . you can never find it until you turn your reflexion into your own breast and find a sentiment of disapprobation which arises in you towards this action" (T, pp. 468-69), and he has an explanation for such resistance.3 In the case of the "laws of justice," which on his account are "entirely artificial and of human invention" (T, p. 526), our wish to see these as "Laws of Nature," or of God-or-Nature, as the work of some superhuman legislator, is easily explained if one of our major inventions is that of the special role of law declarer and enforcer. Having given the job of declaring law to a special functionary, and dignified that role, we plausibly then see all rules as stemming from a source external to and more awesome than the ordinary citizen and see the most fundamental rules as coming from as wise and equitable a magistrate as we can imagine. For Hume our religious propensities are the clearest proof of our mind's propensity to spread itself on external objects, and the Natural Law tradition exhibits this phenomenon. Hume plays up the link between the projections of purely religious or "priestly inventions" and the projections of our moral inventions by repeatedly likening the social artifices to the superstitions of religion (T, pp. 515, 524-25; E, pp. 198-99) while at the same time contrasting the usefulness and benefits of the one with the "uselessness" and "burdensomeness" of the other. The needed and "natural" artifices giving rise to the obligations of justice are both freed from a religious base, yet shown to be like enough to purely religious artifices to explain the persistent illusions of the human mind concerning them. Hume, as Manfred Kuehn has pointed out, anticipates Kant's account of the unavoidable illusions we are subject to, and, as Kuehn does not point out, he sees the same propensity at work in our moral objectifications.4

3. This resistance is found even among Hume's admirers, some of whom seem to think that to be a serious moralist one must be an objectivist. A striking example is D. F. Norton's version of Hume's ethics in David Hume: Sceptical Metaphysician and Common Sense Moralist (Princeton, N.J.: Princeton University Press, 1985). 4. Manfred Kuehn, "Hume's Antinomies," Hume Studies 9, no. 1 (April 1983): 2545, 35.

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HUME'S ORIGINALITY: THE SCOPE OF HIS MORAL CREATIONISM I now come to the respects in which Hume's theory picks up elements of some earlier theories but uses them in a new way. Those of his predecessors who came closest to anticipating his theory I take to be Hobbes, Pufendorf, and Locke. Among other influences on Hume's moral theory as a whole, and so on this part of it, I would of course include his own list in the Treatise's introduction, which besides Locke lists "my lord Shaftesbury, Dr. Mandeville, Mr. Hutchison, Dr. Butler" and adds an et cetera (T, p. xviii), as well as those cited or referred to in the text of footnotes of Treatise, Book 3, and the Enquiry Concerning the Principles of Morals. In the latter, however, the earlier proud claims about artifice are prudently somewhat muffled, and the word "artificial," with its Hobbesian associations, is avoided except in one footnote. Those cited include Cicero, Justinian, Grotius, Malebranche, Bayle, and Montesquieu. Among influences on Hume I would also include Machiavelli, whom Hume seems to have read carefully.5 It is because I have not read all these authors as carefully as Hume did that my claims about originality must be tentative. I still have much to learn about Hume's relation to those voluminous writers he calls "the civilians."6 In that connection, I want to quote what Hume's second biographer (third, if we count Hume's own as the first and Smellie's as the second) said about the link, for it still bears repeating. Writing in 1807, after quoting Hume's own autobiographical remarks about his reactions to Voet and Vinnuis, Ritchie goes on: "Among men of letters a fashion has long prevailed of decrying the writings of the civilians, the usual magnitude of whose works is certainly not calculated to render them inviting. . . . It is probable, however, that the mere circumstance of directing his attention, although in a superficial degree, to the Roman Code and the municipal laws of his country gave a slight bias to his studies which, being seconded by favourable events, suggested at a future

5. See E. C. Mossner, "Hume's Early Memoranda, 1729-40: The Complete Text," Journal of the History of Ideas 9 (1949): 492-518. See also Mossner, The Life of David Hume (Oxford: Oxford University Press, 1889), p. 266, for an account of Hume's "loan" of a Machiavellian passage to Robert Wallace. 6. I learned first from Duncan Forbes, Hume's Philosophical Politics (Cambridge: Cambridge University Press, 1975), and more recently from various writings and lectures by Istvan Hont and Knut Haakonson. Among these are Istvan Hont, "From Pufendorf to Adam Smith" (paper presented at the Conference on Political Thought of the Scottish Enlightenment in a European Context, Edinburgh, August 26, 1986); Knut Haakonson, "Hugo Grotius and the History of Political Thought," Political Theory 13, no. 2 (May 1985), and "Natural Law and the Scottish Enlightenment," Man and Nature 4 (1985); as well as two anthologies: Istvan Hont and David Ignatieff, eds., Wealth and Virtue (Cambridge: Cambridge University Press, 1983); and R. H. Campbell and Andrew S. Skinner, eds., Natural Law and the Scottish Enlightenment (Edinburgh: Edinburgh University Press, 1982).

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period the project of compiling his History, a task he understood not from a wish to detail battles and exhibit a tedious succession of political broils, but for the more dignified purpose of tracing the progress of legislation and civility."7 Ritchie is surely right both about the influence of Hume's law studies and about the aim of his History of England. Thanks to Duncan Forbes and others it is now becoming less fashionable to play down Hume's debt to the Natural Law jurisprudential tradition, and less fashionable also to try to separate his writings in social philosophy from his historical writings. The appendices of the History of England obviously continue, and sometimes revise,8 the line of thought begun in Treatise, Book 3, Part 2. And as for "the civilians," even a superficial reading of Grotius and Pufendorf alerts one to the many echoes of their discussions in Hume's writings. Pufendorf, for example, says that part of the point of morality is "the polishing and methodizing of common life," and Hume borrows the phrase to describe philosophical judgments as "the reflections of common life, methodised and corrected" (E, p. 162).9 Like Hume, Pufendorf has lengthy discussion of the ambiguities of the term "natural." Hume uses Pufendorf's near-technical term "imposition" in the Treatise (p. 499), in his summary of his preliminary account of the artificial virtues. Hume follows Grotius in taking the basic rationale for the institution of marriage to derive from the underprivileged epistemological position of putative fathers. (In a section of De Jure Belli et Pacis concerned with "the rights of bastards," Grotius says, "the mother can be certain that the child is hers . . . but this certain cannot a father be ... therefore some way was thought to be found whereby it might appear who the father of every child was: and this was marriage.")10 Besides the influence of Roman, Continental, and Scots law,11 there is doubtless also some influence not just of maritime law, cited in Enquiry Concerning the Principles of Morals, but also of English common law, from Hume's brief time with a shipping firm in Bristol. 7. T. E. Ritchie, Account of the Life and Writings of David Hume (Edinburgh, 1807). 8. The first appendix, dealing with the Saxon form of life, notes how allegiance to a leader preceded any recognized stable property rights, at least to land. 9. Samuel Pufendorf, Laws of Nature and Nations, trans. Basil Rennet (London: R. Sare, 1717), bk. 1, chap. 1, sec. 3, p. 3. 10. Hugo Grotius, Laws of War and Peace, trans. William Evats (London: Ralph Smith, 1682), bk. 2, chap. 7, sec. 8. 11. Neil MacCormick has pointed out to me that Hume's words in My Own Life concerning his "unsurmountable aversion" to his legal studies, in particular to Voet and Vinnius, except those linked with "the pursuits of philosophy and general learning," may echo the words of James Dalrymple, Viscount Stair, Institutions of the Laws of Scotland (London, 1693), bk. 1, title 1, sec. 17, that the study of mere compilations of legal decisions, not linked to some general jurisprudential theory, may "exceedingly nauseate delicate ingines." Although Hume may not have continued his law studies to the point where Scots law was the prescribed field of study, he can be assumed to have at least browsed in Stair's Institutions, as he was a member of a family of lawyers, and a younger cousin of Henry Homes, Lord Kames, with whom he was in fairly frequent intellectual debate.

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Let me come now to Hume's improvements on the accounts of social artifice that we find in Hobbes, Pufendorf, and Locke. The very term "artificial" would to Hume's first readers evoke Hobbes's version of Leviathan, the authoritative state, as an automaton, or artificial animal. In his introduction to Leviathan, Hobbes likens the making of this monster to "thatyto, or the Let us make man pronounced by God in the Creation." Hume seconds Hobbes's reappropriation of creative power from gods to human creators, but he also generalizes the scope of what we could call Hobbes's "creationism." Not merely does Hume correct (or revise Butler's correction of) Hobbes's version of the psychology of the human creators, he also extends the range of their creation to include contract or covenant, and the very idea of authority and authoritative law. Where Hobbes took the concepts of authoritative law, and of contract, as somehow innate, waiting only to be analyzed and used, Hume takes them to be human inventions, having as it were to be synthesized before they can be analyzed. Hobbes takes the human tool for creating or inventing Leviathan to be covenant or contract. Hume saw that we must first, by some more natural means or by some more natural tool or tool equivalent (what he calls "convention"), create contract. We must create it before we can use it. As far as I am aware, no one before Hume saw obligations arising from prior promises or contracts to be just as problematic as any others, saw that they were in no sense more "primary" than the obligations to which social contract theorists, Hobbes included, tried to reduce to them. Hume sees, as others before him did not, that the very concepts of promise and contract are cultural achievements, themselves dependent on cultural invention or artifice. The precise form of contract, like that of the other artifices, will vary from community to community, not just because of their varying stages of development toward that commercial society where contract really comes into its own but also because social artifices are, as Hume says, "changeable by human law" (T, p. 528). Historical contingencies will lead to variations in positive laws, just as they also lead to some variations in the customs and conventions whereby artifices first evolve. Scotland, for example, had, and to some extent still has, a different institution of marriage from England,12 and supposedly the Tongans do not have any institution of promise.13 (Hume would have been surprised at this, since he did believe that the artifices he described were "natural," that is, naturally needed, and such that some form of each of them would naturally evolve or be slowly "invented" in all human societies.) 12. "Gretna Green marriages," or marriages de praesenti (namely, of minors without parental consent), were recognized, as was marriage without any ceremony, but merely by "cohabitation with habit and repute" (see the Right Honorable Lord Cooper, The Scottish Legal Tradition, rev. M. C. Meston, Saltire Society Pamphlet, N.S. (Edinburgh: William Blackwood, 1982), pp. 18-21. 13. See Fred Korn and Shulamit R. Decktor Korn, "Where People Don't Promise," Ethics 93, no. 3 (April 1983): 445-50.

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Hume generalizes Hobbes's secular moral constructivism or creationism to include the full variety of our strict obligations and correlative rights, including the demand that men "perform their Covenants made." Both contract and authority are, for Hume, like property in being cultural products invented to solve the social problem caused by "the opposite passions of men" (T, p. 491). The concept of obligation, he says, is "altogether unintelligible" without first understanding justice and its dependence on convention, and he accuses those who use it in their explication of justice of "a very great fallacy" (T, p. 491). AN ASIDE ON THE SCOPE OF HUMEAN OBLIGATIONS AND DUTIES In the important section "Some farther reflexions concerning justice and injustice," Hume contrasts the "entire" rights and obligations of property and promise, whose entirety and strictness is taken as a mark of artifice, with "half rights and obligations, so natural in common life" (T, p. 531), but this occurs only in "our common and negligent way of thinking" (T, p. 530; my emphasis), and Hume himself never, as far as I am aware, unequivocally endorses this looser and broader use of the term obligation. In this passage, he is contrasting the "strictness" and "entirety" of obligations arising from social artifice with other moral concepts such as virtue(s) and vice(s) which do admit of degrees and gradation. He only twice appears to suggest that all virtues talk can be translated into talk of obligations (or half obligations), and in both cases the appearance need not be taken as showing what he really thought. One of these two passages occurs during his discussion of promises. There he says: "All morality depends upon our sentiment; and when any action, or quality of mind, pleases us after a certain manner, we say it is virtuous; and when the neglect, or nonperformance of it, displeases us after a like manner, we say we lie under an obligation to perform it. A change of the obligation supposes a change of the sentiment; and the creation of a new obligation supposes some new sentiment to arise. But 'tis certain we can naturally no more change our own sentiments than the motions of the heavens, nor by any single act of our will, that is by a promise, render any action agreeable or disagreeable, moral or immoral; which without that act wou'd have produced contrary impressions or have been endow'd with different qualities" (T, p. 517).14 The claim about obligation may appear to imply that we have an obligation to avoid every vice or at least to avoid acting viciously. Such a general claim, covering natural as well as artificial virtues, would be hard to reconcile with Hume's earlier already quoted claim that those who use the term obligation without first showing its link with justice and with "its origin in the artifice and contrivance of men" are guilty of "a very gross fallacy" (T, p. 491). The only way to reconcile the two passages would be to suppose, a bit implausibly, that Hume thinks 14. Pall Ardal drew my attention to this passage when a version of this paper was given to the Hume Society, Edinburgh, August 29, 1986.

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that the artificial virtues swallow up the natural ones, that some convention or some legislator makes it our strict obligation to acquire the natural virtues. Before embracing such an interpretation we should however note two things about the passage in the Treatise (p. 517). First, that the apparently general claim about obligation is not that there is an obligation to avoid having qualities of mind that would be morally disapproved of but, rather, to avoid acting to display such vices. Since Hume keeps repeating that, in general, actions are subject to moral evaluation only insofar as they display motives or qualities of mind (T, pp. 477, 575), this restriction of "obligation" to obligatory performance or nonneglect of actions is itself a sign that Hume is not really proposing that all virtue and vice attribution can be translated into attribution of obligations. And, second, the main point of the passage is not to establish anything about the scope of obligation but, rather, to show the error of the view that promissory obligations are willed into existence by the promisor. Hume's concern here is primarily with the artificial virtue of fidelity to promises, the artificial vice of infidelity to promises. It seems to me a more charitable reading to suppose that he spoke a little carelessly here than to suppose that he spoke carelessly when he earlier made the very strong and general claim that obligation is "wholly unintelligible without first understanding justice" (T, pp. 490-91) and its dependence on artifice. The other passage apparently recognizing a general obligation to avoid not merely artificial but also natural vices occurs in the Treatise (p. 479), while Hume is explaining and defending his "undoubted maxim, that no action can be virtuous or morally good unless there be in human nature some motive to produce it, distinct from the sense of its morality/9 and creating the puzzle about what the natural motive to justice is, a puzzle his theory of artifice is designed to solve. There, after stating the maxim, he concedes eventually that "on some occasions a man may perform an action merely out of regard to its obligation," and the example he first offers is this: "A man who feels no gratitude in his temper, is still pleas'd to perform grateful actions, and thinks he has, by that means fulfilled his duty" (T, p. 479). More generally, he then says, "When any virtuous motive or principle is common in human nature, a person who feels his heart devoid of that principle may hate himself upon that account, and may perform the action without the motive, from a certain sense of duty, in order to acquire by practice that virtuous principle, or at least to disguise from himself, as much as possible, his want of it" (T, p. 479). I note, about this whole passage, that Hume uses the word "duty," not "obligation," when talking specifically of display of the natural virtue and vice of gratitude and ingratitude, and then makes the more general claim about acting "from a certain sense of duty" in order to "practice" the virtue, or at least to conceal its absence, before he shifts to the concession about acting out of regard to obligation. The latter is of course what is at issue for his discussion of the motivation to just actions, so it is understandable

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that he includes it in his concession, and in his explanation of how that concession is compatible with his "undoubted maxim," since the exceptional case "still supposes in human nature some distinct principles which are capable of producing the action, and whose moral beauty renders the action meritorious" (T, p. 491). Does Hume use "duty" and "obligation" interchangeably? I think not, and will shortly give support for this finding. For the moment we simply need to note that Hume has not explicitly said that there is an obligation to show gratitude; rather, he has said that a man of ungrateful heart may feel a certain sense of duty to put on a display of (fake) gratitude. And we should also note how guarded Hume himself is about endorsing what the unnaturally ungrateful man thinks, when he thinks he can fulfill his duty by performing apparently grateful actions. Hume's concession here is to what people think and say, perhaps in their "common and negligent way of thinking" (T, p. 530). I do not think that this passage shows that Hume wants to extend the scope of the concept of obligation to make it coextensive with that of action expressive of virtue or the absence of vice. What the passage shows about Hume's use of the term "duty" is another matter, to which I shall shortly turn. I have said that Hume's theory has the resources to explain the errors of its opponents. I think that his account of obligation as arising from artifice, from social measures taken to redirect troublesome passions, can also show why some might think they have an obligation to try to rid themselves of any vice they detect in themselves, although he himself does not exploit these resources. If, say, Calvinists believe that a "sinfully" proud person (like Hume as a child proud of his achievements in letters) has an obligation to discipline his pride, or, to take Hume's example here, a cold-hearted unresponsive person feels he has an obligation to try to feel more gratitude to his benefactors, then he is reacting to his own individual idiosyncratic faults in a way parallel to the way a whole society reacts to the generally shared fault of avidity and limited generosity, trying by artifice to redirect a passion. Hume clearly thinks that the redirection of undue avidity, through a whole society-wide "scheme of actions," is an actualized possibility. But he expresses no optimism about individual attempts to redirect other passions which can in occasional individuals take socially pernicious forms. I have already quoted his claim that" 'tis certain that we can naturally no more change our own sentiments than the motions of the heavens" (T, p. 517), a claim that theoretically allows for the possibility that an individual might nonnaturally, by an individual (as distinct from social) artifice, change his own sentiments. Later in Book 3, in discussing the limits of voluntary individual control, Hume praises the ancient moralists for treating as virtues qualities that are "equally involuntary and necessary, with the qualities of judgment and imagination. Of this nature are constancy, fortitude, magnanimity; and, in short, all the qualities of the great man. I might say the same,

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in some degree, for all the others; it being almost impossible for the mind to change itself in any considerable article, or cure itself of a passionate or splenetic temper when they are natural to it" (T, p. 608). Clearly Hume thinks that the malleability of avidity by social artifice does not imply the general flexibility of other passions, certainly not by mere individual self-improvement regimens. For one who was as pessimistic as Hume about adult character reform it would be inhumane in the extreme to say that there is an obligation to change vices that cannot, in fact, be changed, and Hume does not say this. He limits obligation, on my reading of him, to the obligations arising from social artifice, to the sphere where cooperative redirection of passion is known to be possible. The deontological family of moral concepts, the favorites of the Natural Law tradition, are authority, law, rights, obligations, duty, and right and wrong. I have discussed Hume's treatment of authority, law, rights, and obligations, and come now to duty and right and wrong. Hume only occasionally, and then usually ironically or derisively, speaks of right and wrong. The phrase from his pen tends to occur within such contexts as "the eternal rational measures of right and wrong" (T, p. 466). He does at the start of the second Enquiry say that even the most insensitive human heart is not altogether untouched "with the images of Right and Wrong" (E, p. 170), but then he goes on to analyze good and evil, virtues and vices, not right and wrong considered as such. He often includes "blame" and "censure" among the expressions of the workings of the moral sentiment, but this is blame and censure of mostly involuntary vices and defects, not of wrongful actions denominated as such. Hume says that even the altogether involuntary bad qualities, which the moderns prefer to call defects not vices, are "blameable and censurable" (E, p. 312), but "blame" and "censure" do not for him carry the special connotations the terms have for official punishers or for moral philosophers who are "divines in disguise," forever anticipating divine punishments and rewards. Hume gives no important place to moral indignation, for the sort of censure that has angry or resentful overtones. "Who would live amidst perpetual wrangling, and scolding, and mutual reproaches?" (E, p. 257). If the moral sentiment motivated such mutual scolding, it would increase not decrease "harshness" and discord, and it would forfeit its title to be an improver of human life. A decent humane and Humean morality will minimize the sort of scolding and reproach where the term "wrong" is most at home. (It is of course at home in most games, and in simple arithmetic, where rules define what count as right and wrong moves, as the conventions of justice for Hume define morally right and wrong moves.) I come now to Hume's use of "duty." He seems to use it beyond the field regulated by the social artifices. He can speak of a father's duty, although given his view that men need the artifice of marriage and the artificial virtue of female chastity in order to know to whom they are fathers, this may not count as an artifice-independent duty. Does Hume

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ever speak of a mother's duty? Not as far as I know. Wives and wivesto-be have "special duties" (T, p. 570), as well as "obligations" (T, p. 573), ones defined by the artifice of marriage, and citizens have "political duties" (T, p. 542) and civil duties (T, p. 543) as well as an obligation of obedience to magistrates (T, p. 583). Hume in the Treatise (p. 546) contrasts "our public and private duties," where the private duties in question are ones arising from promises or contracts a person has made as a private person. So in fact most of Hume's references to "duties" seem to be to artifice-defined ones. The exception is the putative "duty" to appear grateful, in the passage in the Treatise (p. 479) whose significance I have already discounted. Nevertheless, I think that Hume does use "duty" differently from "obligation," and in a way that allows extension beyond the sphere of the artifices. I think his "duties" are Cicero's officii, and attach to roles which may be natural or artificial. So children can be said to have duties to their mothers and guardians, in virtue of their natural role as offspring and beneficiaries, and more generally, gratitude can be a duty for those who occupy the role of recipient of a free gift. In an artifice-regulated society, many roles which could be natural ones will be artifice regulated (e.g., that of parents and children), and many roles will be artifice created. The temporary role of promisor, and the role of citizen, are artifice created, and so generate "duties." Not all Humean artifices design human roles with accompanying special duties—the artifice of property does not. It creates property owners, with rights, and with obligations to respect one another's rights, but not with special duties attaching to their status as property owners (or not duties that Hume mentions). I conclude that Hume reserves the word "duty" for a fairly definite moral requirement on action arising out of some (possibly natural) station a person occupies (parent, friend, teacher, wife, husband, promisor, citizen, magistrate) but uses "obligation" where and only where some artifice puts a requirement upon us. He does not use either term when he is speaking of role-independent natural virtues such as benevolence, cheerfulness, good temper, fortitude, patience—that is, in his discussion of most of the natural virtues. These, unlike obligations and duties, are not strictly required of us but, rather, encouraged and welcomed. That fact, however, does not make them a less important component in Humean morality than the artificial and other virtues that do require a conscientious doing of one's duty or fulfilling of one's obligations. Strictness need not correlate with importance. HUME'S ORIGINALITY, CONTINUED—GIVING NATURE ITS DUE The fact that Hume does make the concept of a virtue, not that of either obligation or duty, the primary one in his moral theory and does not, like Hobbes, take a virtue to be the same as obedience to some general rule, brings me to the second point I want to make about his originality. He sees, as Hobbes and Pufendorf and Locke did not see, that the thesis

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of moral creationism applies only to one part of morality, the deontological part. Hume does not merely generalize Hobbes's moral creationism to include contract, authority, and the very concept of obligation itself in its scope, but also recognizes what lies outside its scope, namely, the natural virtues, the vital part of morality that does not consist in authoritative rules and requirements but in welcomed and encouraged natural tendencies. Hume saw indeed, as I shall shortly elaborate, that unless there were more to morality than laws and obligations, there could not be any moral laws and obligations. Hume's very phrase "artificial virtues," and his peculiar special problem about what motive we approve when we approve of the honest man's actions, alerts us to this important fact about his moral theory—that its central formal concepts are not Stoic but Aristotelian. Morality is fundamentally a matter of recognition and approval of virtues, of "that complication of mental qualities . . . we call personal Merit" (E, p. 173). The Stoic concepts of law and action in obedience to it need to be brought in only for a special important subset of the moral virtues, those Hume calls "artificial." In Hume's moral theory as a whole, deontology is circumscribed and subordinated to the main account of morality as the cultivation of and welcome for virtues, both natural virtues and artificial virtues. This fact brings me to Hume's difference from both Locke and Pufendorf. For, as far as moral creationism goes, they both have wider claims than Hobbes or Hume. Pufendorf's theory of "moral entities," imposed on physical nature and existing only as long as the imposing will recognizes them, and Locke's Essay doctrine that moral concepts, including that of obligation itself, are mixed modes made without external archetypes by "the human mind pursuing its own ends" both outdo Hobbes, and Hume too, in the explicit or implied scope of their creationism.15 (As a matter of fact, neither Locke nor Pufendorf explicitly list contract among these special moral entities, notions, or "modes." Although by general implication both must include it, they also both treat contract as more basic or "primary" than other moral modes, able itself to generate moral entities and new obligations.) Pufendorf's moral creationism is extremely comprehensive—among the examples he gives of such (in one sense) nonnatural entities are child, adulty man, and woman.16 Indeed, any term with any 15. See Pufendorf, pt. 1: "Of the Origin and Variety of Moral Entities"; and John Locke, An Essay on Human Understanding, bk. 3, chap. 5, sec. 6. 16. Pufendorf, bk. 1, chap. 1, sec. 12, dealing with moral entities that are "moral persons," says that among the categories of private person are those stemming from distinctions arising from "Sex and Age, whence come the Differences of Men and Women ... for though the Diversity of Sex and Number of Years are not of external Imposition, yet in the Method of Social Life they involve some kind of Moral Notion, in as much as different Actions are becoming in different Sexes" (p. 8). He can be read as here anticipating our distinction between sex and gender. Later in Book 6 he develops his views about what actions are becoming and unbecoming to human males and females—he takes it that sexual initiative is becoming in males only and that women should agree to male sovereignty in marriage, and he characterizes as "Barbarous at least, if not Beastly" (p. 34) the reported

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moral implications for Pufendorf names a moral entity, created by some will's imposition. Both Pufendorf and Locke, unlike Hume, want to be able to say that the honors for doing this creative imposition are to be shared between God and human beings. Pufendorf divides them out fairly straightforwardly, making some concepts depend on human legislation, other more basic ones on prior divine legislation.17 But Locke seems to want to divide the responsibility in a less clear manner. He thinks, it seems, that we create the moral ideas, ideas such as adultery, theft, murder but that it is God who forbids such actions. It is as if we give God the vocabulary with which He then enunciates the moral law. We think up the idea of obligation, and a range of possible obligations, but God decides what our obligations really are.18 I can make little sense of Locke's theory, taken as a whole. Its tensions and incoherences derive from its attempt to combine a sort of secular moral creationism with a more traditionally theological natural law theory. Pufendorf makes the same attempt. The problems in his account are less glaring than in Locke's but are at root the same. The identity of the imposing will or wills is basically unclear in both theories, and both presuppose rather than explain the authority and power of these unclearly identified imposing wills. Hume, by contrast, is straightforwardly secular in his account, and he does try to show the evolution of the concept of legislative authority, as much as of any other deontological concept. The strength of his theory of artifice lies in its being embedded in an account of natural morality and the natural virtues, for it is to this he can and does turn to show just how human communities can invent the deontological entities they do, including eventually the artifice of magisterial authority. Hume's theory of human artifice is supported by a theory of human nature and, within that, an emphasis on our natural capacities for cooperation and coordination, displayed most importantly within the natural family. I turn now to that aspect of his theory. THE PLACE OF THE NATURAL FAMILY IN HUME'S THEORY On the story Hume tells in the Treatise, it is only because of our biologically given nature, and of some aspects of that which we can approve of and so call virtues, that we can make the moral creations or artifices that we do make. We do not create or invent ex nihilo but out of potentialities provided by nature, and our creations, although not directly modeled on them, do in fact reflect and repeat features present in that nonartificial social structure, the natural family. For our given biological nature, as Hume understands it, makes us not merely physically but also emotionally couplings of "Amazonian marriages" where these asymmetries were reversed, thus going against "the Genius and Character of both Sexes." 17. Pufendorf, bk. 1, chap. 1, sec. 3. 18. For a valiant attempt to make sense of Locke's theory, see John Colman,/o&n Locke's Moral Theory (Edinburgh: Edinburgh University Press, 1983).

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and motivationally beings who are essentially family members, linked by what he calls "the relation of blood" to both ancestors and descendants, the closest of whom we live with in intimacy and interdependence19 The relation of blood, Hume says "creates the strongest tie the mind is capable of in the love of parents for their children" (T, p. 352). Hume's account in Book 3 of how we can collectively invent artifices, society-wide schemes of cooperation, depends crucially on what he had already in Book 2 argued was our human psychology. It is only because of our way of procreating, of letting family lines continue, and the psychological preconditions and effects of that, that we are able to do any social creating. Hume's story of the genesis of the social artifice is centered on this key sociobiological fact about us, one that Adam Ferguson was to repeat, that we are from the start family members. We are mammals, we "propagate our kind" by cooperating with mates and offspring in the natural family. As Hume says "in order to form society, 'tis requisite not only that it be advantageous but also that men be sensible of its advantages. Most fortunately, therefore" there is the natural family, where such advantages become known (T, p. 486). Human beings start with "a long and helpless infancy" (E, p. 206) and, if they survive that, must have had a fair amount of parental care, and been able to cooperate enough to receive that, and so become accustomed to some forms of trust and trustworthiness. Hume's account of the artifices is a story of the enlargement and proliferation of forms of trust and cooperation, and its linchpin is some initial trust, some experience of the advantages of sustaining trust. For this reason it is scarcely coherent to deplore, as J. L. Mackie does, the fact that Hume's splendid account of moral artifice is accompanied by a different account of what he calls "natural" virtues.20 Hume's theory of artifice needs the support of his account of our nature, our natural coordinative abilities, their easily perceived advantages, their natural limits, and their potential for artificial extension. What is strictly needed in Hume's account is the fact and easily perceived advantage of natural cooperation within the natural family. But he also believes there is love there too. His version of family relationships in Book 2 is of mutual love and easy intimacy, not of tyranny, rivalry, 19. The place of love and family intimacy among our modern values has been the focus of some interesting recent discussions by social philosophers. Bernard Williams discusses it in Ethics and the Limits of Philosophy (Cambridge: Cambridge University Press, 1985); and Charles Taylor in his essay "Legitimation Crisis?" sees family life as a currently threatened value. He writes: "This is particularly critical because the version of identity predominant in our society is one which aims towards a mobile subject, who loosens the ties of larger communities and finds himself on his own in the nuclear family. But this gives tremendously heightened significance to the nuclear family, which is now the main locus of strong, lasting, defining relations; and it has given the emotions of family love a uniquely important place in the modern conception of natural fulfillment. The eighteenth century already sees this positive valuation of family life, family ties, family feeling" (Taylor, Philosophy and the Human Sciences: Philosophical Papers 2 (Cambridge: Cambridge University Press, 1985). 20. See J. L. Mackie, Hume's Moral Theory (Oxford: Oxford University Press, 1980), p. 129.

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jealousy, or hostility. It speaks volumes for his own childhood care by his devoted widowed mother, and for her ways of "keeping peace among her children." In his autobiography Hume tells us how impressed he was by the maternal care he experienced, and the dedication of his Four Dissertations to John Home, author of the play Douglas, which is largely concerned with the intensity of mother love, as well as his fervent support for the controversial first production of that play, may have been inspired as much by the matter as by the manner of that now not much admired dramatic work. There is nothing at all novel in the general thesis that social ties beyond the family depend somehow on social ties within the family. Where Hume is interesting and original is in the details of his account. One striking feature is not just the emphasis on maternal devotion but also the total absence of patriarchal authority from his account of the natural family. Where Grotius takes "marriage in its natural terms for such cohabitation as places the woman under the custody or safeguard of the man," Hume does not take it that way.21 Since his father died in his infancy, and his mother did not remarry, he never experienced paternal authority. He had first-hand empirical demonstration that some women could care for their children without being, in Grotius's phrase, under the "eye" and protection of a husband, a member of the "nobler sex," to whom women on their stories submit in return for protection (protection not from the elements but from other noble males).22 Hume's widowed mother doubtless was dependent on some male relatives for the "expenses" of child rearing, but she seems to have managed home, estate, and children well enough without a husband as father and master. We know that this fact impressed Hume, and his theory is indebted to his own experience, in a way that confirms his own empiricism in epistemology. Hume's model of family cooperation, which I am suggesting is to be seen as the original parent of the social artifices, is not of cooperation within a family that needs and has a male "head." Hume knew paternal authority to be unnecessary. What is essential for the family to play the role alloted it in Hume's theory of how social artifices get invented is, first, cooperation or at least continued cohabitation between a man and a woman, then some shared parental control over children, enough to "rub off" any "rough corners and untoward affections" (T, p. 486) and to "preserve peace" among them (T, p. 493). (The mention here of untoward affections signals Hume's continuing near-obsession with the question of incest and why it should be seen as "untoward." His History of England indulges his great fascination with canon law prohibitions and various breaches of them.) Such shared parental control will be a sort of family forerunner of that "mixed government" that he thought was the best version of the artifice of magisterial authority. Any male sovereignty in the family, he tells us in "Of Polygamy and Divorces" counts as "real 21. Grotius, bk. 2, chap. 7, sec. 8. 22. Ibid.

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usurpation" (Es, p. 184). This is pretty radical, compared with Grotius and Pufendorf. Hume has come to be seen as a conservative in social theory, but on some root social issues, namely, on priestly power and male supremacy, he is no conserver but a reformer or a revolutionary.23 If it was his aim to rid his society of "the Christian superstition," as he is reported to have said on his deathbed it was (while acknowledging that the work was unfinished), this alone makes the term "conservative" inappropriate. If, as I am suggesting, the demise of priestly power in a religion worshipping a God-father would mean the demise of one form of patriarchal power, then radicalism on religion and radicalism on malefemale power relations are natural partners. Hume not merely wages a sustained and varied antireligious literary campaign, he also diagnoses the root causes of patriarchal monotheism and attempts some subversion at that deeper level. His revised version of the natural family, as a family without male sovereignty, may owe something to Hobbes, who allocates power over the child to the mother, but Hobbes did not, as Hume does, give this nonpatriarchal version of the mini-society of the family a vital role to play in the explanation of wider-ranging social structures of cooperation.24 The natural family provides experience of the benefits of cooperation and gives members of it the crucial knowledge that there can be conditions in which we can trust and work with others to mutual benefit. What is more, on Hume's account of it, we find within the natural family "the rudiments of justice" (T, p. 493), not just in cooperation itself, and in that unspoken agreement to coordination which prefigures what Hume calls "convention," but also in forerunners of specific artifices, of the content of specific conventions. In the family there is a primitive foreshadowing of property (T, p. 493), of fidelity to a sort of undertaking (T, p. 571), and of mixed government, when "the parents govern by advantage of their superior strength and wisdom, and at the same time are restrain'd in the exercise of their authority by the natural affection which they bear their children" (T, p. 486). I use the word "foreshadow" for these family anticipations of specific social artifices, following Hume's terminology in the Treatise (p. 540), when he says that military leaders who assume command in time of war, before governments are instituted, enjoy a "shadow of authority," so that "camps are the true mothers of cities," that is, of governed communities. (Hume's biological and feminine metaphor here is worthy of note.) It needs to be made quite clear that these family shadows, or foreshadowings, of the specific artifices do not, on the Humean story, directly generate or even serve as the model for those artifices themselves. The causal story is not that we make artifice copies of primitive rights and 23. I have discussed this in "Hume on Women's Complexion," forthcoming from Edinburgh University Press in a volume of essays on Hume, ed. Peter Jones, given as talks during the University of Edinburgh Institute Project Scottish Enlightenment, 1986. 24. See Thomas Hobbes, Leviathan, chap. 20.

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duties within the natural family. Hume's natural history of the artifices is much more complicated. In his account of the rise of property, it is family cooperation in general, not the specific form of it that consists in recognition of children's proto-property rights to their "own" toys, beds, and so on, that is invoked. In the account of the rise of promise, that artifice is more contrasted than likened to fidelity and reciprocity between friends and lovers (T, p. 521). And in the account of the origin of government Hume explicitly denies that the authority of governments derives from paternal authority (T, p. 541). (It could still in theory derive from maternal authority but only via military shadow authority, which, Amazons aside, seems an unlikely story, and one there is not reason to foist on Hume.) The Humean story getting us from family cooperation to societywide cooperation is not a story of a simple cloning of giant versions of aspects of family cooperation. Shortly I will discuss some features of that complex natural history, arguing that the generation of the artifices, that do indeed repeat and vary features of the family, is a much more "natural" history than it would have been if the family had simply reduplicated itself or its features in larger scale copies. Hume's account of the family, and of the causal process by which the social artifices get generated from it, is a fundamentally biological account. He sees us as a biologist does, as mammals who reproduce sexually and feed and care for our young. We are essentially family members, but the Humean concept of the family is biological not theological. Hume sees us and our nature as continuous with the rest of animal nature. Where Pufendorf saw morality, including duties of obedience to fathers and husbands, to save us from "the horrid stupidity of the dumb creation,"25 Hume goes out of his way to emphasize that we are an animal species, that our "reason" is a form of reason in animals, of animal intelligence and animal instinct; that almost all our passions have their analogues in the so-called higher animals, who outdo us in the scope of their love for others; that some cooperate instinctively and more successfully than we do. Animals are neither stupid nor horrid, in comparison with us. Our special features, for Hume, are a faculty of reflection, of turning mental processes and passions on themselves as well as their normal objects, and that inventiveness which compensates for what in the preliminaries to his account of social artifice he playfully calls nature's unnatural gifts to us in the way of "natural" equipment to survive, that is, to survive without relying on human inventions, social and other. An "unnatural conjunction" (T, p. 485) of extreme need and infirmity typifies not merely the human infant but our species as well, if one subtracts the products of our own collective inventiveness. The fact that we do have to rely on human creations, and have to learn from each other, makes us not merely inventive but acculturated animals, and 25. Pufendorf, bk. 1, pt. 1, chap. 1, sec. 2, p. 2.

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Hume would not disagree with Pufendorf about the "comeliness"26 this introduces into our lives, nor with Pufendorf's claim that neither we ourselves, once we have acquired culture, nor any god we recognize as such, would want us to "pass our life like beasts without culture and without rule/'27 Our 'natural' defects, and our compensation for them, are the source of special goods, as well as special evils when our inventions go wrong. Grotius, who keeps telling his readers to learn from other animals, such as the storks who are claimed to carry their infirm parents on their backs, is more Hume's predecessor here in seeing some admirable features in other animals, and some continuity between animal behavior and human moral behavior. He is also closer than Pufendorf to being in agreement with Hume's secularism.28 But he does not really have a theory of social artifice and does not see that rights need to be invented before they can be respected. Hume's greatness lies in the way his theory of artifice is combined with and embedded in a fairly realistic account of our biologically given nature, of what features of that we can approve of and encourage when we reflect on them from a moral point of view, what other features we find it necessary to regulate by artifices. His account both of human nature and of what virtues we often have is vital to his account of artifice and artificial virtues. For without some natural virtues such as kindness to children, patience, and gratitude in family members, the family will not serve its basic biological reproductive function, let alone serve to give us the rudiments of justice. AN ASIDE ON MARRIAGE AND OBEDIENCE Hume of course is perfectly clear that the artificial as distinct from the natural form of the family does have a "master." When he is referring to family relations as they existed in marriage-initiated families, those familiar to most of his readers, he sometimes refers to the master of a family (T, p. 487). And the artificial virtues of female chastity and modesty, along with the legal institution or artifice of marriage that he describes in the Treatise at the end of his account of the social artifices, is of course not the natural but an artificial family. Hume describes it as socially useful and as "conspicuously" artificial. It does subordinate women's freedom and interests to men's freedom and interests, but it is not said to subordinate wives to their husbands' commands. No patriarchal authority is included in the matrimonial artifice that Hume describes as serving a socially useful purpose. Chastity, not obedience, is the artificial female virtue he analyzes, one whose unnaturalness he takes to be "obvious" and to need no argument (T, p. 570). Where he had dignified the useful artifices of property and its transfer by consent as "naturally" respected artifices (T, p. 533), no 26. ibid.

27. Ibid., sec. 3, p. 3. 28. See Haakonson, "Hugo Grotius and the History of Political Thought," for a discussion of the limited extent of Grotius's secularism.

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such claim is made for the artifice of marriage with a double standard, even when that is not made to incorporate the additional artifice of male mastery. The most that can be said for it is that it is a way to serve a vital social function, providing children with full parental care. Does Hume think that marriage, as described in Treatise, Book 3, Part 2, Section 12, meets his earlier test for an acceptable social artifice, meets the demand that it be "infinitely advantageous to the whole and every part" of society? (T, p. 498). He speaks of its acceptance by "those who have an interest in the fidelity of women" and of others who have no such interest as "carried along by the stream." This is tantamount to saying that not every part of society receives infinite advantages from this artifice—it is useful only to part of society, the males intent on knowledge of paternity. It seems then that Hume is guarded in his claims about the social benefits of a form of marriage that demands greater chastity of women than of men and makes no claims at all for the social usefulness of any patriarchal form of the family. Not only is patriarchy not natural, it is not a useful artifice either. Perhaps it should be put along with priestly power that is exercised in the Mass, and in the laying on of hands, which Hume mentions as being, in their artificiality, like the artifices that make the artificial virtues possible, but unlike them in their social uselessness or harmfulness. Hume recognizes no virtue, natural or artificial, that consists in obedience to husbands. The only virtues of obedience in his list are obedience to magistrates, an important artificial virtue and, by implication, also small children's obedience to parents, both to mothers and to fathers. Hume's ethics are radical and reformist not merely in the demotion of the monkish virtues, and in the doubts cast on the heroic virtues, but also on the carefully limited endorsement given to obedience to any sort of human superior. His contemporary readers and reviewers saw that better than most readers today seem to—he was considered an apostle of a dangerous degree of liberty.29 And to reject the authority systems both of churches and of patriarchal families was indeed to preach liberation. We need then to distinguish at least three versions of the family— the natural family, the useful artifice of a family with an obligatorily chaste wife and mother, and the actual social artifice of Christian marriage in which the wife is also obligatorily obedient to her husband. It is the first of these that plays a vital role in the genesis of the useful social artifices, as Hume describes that. The second is itself an artifice that is seen to have at least sectional usefulness, and the third lurks in the background of Hume's Treatise account, neither endorsed nor criticized, and comes in for criticism in such essays as "Of Love and Marriage" (Es, pp. 557-62) and "Of Polygamy and Divorces" (&, pp. 181-90). To distinguish these three versions of the family is not to deny that vestiges of the first could remain within the second, nor that the second and third 29. See Mossner, The Life of David Hume, p. 120.

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could be combined. Presumably Hume's own experience of family life, with his widowed mother, older brother, and sister, was of a family of the second sort, that had been also of the third, and still retained that memory, as well as containing some vestiges of the natural family. When husbands, although seen to have superior authority, do not exert it, or when they die young, then families of the third sort will approximate more closely to the natural family. Of course if parental cooperation is an important element in that natural family, then one-parent families will be necessarily defective. They may be free of that "real usurpation" of male sovereignty, but they will also lack that cooperation between equals which, along with cooperation between unequals (parent and child), could serve as example and paradigm. It is noteworthy that Hume, like several other enlightened Scots of the eighteenth century, not merely spent a fatherless childhood but like them also avoided both patriarchal marriage and (unless we believe Agnes Galbraith) fatherhood. ° Avoiding male sovereignty in marriage may be essential to making families morally exemplary and nurseries of enlightenment but not sufficient to make them serve as example. Indeed, those interestingly fatherless nurseries of the Scottish enlightenment that produced enlightened sons generated no grandchildren (and no enlightened daughters either). Fatherless and unfathering, Hume and Smith had to treat their books as their offspring; some, like the Treatise, deemed "stillborn," others, like Smith's Theory of Moral Sentiments, seen as a candidate for "immortality" (L, no. 165). But enough armchair sociology and psychology, tempting though it obviously is. To recapitulate: the point I have tried to make about the place of the family in Hume's story of the artifices and their rise and progress is that it is the natural family that is important in their rise, not departures from it in any variant of the artificial family. THE NATURAL FAMILY, CONTINUED My final suggestion about the centrality of the concept of the family in Hume's social theory may be found fanciful and has little direct textual support. This is the suggestion that Hume gives us a genealogy of the artifices, which are themselves seen as a family, a sequence of generations, and ones that, like human and unlike butterfly generations, overlap in lifetime. The artifice of government, as we have seen, is found to have a "true mother," military leadership, who survives alongside her child, government. This suggestive metaphor of Hume's tempts me to extend it to his account of the "earlier" artifices, which are indeed presented by him as a sequence, later members repeating and varying features found in their ancestors but not necessarily most similar to their closest ancestors. Hume's account of how property comes about, how transfer by consent 30. It has been noted by Charles Camic, Experience and Enlightenment (Edinburgh: Edinburgh University Press; Chicago: University of Chicago Press, 1983), chap. 4. On Galbraith's assertion, see Mossner, The Life of David Hume, chap. 7.

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comes to accompany it, how promise gets added to the family, then government, then, to correct its abuses, a free press, is not really historical but abstruse and highly theoretical. I suggest that one key to its abstruse complexities is the root metaphor of the transmission of human life, of the family, dominating his thinking. He gives us a genealogy of obligations. Not only does he take social change seriously, but his "natural history" of civil society is also a biologist's natural history, not a chemist's, geologist's, or astronomer's. Hume's concept of the "nature" that social artifices imitate is neither the theologian's nor Newton's but more that of Darwin. It is understandable that T. H. Huxley chose to write a book about Hume's philosophy of human nature. Hume's story in the Treatise of the changes leading from natural families in a hypothetical "state of nature" to a civilized artifice-secured way of life is not, like those of his ungrateful beneficiary Rousseau and of his Scottish successors Smith and Ferguson, a stage theory, in which there is progress from food gathering to herding to agriculture to commerce. We have to infer from the Treatise account what sort of work those who invent barter are doing, what different condition (use of measures and of money) go with reliance on contract. The story in the Treatise is not primarily a story of economic change (although it is incidentally that) but of change in the sorts of moral ties we have to our fellows. Hume is working at a higher level of abstraction than his fellow Scots. Later in his economic essays and in the History of England he becomes very concerned to correlate the social with the economic changes, but his main interest continues to lie in the evolving network of social ties. The continuities and discontinuities he stresses in his Treatise presentation of these—the way, for example, promise picks up some formal features present in its immediate ancestor, transfer by consent, and foreshadows, in the conditional punitive powers it confers on promisees, the later appearance of magistrates' punitive power, the way these latter, like specific property rights, are exclusive, or monopolies of a power—all of these recombinations of a limited number of "genetic" components in successive members of the growing family of artifices, as Hume presents them, tempt me to suggest that the concept of the natural human family, as a sociobiological reality, is the root metaphor that generates the prima facie puzzling form of Hume's social theory in the Treatise and inspires his genealogy of social artifices, his "natural history" of human cooperation. We should see the artifices as an on-going sequence of family members, each dependent for coming to be on prior members, and each having traits that can be traced back through ancestors. The genealogy of Hume's theoretical guiding thread leads us to genealogy itself. But even if this claim about his metatheory is rejected as fanciful, if it is denied that the natural family provides Hume with the metaphor that dictates the form of his theory, it will be hard to deny that it has a vital place in the substance of that theory. If I am right about the biological or sociobiological tenor of Hume's social theory, of his account of our capacities and of how we

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overcome both the limits of our "natural" abilities and the limits of the natural family, then he was in his social theory several generations ahead of his time. His thinking has more affinities with that of Darwin and Huxley than with Pufendorf, Kant, or Mill. Nor is it clear that we today, embroiled as we are in a debate about exactly what form a coherent sociobiology of the human animal could take, have any better account than Hume's to give of how our varying cultural inheritance relates to our biological inheritance.31 Hume's treatise of human nature treats us as an inventive species, whose cultural* inventions, while they are real novelties, owe much to our non-self-invented nature. Hume's theory of social artifice recognizes the cultural component of human life, human reason, and human morality as importantly different from our more unvarying natural intelligence and "natural virtues," yet at the same time anchors these cultural variation-introducing creative capacities in the biologically given nature of those who are born into family life, who come to reflect on it and on its limits. Hume portrays us as an inventive species, as animals who by nature are cooperative, passionate, and intelligent artificers, animals whose most important inventions are the "natural artifices" that extend and transform our own powers of cooperation, creation, self-fulfillment, and self-expression.

31. See Stephen Jay Gould's endorsement of criticism of Edward O. Wilson's version of our sociobiology in "Cardboard Darwinism," New York Review of Books 33, no. 14 (September 1986): 47-54.

[17] Artificial Virtues and the Sensible Knave1 David Gauthier Hume's account in the Treatise of the artificial virtues, their obligation and motivation, resists easy interpretation. Two passages, taken from his discussion of promises, will introduce the problems I propose to examine. First: No action can be required of us as our duty, unless there be implanted in human nature some actuating passion or motive, capable of producing the action. This motive cannot be the sense of duty. A sense of duty supposes an antecedent obligation: And where an action is not requir'd by any natural passion, it cannot be requir'd by any natural obligation; since it may be omitted without proving any defect or imperfection in the mind and temper, and consequently without any vice. Now 'tis evident we have no motive leading us to the performance of promises, distinct from a sense of duty. If we thought, that promises had no moral obligation, we never shou'd feel any inclination to observe them.... But as there is naturally no inclination to observe promises, distinct from a sense of their obligation; it follows, that fidelity is no natural virtue, and that promises have no force, antecedent to human conventions.2 Ignore for the present the last sentence quoted. Hume seems clearly to be claiming that (1) an action can be a duty only if there is some motive to perform it other than a sense of duty, and (2) there is no motive to perform an act of promise-keeping other than a sense of duty. Prom (1) and (2) we may infer that (3) an act of promise-keeping can not be a duty. But since the sense of duty motivates an action only if it is apprehended to be a duty, then from (2) and (3) we may conclude that (4) there is no motive to perform an act of promise-keeping that does not involve the mistaken apprehension that it is a duty. And the second passage: Afterwards a sentiment of morals concurs with interest, and becomes a new obligation upon mankind. ... The difficulties,

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DAVID GAUTHIER that occur to us, in supposing a moral obligation to attend promises, we either surmount or elude. For instance; the expression of a resolution is not commonly supposed to be obligatory; and we cannot readily conceive how the making use of a certain form of words shou'd be able to cause any material difference. Here, therefore, we feign a new act of the mind, which we call the willing an obligation; and on this we suppose the morality to depend. But we have prov*d already, that there is no such act of the mind, and consequently that promises impose no natural obligation. (T 523) This time, ignore for the present the first sentence. The remainder would seem to confirm my reading of the first passage. Hume claims that (5) there is no natural obligation to perform an act of promise-keeping, but (6) we feign the willing of such an obligation. If, as Hume has claimed in the previous passage, (2) there is no motivation to perform an act of promise-keeping other than a sense of duty, and if obligation and duty may be taken as equivalent, then we may conclude as before that (4) there is no motive to perform an act of promise-keeping that does not involve the mistaken apprehension that it is a duty. In his theory of the artificial virtues and vices, Hume considers "the three fundamental laws of nature, that of the stability of possession, of its transference by consent, and of the performance of promises" (T 526). It would seem, from the passages cited, that Hume must suppose that there is no real obligation to keep promises, but only a feigned obligation. And since the reasoning that Hume employs in the first of the passages that I have cited is explicitly identified with "that reasoning, which provM justice in general to be an artificial virtue" (T 518), it seems clear that he must also suppose that there is no real obligation to uphold stability of possession and its transference by consent—no real obligation to observe the other laws of justice or equity.3 We may confirm this inference by examining a third passage, in which Hume claims to establish the artificiality of justice: we have naturally no real or universal motive for observing the laws of equity, but the very equity and merit of that observance; and as no action can be equitable or meritorious, where it cannot arise from some separate motive, there is here an evident sophistry and reasoning in a circle. Unless, therefore, we will allow, that nature has establish'd a sophistry, and render'd it necessary and unavoidable, we must allow, that the sense of justice and injustice is not deriVd from

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ARTIFICIAL VIRTUES AND THE SENSIBLE KNAVE nature, but arises artificially, tho' necessarily from education, and human conventions. (T 483) Hume claims that (7) an action can be equitable only if there is some motive to perform it other than a sense of its equity, and (8) there is no universal motive to perform an act of equity other than its equity. These correspond to (1) and (2) in his account of promise-keeping. And from them we may infer, ignoring for the present the complications introduced in the final sentence of the passage, that (9) the apprehension of an action as equitable is a misapprehension, and (10) the motive to perform an act as equitable involves this misapprehension. But how could a real obligation to observe the laws of equity rest on a misapprehension? Hume does not pursue a concern with sophistry, or insist on the presence of a feigned act, in his discussion of the other artificial virtues, allegiance and chastity, but his treatment of them is sufficiently parallel with his account of equity and fidelity that we may, I think, assume that he might readily have introduced such a concern. And so it would seem that Hume's theory of the artificial virtues and vices, of justice and fidelity, and by plausible extension allegiance and chastity, is an error theory.4 Hume all but acknowledges this feature when he says, As the obligation of promises is an invention for the interest of society, 'tis warp'd into as many different forms as that interest requires, and even runs into direct contradictions, rather than lose sight of its object. (T 524) The interest of society requires that we believe ourselves under an obligation to keep our promises, and so we are induced to have such a belief. This part of morality is a salutary error; Hume does not wish to undermine its hold on us. And so he does not draw out the implications of his arguments. But they are present, and apparent enough when we enquire into the foundations of the virtues that Hume treats as artificial, even if we conveniently forget them in those of our daily interactions that depend on strict adherence to the supposed duties of justice, fidelity, and allegiance—and perhaps also on adherence to chastity, although I shall henceforth ignore that supposed virtue. I propose now to follow two lines of enquiry. The first offers a different reading of Hume, distinguishing the natural obligation to justice, fidelity or promise-keeping, and allegiance from the moral obligation, and showing that the natural obligation is not feigned, and that the moral obligation may be related to it. This reading distinguishes Hume's theory of the artificial virtues from his theory of 403

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DAVID GAUTHIER morality and relegates the latter to a subordinate position. The second line of enquiry begins by introducing the sensible knave from the Enquiry Concerning the Principles of Morals. The knave offers an objection, not to this different reading of Hume as a reading, but to the adequacy of the theory so read. I shall consider how he might be answered, if not by the Hume of the Enquiry then by the Hume of the Treatise, and this will return us to an error theory that undermines the artificial virtues. I shall conclude by considering whether Hume may have an alternative answer that would leave these virtues intact. II 1. Hume makes seemingly contradictory claims about both our motive to promise-keeping and our motive to equity. I have already quoted his insistence that "we have no motive leading us to the performance of promises, distinct from a sense of duty" (T 518), and "that we have naturally no real or universal motive for observing the laws of equity, but the very equity and merit of that observance" (T 483). And yet in numerous passages he insists that there is such a motive—a motive of interest.

To the imposition then, and observance of these rules [that is, of justice], both in general, and in every particular instance, they are at first moVd only by a regard to interest; and this motive, on the first formation of society, is sufficiently strong and forcible. (T 499) And again: The same self-love, therefore, which renders men so incommodious to each other, taking a new and more convenient direction, produces the rules of justice, and is the first motive of their observance. (T 543) And with respect to our "interest in the institution and observance of promises," Hume says that all that is needed for the convention of promising is that every one have a sense of interest in the faithful fulfilling of engagements, and express that sense to other members of the society. This immediately causes that interest to operate upon them; and interest is the first obligation to the performance of promises. (T 522-23)

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ARTIFICIAL VIRTUES AND THE SENSIBLE KNAVE The second of the passages with which I began follows on immediately; thus its reference to "a new obligation." Not only does Hume make seemingly contradictory claims about motivation, he also makes seemingly contradictory claims about obligation. He insists "that promises impose no natural obligation," but only after claiming that "interest is the first obligation to the performance of promises" (T 523). And the obligation of interest is natural, as Hume makes clear when he speaks of the "natural obligation to justice, viz. interest" (T 498), and "the natural obligations of interest" referring specifically both to promises and to allegiance (T 545). So there is a natural obligation to the performance of promises, just as there is a natural obligation attending each of the artificial virtues. Can we reconcile Hume's claims into a consistent doctrine?5 Hume acknowledges that he uses 'natural' sometimes to contrast with 'artificial', sometimes with Amoral' (and also with 'civil', although that will not concern me) (T 474-75). Now we may read Hume's claims about the obligation to keep promises as (i) a denial that promises oblige naturally as opposed to artificially, and (ii) an insistence that promises oblige naturally as well as (and indeed prior to) morally. Not only may Hume consistently hold, but I shall argue that he does actually hold, that the interested obligation to keep promises is in itself non-moral, and so by contrast natural, and that it is also artificial, and so by contrast not natural. Hume would have avoided some of his apparent contradictions had he not chosen to use 'natural' to make both of these quite different contrasts—which at this point I have only introduced and not explained. Hume's claims about motivation are not so readily accommodated. Here we must note that the claims may be differentiated by context. Hume begins his discussion by considering what motive we might have to the performance of particular just acts, and dismisses in turn the agent's interest, his concern for the public interest, and private benevolence (T 480-83). And he begins his discussion of promises again by considering particular acts, and argues both that promise-making is in itself unintelligible, and that were it intelligible, promise-keeping, like abstinence from injustice, would lack any natural motive. Contextualized, Hume's claim is then that we have no sufficient motive to the performance of the particular acts required by justice and fidelity, if we consider those acts in abstraction from the practices that they exemplify. And this is to say that we have no natural motive sufficient to the performance of these acts. But the practices do provide us with a self-interested motive that is at least initially sufficient. Consider, first, justice narrowly conceived, or equity. Each person, aware of his need for society to afford him "additional force, ability, and security" in obtaining and enjoying 405

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DAVID GAUTHIER external goods (T 485) and recognizing that, "As the improvement... of these goods is the chief advantage of society, so the instability of their possession ... is the chief impediment" (T 488), must seek a remedy in a convention enter'd into by all the members of the society to bestow stability on the possession of those external goods, and leave every one in the peaceable enjoyment of what he may acquire by his fortune and industry. (T 489) Such a convention restrains the "heedless and impetuous movement" (T 489) of the love of gain, since 'tis evident, that the passion is much better satisfy'd by its restraint, than by its liberty, and that by preserving society, we make much greater advances in the acquiring possessions, than by running into the solitary and forlorn condition, which must follow upon violence and an universal licence. (T 492) And so the love of gain, suitably redirected by this reflection, restrains itself: 'tis impossible for men to consult their interest in so effectual a manner, as by an universal and inflexible observance of the rules of justice, by which alone they can preserve society. (T 534) This restraint is, we might say, an artificial motive, since it arises only as part of a conventional practice. A particular act of justice may be contrary to the agent's interest, to the public interest, to benevolence—to everything that might be thought possible to motivate it as an isolated act. But this momentary ill is amply compensated by the steady prosecution of the rule, and by the peace and order, which it establishes in society. And even every individual person must find himself a gainer, on ballancing the account. (T 497) Each, then, has an interest in the rule of justice, which he expresses ... to his fellows, along with the resolution he has taken of squaring his actions by it, on condition that others will do the same. ... And thus justice establishes itself by a kind of convention or agreement; that is, by a sense of interest, suppos'd to be common to all, and where every single act is

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ARTIFICIAL VIRTUES AND THE SENSIBLE KNAVE perform'd in expectation that others are to perform the like. (T498) Hume is insistent both on the convention and on the expectation by each person that others will adhere to it "since nothing but this combination can render justice advantageous, or afford me any motives to conform my self to its rules" (T 498). Hume argues that each person must expect to gain from the universal observance of the rules of justice, and so each has a sufficient motive for his own observance. What is the link that I have expressed by 'and so*? More specifically, how does the advantage of general observance motivate particular observance, since as Hume admits, "Taking any single act, my justice may be pernicious in every respect" (T 498)? This concession must be read as implicitly qualified; taking any single act apart from its place in the general practice, my justice may be pernicious. Thus Hume says, "A single act of justice ... were it to stand alone,... may, in itself, be very prejudicial to society" (T 497, emphasis added). But "disorder and confusion follow upon every breach of these rules [ofjustice]" (T499, emphasis added). In the context of the general practice I make "the supposition, that others are to imitate my example" (T 498), so that each particular failure undermines general observance. Each person must expect every choice that he makes between conforming to and violating the rules of justice to have an effect on the behaviour of others with consequences for his own advantage sufficient to afford him with a normally adequate motive for conformity. Nothing less will meet the requirements of Hume's argument. His own questioning of the plausibility of this expectation, expressed through the sensible knave, will afford the transition to the second part of my discussion, but for the present I shall let the argument go unchallenged. 2. Hume repeats the essentials of his account of our interest in justice or equity in establishing our interest in both fidelity and allegiance. The general practice must be invoked to warrant the particular acts, or indeed in the case of promising, to make them intelligible. In promising I express a resolution to perform the act promised, and I do so by invoking "a certain form of words," invented so that "we might give each other security of our conduct in any particular incident" (T 522). Merely expressing a resolution to act would give me no new motive or obligation, but the convention invoked by the use of the language of promising gives rise to such a motive, in subjecting me "to the penalty of never being trusted again in case of failure" (T 522). And so Hume concludes that "whoever uses [these words] is immediately bound by his interest to execute his engagements" (T 522). 407

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DAVID GAUTHIER Precisely what is the interest that motivates promise-keeping?6 Hume seems to introduce two quite different interests, although he makes no distinction between them: the interest each of us has in the practice of promising, which makes possible "mutual trust and confidence in the common offices of life" (T 544) and the interest each of us has in himself being trusted. Each of these interests takes us beyond the context of a particular promise, but in significantly different ways. The first is parallel to one's interest in maintaining the rules of justice, which would be undermined by violating them. The second is parallel to the interest one would have in not being ostracized were one to violate those rules. In the first case one seeks to avoid a general weakening of the practice of trust, and one may suppose that the adverse consequences of such weakening would fall as heavily on one's fellows as on oneself. In the second case one seeks to avoid being excluded from the benefits of the practice, and one need not suppose that the adverse consequences of such exclusion would fall significantly on others, or that one's act of promise-breaking would have any material effect on the general practice of trust. I have compared one's interest in being trusted with the interest one would have in not being ostracized were one to violate the rules of justice. Hume speaks as if not being trusted were a penalty, and we might think that ostracism would also be a penalty, but an interest in avoiding such a penalty is quite different from the interest one would have in avoiding punishment. A person who is not trusted, or who is ostracized, is unable to invoke the practice when it would be in her interest to do so. Ostracism denies access to the benefits of participation. Punishment imposes costs. Punishment for violating a practice is a second artifice, invented to reinforce the effectiveness of the original, which is the practice itself. It can motivate conformity whether or not persons value the practice to which they conform. Ostracism involves no second artifice, but only the exclusion of certain persons from the scope of the original. It can motivate conformity only if persons value the practice. It is important to distinguish generally between a person's interest in the maintenance of a practice and her interest in her participation in the practice. Hume appeals to both kinds of interest in his discussion of fidelity, although not in his discussion of justice, but as I have said, he does not seem to be aware of the distinction. I shall want to appeal to it later after the sensible knave has appeared on the scene. 3. Let us suppose that Hume has successfully shown that each person has an interest in the practices associated with the artificial virtues sufficient normally to motivate her performance of particular acts of justice, fidelity, and (although I have not examined Hume's discussion 408

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ARTIFICIAL VIRTUES AND THE SENSIBLE KNAVE of it) allegiance. What is the basis of the further claim that each has a natural obligation to these acts, considered in relation to the practice they exemplify? Indeed, what is a natural obligation? Recall first that Hume distinguishes 'natural' from 'artificial', and also from 'moral'. A natural obligation, I have already suggested, is natural as opposed to moral, but not as opposed to artificial, since it arises in the context of artifice—of a conventional practice of justice, or promising, or allegiance. But still, what is it? Hume does not tell us. Speaking of the "natural obligation to justice, viz. interest," he assures us that it "has been fully explain'd" (T 498), but the explanation is simply the account that I have already sketched of our interest in preserving society in order better to acquire external goods and to live with our fellows in peace and order. He tells us that "interest is the first obligation to the performance of promises" (T 523), and speaks later of "the natural obligations of interest, which are distinct in promises and allegiance" (T 545). And in each of the places that I have just quoted, Hume proceeds to speak of a different, moral obligation, thus confirming my claim that he is using 'natural' to contrast with 'moral'. But in each of these passages he simply takes for granted the appropriateness of speaking of an obligation, while offering no account of what distinguishes a motive that is obligatory from one that is not. And while it is possible to construct an account of moral obligation from what he says, as I shall endeavour to do presently, this account depends on Hume's view of morality in ways that make it unsuitable to try to apply it to explain natural obligation. Before proceeding I should again emphasize that not all of Hume's references to natural obligation are to be interpreted by contrasting 'natural' with 'moral'. When Hume insists "that promises impose no natural obligation" (T 523), the intended contrast must be with obligation arising from human practices based on voluntary conventions, and so with artificial obligation. Hume denies that there are or can be natural (that is, non-artificial) obligations associated with justice, fidelity, and allegiance, but he asserts that there are natural (that is, non-moral) obligations of interest to each of these virtues. My concern here is to fill the void created by Hume's omission of any explication of these interested obligations. I shall therefore simply propose an account of natural (non-moral) obligation that seems to me to fit Hume's use and to have some independent merit. I take my cue here from Hume's insistence that the motive to justice requires a redirection of interest. There is no passion, therefore, capable of controlling the interested affection, but the very affection itself, by an alteration of its direction. Now this alteration must 409

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DAVID GAUTHIER necessarily take place upon the least reflection; since 'tis evident, that the passion is much better satisfy'd by its restraint, than by its liberty. (T 492) My proposal is that the motive associated with a redirected passion constitutes a natural obligation. The redirection curbs the natural force of the passion, restraining it so that it may be "better satisfy'd." But we may suppose that the natural tendency of the passion to its unrestrained fulfilment is still present, so that the effect of the redirection is felt as restraint. The agent recognizes her interest as requiring restraint, but nevertheless what is required is restraint, and so she takes herself to be under an obligation. There is nothing moral in this obligation, since it relates solely to the better satisfaction of her own love of gain, but the absence of morality is not equivalent to the absence of restraint. The absence of morality should, however, be emphasized before we consider how Hume introduces it. He insists that adherence to the rules of justice is "at first moVd only by a regard to interest; and this motive, on the first formation of society, is sufficiently strong and forcible" (T 499). However, as society increases, "this interest is more remote; nor do men so readily perceive, that disorder and confusion follow upon every breach of these rules, as in a more narrow and contracted society," and so "we may frequently lose sight of that interest, which we have in maintaining or der* (T 499). Note that Hume does not say that as society increases, its members cease to have an interest sufficient to motivate adherence to the rules of justice. Quite the contrary; Hume insists that in society the "consequences of every breach of equity seem to lie very remote," so that they "are not able to counterbalance any immediate advantage, that may be reap'd from it," yet they are "never the less real for being remote" (T 535). It is therefore the short-sightedness of persons, in failing to recognize the effects of their actions on maintaining the rules of justice, that makes interest motivationally insufficient in practice. Were persons as aware of the more remote and diffuse effects of their actions as of the immediate effects, there would presumably be no need for any additional motivation to reinforce their redirected interest in assuring its own restraint. Morality is therefore practically necessary but theoretically dispensable in motivating conformity to the requirements of justice, fidelity, and allegiance. Now this is not an original observation. Bernard Wand emphasizes this feature of Hume's account as an objection to it: We never consider that the function of moral obligation is to serve as a substitute for narrow self-interest.... we consider 410

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ARTIFICIAL VIRTUES AND THE SENSIBLE KNAVE that when we act from moral motives, the nature of our motives is radically different from that of self-interest.7 Perhaps we do think this, but perhaps we are confused in thinking it. I shall, however, argue later that Hume should not treat morality as theoretically dispensable, even though he is right to see it, if not as a substitute, then perhaps as a replacement for narrow, or even broad, self-interest. But before turning to this argument—which again awaits the sensible knave—I shall examine Hume's view of the motivational role played by morality in relation to the artificial virtues, and his idea of moral obligation. 4. When I consider a character trait, I have an idea of its immediate agreeableness or disagreeableness, and of its utility or disutility, both to its possessor and to other persons. This awareness gives rise to an impression in me, corresponding to my idea of its effects; this is the work of sympathy. And this sympathetic impression is the basis for my moral assessment of the trait. Thus if I consider someone's benevolence, I think of the benefits she confers on those with whom she associates, and this idea of its utility gives rise to a pleasing impression which leads me to judge her benevolence to be morally virtuous. In like manner, if I consider someone's disposition to justice or equity, I think of the service afforded to the public interest by the universal practice to which her disposition is related, and this idea then gives rise to a pleasing impression leading me to judge the justice of her character to be morally virtuous. Fidelity, or a regard to promises, and allegiance, or obedience to civil authority, similarly receive my moral approbation. A more careful and detailed account would reveal problems in Hume's view of moral approbation that I want simply to bypass as not directly relevant to my main concerns. I shall focus on the relation between moral approbation and moral obligation. Hume says, when any action, or quality of the mind, pleases us after a certain manner, we say it is virtuous; and when the neglect, or non-performance of it, displeases us after a like manner, we say that we lie under an obligation to perform it. (T 517) To understand Hume's position we must distinguish the standpoint of the agent from that of the spectator. And I shall do this by considering first a natural virtue, one of those common motivational traits that receive moral approbation independent of conventional practices—generosity. I observe the gifts you make to your friends and to charitable causes, and I take your behaviour to indicate a generous disposition. The idea of such a disposition pleases me after a certain 411

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DAVID GAUTHDER manner; this pleasure in turn leads me to judge that your disposition is a virtue and that you are virtuous. Or I observe your refusal to contribute to charitable causes, and the mean and paltry gifts you make to friends, and I take your behaviour to indicate niggardliness and the lack of a generous disposition. The idea of such a lack displeases me after a like manner, and this displeasure leads me to judge that your niggardliness is a vice, and that you lie under an obligation to give more generously. This is the spectator's view, but it requires certain assumptions about the agent. For the last judgement, of obligation, presupposes that persons are naturally moved to generous behaviour. I have quoted Hume as insisting that where an action is not required by any natural passion, it cannot be required by any natural obligation; since it may be omitted without proving any defect or imperfection in the mind and temper, and consequently without any vice. (T 518) Here 'natural' contrasts with 'artificial', and so what Hume says must apply to the moral obligation associated with the natural virtue of generosity. If I take you to be under an obligation to give more generously, then I must suppose that such giving is required by a natural passion, and that its absence indicates a defect in your temper. But if you lack generosity, then how can you be motivated to more generous behaviour? Hume has an answer: When any virtuous motive or principle is common in human nature, a person, who feels his heart devoid of that principle, may hate himself upon that account, and may perform the action without the motive, from a certain sense of duty, in order to acquire by practice, that virtuous principle, or at least, to disguise to himself, as much as possible, his want of it. (T479) This capacity, to hate oneself for lacking virtue and consequently to act to acquire or at least simulate it, is present to motivate obligatory behaviour should its natural motive be lacking. Thus the spectator, in claiming that the agent has an obligation to act generously, ascribes to her either the natural passion of generosity or the self-hatred occasioned by its absence. And it is this second ascription, of self-hatred at the absence of the natural motive, that is essential to moral obligation. This account explains the moral obligation to behave in accordance with a natural virtue. Note that it requires that the virtue be identified 412

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ARTIFICIAL VIRTUES AND THE SENSIBLE KNAVE initially as a character trait that motivates in a manner quite independent of moral approbation, and that any agent may be supposed to be motivated either by possession of this trait or by the felt lack of it. But is a similar explanation possible for the moral obligation to behave in accordance with an artificial virtue such as justice? The sense of justice is not a natural trait, whose absence is a defect in one's temper; rather it "arises artificially, tho' necessarily from education, and human conventions" (T 483). Can it be identified as a character trait that motivates in a manner quite independent of moral approbation? A person has an interested motive to the performance of just acts, and this motive is independent of moral approbation, but does it arise from the sense of justice? If not, and if the only motive arising from the sense of justice is the moral obligation to just acts, then we can not explain this obligation by appealing to self-hatred occasioned by the felt lack of a prior virtuous motive. I suggest, however, that the interested motive to justice does indeed arise from what we come to identify as the sense of justice. In itself the sense of justice is simply self-love, or more precisely what Hume calls "the interested affection," or "love of gain" (T 492), but redirected towards its fuller satisfaction through its own restraint by the conventionally instituted laws of society. Absent these conventions there could be no sense of justice, since there would be no basis for distinguishing particular actions as just or unjust, or for identifying any behaviour as part of a general practice that offers increased satisfaction through restraint. The moral obligation to be just, then, arises from reflection on the beneficial tendencies of redirected interest. I observe the effects of the universal practice of justice, and I take your adherence to the practice to indicate a just disposition. The idea of such a disposition pleases me after a certain manner9, this pleasure in turn leads me to judge that your disposition is a virtue, and that you are virtuous. Or I observe your disregard of justice and the disorder and confusion that your conduct occasions and I take your disregard to indicate the lack of a just disposition. The idea of such a lack displeases me after a like manner, and this displeasure leads me to judge that your injustice is a vice, and that you lie under an obligation to act justly. If you feel yourself devoid of the redirected interest that constitutes justice, you may hate yourself upon that account, and may perform the just action without the motive from a certain sense of duty, in order to acquire by practice a sense of justice, or at least, to disguise to yourself, as much as possible, your want of it. This capacity, to hate oneself for lacking justice and consequently to act to acquire or at least simulate it, is present to motivate obligatory behaviour should its interested motive be lacking.

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DAVID GAUTHIER If I am right, then the explanation of the moral obligation to behave in accordance with an artificial virtue is strictly parallel to the explanation of the moral obligation to behave in accordance with a natural virtue. It requires that the artificial virtue be identified initially as redirected interest, which of course motivates in a manner quite independent of moral approbation, and that any agent may be supposed to be motivated either by possession of this interest or by the self-hatred occasioned by the felt lack of it. In his account of Hume's theory of justice, Knud Haakonssen notes the problem that Hume faces in specifying the motive that "is missing if we behave unjustly" and that "we come to hate ourselves for not having."8 The only actual motive is, as I have argued, self-interest, which Hume does not regard as a character trait that is morally approved, but rather as morally neutral. And Haakonssen is then led to the view that Hume supposes that people imagine that there is a natural motive (and thus a character trait) ... namely the willing of an obligation. And it is this imagined motive that, through sympathy, they come to approve of. And when they find that, for very good reasons [presumably its non-existence], they do not have this motive themselves, they come to hate themselves, an. external claim requires a background rule in the obvious sense that it is a claim about a rule (from the outside). Were there no rule of property, for example, there would be no rule-obligation to report. But internal standpoint claims do not similarly refer to rules as part of their very content. They assert nothing about any rule. Someone who accepts the rule or norm of property, and says from the internal standpoint that people are obligated to abstain from the possessions of others, makes a normative claim that expresses the rule, or perhaps, his acceptance of it.38 But a claim with the very same content could be made were there no established rule of property or conventions of justice at all. An external standpoint rule-obligation claim, therefore, requires reference to a rule for its very intelligibility, but an internal standpoint claim does not. Still, we can understand why Hume would think there is a sense in which even the normative claims that agents make when they accept a rule are not really intelligible without an existing background convention. Hume clearly regards the attitude self-regulators take towards the rules of justice as reasonable only so long as enough others share it. And what makes this possible, he thinks, is the publicly expressed common sense that it serves mutual advantage, i.e., the existence of what he calls a convention.39 For Hutcheson, recall, there are no act-regarding virtues. All virtuous motives are "kind affections," desires for the good of others. And any rational motive is a desire for some good to self or others. Humean justice, however, aims at no

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condition or state to which it regards action as instrumental, but at action, or the governance of action, itself. This is, as I have noted, a significant departure from Hutcheson.40 But it is also important that for Hume it is the only actregarding virtue, because it is the only case in which the motivational state of rule-regulation is supported by mutually advantageous conventions. No such state is natural; it arises only as a result of a convention, through publicly expressed mutual advantage. Hume, then, recognizes three species of obligation: those he calls "natural" and "moral", and that we have called rule-obligation. While, on its face, the third concept has nothing essentially to do with rational motive, I shall be claiming that a central piece of Hume's account of justice is that just persons are rationally motivated by their acceptance of the rules of justice, and that this motivation is not itself a species of any desire for the good, either for themselves or generally.41 VI. Justice, Motive, Rule, and Good Again, Hume clearly says that rules of justice are established only when individuals come to regulate their conduct by these rules (T.490,499,532,533,534). They "lay themselves under the restraint of such rules," (T.499) "impose" them on themselves (T.533), and "supposfe them] to be sacred and inviolable." (T.533) It is hard to see how to interpret these remarks in any way other than as entailing that rules of justice are established only when individuals come to treat rules of justice as having authority in their deliberations, when, that is, they give them independent weight (indeed conclusive independent weight), thereby deliberating on a basis different from their own good (or, for that matter, the public good). Nonetheless, Hume appears to take the position in the Treatise that what the rules of justice require is invariably extensiohally equivalent with the dictates of enlightened self-interest. If so, then despite their intensional inequivalence, Hume seems to believe in the Treatise that enlightened self-interest invariably leads to compliance with rules of justice, so that agents can actually "regulate" themselves by these rules without giving them independent deliberative weight. Hume certainly there says that it is only because each person can expect to gain by the existence of rule-structured practices of property, transfer, and promise that each has reason to establish them. To the imposition then, and observance of these rules, both in general, and in every particular instance, they are at first mov'd only by a regard to interest; and this motive, on the first formation of society, is sufficiently strong and forcible. (T.499, emphasis added)

Once the "common sense of interest" is mutually express'd, moreover, no more is needed "to induce any one of them to perform an act of justice, who has the first opportunity," (T.498) Each sees that doing so will become an example of

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good will to those equally prepared to follow the rules if others do, and this makes it advantageous for her to do so. "On the first formation of society," when each appreciates the "disorder and confusion" that result from "every breach of these rules," self-interest dictates observing the rules "in every particular instance." (T.499) When the circle of interagents is sufficiently small, and the rules insufficiently well established, the personal costs of flouting them are likely to be high; the situation will resemble, not a "one shot" Prisoner's Dilemma, but an iterated form of that game, changing the payoffs to make justice and self-interest coincide.42 Were this situation to continue, agents could successfully comply with the rules of justice by following their own interests. Hume does not expect it to, but in the Treatise, at any rate, the reason he doesn't is apparently not that he thinks that when "society has become numerous, and has increas'd to a tribe or nation," individuals can sometimes actually gain by violations, but because he thinks that the interests individuals have in maintaining order are there "more remote" and ones they "may frequently lose sight of," so that they come to follow "a lesser and more present interest." (T.499)43 In a larger, more anonymous setting, [t]he consequences of every breach of equity seem to lie very remote, and. are not able to counterbalance any immediate advantage, that may be reap'd from it. They are, however, never the less real for being remote... . (T.535)

Before the mutual acknowledgment of a shared interest in establishing rulestructured practices of property, transfer, and promise, self-interest "is the source of all injustice and violence." (T.480) But once there is a convention, "a general sense of common interest," this is sufficient to make self-interest the servant of justice. When society becomes sufficiently numerous, individuals may tend to lose sight of their real interests, but these continue to dictate abiding by the rules of justice in every case. Because Hume stresses that the primary benefits of justice for individuals are benefits they reap from the practice, from the "whole plan or scheme," (T.497) and because he says that "single acts of justice may be contrary, either to public or private interest," (T.497) it may seem that he is willing to allow in the Treatise that justice may occasionally conflict with the agent's interest, that it is possible for individuals to act unjustly and "free ride" on the just actions of others. In this context, however, Hume is excluding from the consequences of individual just acts any compliance they may cause by others.44 "A single act of justice is frequently contrary to public interest, and were it to stand alone, without being follow'd by other acts, may, in itself, be very prejudicial to society." (T.497) So the "somewhat singular" connection Hume asserts in the Treatise between the rules of justice and self-interest is not, as we might expect from recent discussions of the free rider problem, that though the "whole plan or scheme" is essential to promoting mutual advantage, individual acts of justice may be con-

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David Hume 428 NOUS trary either to the agent's or to the public interest. Hume's point at T.497 is that, considering all consequences other than those that run through the rule-structured practices of property, transfer, and promise, individual acts of justice may do more harm than good. Once we include these practice-mediated effects, however—e.g., that trust may be threatened and therefore others may be less likely to comply—then, Hume appears to believe in the Treatise, it is invariably in the agent's interest to comply. The "singular connection" is that it is only because others are likely to comply only if one does—that their compliance with rules of justice is among the consequences of one's compliance—that each individual agent's complying with the rules of justice invariably has the best consequences. As far as the Treatise goes, therefore, it would appear that we need not take Hume's talk of agents regulating themselves by the rules of justice too seriously. Compliance with these, or with what I have called the "meta-rule of cooperation," is invariably dictated by self-interest once the common sense of interest in establishing just practices has been mutually expressed. Individuals comply with these rules only because others do, but this latter consideration functions for them not as a condition for giving intrinsic weight to these rules, nor as the antecedent of an intrinsically weighty meta-rule of cooperation, but as the fact that one had better comply since others are likely to comply only if one does, the good consequences of their compliance being consequences of one's compliance as well. VII. Moral Obligation, Motive, and Act Still, even in the Treatise, Hume says that just practices will be stable among interagents sufficiently numerous to constitute a "tribe or nation" only if they have some other motive to comply. Self-interest will continue to dictate compliance, but when the bad consequences of injustice are sufficiently remote, persons are far likelier to be attracted by "lesser and more present interests]." (T.499) So some other motive is necessary. The problem is that Hume says that the requisite motive is the sense of duty or moral obligation, and, as I have said, this requires some further motive as its object. Indeed, Hume holds that the sense of duty is not simply a fail safe, but the motive uniquely appropriate to justice. "[W]e have naturally no real or universal motive for observing the laws of equity," he writes, "but the very equity and merit of that observance." (T.483)45 And: 'tis evident we have no motive leading us to the performance of promises, distinct from a sense of duty. If we thought, that promises had no moral obligation, we never shou'd feel any inclination to observe them. (T.518)

Justice's having merit, being a duty, and being morally obligatory all come to the same thing for Hume, viz., that justice is the object of moral approbation and injustice the object of moral disapprobation. (T.477,498-500,517) But approba-

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tion and disapprobation always take some "mental quality" as direct object. An "external performance"—for example, an action that complies (extensionally) with a rule of justice—"has no merit" in itself. So a just action can only acquire merit derivatively, by evidencing a meritorious motive. (T.483-484) It follows that "no action can be equitable or meritorious, where it cannot arise from some separate motive," (T.483) i.e., some motive other than the sense of merit, duty, or moral obligation. These ideas seem to be in irreconcilable conflict. How can Hume both hold the fundamental thesis of his virtue ethics, that the sense of duty cannot be the "first virtuous motive" (T.478) of justice or any other virtue, and also think that it is the only "real or universal motive for observing the laws of equity"? (T.483) This conflict has led commentators to the conclusion that Hume cannot really mean to maintain his distinctive virtue ethic when it comes to justice. Although with the natural virtues, it is clearly the case that what we approve is some motive or mental quality that might be manifested in various actions, when it comes to the artificial virtues, what is approved in the first instance, and thus morally obligatory, are actions themselves, viz., those that comply with the rules of justice.46 In this section, I shall argue that this interpretation faces numerous obstacles. To avoid these, justice must be treated, like every Humean virtue, as having moral qualities only as "a mental quality," specifically, as a motivational state. Seeing things this way, however, will leave the substantial question what this motivational state can be, especially since what is distinctive about justice in Hume's view is the way a sense of obligation is supposed to enter into it. On any reasonable interpretation of Hume's ideas, the moral obligation to justice is supposed to derive from the fact that sympathy with the usual effects of justice and injustice leads to moral approbation of justice and moral disapprobation of injustice, respectively. (T.479, see also T.483,518) And it is uncontroversial that the relevant consequences are (at least primarily) consequences of acts of justice and injustice. What is at issue is whether Hume thinks that, uniquely with justice (and the artificial virtues more generally), the proper object of moral approbation and disapprobation are kinds of acts. Or whether he holds that with both artificial and natural virtues the object of moral sentiment is a mental quality of which an "external performance" is only a sign. Since Hume puts forward the thesis that "all virtuous actions derive their merit only from virtuous motives, and are consider'd merely as signs of those motives," right at the outset of Part II ("Of Justice and Injustice"), and since it is the centerpiece of his argument that justice is an artificial virtue, it is hard to see how he can mean it not to apply to the case of justice. (T.478) But perhaps we should not conclude from this directly that Hume denies that acts of justice and injustice can be morally approved or disapproved in themselves. After all, common sense distinguishes analytically between evaluations of persons and their characters (and of actions as signs of these), on the one hand, and evaluations of acts as things to do, on the other. Hume could be saying that "merit" concerns the former while believing that another category of moral evaluation concerns the

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David Hume 430 NOUS latter. This thought might be encouraged by the account he gives of moral obligation in his discussion of promising: when any action, or quality of the mind, pleases us after a certain manner, we say it is virtuous; and when the neglect, or non-performance of it, displeases us after a like manner, we say that we lie under an obligation to perform it. (T.517)

Perhaps his view is that while merit, virtue, and vice all concern mental qualities of the agent in the first instance, moral obligation primarily concerns acts— "external performances". And if just acts can be morally obligatory, then perhaps the just person is moved actually to follow the rules of justice by this conviction or sentiment. This passage notwithstanding, however, Hume makes no principled distinction between the categories of virtue and vice, merit and demerit, on the one hand, and duty and obligation, on the other. Hume does not say that the (moral) motive to justice is the sense of duty or obligation as opposed to a sense of merit and virtue. Rather: "the very equity and merit" of just acts is the only "real or universal motive for observing the laws of equity." (T.483) And he includes the category of moral obligation within the scope of the thesis that links the moral quality of an action to that of its motive: But tho', on some occasions, a person may perform an action merely out of regard to its moral obligation, yet still this supposes in human nature some distinct principles, which are capable of producing the action, and whose moral beauty renders the action meritorious. (T.479)

Whenever we require an action, he says, "we always suppose, that one in that situation shou'd be influenc'd by the proper motive of that action, and we esteem it vicious in him to be regardless of it." (T.478) How thoroughgoing Hume's commitment is to this thesis can be illustrated by his discussion of the rare instance in which "the sense of morality or duty [can] produce an action, without any other motive." (T.479) Whenever we approve of a motive or principle in human nature, a person, who feels his heart devoid of that principle, may hate himself upon that account, and may perform the action without the motive, from a certain sense of duty, in order to acquire by practice, that virtuous principle, or at least, to disguise to himself, as much as possible, his want of it. (T.479)

By "the action" here, Hume evidently means an action characteristic, and thus ordinarily a sign, of a virtuous motive or "mental quality." If what the sense of duty (later in the paragraph: "regard to its moral obligation") motivates is acting in order to acquire a virtuous principle by practice or to sustain ignorance of its lack, then the object of moral duty or obligation must be having the virtuous principle itself.

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Were Hume to maintain that just acts are literally morally obligatory (by his definition) independently of the agent's state, and that this approbation is what directly motivates just acts after the "first formulation of society," he would face numerous problems. Most obviously, he would have to abandon the fundamental principle of his virtue ethics, that all merit derives from "mental qualities." But second, it is not obvious that Hume could count a moral approbation of just acts that was independent of their relation to a state of the agent as any kind of motive to justice. One reason is that the way Humean approbation motivates is indirectly, through the agent's hatred or esteem of himself on account of his qualities.47 Approbation or disapprobation are "nothing but a fainter and more imperceptible love or hatred." (T.614) And only insofar as the objects of approbation and disapprobation are qualities in the agent will they be related to love and hatred in the right way. Knowing that an agent performed a kind of act we regard unfavorably does not yet connect the act to her in a way that reflects on her as an appropriate object of love or hatred. Thus, while Hume is willing to allow that approbation and disapprobation can as a psychological matter be transferred by association from thing signified to sign (T.479), in order to motivate through selfesteem or self-hatred, the object of moral sentiment must be some quality in the person.48 Additionally, in a manuscript amendment to the Treatise's original edition, Hume makes it clear he thinks that moral approval of justice is an insufficient motive to just acts in any case. Thus Self-interest is the original Motive to the Establishment of Justice: but a Sympathy with public Interest is the Source of the moral Approbation, which attends that Virtue. This latter Principle of Sympathy is too weak to controul our Passions; but has sufficient Force to influence our Taste, and give us the Sentiments of Approbation or Blame. (T.670, see also T.586)49

A third and final point. The idea that moral approbation of just acts can directly motivate agents conflicts no less with Hume's official theory of the will than does the suggestion that agents are motivated by their acceptance of mutually advantageous rules. If will exerts itself only when "the good or the absence of the evil may be attain'd" by an action, then it will not be moved by moral obligation/;^ se. At most, the agent will be moved to follow the rules of justice by the thought that doing so will enable him to avoid painful contemplation of (his own) injustice. If somehow he could do injustice without having to contemplate it, this would give him no reason not to. VIII. Justice as an Agent-state If the moral obligation to justice derives from our approbation and disapprobation of justice and injustice as states of the agent, respectively, the question obviously arises, which states are they? Hume never says explicitly, so the

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interpretive problem is to work out what it might be indirectly.50 David Gauthier suggests that in the Treatise Hume holds that justice as a motivational state of the agent is nothing other than self-love ("the interested affection") "redirected towards its fuller satisfaction through its own restraint by the conventionally instituted laws of society."51 Hume rejects the possibility that "a concern for our private interest or reputation is the legitimate motive to all honest actions" (T.480) in arguing that justice is an artificial virtue, but that is on the grounds that before the convention arises "self-love...is the source of all injustice and violence." (T.480) And, as we've seen, Hume holds in the Treatise that once the sense of common interest has been mutually expressed, a person appropriately mindful of justice's long-term benefits, and able to weigh them properly with "lesser and more present interests" (T.499), will always have an adequate motive of interest to comply with its rules. Hume has a name for the trait that enables a person to act in her greater long term interest when that requires foregoing lesser, more immediate interests: strength of mind (T.418, see also, E.205,239)52 Suppose we take Hume to hold that suitably enlightened self-interest, or strength of mind, is the motivational state distinctive of the just person. If selfinterest invariably dictates compliance with the rules of justice, as Hume appears to believe in the Treatise, then a fully-informed, strong-minded person will invariably comply. Moreover, we can understand on this hypothesis how someone lacking this trait might be moved by the sense of duty or moral obligation to act justly in situations where he otherwise would not. If lesser, more immediate interests incline him to act unjustly he may still reflect, contemplate his lack of a strong mind, and "hate himself upon that account." (T.478) And this will give him an additional, and more immediate interest in acting justly than he would have had if he didn't disapprove weak-mindedness, since by so acting he will be encouraging a trait of which he would be proud, "or, at least, disguis[ing] to himself, as much as possible, his want of it." (T.479) Now while this shows how an obligation to justice other than the natural obligation (self-interest) can figure in motivating justice as a backup if the virtue of justice is strength of mind, it does raise various puzzles, even in the Treatise. First, although Hume's general view is that virtues include various kinds of "mental qualities," he says at the beginning of his discussion of justice that "all virtuous actions derive their merit from virtuous motives." (T.478, emphasis added) This suggests that the agent-state of justice involves a distinctive motive to just acts. But on the current proposal, the motive of just acts is simply enlightened self-love. Second, it is hard to explain on this proposal the prominence Hume gives to a distinctive motivational source (and thus obligation) in the case of justice and the other artificial virtues. I have already mentioned Hume's remarks in the Treatise that the sense of moral obligation is the only "real or universal motive for observing the laws of equity," (T.483)53 and that "if we thought promises had no moral obligation, we never shou'd feel any inclination to observe them." (T.518)

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In "Of the Original Contract," Hume makes clear that what he has in mind here is nothing less than a fundamental difference between natural and artificial virtues: All moral duties may be divided into two kinds. The first are those, to which men are impelled by a natural instinct or immediate propensity, which operates on them, independent of all ideas of obligation... . The second kind of moral duties are such as are not supported by any original instinct of nature, but are performed entirely from a sense of obligation.54

If Hume thinks strength of mind is the trait we admire in the just person, and that enlightened self-interest invariably dictates complying with rules of justice, then it is odd that in his description of the just person's practical thinking he would give a prominent role to a sense of any obligation to justice other than the "natural obligation" of self-interest.55 Third, it is a mystery why Hume should say that there is any idea of obligation that is "unintelligible" before the "convention, concerning abstinence from the possessions of others, is enter'd into." (T.490) As I've argued, neither of the ideas of natural obligation or moral obligation require conventions to be understood. On the present suggestion, the idea of natural obligation would be adequate to capture the practical thinking of the just person, and that of moral obligation would suitably explain the evaluative thoughts of observers of justice and injustice, and of agents as observers of themselves. So why does Hume think there is any idea of an obligation to justice that requires the existence of convention in order to be understood? In Section V, I claimed that Hume's remarks about the unintelligibility of obligation before the existence of a convention concerning property make sense if we take him to be speaking of norm- or rule-obligation. The convention in question is a sense of common interest in regulating conduct by rules of justice (or perhaps, by what I called the meta-rule of cooperation). Each communicates to the other his sense that it is in his interest to accept and abide by the rule of abstinence "provided he will act in the same manner with regard to me." (T.490)56 Again, this is not a prediction that if others abstain, then it will be in one's interest to do so. Of course, Hume believes that it is in each person's interest to encourage others to abstain by abstaining as an example, but that is a different matter. Rather, it is an expression that it is one's interest to accept and follow a conditional rule or norm: abstain if others do. On this hypothesis, there would indeed be a sense of 'obligation' for which Hume believes people would have no use before the convention, before the expression of common interest in regulating themselves by the rule, viz., the idea of rule-obligation. Still, although Hume speaks as though participants in a rule-structured practice of justice genuinely regulate themselves by rules they accept, regarding them as authoritative (and overriding), what he really seems to think in the Treatise is that self-interest always provides an adequate deliberative basis. Only meta-

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David Hume 434 NOUS phorically do just persons "regulate" themselves by the rules; their motive is always given by enlightened self-interest. IX. Justice and the Sensible Knave In the Enquiry, however, Hume is no longer prepared to say that justice is invariably advantageous: a man, taking things in a certain light, may often seem to be a loser by his integrity. And although it is allowed that, without a regard to property, no society could subsist; yet according to the imperfect way in which human affairs are conducted, a sensible knave, in particular incidents, may think that an act of iniquity or infidelity will make a considerable addition to his fortune, without causing any considerable breach in the social union and confederacy. (E.282)

Hume now appreciates what we have come to call the "free rider problem." Or, at least, its appearance. People "may think" that, occasionally, they benefit more by injustice, even in the long run, since, owing to the "imperfect way in which human affairs are conducted," a single injustice may not cause "any considerable breach in the social union and confederacy." Nor, Hume must believe, is this mere appearance. If it were, he would answer the knave differently than he does. The knave's position is to regard "honesty is the best policy" as a "good general rule" that is nonetheless "liable to many exceptions," and that "he...conducts himself with most wisdom, who observes the general rule, and takes advantage of all the exceptions." (E.282-283) If Hume really believed at this point that, despite appearances, justice is invariably advantageous, he would try to correct the knave's beliefs about the consequences of injustice. Indeed, even if Hume believed the knave is right that particular unjust acts may actually be advantageous, but nonetheless thought it disadvantageous, because too risky, to execute a policy of making exceptions to the rules when doing so appears advantageous, he could still recommend inflexible conformance to the rules of justice solely on the grounds that it is the most advantageous general policy. But Hume does neither of these things. While he does point to ways in which knaves may be betrayed by their own frailties, the overall burden of his response is quite different. Hume despairs of adequately answering a knave who can regard the rules of justice as no more than strategically valuable. If his heart rebel not against such pernicious maxims, if he feel no reluctance to the thoughts of villainy or baseness, he has indeed lost a considerable motive to virtue. (E.283)

If, that is, there were no moral obligation to justice—if normal human beings did not disapprove of knavery—then we might lack an adequate motive to justice. It is only the moral sentiment and our tendency to love and hate ourselves on the

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strength of our virtue and vice that give us moral interests that make the just life advantageous: "Inward peace of mind, consciousness of integrity, a satisfactory review of our own conduct; these are circumstances, very requisite to happiness, and will be cherished and cultivated by every honest man, who feels the importance of them." (E.283, see also T.501). Hume does not say why the uncertainties and dangers inherent in the knave's strategy would be insufficient in themselves to warrant treating the rules of justice as inflexible constraints, but we can see some problems that would develop. Even if an agent lacking moral interests can be convinced she would be better off were she so to treat the rules of justice as a matter of general policy, there will inevitably be cases where the most advantageous policy will dictate what she reasonably believes to be less advantageous acts. How, in such cases, is she to deliberate? She knows that she is better off in general if she deliberates by justice rule-regulation. But she may also have very good reason for thinking that in this case she will be better off by violating. The very reasons that recommend that she generally deliberate by rule-regulation, recommend that she violate. In such circumstances, her practical convictions may well prove unstable. Moral interests counteract this instability. Prone to self-esteem or self-hatred through inescapable reflection on our own character, and deeply concerned with the approval of others, we have more at stake in violating the rules of justice. "After the opinion, that a merit or demerit attends justice or injustice, is once firmly establish'd among mankind," the interest in our reputation (than which nothing "touches us more nearly") comes to depend more on "our conduct, with relation to the property of others" than on anything else. (T.501) "For this reason," Hume concludes, "every one, who has any regard to his character, or who intends to live on good terms with mankind," must fix the rules of justice as an "inviolable law." (T.501) Likewise, if we did not think that infidelity to promises was vicious (contrary to moral obligation), "we never shou'd feel any inclination to observe them." (T.518)57 But because we do, anyone who makes use of the conventional signs of promising "is immediately bound by his interest to execute his engagements." (T.522) The moral interests in integrity, reputation, and so on, that support regulating conduct by the rules of justice, therefore, do not also support acts that violate these rules. Thus while in the Treatise Hume appears to believe that self-interest invariably dictates justice, by the time of the Enquiry he has apparently abandoned this view, having come to think that, with large numbers, occasional injustice can be advantageous owing to the free rider problem. Any doubt about Hume's having recognized the free rider problem (finally, at least) is removed by the following passage from the "The Origin of Government": All men are sensible of the necessity of justice to maintain peace and order; and all men are sensible of the necessity of peace and order for the maintenance of society. Yet, notwithstanding this strong and obvious necessity, such is the frailty and perver-

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David Hume 436 NOUS seness of our nature! ... Some extraordinary circumstances may happen, in which a man finds his interests to be more promoted by fraud or rapine, than hurt by the breach which his injustice makes in the social union. But much more frequently, he is seduced from his great and important, but distant interests, by the allurement of present, though often very frivolous temptations.58

But if this is so, the virtue of justice cannot be strength of mind, since that will sometimes dictate injustice. Adding in the moral interest in avoiding self-hatred does not help, since that interest exists only if the approved agent-state (virtuous motive) would issue in the (virtuously just) action independently. And Hume's response to the knave presupposes that he no longer believes that enlightened self-interest leads to "regulation" by the rules of justice. So the problem re-emerges: what agent-state is the virtue of justice? Even apart from the "sensible knave" passage there are several problems with taking it to be strength of mind, as we noted at the end of Section VIII. And that passage is flatly inconsistent with the proposal, in any case.59 Hume continues in the Enquiry to emphasize his theme that justice involves regulation by rules. Rules "found requisite" for society's subsistence are "immediately embraced." (E. 192, see also E. 193) And men's "understanding and experience tell them that [their] combination is impossible where each governs himself by no rule, and pays no regard to the possessions of others. ..." (E.307, see also E.305,306) But if self-interest does not invariably dictate compliance, Hume's claims that just practices are established when "the whole scheme or system [is] concurred in by the whole, or the greater part of society," (E.304) and that this involves just persons regulating their conduct by the rules of justice, "lay[ing] themselves under the restraint of such rules" (T.499) and regarding them as "sacred and inviolable," now commit him to the virtue of justice being a distinct motivational state of the agent than enlightened self-interest or strength of mind. Since he cannot now think that rule-regulation is reducible to the pursuit of interests in maintaining rule-structured practices viewed externally, Hume's continuing talk of acceptance of ("embracing]" (E.192) and regulation by rules must now be taken seriously. And this requires interpreting Hume as holding that just persons regard the rules internally as agents. They take them to have a normative relevance to their conduct distinct from a consideration of any good or evil that "may be attain'd by any action of the mind or body." (T.439) Just persons acquire the "habit of justice." (E.203) They are determined to follow the rules of justice, and although their original motive for being so determined is self-interest, they continue "without recalling, on every occasion, the reflections, which determined [them]." (E.203) But rules of justice enter into the determination of their conduct in a way that is different from the way general rules and habit usually operate in Humean psychology, where "we extend our motives beyond those very circumstances, which gave rise to them, and form something like general rules for our conduct." (T.531) Usually "these rules are

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not perfectly inflexible, but allow of many exceptions." (T.531) The rules of justice, however, "are unchangeable... by particular views of private or public interest." (T.532) They "are artificially invented for a certain purpose, and are contrary to the common principles of human nature, which accommodate themselves to circumstances, and have no stated invariable method of operation." (T.532-533) The convention that establishes the rules of justice depends, indeed, on a mutual recognition of the "disorders that result from following their natural and variable principles," including "natural" general rules. (T.533) And the convention, again, is the shared recognition of a mutual interest in regulation by the "inflexible" rules of justice. "I see evidently, that when any man imposes on himself general inflexible rules in his conduct with others, he considers certain objects as their property, which he supposes to be sacred and inviolable." (T.533, emphasis added) These thoughts could be developed in different ways. Perhaps justice (the agent-state) involves regulation by specific rules of property, transfer, and promise, and this is a virtue only if enough others have it. Or perhaps justice involves conditional regulation by these specific rules—conditional, that is, on enough others doing so also. Or perhaps just persons regulate themselves by a meta-rule of cooperation that dictates following mutually advantageous rules so long as others do. For our purposes, the differences between these do not matter. All have in common the notion that just persons regulate themselves by rules they regard as authoritative. And the crucial point is that by the time of the Enquiry there seems to be no way to understand such claims other than as positing an agent-state distinct from the desire to promote any good.60 If we take the virtue of justice to consist in the agent's regulating herself by the relevant rules (or her disposition to do so), we can solve various puzzles of Hume's text. For example, Hume can thereby avoid the circle involved in claiming that, as with any virtue, there must be a "first virtuous motive" of justice other than the sense of duty, and that the sense of duty is the "only real or universal motive for observing the laws of equity." If the virtue of justice is the motivational state of rule-regulation, then the object of the moral sentiment can be specified noncircularly. Justice, the virtue, consists in the trait of justice-ruleregulation as realized in the agent's practical reasoning. And its being morally obligatory or virtuous consists in an observer's approbation of this trait generated by Humean association and sympathy. In thinking about the beneficial effects of the trait (including of the "whole plan or scheme" of which it is an ineliminable part), sympathy turns ideas of contemplated pleasure into the pleasurable sentiment. We can also explain on this hypothesis why Hume lapses into speaking as though just acts are morally obligatory and why he gives a substantial motivational role to the moral sentiment in explaining just action in our "civiliz'd state." Hume believes that in the case of justice, and only here, is what is morally approved a motivational state whose direct object is a kind of act. Unlike such

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David Hume 438 NOUS natural virtues as benevolence or parental concern, the virtue of justice is no aspect of the heart, no emotion or desire that takes some state or condition (such as another's welfare) as object, and that arises only by involuntary response. A parent lacking in the naturally virtuous parental responses can drag himself out of bed in the middle of the night to tend a sick child out of the sense of moral obligation, according to Hume, only in the hope thereby to create circumstances in which virtuous parental feeling will in time arise. The virtue of justice, on the other hand, is a disposition, not to an emotional response that might be reflected in action, but to a form of practical reasoning that is realized in the decision to abstain from unjust acts on the grounds that it is required by the rules of justice. Someone lacking but approving the virtue, can be motivated by his moral interest in being just to follow the rule, to perform just acts, hoping to acquire "by practice" the stable trait of governing himself by it without appeal to this interest. Strictly speaking, what is morally obligatory is the agent's mental quality of ruleregulation, not just acts themselves. But the direct object of this state, unlike that of other virtuous principles, is a kind of act. Uniquely with justice, therefore, it is almost true that the just act is itself morally obligatory, regardless of its relation to a virtuous principle. If we regard the moral obligation to justice as consisting in moral approbation of the "mental quality" of justice, and identify the latter with rule-regulation, we can explain why Hume would still say that the motivation to be just depends on the moral obligation to justice. The latter, on the present suggestion, is generated (through sympathy) by contemplating the beneficial consequences of general justice-rule-regulation. Holding psychology fixed, justice (ruleregulation) would fail to be approved only if its normal consequences were not beneficial. But if that were so, it could not be mutually advantageous. So a person disposed to act on mutually advantageous rules, so long as others do, would be disposed to act on the rules of justice only if justice is morally obligatory. But this does not explain why Hume says that, uniquely with the artificial virtues and justice in particular, virtuous actions are "performed entirely from a sense of obligation." ("Original Contract," p. 480, see also T.483,518) It is an important part of my case, of course, that it would explain it, if he there meant "rule-obligation." But what he seems to have in mind in these passages is moral obligation: the sense of the "merit" of just action. (T.483) The interpretation I am suggesting must attempt to explain this away as confusion. It is indeed crucial to Hume's distinction between the artificial and natural virtues that only the former are performed from a sense of obligation. But the relevant obligation can't be the moral obligation, because that depends on artifice and convention in no way. The notion of obligation that is "unintelligible" without convention is rule-obligation. The convention, recall, is the jointly acknowledged mutual interest in regulating conduct by the rules of justice, that is, in regarding the rules of justice as authoritative and obligating. So the relevant

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virtue—justice as an agent-state—is realized when agents act because they so regard the rules, that is, from a sense of (rule-)obligation. The only sense of obligation, therefore, that can enter uniquely into artificial virtues is ruleobligation. Because it does not fit with his usual categories, however, Hume confusedly asserts that it is the moral sentiment that uniquely motivates artificially virtuous acts. And that is what lands him in the circle. So far as I can see, all alternatives to this interpretation require Hume to hold that the virtue of justice involves error or a sense of "sophistry" that he thinks the insight that justice is conventional should enable us to see beyond. If, for example, we take Hume's remarks that the sense of merit is the motive distinctive of justice, then we are either involved in the circle or we have to suppose that just actions can have merit, and thus be morally obligatory, as "external performances."61 The former alternative is the sophistry of which we are to be disabused by understanding the conventional roots of justice. (T.483) And while the latter is given psychological support by an association of ideas between "thing signify'd" (virtuous motive) and "sign" (virtuous action), this also involves error since "the external performance has no merit." (T.483,477) "To find the moral quality" of any action, "we must look within." (T.477) We cannot do this "directly," so we "fix our attention on actions, as on external signs." (T.477) Another possibility would be to hold that the virtue of justice consists, not in an accurately informed strength of mind, but either in a tendency to overestimate the disadvantages of injustice sufficiently so that, conjoined with a strong mind, it leads to invariable compliance with justice's "inflexible" rules.62 Or perhaps, a tendency vividly to imagine and dwell on disadvantageous consequences of injustice out of proportion to their place in what (the agent accurately believes) to be her long-run interest.63 Both alternatives implicate the just person in error. She either mistakenly believes that injustice is invariably disadvantageous, or she does not believe this, but dwells disproportionately in her practical thinking on distant disadvantages. The latter involves no cognitive mistake, only the same kind of vice (the mirror image) that Hume laments when people lacking strength of mind give greater weight in deliberation to lesser, more immediate interests. Finally, there are Haakonssen's and Gauthier's error-theoretic proposals. Taking his cue from Hume's curious description of promising as including a feigned willing of an obligation, Haakonssen constructs Hume's position as follows.64 In order for us to regard justice as a virtue we must suppose that there is a "first virtuous motive" to justice—one which we would approve and hate ourselves for lacking. But there is no such motive. So we feign its existence and hate ourselves for lacking it, with this then being the motive to act justly—either because we also imagine we might acquire this motive by practice or because we want to maintain the fiction that we have it. Gauthier rejects this account for the Treatise, since enlightened self-interest can apparently function there as the "first virtuous motive," but suggests that the sensible knave passage makes something like it necessary. In order for the moral obligation to justice to help motivate just

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actions, we must at least believe there to be a first virtuous motive of justice. The sensible knave passage commits Hume to denying that it can be enlightened selfinterest, and this, Gauthier thinks, is the only real contender. The sole remaining possibility is that we pretend otherwise, hate ourselves for lacking the pretended motive, and act to convince ourselves either that we have it or that we are on the way to acquiring it. The best way for Hume to avoid the possibility that justice involves some kind of error is to hold that the moral obligation to justice consists in moral approbation for the trait of justice, and that this consists in the just person's disposition to engage in a form of practical reasoning substantially different from any countenanced by his official theory of the will, viz., by regulating her conduct by rules she regards as authoritative. It is, as he puts it in "Of the Original Contract," "a regard to the property of others," that is morally obligatory, not acts considered independently of this regard.65 X. Conclusion On this interpretation there is a resultant congruence in the case of justice between the three things Hume identifies as forms of obligation. First, Hume's approach is distinguished most sharply from Hutcheson's by the idea that justice is realized by social practices that require a different concept of obligation from either Hutchesonian natural or moral obligation, viz., rule-obligation. The just person acts, not simply from desires for the good; she regulates her conduct by rules of justice. In accepting these, she regards action falling under them as what she ought or must do. She can, of course, step back from her acceptance of these norms and consider that critically. When she does so from the general point of view, the evident benefits of the "whole plan or scheme" lead to moral approval (the moral obligation). Critical endorsement results also from the perspective of her own good, not least because moral sense gives her interests in her own character. Rawls's distinction between justifying a practice and justifying a particular action falling under it can thus be drawn within the just agent's practical reasoning, as well as within the social practice it helps to realize.66 I remarked above that early modern debates concerning obligation were connected to issues about the nature of the will. On the one hand, there was a powerful philosophical tendency to understand obligation as a constraint that operates on the will internally, from the agent's point of view in practical reasoning. But so long as the will was thought of as a kind of desire for, or "tend[ency] to unite with," the good (T.438), obligation had then to be reduced to such terms. On the other hand, writers like Pufendorf and Crusius resisted attempts to reduce obligation to the pursuit of good and avoidance of evil. But they understood obligation externally, as deriving from dictates of a will the agent recognizes as authoritative because superior to his own—a will that rightly subjugates him. Kant later synthesized these two elements with the reciprocal doctrines that autonomous will involves self-direction under a conception of law and that

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obligation derives from law the agent imposes on himself in autonomous practical reasoning.67 This departs from the traditional, rational appetite theory of will, since it holds that agency requires a conception of authoritative rule of conduct or law, and that this cannot be reduced to consequential goods or evils. And it also diverges from Pufendorf and Crusius by locating the authority requisite for obligation inside the agent, within his own autonomous practical reasoning. While Hume's official theory of the will is thoroughly traditional, his account of the agency of the just person, as I have interpreted him, is not. The just person regulates himself by rules (norms) he accepts. He abstains from the property of others not (just) because doing so advances goods he desires and avoids evils to which he is averse, but because he "embraces" the rule of property, and abstinence is what the rule of property requires. In accepting the rule, he recognizes it as authoritative and obligating. In conclusion, it is worth remarking briefly some tantalizing similarities between this idea and Kant's doctrines. Hume's just person acts on a principle of conduct he regards as authoritative (a maxim, if you like) and not simply out of the desire for any consequential state. And his doing so is conditional on taking action on this principle itself to be something he can critically endorse. Of course, Hume's picture of the relevant reflective endorsement is no model of Kantian autonomy. The perspectives of self-interest and the general point of view are both "material" by Kant's lights. While Kantian autonomy is normbased "all the way down," Humean reflective endorsement proceeds, respectively, from the perspectives of the agent's and the general good. And it is only contingent for Hume that these agree in any case. Still, in giving prominence to the idea of self-regulation, Hume's account of the obligation to be just marks a substantial departure from earlier, good-based accounts of obligation in the direction of the Kantian idea that obligation derives from a conception of authority located within the autonomous rational agent's will. Notes 'Earlier versions of this paper were presented to the Hume Society at the 1992 APA Central Division meetings in Louisville, Kentucky, to the 1992 summer meeting of the Society in Nantes, France, to a Hume Workshop at the University of North Carolina, to a faculty colloquium at the University of Michigan, and to the Philosophy Department at Harvard University. I am indebted to commentators on those occasions, Rachel Cohon, Jan Narveson, and J. B. Schneewind, and to members of the audience. I am also indebted to Charlotte Brown, William Frankena, Christine Korsgaard, Louis Loeb, David Fate Norton, Gerald Postema, T. M. Scanlon, and Robert Shaver, and to Amy Wesa, for help in checking references. References to the following will be placed parenthetically in the text: David Hume, A Treatise of Human Nature, ed. L. A. Selby-Bigge, 2nd ed., with text revised by P. H. Nidditch (Oxford: Clarendon Press, 1978). (T. ) David Hume, An Enquiry Concerning the Principles of Morals, in Enquiries Concerning Human Understanding and Concerning the Principles of Morals, ed. L. A. Selby-Bigge, 3rd ed., with text revised by P. H. Nidditch (Oxford: Clarendon Press, 1975). (E. ) Francis Hutcheson, An Inquiry Into the Original of Our Ideas of Beauty and Virtue, 4th ed. (London, 1738). References will be to section and article number, and will be to this edition, unless otherwise noted. (In. )

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Francis Hutcheson, An Essay on the Nature and Conduct of the Passions and Affections with Illustrations on the Moral Sense, 3rd ed. (London, 1742). References will be to section and article number, and will be to this edition unless otherwise noted. (P. ) (II. ) 2 On Kant's relation to modern natural law, see J. B. Schneewind, "Kant and Natural Law Ethics," Ethics, forthcoming. For his relation to Shaftesbury and Hutcheson see, e.g., Christine Korsgaard, "Kant's Analysis of Obligation: The Argument of Foundations I," The Monist (1989): 312-313. These were not, of course, the only traditions to which Kant was responding; he was also reacting against the perfectionism of Leibniz and Wolff. 3 Actually, Hobbes distinguishes between obligation and its "tie" or bond. While he officially defines the former in terms of the transfer and abdication of rights, he accounts for obligation's bond through the practical necessity of necessary means to human agents' inescapable end of selfpreservation. It can be shown, moreover, that in De Cive and in Leviathan Hobbes attempts to provide (differing) naturalistic reductions of obligation proper to contingently inescapable features of an agent's practical situation. Locke's official view is that moral obligation consists in the commands of a (divine) superior authority. Nonetheless, he also believes that such commands can exist only if agents have rational motives to comply (which God creates through the eternal joys and torment of Heaven and Hell), and a capacity for self-determining practical reasoning that engages these. In his (mostly unpublished) manuscripts on freedom of the will, Cudworth agrees that obligation requires a capacity of self-determination which, if properly exercised, engages deliberatively-conclusive motives for compliance. In addition, he argues, moral obligation requires that these motives be intrinsically moral. I discuss the views of these writers, along with Cumberland, Shaftesbury, Hutcheson, Butler, and Hume, in The British Moralist and the Internal 'Ought': 1640-1740, (Cambridge University Press, forthcoming). For a brief discussion, see S. Darwall, "Obligation and Motive in the British Moralists," Social Philosophy & Policy 1 (1989): 133-150. 4 An Inquiry concerning Virtue, Il.i.i. First published in an unauthorized edition in 1699, Shaftesbury included this as a part of Characteristics of Men, Manners, Opinions, and Times (London, 1711). 5 On this aspect of Grotius's ideas see Richard Tuck, "The 'modern' theory of natural law," in Anthony Pagden, The Languages of Political Theory in Early Modern Europe (Cambridge: Cambridge University Press, 1987), pp. 99-119; for Pufendorf, see J. B. Schneewind, "Pufendorf's Place in the History of Ethics," Synthese 72 (1987): 123-155, and "Modern Moral Philosophy: from Beginning to End?" in Philosophical Imagination and Cultural Memory, ed. Patricia Cross (Durham, N. C.: Duke University Press, 1992) and "Kant and Natural Law Ethics." See also Knud Haakonssen, "Divine/Natural Law Theories in Ethics," in The Cambridge History of Seventeenth-Century Philosophy, ed. Michael Ayers and Daniel Garber (Cambridge: Cambridge University Press, 1992). 6 Although the conception of morality as involving action-guides that are distinct from (and potentially conflicting with) prudence occasions this question, this does not mean that the question "how does morality obligate?" was itself a question about the relation of morality to self-interest. Far from it. 7 For some important qualifications, see note 3. 8 Unlike Hutcheson's and Hume's, Shaftesbury's moral sentimentalism was more rationalist than empiricist. I discuss this in The British Moralists and the Internal 'Ought'. 9 Bishop Richard Cumberland, A Treatise of the Laws of Nature, trans. J. Maxwell, (London, 1727), p. 233. lo de Jure Naturae (1672) I.i.21 (On the Law of Nature and of Nations, trans. Oldfather and Oldfather (Oxford: Oxford University Press, 1934), p. 20). For the following discussion of Pufendorf I am indebted to Schneewind, "Pufendorf's Place in the History of Ethics," and "Kant and Natural Law Ethics," and to Haakonssen, "Divine/Natural Law Theories in Ethics." H There is, of course, a difference between the practical necessity of an agent's either taking a necessary means to an end (or giving up the end) and the natural necessity that the end will be achieved only if the means are taken. I2 de Jure Naturae, I.vi.5,1.vi.9 (pp. 90-91,95). Locke takes a similar line in his Essays on the Law of Nature, ed. W von Leyden (Oxford: Oxford University Press, 1954). While he retains the same official theory in the Essay, other more naturalistic elements assume a much more prominent role in his thinking there. Wbid., I.vi.5, p. 91, III.iv.6, p.386.

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Christian August Crusius, Anweisung, vernunftig zu leben (Guide to Rational Living) (1744). The passages come from an excerpt translated by J. B. Schneewind in his Moral Philosophy from Montaigne to Kant (Cambridge: Cambridge University Press, 1990), v. ii, pp. 577-581. 15 At least this is so when what is approved is a "virtuous action." (T.478) Other "mental qualities" than motives can be approved also. On the intrinsic motivating power of moral sentiment, it is worth noting that Hume remarks that moral sentiment is "a fainter or more imperceptible love or hatred," (T.614) and that love and hatred are "always followed by" motivating desires, but do not themselves include them. (T.367) On the impotence of the moral sentiment to motivate directly, see Charlotte Brown, "Is Hume An Internalist?," Journal of the History of Philosophy, 26 (1988): 69-87.1 discuss this further in Section VII. 16 Cf.: "we have naturally no real or universal motive for observing the laws of equity, but the very equity and merit of that observance." (T.483, see also T.479) 17 Hume's manuscript amendment to the original edition of the Treatise adds 'naturally', which Nidditch includes in his edition thus: "we have naturally no real or universal motive... ." This is lacking in the Selby-Bigge edition. Since Hume concludes that "unless.. .nature has established a sophistry," the sense of justice must be artificial rather than natural, we can see why he was drawn to add 'naturally' where he does. But it really doesn't help. So long as the motive that renders an act equitable or meritorious is regard to equity or merit, this is "evident sophistry and reasoning in a circle" whether the source of the motive be natural or artificial. (T.483) I have been helped here by reading some papers of Rachel Cohon's, including "Hume's Difficulty with the Virtue of Honesty," unpublished manuscript. 18 Hume substitutes 'interested obligation' for 'natural obligation' in the Enquiry. (E.278) 19 From Shaftesbury, Hutcheson took (and passed on to Hume) the doctrines that there is a natural moral good that attaches most fundamentally to motives; that the morality of acts derives from that of motives; that moral goodness or virtue depends upon a moral sense, activated when contemplating motives; that this moral sense arises naturally and not from any specific acculturation; and that the virtuous affections approved of by moral sense prominently include benevolent concerns, which also arise naturally, and which provide a source of motivation independent of self-directed concerns. 20 See, especially, the Introduction to the Inquiry. 21 Compare Hume: "Desire arises from good consider'd simply, and aversion is deriv'd from evil. The will exerts itself, when either the good or the absence of the evil may be attain'd by any action of the mind or body." (T.439) For Hume's value hedonism, see T.276,399,438,439. 22 These latter passages are from A System of Moral Philosophy, (Glasgow: R. and A. Foulis, 1755), p. 50. Because of his arguments about "exciting reasons" in Illustrations, it might be thought that Hutcheson believes that such reflection can cause motivation only if the agent already has desires for his own good, or the good of all. But he actually denies this: "We need not imagine any innate ideas of good in general, of infinite good, or of the greatest aggregate: much less need we suppose any actual inclination toward any of these, as the cause or spring of all particular desires." (P.ii) We form desires for good (either for oneself or others) generally conceived by abstraction from particular desires which themselves arise from awareness of the prospects of pleasure for ourselves or others. 23 In great part, by giving us moral sense through which we can enjoy contemplating our own benevolence. 24 One might reasonably ask, what is the genus of which natural and moral obligation are species? Obligation, perhaps, but what is that? 25 "Whenever it appears to us that a Faculty of doing, demanding, or possessing any thing, universally allow'd in certain Circumstances, would in the Whole tend to the general Good, we say, that one in such Circumstances has a Right to do, possess, or demand that Thing." (In.vii.vi) For Hume, of course, the conventions of justice must actually be established, and their consequences must be good for everyone, not just overall. Nonetheless, Hutcheson and Hume are in agreement that justice and rights can be recommended only on grounds of the consequences that generally attend their establishment. 26 This passage actually asserts this to be true of violating "perfect rights." 27 This passage occurs at the end of a remarkable paragraph in which Hutcheson critically reviews in similar fashion the cardinal Aristotelian virtues. This may begin a tradition of utilitarian criticism of intuitive or common sense morality that reaches maturity in Sidgwick's Methods of Ethics. For the distinction between the "summary" versus the "practice" conception of rules, see John Rawls, "Two

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Concepts of Rules," The Philosophical Review 64 (1955): 3-32. Note, by the way, that what I am calling Hutcheson's "rules of right" are only appropriately viewed as summary rules insofar as they enter into determining right action. The way rules actually enter into Hutcheson's definitions of rights, is more like a practice rule. See note 26. Even had Hutcheson come to believe that benevolence can conflict with a desire to abide by (mutually beneficial) rules that structure just practices, he would, quite unlike Hume, have had powerful systematic reasons for holding that benevolence should then prevail. For one thing, benevolence is morally good, Hutcheson believed, not because of its effects, but because moral sense approves of it (and only it) intrinsically. This is probably a secular version of the Christian idea that love begets love. On the Christian roots of Hutcheson's thought, see Wolfgang Leidhold, Ethik und Politik bei Francis Hutcheson (Freiburg: Alber, 1985). Moral sense also approves (derivatively) of beneficial acts and establishing beneficial conventions, but that is because these are what benevolence, the immediate object of its approval, motivates. I discuss this aspect of Hutcheson's thought, in comparison with Hume's theory of the moral sentiment in "Hume and the Invention of Utilitarianism," in M. A. Stewart and J. Wright, eds., Hume and His Connexions, (Edinburgh: Edinburgh University Press, forthcoming). The moral goodness of benevolence is thus fundamental for Hutcheson; good consequences have moral relevance only because they are that at which benevolence aims. And even if, as Hume argues, agents' regulating themselves by (mutually beneficial) rules of justice as a general practice has better effects, that has no tendency to establish the moral goodness of motivational states of the agents who are so regulated. For another, since Hutcheson believes that any rational desire or motive must aim at some good for someone, if just persons are concerned to comply with mutually advantageous rules, then, since the object of this concern is no good as such, Hutcheson must regard it as more like an appetite or a passion than a rational motive. It can enter into rational deliberation only insofar as its object is related to the good. 28 On what he famously called the "internal aspect" of rules, see H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961), pp. 55-57. 29 What Hume actually says here is that no one should ever violate "those principles, which are essential to a man of probity and honour." But these are violated precisely by (knowingly) violating the rules of justice. (T.501) 30 Sometimes, as in the current passage, Hume seems to be assuming that agents can "impose" or "fix" rules by which they then regulate themselves, something, apparently, like the Kantian idea that agents can freely adopt maxims. Nothing I will say about the way rule-regulation figures in Hume's account of justice depends on this assumption. My interest will be in the state of rule-regulation itself, and its difference from motivation by desires for goods (including those that will be realized by having the disposition of rule-regulation). 31 Hume sometimes uses 'motive' to refer to a reason for acting (as in: "What reason or motive have I to restore the money?" (T.479)) and sometimes to refer to a motivational state of the agent (as in: "all virtuous actions derive their merit only from virtuous motives, and are consider'd merely as signs of those motives." (T.478)). 32 There are three places where Hume discusses will and the causes of human action: (a) "Of the influence of belief," in Book I (T. 1 18-120); (b) "Of the influencing motives of the will," in Book II (T.413-418); and (c) "Of the direct passions," in Book III (T. 438-439). I am much indebted to David Aman and Rachel Cohon for discussion of points in these sections. 33 Note that even if approbation of justice were to involve something like a desire to perform just acts (and an aversion to injustice), these direct passions would also be nonstandard by Hume's theory of action and will. Note also that nothing here affects Hume's thesis that every actions proceeds from a passion. What is at issue is whether all action-motivating passions are desires for some good. 35 Hume generally uses 'convention' to refer, not to the rules by which persons agree to regulate themselves, but to the state of agreement itself. The rules, he says, "derivfe]" from the convention. (T.490) 36 I take this to refute David Gauthier's speculation that "moral obligation, for Hume, arises from a coincidence between an object of our moral sentiments and an object of our reflective interests." ("David Hume, Contractarian," The Philosophical Review 88 (1979): 28) Annette Baier makes a similar suggestion: "Hume seems to require that, for something to be a moral obligation, it must first satisfy the test of self-interest which convention imposes." (A Progress of Sentiments (Cambridge:

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Harvard University Press, 1991), p. 243) See also Annette Baier, "Hume and Social Artifice," Ethics 98 (1988): 757-778. 37 See note 28 above. 38 On the idea that accepting a norm is a distinctive motivational state that normative judgments express, see Allan Gibbard, Wise Choices, Apt Feelings (Cambridge: Harvard University Press, 1990). 39 "[A convention] is only a general sense of common interest; which sense all the members of the society express to one another, and which induces them to regulate their conduct by certain rules." (T.490) ^Hume was not the first to argue against Hutcheson that justice is a virtue independently of benevolence, and potentially conflicting with it. Butler had made these points in Dissertation of the Nature of Virtue. 41 Although Hume also holds rule-regulation to be supported by both self-interest and moral approbation, and thinks these depend on that motivational state's furthering private and public interest, respectively. 42 See Francis Snare, Morals, Motivation, and Convention: Hume's Influential Doctrines (Cambridge: Cambridge University Press, 1991), pp. 297-302; Robert Axelrod, The Evolution of Cooperation (New York: Basic Books, 1984); and Philip Petitt, "Free Riding and Foul Dealing," The Journal of Philosophy 83 (1986): 361-379. 43 I am indebted to Rosalind Hursthouse for stressing this to me. On this point, and the importance of T.535, see David Gauthier, "Artificial Virtues and the Sensible Knave," Hume Studies 18 (1992): 407,410; also Barry Stroud, Hume (London: Routledge & Kegan Paul, 1977), pp. 204-218. It is not clear, by the way, that Hume must be understood (as Gauthier does) as implying that injustice is invariably disadvantageous when, at T.499, he writes, "nor do men so readily perceive, that disorder and confusion follow upon every breach of these rules, as in a more narrow and contracted society." He might be implying that, or he might be allowing the possibility that these consequences are sometimes not there to be perceived. The former is surely more likely, however, given the passages just discussed in the text. ^On this point, see Gauthier, "Artificial Virtues and the Sensible Knave," p. 407. 45 On "naturally", see note 17. ^J. L. Mackie makes this suggestion in Hume's Moral Theory (London: Routledge & Kegan Paul, 1980), p. 80, as does Francis Snare, Morals, Motivation, and Convention, pp. 192-201, and Rachel Cohon, "Hume's Difficulty with the Virtue of Honesty," unpublished. 47 See, e.g., T.479. On this point, see Charlotte Brown, "Is Hume an Internalist?" 48 Hume's official psychological view is that love and hatred always have some other person as object, their self-correlates being pride and humility. (T.329) 49 Moral judgment's influence on the passions is, of course, an important theme of Hume's. (T.457) But this is fully explainable by the natural, if indirect, psychological mechanisms linking moral judgment to motivation via the pleasurable and painful moral sentiments and love and hatred. Hume's famous objection against the rationalists that they are in no position to "prove a priori, that [their favored] relations, if they really existed and were perceiv'd, wou'd be universally forcible and obligatory" is sometimes offered as proof that he thinks that moral judgment is intrinsically actionguiding (T.466) But Hume regards this complaint as apt here precisely because the rationalists, maintaining that morality derives from relations between ideas and not from impressions, hold it to consist in "immutable measures of right and wrong [that] impose an obligation, not only on human creatures, but also on the Deity himself." (T.456) They, therefore, are committed to explaining a relation between morality and motivation that is universal and a priori. A contingent natural connection will not do for their purposes, though it will for Hume's. 50 No doubt, this should count as some evidence that Hume is (at least) ambivalent as between carrying through his ethics of virtue in the case of justice and treating justice as a property of underivative property of acts, if not, indeed, that he holds the latter view. 5! Gauthier, "Artificial Virtues and the Sensible Knave," p. 413. 52 In the course of arguing that there is no agent-state of justice, and thus that Hume holds that the moral obligation to justice motivates through self-hatred for lacking what we mistakenly believe to be such a natural state, Knud Haakonssen writes that "it is hardly likely that Hume thought self-interest, as a general character trait, morally approved by men..." (Haakonssen, The Science of a Legislator

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(Cambridge: Cambridge University Press, 1981), p. 35. But there is no doubt Hume thinks strength of mind is a virtue. 53 Again, the Nidditch edition adds that this is "naturally" the only such motive. See note 17. 54 David Hume, Essays, Moral, Political, and Literary, ed. Eugene F. Miller (Indianapolis: LibertyClassics, 1987), pp. 479-480. 55 It should be noted here that Hume's contrast between natural and artificial virtues in "Of the Original Contract," brings in natural as well moral obligation. Unlike artificial virtues, natural virtues operate "independent of all ideas of obligation, and of all views, either to public or private utility." Essays, p. 479. 56 Again, this is different from predicting that if others abstain from one's possessions, then it will be in one's interest to abstain. 57 Cf. "Of the Original Contract," in Essays, Moral, Political, and Literary, p. 480. 58 "Of the Origin of Government," in Essays, Moral, Political, and Literary, p. 38. This first appeared in the edition of 1777. It did not appear in any edition of the Essays published during Hume's lifetime. 59 Note, however: "Had every man sufficient sagacity to perceive, at all times, the strong interest which binds him to the observance of justice and equity, and strength of mind sufficient to persevere in a steady adherence to a general and a distant interest, in opposition to the allurements of present pleasure and advantage; there had never, in that case, been any such thing as government or political society, but each man, following his natural liberty, had lived in entire peace and harmony with others." (E.205) 60 The sensible knave's point that noncompliance is occasionally advantageous for the agent can be extended to the case of the public interest in ways that Hume's own examples suggest. (T.497,E.306) Again, for a contemporary (to us) example of a view that norm-acceptance is a distinctive psychological state, see Allan Gibbard, Wise Choices, Apt Feelings. 61 See note 46. 62 Something like this is suggested by Marcia Baron's, "Hume's Noble Lie: An Account of His Artificial Virtues," Canadian Journal of Philosophy 12 (1982): 539-555. 63 I am indebted to David Aman for this suggestion. ^Knud Haakonssen, The Science of a Legislator, pp. 30-35. Haakonssen emphasizes that this is his construction and nothing to which Hume is explicitly committed. 65 Essays, Moral, Political, and Literary, p. 480. 66 "Two Concepts of Rules," p. 3. 67 There are various interesting movements in the direction of these doctrines in the thought of Cudworth, Shaftesbury, Butler, and, to some extent Locke, which I discuss in The British Moralists and the Internal 'Ought'.

References Axelrod, Robert. [1984] The Evolution of Cooperation (New York: Basic Books, 1984) Baier, Annette. [1988] "Hume and Social Artifice," Ethics 98 (1988): 757-778. Baier, Annette. [1991] A Progress of Sentiments (Cambridge: Harvard University Press, 1991). Baron, Marcia. [1982] "Hume's Noble Lie: An Account of His Artificial Virtues," Canadian Journal of Philosophy 12 (1982): 539-555. Brown, Charlotte. [1988] "Is Hume An Internalist?," Journal of the History of Philosophy, 26 (1988): 69-87. Cohon, Rachel. "Hume's Difficulty with the Virtue of Honesty," unpublished manuscript. Cumberland, Richard. [1727] A Treatise of the Laws of Nature, trans. J. Maxwell, (London, 1727). Crusius, Christian August. [1744] Anweisung, vernunftig zu leben (Guide to Rational Living)

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Darwall, Stephen. [1989] "Obligation and Motive in the British Moralists," Social Philosophy & Policy 7 (1989): 133-150. Darwall, Stephen. "Hume and the Invention of Utilitarianism," in M. A. Stewart and J. Wright, eds., Hume and His Connexions, (Edinburgh: Edinburgh University Press, forthcoming Darwall, Stephen. The British Moralist and the Internal 'Ought': 1640-1740, (Cambridge University Press, forthcoming) Gauthier, David. [1979] "David Hume, Contractarian," The Philosophical Review 88 (1979): Gauthier, David. [1992] "Artificial Virtues and the Sensible Knave," Hume Studies 18 (1992): 401-427. Gibbard, Allan. [1990] Wise Choices, Apt Feelings (Cambridge: Harvard University Press, 1990). Haakonssen, Knud. [1981] The Science of a Legislator (Cambridge: Cambridge University Press, 1981) Haakonssen, Knud. [1992] "Divine/Natural Law Theories in Ethics," in The Cambridge History of Seventeenth-Century Philosophy, ed. Michael Ayers and Daniel Garber (Cambridge: Cambridge University Press, 1992) Hart, H. L. A. [1961] The Concept of Law (Oxford: Oxford University Press, 1961) Hume, David. [1739,1740] A Treatise of Human Nature, ed. L. A. Selby-Bigge, 2nd ed., with text revised by P. H. Nidditch (Oxford: Clarendon Press, 1978). Hume, David. [1751] An Enquiry Concerning the Principles of Morals, in Enquiries Concerning Human Understanding and Concerning the Principles of Morals, ed. L. A. Selby-Bigge, 3rd ed., with text revised by P. H. Nidditch (Oxford: Clarendon Press, 1975). Hume, David. [1777] Essays, Moral, Political, and Literary, ed. Eugene F. Miller (Indianapolis: LibertyClassics, 1987) Hutcheson, Francis. [1738] An Inquiry Into the Original of Our Ideas of Beauty and Virtue, 4th ed. (London). Hutcheson, Francis. [1742] An Essay on the Nature and Conduct of the Passions and Affections with Illustrations on the Moral Sense, 3rd ed. (London, 1742). Hutcheson, Francis. [1755] A System of Moral Philosophy, (Glasgow: R. and A. Foulis, 1755) Korsgaard, Christine. [1989] "Kant's Analysis of Obligation: The Argument of Foundations I," The Monist (1989): 312-313. Leidhold, Wolfgang [1985] Ethik und Politik bei Francis Hutcheson (Freiburg: Alber, 1985). Locke, John. [1954] Essays on the Law of Nature, ed. W. von Leyden (Oxford: Oxford University Press, 1954). Mackie, John. [1980] Hume's Moral Theory (London: Routledge & Kegan Paul, 1980). Petitt, Philip. [1986] "Free Riding and Foul Dealing," The Journal of Philosophy 83 (1986): 361-379. Pufendorf, Samuel. [1672] de Jure Naturae (On the Law of Nature and of Nations, trans. Oldfather and Oldfather (Oxford: Oxford University Press, 1934). Rawls, John. [1955] "Two Concepts of Rules," The Philosophical Review 64 (1955): 332.

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Schneewind, J. B. [1987] "Pufendorf s Place in the History of Ethics," Synthese 72 (1987): 123-155. Schneewind, J. B. [1990] Moral Philosophy from Montaigne to Kant (Cambridge: Cambridge University Press, 1990), v. ii, pp. 577-581. Schneewind, J. B. [1992] "Modern Moral Philosophy: from Beginning to End?" in Philosophical Imagination and Cultural Memory, ed. Patricia Cross (Durham, N. C.: Duke University Press, 1992) . Schneewind, J. B. "Kant and Natural Law Ethics," Ethics, forthcoming. Shaftesbury, 3rd Earl of (Anthony Ashley Cooper). [1711] Characteristics of Men, Manners, Opinions, and Times (London, 1711) Snare, Francis. [1991] Morals, Motivation, and Convention: Hume's Influential Doctrines (Cambridge: Cambridge University Press, 1991). Stroud, Barry [1977] Hume (London: Routledge & Kegan Paul, 1977). Tuck, Richard. [1987] "The 'modern' theory of natural law," in Anthony Pagden, The Languages of Political Theory in Early Modern Europe (Cambridge: Cambridge University Press, 1987), pp. 99-119.

[20] Hume's Knave and the Interests of Justice JASON BALDWIN*

HUME'S ACCOUNT OF THE ARTIFICIAL VIRTUES of justice and promise-keeping developed in Book III, Part ii of the Treatise is among the most provocative elements of his ethics. His goal there is to tell a naturalistic story of the origin and moral standing of these virtues, a story that makes no appeal to any irreducibly moral motives or properties but instead grounds even our most basic and apparently binding obligations in the same thoroughly human passions and sentiments with which Hume explains all our actions. Several modern critics, including David Gauthier and Stephen Darwall, have claimed that Hume's story of the artificial virtues is inconsistent with his account of natural human motivations, and have further claimed that Hume himself became aware of this problem in the second Enquiry, where he discussed it in the famous "sensible knave" passage in the last paragraphs of the "Conclusion." They therefore claim that Hume abandoned in the Enquiry what is usually taken to be his official Treatise account of justice and promise-keeping, and may also have intended a different account in the Treatise itself. This paper argues that the sensible knave passage neither signals nor requires any significant change in Hume's official Treatise story of the artificial virtues. Part i summarizes this official account, Part 2. explains the challenge Gauthier and Darwall believe the sensible knave poses to this account, and Part 3 defends the standard Humean account from this challenge. Whatever other problems Hume's account of justice and promise-keeping may have, the free rider problem, as developed by Gauthier and Darwall through the character of the sensible knave, is not among them. I.

THE INTEREST ACCOUNT OF ARTIFICIAL VIRTUES

i.i Hume's Predecessor Traditions Hume makes few explicit references to the English-speaking predecessors whose work informs his thinking about the artificial virtues, and I shall follow his ex-

* Jason Baldwin is a doctoral student in philosophy at the University of Notre Dame.

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ample. But without pretending to survey that rich and varied history, we may usefully think of Hume's approach to justice and its allied virtues as an attempt to preserve the strengths of two opposed predecessor traditions.1 The first tradition, represented most prominently by Hobbes but also by Mandeville, explains the origin of virtues generally, including Humean artificial virtues, in purely naturalistic terms, without any appeal to divinely ordained ends or observer-independent moral facts. Hume shares this humanistic aspiration, but he disavows the cynical skepticism and crude egoism which are usually taken to accompany it. He wants to tell a story about justice which will allow us to admire its genuine moral worth even as we acknowledge its human pedigree. The second tradition, a reaction to the first, is the moral sense school represented by Shaftesbury, Butler, and especially Hutcheson. This tradition insists, against the cynical egoists, on a moral reality to which our sentiments or consciences give us immediate access, an access secured by God's design. Also characteristic of the moral sense theorists is the claim that human nature contains benevolent motives which are the objects of the moral sense's approval and which are just as basic to our constitution as are selfish motives. Hume avails himself of both moral sense strands, albeit in attenuated form. He agrees that justice and injustice are known by the sentiments, and he also believes that benevolent firstorder motives are a part of human nature. But Hume rejects the moral sense tradition's Christian teleology, and he is also less optimistic about the potential of benevolence to explain such complex moral behaviors as are involved in our institutions of justice and promise-keeping. Hume's standard Treatise story of the origin of justice and promise-keeping, which we may call the "interest account," has two stages. In the first stage, Hume explains how the practices which constitute justice and promise-keeping arise through the working of our natural interests; in this stage Hume might be seen as working in the broadly naturalistic-egoist tradition. In the second stage, Hume explains how these practices and the motives which underlie them become the objects of moral evaluation, i.e., why we treat acting in accord with the practices as a moral obligation rather than as a mere habit; in this stage, Hume might be seen as working in the broadly moral sense tradition. 1 My very rough sketch of Hume's predecessor traditions is informed by the more adequate treatments in Stephen Buckle, Natural IMW and the Theory of Property: Grotius to Hume (Oxford: Clarendon Press, 1991); J. L. Mackie, Hume's Moral Theory (London: Routledge, 1980); David Fate Norton, David Hume: Common-Sense Moralist, Sceptical Metaphysician (Princeton: Princeton University Press, 1982.); and J. B. Schneewind, The Invention of Autonomy: A History of Modern Moral Philosophy (Cambridge: Cambridge University Press, 1998). For simplicity's sake, I have situated Hume's work on the artificial virtues as responding to the rivalry between egoists and moral sense theorists. But there is a third school to which Hume's entire ethical theory is opposed, that of such rationalists as Clarke and Wollaston. These thinkers responded to the egoist threat by appealing to our alleged cognitive grasp of moral facts. The moral sense theorists sought a way to defeat the egoists without endorsing a rationalism which, among other shortcomings, seemed unable to explain morality's motivating power. Hume's rejection of the rationalist position is evident in the first and third "preliminary points" summarized below. His arguments for these points, which I do not discuss, are the most famous elaborations of responses to rationalism originally suggested by earlier moral sense theorists. But it is the shortcomings of the egoists and of Hume's moral sense predecessors which seem most directly to influence his treatment of justice and the other artificial virtues.

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1.2 Preliminary Points Before reviewing these two stages, we should note several features composing the background of the interest account which will reemerge when we turn to the task of criticism in Parts 2, and 3 . Hume defends all of these points at greater or lesser length; because they are not disputed by Gauthier or Darwall, I will simply note them withoutjustifying or criticizing them. First, passion rather than reason is the original spring of all human action ( TII.iii.3) .2 A person may cite elaborate chains of reasons for acting as he does, but all such chains must end in an appeal to a desire for which no further reason can be given (E 19 3 ).3 Reason's role in the genesis of action is two-fold: to discover the existence of objects which will satisfy the passions and to determine efficient means to procure those objects (T4i6). In both capacities, "Reason is, and ought only to be the slave of the passions, and can never pretend to any office other than to serve and obey them" ^415). Second, the passions or desires from which human actions derive are various. They include a general appetite for pleasure and an aversion to pain (^399, 417, 43 8-39) , but they also include "certain instincts originally planted in our nature, such as benevolence and resentment, the love of life, and kindness to children" ^417; cf. T439). Hume nowhere systematically surveys all such natural desires, but he is emphatic that the motivating passions need not be thought of as narrowly selfish. Taking a cue from Butler, Hume argues that "It is requisite, that there be an original propensity of some kind, in order to be a basis of self-love, by giving a relish to the objects of its pursuit; and none more fit for this purpose than benevolence or humanity" (E 2.81). Not only are such other-regarding motives compatible with acting only on one's own desires, but Hume claims that experience overwhelmingly attests to the reality of just such irreducibly social sentiments A third preliminary point, closer to our target of the artificial virtues, is that all moral judgments are nothing but sentiments of praise or blame which arise "when a character is considered in general, without reference to our particular interest" (T472.) . Observer reactions, and not any intrinsic properties of actions, motives, or state of affairs, determine the virtue or vice of an agent (TIILi.i, EApp. I). A fourth point is that "when we praise [or blame] any actions, we regard only the motives that produced them, and consider the actions as signs or indications of certain principles in the mind and temper. The external performance has no merit. We must look within to find the moral quality" (T 477). Hume does not elaborate much on this claim, but apparently takes it to be an uncontroversial description of the actual judgments we make. A fifth and final preliminary point follows from the third and fourth: "no action can be virtuous, or morally good, unless there be in human nature some motive to produce it, distinct from the sense of its morality" ( 7479) . In other words, a virtuous action must

*• All references to David Hume's A Treatise of Human Nature are noted in the text (T) and are from the edition edited by L. A. Selby-Bigge and P. H. Nidditch (Oxford: Clarendon Press, 1978). 3 All references to Hume's Enquiry Concerning the Principles of Morals are noted in the text (E) and are from Enquiries Concerning Human Understanding and Concerning the Principles of Morals, L. A. SelbyBigge and P. H. Nidditch, eds. (Oxford: Clarendon Press, 1975).

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be of a kind for which there is a natural human motivation other than a concern for virtue. Hume argues that 'To suppose, that the mere regard to the virtue of the action, may be the first motive, which produc'd the action, and render'd it virtuous, is to reason in a circle" (^478; cf. T48o, 518). Here is one way to think about his point: My judgment that an action is virtuous is a sentiment which approves of the action's motive. If the motive of which I approve were simply the desire to act virtuously, that motive would be the desire to perform an action which would solicit approving sentiments in me. And my moral sentiment would then become the sentiment of approving the desire to be approved by me. If our picture of moral motivations were thus sealed off from considerations other than morality itself, we would find ourselves trapped in an endless reflexivity of moral sentiments which never made con tact with those objects and state of affairs which are the true goals of our actions. Moral sentiments, in other words, are secondorder sentiments which presuppose the existence of first-order passions and desires for goals like personal pleasure and the welfare of children, of which the sentiments approve (7478). Once a motive becomes the object of widespread moral approbation, an agent lacking that motive "may hate himself upon that account" and may perform actions characteristic of the motive solely from a sense of duty or obligation in response to the popular moral sentiments (T479). But such a motive of duty could not arise in the absence of the popular moral sentiments, and such moral sentiments could not become popular unless there were "in human nature some distinct principles, which are capable of producing the action, and whose moral beauty renders the action meritorious" (T479). 1.3 The Puzzle of the "Interest Account, " and Hume's Two-Stage Solution to It With these pieces in place, we can approach the special puzzle created by the artificial virtues of justice and promise-keeping. If these virtues are to be the objects of moral approval, as they obviously are, then, as per the fifth point above, they must be supported by appropriate first-order motives, and not merely by a sense of duty or the desire to do justice. That people perform actions in accord with traditional rules of justice and promise-keeping (both of which are, on Hume's view, mostly about the stability and exchange of property) is beyond dispute. But, Hume concedes, this fact might seem at odds with his picture of motivation, because no untutored human motivation would produce consistently just or honest behavior. Self-interest will not work, because in many circumstances (such as repaying a loan) an individual seems to be worse off by being just or honest. In fact, "'tis certain, that self-love, when it acts at its liberty, instead of engaging us to honest actions, is the source of all injustice and violence" (7480). Nor can the natural benevolence to those for whom we bear love or sympathy explain the consistency with which we actjustly, since strictjustice often seems to benefit those we hate and harm those we love. Speaking of the party to be benefited by a just or honest action, Hume asks, 'What if he be a vicious man, and deserves the hatred of all mankind? What if he be a miser, and can make no use of what I wou'd deprive him of? What if he be a profligate debauchee, and wou'd rather receive harm than benefit from large possessions? . . . In all these cases, the original [benevolent] motive to justice wou'd fail; and consequently the justice itself, and

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along with it all property, right, and obligation" (T4$z). So there does not appear to be an untutored first-order motive sufficient to explain the virtues of justice and honesty as we find them. Justice is clearly distinct from the natural virtues of prudence and benevolence, and in ways which seem either to undermine its standing as a genuine virtue or to cast doubt on Hume's general picture of virtue and motivation. The first stage of Hume's solution to the puzzle attempts to harmonize the practices of justice and promise-keeping with the available first-order motives. Hume's explanations of the two virtues are separate but parallel, and for the sake of simplicity I will generally speak only of justice. Justice arises not from a natural impulse to perform this or that just action, but rather from a desire to live in secure social relations which only rules of justice make possible. People are much better off living in cooperative societies with stable property relations than they would be fending for themselves against each other and nature (T^ 8 5). Although human nature contains passions beyond simple self-interest, this latter passion is naturally the strongest, such that if each person followed his or her own immediate impulses, the selfishness and partiality which dominate our unschooled passions would quickly destroy the extended societies we need (T486-88). So reason4 enlightens self-interest and informs us that our naturally restricted affections will be better satisfied by curbing themselves for the sake of other people who will then curb their own selfish affections, than it would be by pursuing our every immediate whim. The families which raise us, bound together by natural affection, provide our first glimpse of the advantages of cooperation (T486). Those who extend cooperation beyond families work not by explicit promises (which operate only after the cooperative conventions are in place) but by an informal titfor-tat strategy: "I observe, that it will be for my interest, to leave another in the possession of his goods, provided^ will act in the same manner with regard to me. He is sensible of a like interest in the regulation of his conduct. When this common sense of interest is mutually express'd, and is known to both, it produces a suitable resolution and behaviour" (T49o).5 By submitting to conventional rules of acquisition and exchange, each member of society secures his own property from the constant threat of pillage by others who are initially as self-centered as he is. Therefore, "Instead of departing from our own interest, or from that of our friends, by abstaining from the possessions of others, we cannot better consult both these interests, than by such a convention; because it is by that means we maintain society, which is so necessary to their well-being and subsistence, as well as to our own" ^489). This motive is an artificial motive (and thus justice is an artificial virtue) because it operates only when enough people are willing to subscribe to the conven4 Hume's discussion of justice refers to "judgment and understanding" (7^489), which I take to be synonyms for "reason" in the broad sense of the faculty of the discovery of truth or falsehood (T 458). For a helpful summary of Hume's varied uses of "reason," see David Fate Norton, David Hume, 96-98. 5 Simon Blackburn provides a detailed explanation and defense of this process in light of game theory and Ramsey preferences in Chapter 6 of Ruling Passions (Oxford: Oxford University Press, 1998); see especially pp. 192-97.

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tional rules of justice to make it worth the while of each of them to submit his own conduct to those rules. It would be contrary to all self-interest to dutifully follow conventional rules of justice in one's dealings with others if those others did not reciprocate. It is not each of one's particular acts of justice which furthers one's own interests, but rather the integrity of the system of just rule following as a whole. So there is no innate principle of human nature prescribing traditionally just actions, no natural motive for justice per se. The basic motives for justice are the same natural interested motives for injustice, but wisely redirected along the smooth path of artifice which reason has constructed to lead the agent to the long-term satisfaction of her interests. Once the conventions of justice have been established, other natural motivesjoin (and, arguably, supplant) the original motive of self-interest to keep the individual acting within the system; we will review several of these in Part 3. But none of them should obscure the centrality of selfinterest in originating the system: " 'tis only from the selfishness and confin 'd generosity of men, along with the scanty provision nature has made for his wants, that justice derives its origin" (T 49 5). The second stage of Hume's interest account explains how the motives for conforming to rules of justice become objects of the peculiarly moral sentiments, i.e., why we consider justice a virtue instead of merely a clever habit. This stage is simple and straightforward once the first stage has established the practice of just actions. For once we recognize that the stable practice is a sine qua non of the society which benefits humanity, our natural sympathy for others approves of motives which produce the rule-following behavior we think helps society and condemns motives which produce the rule-breaking behavior we think harms society. As per the fourth preliminary point above, Hume holds that the moral sentiments of praise and blame attach to motives, not directly to acts, of rule following or breaking. By itself, this fact may mislead, suggesting that the object of moral appraisal is a Kantian will characterizable independently of the end goals of its actions. In fact, Humean moral sentiments attach to character traits (i.e., patterns of motives) only because and insofar as those traits tend (in the normal run of humanity) to produce actions which please or displease us in their degree of utility. Hume states that 'justice is a moral virtue, merely because it has that tendency to the good of mankind." What is originally agreeable or disagreeable to us in judgments of justice is the end result of certain patterns of action. "Now as the means to an end can only be agreeable, where the end is agreeable," and as the end of widespread adherence to rules of justice is agreeable, Hume concludes that our esteem for the character trait of justice (i.e., the means to the agreeable end) is grounded on the agreeableness of the end (T 577). Although the moral sentiments attach only to motives, they attach to those motives on the basis of the sympathy we feel for those affected by the actions produced by those motives. We could feel the same sympathy for victims of accidents as we do for victims of deliberate injustice, but we would not then disapprove as unjust whatever or whomever caused their accidents. So it seems that, in the case of the artificial virtues, the motives of which the moral sentiments dis/approve need not be characterizable apart from such definite descriptions as '^whatever motive incited her to follow the rules of justice, which rules produce states of affairs of which I sympathetically

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approve." In particular, there is no need for there to be one approved motive to justice; the motives to justice may, and likely are, quite various, and the Humean spectator morally approves of those motives so long as they are generally the means to the ends which move her sympathy. There are at least two objects of sympathy resulting from perceived justice or injustice: first is the general good to society of a well-functioning system of rules, a system weakened each time someone flouts it (T499); second is the particular good to individuals who have banked on the system and whose welfare has thus come to depend on the honesty of their fellows (E 310). What is artificial in the "artificial virtues" is the system of convention necessary to produce the first-order motive to perform the virtuous actions; there is nothing artificial about the moral sentiment which judges the actors within such a system to be virtuous or vicious (^533; cf. 547, 579, and 619-20). 2.. T H E

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2.1 How the Knave Upsets the Interest Account Toward the end of his "Conclusion" to the second Enquiry, without much fanfare, Hume mentions a disquieting possibility: Treating vice with the greatest candour, and making it all possible concessions, we must acknowledge that there is not, in any instance, the smallest pretext for giving it the preference above virtue, with a view of self-interest; except, perhaps, in the case of justice, where a man, taking things in a certain light, may often seem to be a loser by his integrity. And though it is allowed that, without a regard to property, no society could subsist; yet according to the imperfect way in which human affairs are conducted, a sensible knave, in particular incidents, may think that an act of iniquity or infidelity will make a considerable addition to his fortune, without causing any considerable breach in the social union and confederacy. That honesty is the best policy, may be a good general rule, but is liable to many exceptions; and he, it may perhaps be thought, conducts himself with most wisdom, who observes the general rule, and takes advantage of all the exceptions. (282-83)

With the rise of game theory and the detailed study of collective action, the specter of the sensible knave has loomed large enough to cast a shadow of doubt over the interest account of the artificial virtues. Gauthier and Darwall both take the sensible knave as a concession by Hume that the interest account fails, a concession which clears the way for their revisionist interpretations of Hume's real theory of the artificial virtues. The sensible knave is alleged to show that there is a gap, ignored by the interest account, between my interest in living in a system where others submit to the conventions of justice and promise-keeping, and my interest in myself submitting to those conventions. The sensible knave will view the interest account as predicated on a false dilemma: either one must cooperate to produce a stable social order or one must give up the benefits of that order. The knave pursues a third way: hide one's own treachery so as to optimize one's interests in each case while still enjoying the benefits of the order sustained by the cooperation of one's less clever fellows. The sensible knave is the character who has since come to be known, less colorfully, as the "free rider." As long as his knavery goes undetected, it will not threaten his own participation in society or inspire a wider departure from the norms which benefit him.

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Hume responds to the possibility of the knave, claiming that no one motivated as the knave apparently is could be reasoned back into the fold of justice, and that "If his heart rebel not against such pernicious maxims, if he feel no reluctance to the thoughts of villainy or baseness, he has indeed lost a considerable motive to virtue" (£2.83). Hume further notes that knaves are often caught and forfeit the future trust of society, and he opines that the "worthless toys and gewgaws" captured by the successful knave do not compare in satisfaction to the pleasures of "the peaceful reflection on one's own conduct" (E 2,83-84). Both Gauthier and Darwall take Hume's commentary on the knave as a response to the knave. Darwall glosses Hume's response thus: "It is only the moral sentiment and our tendency to love and hate ourselves on the strength of our virtue and vice that give us moral interests that make the just life advantageous" (3io).6 That is, when non-knaves (including Hume) encounter a knave, they look for motivational resources to defend their own just behavior, and, finding that the knave has coopted self-interest, they are reduced to stammering about the beauty of a clear conscience. But if Hume's picture of motivation is correct and the non-knaves have conceded self-interest to the knave, it is no longer clear why their consciences should condemn knavery. If the first stage of the interest account fails because, as Gauthier puts it, "moral approbation [i.e., what we take justice to require] and interested obligation [i.e., what we take self-interest to require] diverge in the case of justice" (418)7 then the second stage is also in jeopardy, since the spectator's judgment of virtue or vice is supposed to be possible only if there is a natural, nonmoral motive in human nature to serve as the object of moral sentiment's second-order approbation or disapprobation. The sensible knave suggests there is no first-order motive to conform oneself exceptionlessly to rules of justice or promise-keeping. So it does not appear that Hume can consistently allow the rational intelligibility of the knave's strategy and justify the spectator's moral condemnation of knavery. 2.2 Gauthier 9s Alternative Error Account To enable Hume to avoid this inconsistency, Gauthier and Darwall suggest accounts of the moral obligation of the artificial virtues which compete with the interest account for the title of "Hume's real view" of justice and promise-keeping. Gauthier thinks Hume's real view is an "error theory" in which the natural moral sentiments respond to first-order motives which are themselves produced by an erroneous supposition of the agent's own interest. Here is Gauthier's description of this process: each person recognizes the overall good consequences of acts of justice or fidelity in the context of the relevant practices, and the benefits to each person, herself included, of the practices. And it is this recognition, coupled with the failure of self-interest to motivate her,

6 Stephen Darwall, The British Moralists and the Internal 'Ought': 1640-1740 (Cambridge: Cambridge University Press, 1995). All citations of Darwall are to this work, and because of their frequency, I have noted their page numbers parenthetically in the text. 7 David Gauthier, "Artificial Virtues and the Sensible Knave," Hume Studies 18 (1992.): 401-2,7. All citations of Gauthier are to this work and are noted parenthetically by page number in the text.

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that leads her to imagine there is a natural motive for acts of justice and fidelity, which involves the willing of an obligation. This imagined motive receives her moral approbation. But since an obligation can not be willed, there can be no such motive, and so she comes to hate herself for not having it. This self-hatred now creates a real, genuinely existent motive to justice and fidelity—the sense of duty. The motive of duty is real, but it rests on the mistaken apprehension that we could, but do not, have a natural motive obliging us to justice. (42,0) Gauthier believes this error account can be supported by three passages from the Treatise in which Hume seems to suggest that the motivation to perform the acts of the artificial virtues rests on a mistake (401-3). Consider, first: we have naturally no real or universal motive for observing the laws of equity, but the very equity and merit of that observance; and as no action can be equitable or meritorious, where it cannot arise from some separate motive, there is here an evident sophistry and reasoning in a circle. Unless, therefore, we will allow, that nature has establish'd a sophistry, and render'd it necessary and unavoidable, we must allow, that the sense of justice and injustice is not deriv'd from nature, but arises artificially, tho' necessarily from education, and human conventions. ^483) On Gauthier's reading, this passage claims that there is no motive to perform equitable actions other than the apprehension of their equity, that truly equitable actions must have possible motives other than their equity, that therefore the acts we perform as equitable are not genuinely equitable, and that therefore our apprehension of their equity is mistaken. Next, consider: And where an action is not requir'd by any natural passion, it cannot be requir'd by any natural obligation Now 'tis evident we have no motive leading us to the performance of promises, distinct from a sense of duty. If we thought, that promises had no moral obligation, we never shou'd feel any inclination to observe them.... But as there is naturally no inclination to observe promises, distinct from a sense of their obligation; it follows, that fidelity is no natural virtue, and that promises have no force, antecedent to human conventions. (T5i8) This second passage Gauthier takes to be making a point similar to the first's, namely, that there is no natural motive to keep promises, that there cannot be a moral obligation to keep promises unless there is a natural (non-moral) obligation to keep promises, that therefore there is no genuine moral obligation to keep promises, and that therefore our belief that we are morally obligated to keep promises rests upon a mistake. Finally, consider: Afterwards a sentiment of morals concurs with interest, and becomes a new obligation upon mankind. . . . The difficulties, that occur to us, in supposing a moral obligation to attend promises, we either surmount or elude. For instance; the expression of a resolution is not commonly suppos'd to be obligatory; and we cannot readily conceive how the making use of a certain form of words shou'd be able to cause any material difference. Here, therefore, we feign a new act of the mind, which we call willingwn. obligation; and on this we suppose the morality to depend. But we have prov'd already, that there is no such act of the mind, and consequently that promises impose no natural obligation. (T 523) This third passage even more straightforwardly seems to say, in its last two sentences, that the supposed obligation to keep promises results from an act of mind which we must feign, since there is no natural (again, non-moral) obligation motivating us to keep promises. So Gauthier reads each passage through the lens of Hume's requirement that a conscious motive of acting for the sake of virtue

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can attach only to actions which can be explained by natural, non-moral motives. He concludes that Hume means that just and honest actions, having no natural, non-moral motivation, are motivated by a misapprehension that such actions are genuinely virtuous or obligatory. Gauthier also provides a reading of the passages which reconciles them with the interest account (415-16), but he concludes that they had best be read as early gestures at the error theory which the sensible knave problem proves Hume must really hold. 2.3 DarwaWs Alternative Regulation Account Darwall seizes on the sensible knave passage and the rejection of the interest theory it supposedly entails to support his thesis that Hume holds a "regulation theory" of the artificial virtues. Rather than suppose that Humean agents base their moral attachment to justice and fidelity on a mistake about the traditional self-interested motives, Darwall suggests that Hume's account of the artificial virtues relies on the recognition of a new first-order motive, the motive to follow a rule rather than the motive to pursue some desired object or state of affairs. Darwall points to a variety of passages in both the Treatise (e.g., 490, 499, 501, 532,, 533, 534) and Enquiry (e.g., 192, 305, 306, 307) in which Hume refers to people following or binding themselves by the rules of justice. Given the interest account of artificial virtues in the Treatise, Darwall concedes, Hume's talk of rule-following there may simply mean that "enlightened self-interest invariably leads to compliance with rules of justice despite their intensional inequivalence" (2,99) .8 But, Darwall maintains, Hume's rejection of the interest account in the Enquiry, as proven by his acknowledgment of the sensible knave problem, shows that Hume "cannot now think that rule regulation is reducible to the pursuit of interests in maintaining rule-structured practices viewed externally"', now, Hume's references to rule-following "must be taken seriously. And this requires interpreting Hume as holding that just persons regard the rules internally as agents" (312,). Just what kind of motivational state does Darwall think Hume is endorsing? He does not go into detail, but we may perhaps get some sense of his thought from the ways he refers to the alleged rule-following motive. According to Darwall, Humean self-regulators give the conventional rules of justice and fidelity "inde8 Although I am focusing on the impact of the sensible knave passage, Darwall offers a reason for thinking that Hume's endorsement of the interest account even in the Treatise is confused (2,96-98, 308). The reason is this: Hume says the notions of "properly, right, and obligation" are "altogether unintelligible without first understanding" the conventional origins of justice (T490-91). \et, claims Darwall, the notions of natural obligation and moral obligation are perfectly intelligible apart from the artificial virtues; the natural virtues furnish both types of obligation, and the natural virtues operate independently of the artificial virtues. So, Darwall suggests, Hume must have a third, new type of obligation in mind here, even if he does not specify what it is. This is the sort of obligation Darwall calls "rule obligation," borrowing H. L. A. Hart's notion of the internal (agent) standpoint of the endorsement of a rule. But does Hume's original claim about the unintelligibility of obligation prior to justiceconventions really force him to seek a new kind of obligation? The quoted bits of Hume do not necessarily imply that this or thattypeof obligation is unintelligible prior to justice-conventions. Rather, Hume may simply be saying that an alleged obligation (natural or moral) to perform just acts or to keep promises is unintelligible prior to the conventions which establish the original motives for such acts. Such a reading also seems to comport well with Hume's preliminary comments on the motivational problem of the artificial virtues at T 479-80.

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pendent deliberative weight" (2,99) or "intrinsic weight" (301). They take the rules "to have a normative relevance to their conduct distinct from the consideration of any good or evil" that may result from their rule-guided actions (312). Such an agent "regards action falling under [the rules] as what she ought or must do" (317) because such actions are "mandated by a normative principle [she] accept [s]" (318). It should be emphasized that these are Darwall's characterizations of the rule-following motive, not Hume's. Hume does not explicitly endorse any such motivational state, and Darwall reads it into Hume on the assumption that Hume's references to following rules must have referred to some such state in order to avoid the Scylla of the interest account and the Charybdis of Gauthier's error theory. 9 If Darwall is right about the status of self-regulation according to authoritative rules as a distinct original motive for the Humean agent, one might think he has supplied resources to cover the first stage of Hume's derivation of the artificial virtues. But what about the second stage, where the approval of the moral sentiments transforms such self-regulation into a virtue? Here, Darwall follows the standard reading of Hume and appeals to the observer's sympathetic approval of the good results that follow from the whole system of justice and promise-keeping Both Gauthier and Darwall acknowledge the plausibility of the interest account as a reading of the Treatise. But they take the sensible knave passage as proof that the interest account is fatally flawed, and that Hume acknowledged its failure. Therefore, each searches Hume to find a unique motivational foundation for the artificial virtues. Gauthier locates (constructs?) this foundation in an agent's sense of duty based on a misguided self-hatred for failing to feel an interested motive which the knave has actually shown to be impossible. Darwall finds the foundation in Hume's talk of agents following rules of justice and fidelity, concluding that such rule following is a distinct and original first-order motivational state. 3. THE INTEREST ACCOUNT VINDICATED

3.1 Difficulties for Gauthier's Error Account Does the sensible knave undermine the interest account of the artificial virtues? Not at all. Before saying why not, we shall note problems for the error and regulation theories in their own rights. Gauthier's error theory attributes to Hume the principle that a person A is morally obligated to perform an action X only if a spectator judges that A has a natural (i.e., non-moral) motive to do X or judges that A feels self-hatred for lacking a natural motive to do X (412). Therefore, since in the case of the artificial virtues, A has no natural motive to do X, any moral obligation to do X must rest either on an error in the spectator's judgment about A's actual motivational set or on the spectator's judgment that A feels self-hatred for lacking a natural motive A erroneously thinks he might have had. But Hume does not hold that a

9 Curiously, Darwall does not explain why Gauthier's error theory is a Charybdis to be avoided. He simply claims that his own regulation theory is the only way to avoid Gauthier's alternative (317).

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person can be morally obligated only if a spectator judges either that the person has a natural motive for the act in question or that the person hates himself for lacking such a motive. What Hume holds is the principle that A is morally obligated to do X only if a spectator judges that human nature contains a natural motive to do X or judges that A feels self-hatred for lacking a natural motive to do X (T479, 518). Moral condemnation arises precisely in those cases in which we judge that a particular human being lacks some motive characteristic of human nature of which we approve (cf. ^478, 483, 518). Hume's claim is not that every person under a given moral obligation must have a natural (i.e., non-moral) motive to discharge that obligation, but rather that "if no human creature had that inclination, no one cou'd lie under any such obligation" (T519; emphasis added). Therefore, a person who lacks a natural interested motive to perform just acts may still be morally obligated to be just even if he feels no self-hatred (as he must, on Gauthier's picture) motivating him to be just anyway. He must simply lack some motivation which other people naturally have and the absence of which they judge to be a defect. Therefore, even if it happens that knaves lack the motivations to justice and fidelity which most people have, there is no need to instill an ill-founded sense of self-hatred in knaves to make them morally obligated to be just. Such measures would be required only if enough knaves existed to create a motivational problem so widespread as to threaten the existence of the conventions of justice and promise-keeping. As will be noted below, Gauthier and Darwall do seem to think the knave's motivational problem is so widespread, and in this, too, they are mistaken. What about the mechanics of the error theory itself? Gauthier's explanation leaves important questions unanswered. His agents share the knave's belief that following the conventions of the artificial virtues will often not be in their own best interest, and the error theory is supposed to explain why such agents remain loyal to the conventions anyway. But why would such a shrewd agent "imagine that there is a natural motive for acts of justice and fidelity" (42,0)? According to Gauthier, such a person recognizes that the conventions benefit society, including herself, and also recognizes that she has no interested motive to conform herself to the conventions. From these facts she concludes that she must be lacking an interested motive which normal people have. But why would that follow? As far as I can tell, Gauthier provides no answer to this question. If we are dealing with unscrupulous self-interest calculators, there is no plausible reason we should expect them to be so carelessly complicit in their own deception. Gauthier actually suggests that the would-be-knave's self-deception is not careless but rather quite deliberate: "each would welcome the replacement of self-interest by integrity [as a general social norm], and would want his fellows to be scrupulous in carrying out their moral duties, even at the price of being swept up himself in moral enthusiasm" (42,0). Surely this odd hypothesis is not obviously more defensible than the original interest account. In any case, we are certainly no longer in the company of the sensible knave Hume considers, who would be smart enough not to be swept up, to the detriment of his own true interests, in the enthusiasm for the morality he regards as a lie.

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Before leaving the error theory, we should comment on the three Treatise passages which Gauthier adduces as evidence that even the young Hume thought artificial virtues lack adequate natural motivation and must therefore be grounded in some kind of error. Gauthier 's argument, recall, begins with Hume's claim that actions performed for the sake of duty must also be such as could be motivated by natural, non-moral concerns; explicitly moral motives are parasitic on non-moral motives. Gauthier reads the three passages as claiming that there is no natural, non-moral motive to perform acts of justice and promise-keeping, and that therefore such acts can be motivated only by a misapprehension of the acts as genuine duties, when in fact they are not. Here are Hume's three passages together with alternatives to an error theorist's reading of them—alternatives which show why Hume believed that the artificial virtues were indeed satisfactorily explained by an interest account of them:10 we have naturally no real or universal motive for observing the laws of equity, but the very equity and merit of that observance; and as no action can be equitable or meritorious, where it cannot arise from some separate motive, there is here an evident sophistry and reasoning in a circle. Unless, therefore, we will allow, that nature has establish'd a sophistry, and render'd it necessary and unavoidable, we must allow, that the sense of justice and injustice is not deriv'd from nature, but arises artificially, tho' necessarily from education, and human conventions. ^483)

The last sentence makes clear that Hume is contrasting "natural" with "conventional" or "artificial," not with "moral"; so Hume, contra Gauthier, is not claiming that the only motives for artificially virtuous actions are explicitly moral motives. Hume himself notes the ambiguity of his use of "natural" (T 474-7 5, E 307) , and my basic claim is that each passage should be read as denying the existence of preconventional motives to artificial virtue, not the existence of non-moral motives to such virtue. The last sentence also shows that Hume is proposing his theory of the conventional origin of justice and promise-keeping as an alternative to the conclusion that the artificial virtues are founded on a "sophistry." One would be in error to think one had a moral duty to perform free-standing acts of justice or honesty apart from any wider conventions to do so; but that is the sort of error the interest account, by explaining the natural (i.e., non-moral) origin of such conventions, avoids. Here is the second passage: And where an action is not requir'd by any natural passion, it cannot be requir'd by any natural obligation ---- Now 'tis evident we have no motive leading us to the performance of promises, distinct from a sense of duty. If we thought, that promises had no moral obligation, we never shou'd feel any inclination to observe them____But as there is naturally no inclination to observe promises, distinct from a sense of their obligation; it follows, that fidelity is no natural virtue, and that promises have no force, antecedent to human conventions. ( T 518)

Here again, the last sentence clarifies Hume's strategy. He is constructing a reductio: If promise-keeping were a natural (i.e., pre-convention) duty, its only motive 10 As noted above, Gauthier himself provides readings of the passages consistent with the interest account (415-16) similar to the ones I suggest here; it is his convictions that the sensible knave poses an insurmountable challenge to that account, and that Hume is aware of this challenge, which lead him to reject the interest-friendly readings.

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could be a sense of duty, because no other natural (i.e., pre-convention) motive could account for it. But promise-keeping couldn't be motivated only by a sense of duty. Hence, promise-keeping is not a natural (i.e., pre-convention) duty. Once again, Hume's point is not that promise-keeping has no non-moral motivation, but that it has no pre-convention motivation. (The larger context of the passage, which I will not quote here, also supports this reading.) And now the third passage, to which I add an important preceding clause not quoted by Gauthier: . . . interest is the first obligation to the performance of promises. Afterwards a sentiment of morals concurs with interest, and becomes a new obligation upon mankind. . . . The difficulties, that occur to us, in supposing a moral obligation to attend promises, we either surmount or elude. For instance; the expression of a resolution is not commonly suppos'd to be obligatory; and we cannot readily conceive how the making use of a certain form of words shou'd be able to cause any material difference. Here, therefore, we^gwa new act of the mind, which we call willingan. obligation; and on this we suppose the morality to depend. But we have prov'd already, that there is no such act of the mind, and consequently that promises impose no natural obligation. (T 52.3)

As the first clause makes clear, Hume is not claiming that promises carry no nonmoral obligation; his point, yet again, is that promises impose no pre-convention obligation. No doubt, Hume thinks that promise-making typically involves an error. But what kind of error? The error is one of self-understanding. Embedded as we are in the well-established conventions of promise-making, we cannot imagine that words or other signs could be the source of our obligations. We think of the words of a promise as mere accompaniments to a private act of willing which, we think, must constitute the real promise. As Annette Baier explains, "It is not so surprising an error if some people suppose that it cannot be just the words that are so powerful, but rather the act of mind that they express."11 Hume argues that the notion of privately willing an obligation into existence is internally incoherent (T 516-18) and at odds with the way promises actually function (T 5 23-24); these are the "difficulties, that occur to us, in supposing a moral obligation to attend promises." Hume eludes these difficulties by showing that promises are a social construction which, contrary to common belief, are constituted by the words and signs we suppose merely express them.12 The feigned act of mind is not, therefore, to believe that promise-keeping is in one's own interest when, in fact, it is not; it is, rather, to believe that one has bound oneself by a pre-convention act of will when, in fact, it is an interest-inspired convention which generates one's obligations. None of the three Treatise passages tells on close inspection for the error account or against the interest account. So much, then, for the error theory.

11 Annette C. Baier, "Artificial Virtues and the Equally Sensible Non-Knaves: A Response to Gauthier," Hume Studies 18 (1992.): 43 5. 11 This is another instance of the pattern of skeptical paradox, skeptical solution which recurs throughout Hume's philosophy. Compare Hume on promises with Hume on causation: We have a common-sense belief in X; we find that our ordinary explanation of X collapses under Hume's skeptical interrogation; we are then offered a surprising new explanation of X, one which accommodates ("eludes") the original skeptical doubts, to underwrite our common-sense belief. This is the pattern Saul Kripke identifies in Wittgenstein on Rules and Private Language (Cambridge: Harvard University Press, 1982,); see especially 64-67.

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3.2 A Difficulty for Darwall's Regulation Account Darwall's regulation theory can be made compatible with Hume's psychology of action only at the cost of becoming uninteresting. Humean agents may regulate themselves by a scheme of rules, and their actions may then be reasonably described as "mandated by a normative principle they accept" (Darwall 318). Selfregulation according to a rule may thus be part of a Humean agent's motivations in the sense that reference to a rule would be a part of the complete and truthful answer to the question, "Why did you perform thatjust action?" But, according to Hume's psychology, the motive to follow a rule (or scheme of rules) will always be instrumental to some state-regarding passion or desire which anchors the chain of motives in which the rule-motive is a link (TII.iii.3, EApp. I). Hume has plenty of room, in both the Treatise and the Enquiry, for motives that look like reasons or rules; he simply requires that they be embedded in explanations which conclude in passions/3 Like Aquinas, Hume does not require that agents be constantly aware of these complete explanations. He claims only that agents who accurately reflect on their immediate reasons for action will discover those reasons to be grounded ultimately in passions for which no further reasons can be given (E 2.93). Darwall notes (literally, n. 2.1) that for Hume, any motive to follow a rule is supported by other, non-rule-motives (2,98). The question then becomes, what's so special about the fact that Hume allows that people deliberately follow rules? The sensible knave problem aside (to be handled below), why think that Hume's scattered and casual references to rule-following signal the recognition of a type of motivation which can find no place in Hume's official story of action? We may become so habituated to following rules that we cease to think about any reason for doing so beyond the existence of the rules themselves. Perhaps, akin to the "feigned act of mind" discussed above in conjunction with promises, we come to believe that rules, without intermediary passions, determine our actions. But Hume would surely reject this belief as a mistake, and for the same sorts of reasons he rejects the parallel belief that reason is the ultimate source of actions. I think Darwall's talk of agents regulating themselves by rules to which they assign "independent deliberative weight" (2,99) would be mysterious to Hume, and there is no reason to introduce such an interpretation unless other considerations force us to it. 3.3 A Defense of Hume's Interest Account Against the Free Rider Problem Any appeal in Gauthier's and Darwall's alternatives to the interest account thus lies solely in avoiding the unanswerable challenge the sensible knave is alleged to pose to the latter. We now turn to the central task of assessing this challenge. Here is the gist of my position: Gauthier's and Darwall's calls for a revision of the interest account assume that the sensible knave poses a generalized problem for that account. In fact, the sensible knave is an exceptional character. Hume's task in both the Treatise and the Enquiry is to provide a plausible naturalistic story of the origin of the practices of justice and fidelity as we find them. The existence of a few knavish exceptions is perfectly compatible with an interest account of such practices. In fact, knaves should be some part of such a story, since they are cer13

Cf. Blackburn, Ruling Passions, 240.

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tainly a part of the real practices of justice and fidelity. Without assessing the adequacy of Hume's interest account as a whole, we can at least defend it from the free rider problem. If Hume's story were simply one of first-order self-interest supporting secondorder conscience, we might fairly expect the sensible knave to be a larger problem than he is, perhaps as large a problem as Gauthier and Darwall make him out to be. But these critics have overlooked important motivational resources at Hume's disposal. True, Hume's account of the rise of the artificial virtues begins with narrow self-interest and arrives, eventually, at a sense of duty; but there is an interesting story connecting these two. I shall try to reconstruct this story with some of the relevant details which Gauthier and Darwall leave out. Here are five motives, all compatible with the interest account (and none of the second-order duty sort), to respect the conventions of justice and promisekeeping. They are presented in roughly the order they would likely arise in the spread of conventions from a few of one's immediate fellows to a large society of strangers. First, an agent will fear the non-cooperation of others if he breaks the rules. Each person will be better off in even small-scale associations than he would be alone, and anyone who defaults from the cooperative scheme of such an association is going to be noticed. To adapt Hume's own example (T 52,0), if my neighbor helps me harvest my crop on the supposition that I will help him harvest his, and then I sneak away, my absence will be discovered. At this primitive stage in the development of the convention, there is no background institution for me to benefit from even as I exempt myself from its demands; my participation constitutes the practice the existence of which benefits me. Ejection from the group is likely to be the immediate consequence of defaulting, and the fear of ostracism is the primary motive Hume appeals to in the interest account of promising (T 52,2,). A second motive arises after the convention has been established but is not yet widespread or firmly rooted. Desiring that the convention as a whole survive, an agent realizes (quite rightly) that her own compliance with the practice is still an important signal to other present and potential participants. She knows that the practice will survive as a practice only if each of the current participants reinforces it by constant example. Defaulting to satisfy one's immediate desires will encourage others to do the same, materially weakening the practice, whereas consistently following the rules will give others continuing motivation to sustain the practice, too. Hume believes that such a concern with the influence of one's own example on the integrity of the practice is essential to explaining the practice's initial motivational grip on people (T498). Third, once the convention is well-established, people will come to recognize both the benefits that it bestows on society in general and the harm caused to particular individuals (who have formed expectations in light of the convention—see E 310-11) when it is flouted. The same natural sympathy which produces moral judgments will then contribute to an agent's motives for conforming to the rules.14 14 I am not here claiming that sympathy motivates by producing moral judgments; rather, I am claiming that Humean sympathy, which produces moral judgments, also produces a first-order motive to action. The point of the story I am telling now is to avoid a hasty appeal to uniquely moral motives.

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The motivational status of such sentiments in Hume is admittedly disputed. There is no doubt, in what I have above described as the second stage of the interest account, that Hume holds that moral sentiments of praise and blame attach to the artificial virtues on the basis of our sympathetic approval of the social and individual goods (and, as per the second preliminary point noted above, not merely the goods of the agent) which those virtues promote. The question is whether such sentiments are motivationally efficacious, or whether their influence is limited to the formation of an inert moral judgment in a spectator. Darwall, without any appeal to the texts, claims that Hume holds them to be inert (16, 2,87). Had Darwall wanted to support this interpretation, he might have pointed to Hume's statement that the sympathy which produces the moral approbation of justice "is too weak to controul our Passions; but has sufficient Force to influence our Taste, and give us the Sentiments of Approbation or Blame" (T6jo). This might appear to be a straightforward denial of my claim that an agent's sympathy may motivate his compliance with the demands of the artificial virtues. But Hume also claims in the Treatise that sympathy operates by elevating our idea of someone else's pain or pleasure into an impression of that pain or pleasure of "such a degree of force and vivacity, as to become the very passion itself, and produce an equal emotion, as any original affection" (T 317; see also 3192,0, 576). And whatever Hume's position on the motive force of sympathy in the Treatise, his position in the Enquiry is unambiguous. There he argues that social sentiments, which may originally be strong enough to support only moral judgments, gain strength, when reflected among the members of a society, sufficient to overpower initially stronger "selfish and private" passions (E 2.75-76). And he also treats untempered sympathy as naturally strong enough to motivate actions in at least some circumstances (E 303). So there is at least as much, and probably more, textual evidence that Humean sympathy can motivate as there is that it cannot. And textual evidence aside, a theory which allows (rightly) that concern for others may motivate an agent and that agents may imaginatively identify with the interests of others should, it seems, also allow (rightly) that such imaginative identification can be a motive for agents to treat others as they themselves would want to be treated, i.e., to follow the conventional rules of justice and fidelity. A fourth possible motivation for the artificial virtues emerges as societies based on those virtues become large enough that individuals need not worry so much about ostracism or the collapse of the conventions if they break the rules. For now society will also be complex enough to have instituted a government to hunt down and punish those who violate the conventions. This motive, as Gauthier notes (408), is distinct from the fear of ostracism. Whereas ostracism is simply expulsion from the benefits of the convention, punishment is an additional cost forcibly imposed on the discovered knave. Although Hume is standardly taken to have recognized the free rider problem only in the second Enquiry, his discussion of the origin of government in the Treatise suggests he was aware of the problem in the earlier work (T 538). There he argues that governments are essentially arrangements to give some people (the rulers) an interest in making sure that other people (the ruled, including, presumably, the knaves) have reliable short-term interests to act according to the rules which promote the long-term interests of society.

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A fifth and final motive for rule-following is the love of reputation which private and public education inculcates. Once conventions of justice and honesty are established, parents and politicians strengthen each person's interest in complying with the rules by attaching praise and blame to virtuous and vicious deeds. The love of approval naturally motivates children to develop those habits which they are (more or less truthfully) told will produce it. Hume claims that education alone could not establish habits of justice and honesty if nature (presumably encompassing at least the first three interested motives discussed above) did not support them (T 500). But "the interest of our reputation" (T 501) may be powerful enough by itself to cause many people to play by the rules. Hume's position here seems be that education can by itself instill the artificial virtues, but that the artificial virtues would never have become enshrined as a subject of education if they had not otherwise proven their usefulness to society. Marcia Baron has argued, in somewhat the spirit of Gauthier, that the artificial virtues take root only because educators tell children a noble lie, namely, thatjust acts will always be in the children's own best interest. Baron believes "artifice" in the context of Humean virtues should be construed as "cunning" or "trickery."15 And the trickery involved in such virtues is that 'Sve are duped into believing that the benefits of justice are greater than in fact—on Hume's view—they are."16 If Baron is right, then it seems that this fifth possible interested motive does not weigh in the balance against Gauthier's error account, since it operates by deceiving people about their true interests. But I believe Baron's interpretation is importantly wrong. She interprets Humean moral education as a series of explicit appeals to the kind of basic material interests which produce the first small-scale cooperative behavior. And if this were how children were really educated, then a noble lie might be required to convince the potential knaves (and only those clever enough to cheat without getting caught) that exceptionlesslyjust and honest conduct really was in their best interest. But the parental and political pressures Hume invokes do not involve confronting children with decision matrices. Rather than appealing to a set of rationally calculable interests children have apart from their relationships to others, Humean educators (like most sensible educators) use children's natural hunger for approval (especially approval from authority) to produce an interest in obedience which makes essential reference to the reactions of others, initially the reactions of just the child's teachers but eventually (if all goes well) the reactions of all well-bred people. Hume is quite clear that 'There is nothing, which touches us more than our reputation" (Tjoi), and he does not seem to mean that it touches us simply by its effects on our asocial material prospects. Rather, human beings take a strong first-order interest in the esteem of other people. Given this fact, and assuming that justice is sufficiently useful to be made an object of a culture's education, there is no trickery involved in teaching children to love justice and hate injustice for the good of their own reputations. The interest in reputation to which Humean education appeals is distinct and genuine. 15 Marcia Baron, "Hume's Noble Lie: An Account of His Artificial Virtues," Canadian Journal of Philosophy iz (1982,): 539. 16 Ibid., 552..

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So we can envision at least five interested Humean motives to keep the wouldbe knave within the fold of the artificial virtues. Granting that none of the five is a sure-fire knave-stopper, it seems reasonable to think that they are jointly sufficient to keep most people playing the artificial virtue game most of the time. It is important to see that no one person's motives to justice are likely to include all the interests, even successively. Rather, the later interests will supplant the earlier ones as society grows in size and complexity (see, e.g., ^499; Hume makes a similar move in his derivation of political authority [T 554-55]), so that a person born into our type of society may (for example) feel the pull of only interests four and/ or five leading him toward just conduct. And hopefully, late in the game, many people will be motivated solely by a sense of duty to perform virtuous actions which could be, but are not in fact, motivated by one or another of the five interests. Ascribing an interest account to Hume, Barry Stroud has attacked Hume's story of the artificial virtues on the grounds that "our avidity," apparently in the sense of the first interest described above, is not sufficient to motivate consistently just actions. "Hume tries to account for that obligation [to be just], and how it can motivate us, in terms of virtually self-interested motivation alone."17 Certainly, if our self-interest is construed simply as the material enrichment we have to gain from this or that just action, Hume's project is bound to fail. But Hume nowhere sets himself the task of proving that each person factual motive to justice is such an interest. Rather, he aims to show that such an interest is sufficient in primitive conditions to support the first steps toward the conventions which ground the artificial virtues, and that human nature contains enough springs and principles to give people living at different stages of social evolution motives to maintain the conventions until education is strong enough to erase injustice from the average person's deliberative menu. There is no need for each generation to reinvent the conventions. Someone might point out that motives one, two, four, and five all require a person to believe his knavery would be discovered. But that belief seems common enough, and it is supported by a selection bias friendly to the interest account: those knaves we hear about are those knaves who have, eo ipso, been discovered, and who have often therefore wound up ostracized or punished or maligned. A defender of the interest account need not shy away from the truth that more people would be knaves if they did not fear discovery. Unlike Kant, Hume is not arguing that some rational essence of humanity demands justice of everyone. Hume is keenly (and consistently; see T 494-9 5; .EIII.i) aware that his story of the artificial virtues depends on contingent facts about human nature and the material world. Michael J. Costa has well made the point that "Hume is concerned to show that human beings have good reason to value the sense of justice. He does not need to show that this holds for any possible creature of a fertile imagination."18 Given that most people do fear discovery, and probably for good reason, they have more than enough interested motivation to keep them following the rules of justice 17 Barry Stroud, Hume (London: Routledge, 1977), 2,10; see 204-18 for an extended statement of the charge. 18 Michael J. Costa, "Why Be Just? Hume's Response in the Inquiry," Southernjournal of Philosophy

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and fidelity. Most people are not knaves, and they have good Humean reasons not to be. And that, as I have noted above, is all that Hume thinks is necessary to explain and sustain the conventions of justice and honesty as we actually find them. There are many unjust and dishonest people in the world, so any story which made it motivationally impossible to be such a person would be a fiction. The interest account, including sensible knaves, makes such people possible but rare enough to coexist with the conventions the rest of us observe. Finally, what about those few knaves who are smart enough and lucky enough to go undetected? As I hinted above, Hume's response to their existence is not a response to them, as if he were trying to persuade fully formed knaves to change course. Hume's first comment on the knave is that anyone so motivated will not be persuaded by Hume's kind of reasons (£283). He is admitting forthrighdy that, in the Kantian idiom, the rules of justice have the force of merely hypothetical imperatives; but since categorical imperatives have no place in Hume's theory, the contingency Hume acknowledges here poses no special threat. As Simon Blackburn has recognized, Hume is networking in the Platonic tradition of rationally forcing knaves back into the moral fold.19 Instead, Hume goes on to describe the unhappiness of the knaves' condition as it appears to the great mass of basically just and honest people, those who have been taught to feel pride for doing justice and shame for doing injustice. And Hume's actual response seems pretty much the right one for an interest account to make: successful knaves have, for whatever reason, not acquired sufficient interests to follow the conventions, and there is probably no way to argue them into such motives. They are freaks whose actions don't make sense for the rest of us. Our disciplined, redirected motives have no grip on them, but their unsocialized, self-centered motives do not grip us, either. They are like the foxes that sometimes raid the hen house of a well-established farm. They are our enemies, and if their luck runs out, we will treat them as such; but they are not going to ruin the farm.20

19

Blackburn, Ruling Passions, 2,08-9. Thanks to two anonymous referees for the Journal, to Stephen Grimm, and especially to Lynn Joy for helpful suggestions on this paper. i0

[21] The First Motive to Justice: Hume's Circle Argument Squared DONGARRETT

"Justice" is Hume's most common term for respect for property. On Locke's view, the obligation to respect property is an original moral obligation imposed through a divinely instituted natural law that exists prior to and independent of human conventions. Hume expresses his disagreement with views like Locke's by calling justice an "artificial virtue"—meaning by this that it is only "by means of an artifice or contrivance" that it produces the moral approbation that constitutes it as a virtue (T3.2.1.1; SBN477).1 In his discussion of justice in A Treatise ofHumanNature 3.2.1-4, he begins by arguing that justice (which he also calls "equity" and "honesty") is "artificial" before going on to explain the origin of the convention on which it depends and why adherence to that convention is regarded as virtuous.2 Central to his defense of his claim that justice is an artificial virtue is a line of argument that is known (at least in some circles) as his "Circle Argument." Hume applies this line of argument in Treatise 3.2.1 ("Justice, whether a natural or artificial virtue?"). The argument depends on a core thesis of his virtue-based approach to ethics: that the moral merit of an action is derived entirely from the moral merit of the virtuous "motive" of which it is a sign. (It should be emphasized that the scope of the term "motive" is very broad in Hume's usage, encompassing character traits, abilities, dispositions, and recurring passions as well as occurrent desires.) The virtue of the motive is, in turn, discerned by the moral sense, by means of sentiments of moral approbation that are typically elicited, in part or in whole, through sympathy

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with those who possess or are otherwise affected by the motive [T 3.1.2; SEN 470-6; T 3.3.1; SEN 574-91].) From this "Core Virtue Ethics Thesis," as we may call it, he derives a general principle that we may call the "First Virtuous Motive Principle": namely, that for any virtuous action, there must be a "first virtuous motive" that is other than a sense of moral duty to the action itself. This principle follows from the Core Virtue Ethics Thesis, he argues, because the only alternative would be a vicious "circle," in which the moral merit of the action would have to be derived from the antecedent virtue of the motive that produced it, while the virtue of that motive could only be derived, in turn, from the antecedent moral merit of the action expressing it. Duty (i.e., a "regard to the moral merit of the act") can function as a motive to act, and even (in its way) a morally praiseworthy and so virtuous one, on Hume's account; but it can do so only when the moral merit of the kind of action in question has alreadybeen established by its relation to another virtuous motive. In acting from duty, he holds, we seek either to hide from ourselves our lack of that prior virtuous motive or to inculcate it in ourselves through habit (T 3.2.1.8; SEN 479). Once he has established the First Virtuous Motive Principle, Hume completes the Circle Argument by applying the principle to observations about the motives to acts of justice in order to argue that it must—on pain of circularity—be an artificial virtue. Hume's use of this line of argument has seemed notoriously problematic, however, for three main reasons. First, it appears that, despite the requirements of his own First Virtuous Motive Principle, Hume does not allow that there is any virtuous motive that can explain the full range of acts of justice other than the sense of duty to perform them. On the contrary, it appears that in at least two passages he explicitly denies that there is any such motive. Second, it appears that, given his survey of possible motives, Hume should not allow that there is any virtuous motive for justice other than the sense of duty. He considers three possible motives: public benevolence, private benevolence, and self-interest. But he argues that neither kind of benevolence is sufficient to motivate the full range of just action; and although he does allow an important role to "self-interest" in the origin of justice, he also seems to concede that it, too, cannot ultimately motivate the full range of acts of justice. Even more fundamentally— and independent of worries about its motivational range—self-interest does not appear to be a virtuous or morally praiseworthy motive at all. Third, it appears that Hume cannot allow that there is any "first virtuous" motive to justice without contradicting his own conative psychology. For he seems to allow, and even to insist, that one could consistently adhere to the requirements of justice only by applying rules to regulate one's conduct independently of considerations of pleasure and pain, thereby taking those rules as authoritative. Yet his theory of motivation seems to require that only prospective pleasure or pain can ultimately motivate action, and hence the theory seems to provide no way in which to regulate action by an authoritative rule.

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All of this seems quite disastrous for Hume. For since he holds that the First Virtuous Motive Principle is an unavoidable consequence of the Core Virtue Ethics Thesis, he cannot allow that there is no motive to justice satisfying the requirements of the Principle without allowing either (i) that the core thesis of his own virtue ethics is false or (ii) that he is wrong to characterize justice as a virtue.3 In the first section of this paper, I will consider whether Hume does allow that there is a first virtuous motive to justice other than a sense of duty or whether he denies it. In the second, I will consider whether he should allow that there is such a motive in light of his survey of the available options. In the third section, I will consider whether he can consistently allow such a motive within the constraints of his conative psychology. My conclusions will be that Hume can, should, and does identify such a motive. Commentators have typically characterized Hume's Circle Argument as involving irreconcilable contradictions or difficulties; but with respect to these three questions, at least, Hume's use of the Circle Argument can be squared. Hume also holds, against Locke and others, that promise-keeping—which Hume calls fidelity—is an artificial virtue, and in Treatise 3.2.5 ("Of the obligation of promises") he employs a version of the Circle Argument to support that claim as well. Three parallel puzzles arise about Hume's application of the argument to the case of fidelity, and parallel solutions apply. The texts giving rise to a puzzle concerning fidelity paralleling the first puzzle concerning justice are discussed in an appendix.

I. Does Hume Allow a Non-Moral Motive to Justice? In a seminal article, David Gauthier4 emphasizes a passage in the Treatise in which Hume appears to deny that there is any non-moral motive to justice at all. (By "nonmoral motive," here and in what follows, I shall always mean "a motive that has no regard to the morality of the action" in the way that the motive of duty does have such a regard; to call a motive "non-moral" in this sense does not entail that it is not itself a morally virtuous motive.) The passage has since been much-cited. In an important subsequent article, Stephen Darwall5 also emphasizes a further passage from the essay "Of the Original Contract" in which Hume appears to deny that there is any non-moral motive for any artificial virtue. In order to understand the passage emphasized by Gauthier, it will be necessary to examine in some detail the version of the Circle Argument in which it is embedded. In order to understand the passage emphasized by Darwall, in contrast, it will be necessary to examine Hume's theory of obligation. Does Hume Reject Non-Moral Motives to Justice?'The passage cited by Gauthier occurs near the conclusion of Hume's application of the Circle Argument to the case of justice; in common present-day editions of the Treatise6 it reads thus:

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Don Garrett From all this it follows, that we have naturally no real or universal motive for observing the laws of equity [i.e., the rules of justice], but the very equity and merit of that observance; and as no action can be equitable or meritorious, where it cannot arise from some separate motive, there is here an evident sophistry and reasoning in a circle. (T 3.2.1.17; SEN 483; emphasis added)

The word "naturally" does not appear in the first-edition version of this passage, which therefore reads simply, "... we have no real or universal motive..."; Hume added the word to his own printed copy of the Treatise, presumably as a correction intended for a possible second edition.7 In order to appreciate the significance of its addition and its relation to the argument as a whole, it is necessary to note that, in concluding the section of the Treatise that immediately precedes his discussion of justice, Hume distinguishes five senses of the term "natural." He distinguishes these senses by means of relevant contrasts: what is "natural," he writes, may be "opposed to miracles," "opposed to what is rare and unusual," "opposed to artifice," "opposed to civil" or "opposed ... to moral" He adds in a footnote that, in what follows, "the opposition will always discover the sense, in which it is taken" (T 3.1.2.7-9; SEN 474-5).8 Accordingly, whenever quoting Hume, I try to disambiguate the term (using brackets) wherever it occurs. Hume begins his Circle Argument about justice with two observations about moral evaluative practice: Jl. When we praise any actions, we regard only the motives that produced them, and consider the actions as signs or indications of certain principles in the mind and temper. J2. When we require any action, or blame a person for not performing it, we always suppose, that one in that situation shou'd be influenced by the proper motive of that action, and we esteem it vicious in him to be regardless of it. He uses these observations to support the Core Virtue Ethics Thesis: J3. [Core Virtue Ethics Thesis] All virtuous actions derive their merit only from virtuous motives, and are considered merely as signs of those motives, (fromjl andJ2) In the piece of reasoning that gives the Circle Argument its name, he then makes what he takes to be an uncontroversial logical point and applies it to his Core Virtue Ethics Thesis to deduce the First Virtuous Motive Principle: J4. [Logical Point] An action must be virtuous before we can have a regard to its virtue.

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J5. To suppose, that the mere regard to the virtue of the action, may be the first motive, which produced the action, and rendered it virtuous, is to reason in a circle, (from J4) J6. [First Virtuous Motive Principle] The first virtuous motive, which bestows a merit on any action, can never be a regard to the virtue of that action, but must be some other natural [i.e., non-moral] motive or principle, (from J3 andJS) This last statement is sometimes read as claiming that the first virtuous motive to any action must be some other non-artificial motive, rather than some other non-moral motive. Such a reading is implausible, however, for Hume has at this point provided no premises about artificial or non-artificial motives from which such a conclusion could be drawn. Moreover, a restriction to non-artificial motives would have no point, since J6 is used only to derive the next step 0 7), which explicitly concerns non-moral motives. Hume's use of the phrase "some other natural motive" in J6 suggests that he is contrasting the obviously moral character of "a regard to the virtue of the action" with the non-moral (and hence "natural") character of the "first virtuous motive." Modern punctuation would place a comma between "other" and "natural." From this principle, Hume infers what he calls "an undoubted maxim": J7. [Undoubted Maxim] No action can be virtuous, or morally good, unless there be in human nature some motive to produce it, distinct from the sense of its morality, (from J6) Commentators have not distinguished this Undoubted Maxim (as I shall follow Hume in calling it) from the First Virtuous Motive Principle from which it is derived, and this is not entirely surprising: the Undoubted Maxim is introduced with the words, "In short, it may be established as an undoubted maxim," which leave it ambiguous whether it is intended as a restatement of the First Virtuous Motive Principle or a consequence of it. This is not the only place in his discussion of justice where Hume's language could be less potentially ambiguous—and were there not potential ambiguities, his discussion of justice would not have engendered so much confusion, and so many interpretations, among his readers. But the logical relations involved show clearly that the First Virtuous Motive Principle and the Undoubted Maxim are two different propositions, with the former following from what comes before in the argument, and the latter serving as the premise from which later claims are derived. The difference between them, even though the latter follows from the former, will prove to be important. Suggesting that there will be "great difficulty" in finding a motive to just actions that will satisfy the Undoubted Maxim, Hume surveys three contenders—self-interest (which he also calls "private interest" or "self-love"), public benevolence, and private benevolence:

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J8. [S]hould we say, that a concern for our private interest or reputation, is the legitimate motive to all honest [i.e., just] actions: it would follow that wherever that concern ceases, honesty can no longer have place. J9. Self-love, when it acts at its liberty, instead of engaging us to honest [i.e., just] actions, is the source of all injustice and violence; nor can a man ever correct those vices, without correcting and restraining the natural movements [i.e., movements prior to artifice and contrivance] of that appetite. J10. Public benevolence... or a regard to the interests of mankind, cannot be the original motive to justice.9 Jll. Private benevolence, or a regard to the interests of the party concerned [cannot be] the original motive to justice.10 From this survey of possible original motives, he concludes: J12. We have naturally [i.e., non-artificially] no real or universal motive for observing the laws of equity [i.e., of justice] but the very equity and merit of that observance. (fromJ8,J9,J10, and Jll) This step, J12, is of course the first clause of the passage emphasized by Gauthier; and the remainder of that passage simply re-iterates that the lack of any motive to justice other than a concern for the "merit of that observance" (i.e., duty) would involve the vicious circularity first identified in J5. On this basis, Hume draws his final conclusion about the artificiality of justice: J13. Unless we will allow that nature has established a sophistry, and rendered it necessary and unavoidable, we must allow, that the sense of justice and injustice is not derived from nature, but arises artificially, though necessarily, from education and human conventions, (from J5, J7, andJIZ) Although Gauthier reads J12 as denying that we have any real motive to justice, he fully allows that it may be read instead as denying only that we have any nonartificial motive to justice. In fact, however, it can onlybe read in the latter, restricted fashion. First, that is the only reading that makes sense of Hume's addition of the term "naturally" to J12. Second, it is the only reading that makes sense of J13's conclusion that (barring a literally impossible "sophistry in nature") the sense of justice is artificial Third, and just as important, it is also the only reading that allows J12 itself to follow from J8-J11, given J9's explicit limitation to the "natural" (i.e., non-artificial) movements of self-interest or self-love. Finally, to read the passage as denying that there is any motive to justice other than duty would conflict directly with Hume's own subsequent claim that "self-love [i.e., self-interest] . . . produces the rules of justice, and is the first motive of their observance" (T 3.2.8.5; SEN 543).

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Does Hume Reject Non-Moral Motives for All Artificial Virtues? Let us turn now to the passage cited by Darwall. It occurs in the essay "Of the Original Contract,"11 where Hume distinguishes two classes of moral duties corresponding to the natural and artificial virtues, respectively: All moral duties may be divided into two kinds: The first are those, to which men are impelled by a natural instinct or immediate propensity, which operates on them, independent of all ideas of obligation The second kind of moral duties are such as are not supported by any original instinct of nature, but are performed entirely from a sense of obligation. (Hume, "Of the Original Contract," 479-80) If the "sense of obligation" which "entirely" motivates virtuous acts of this second kind is an exclusively moral sense of obligation, as Darwall asserts it is for Hume (438), then these virtuous actions would clearly violate the First Virtuous Motive Principle. In fact, however, Hume does not say that these virtuous acts are performed entirely from a sense of moral obligation, and he gives every indication that they are not. Within the practical (as opposed to the epistemic) realm,12 he regularly contrasts two species of obligation: (i) moral obligation and (ii) "the natural [i.e., non-moral] obligation of interest" (T 3.2.9.3; SEN 551; and T 3.2.11.4; SEN 556), which he also calls more simply "natural obligation" or "interested obligation."13 He explains moral obligation as follows: When any action or quality of the mind pleases us after a certain manner we say it is virtuous; and when the neglect or nonperformance of it displeases us after a like manner, we say that we lie under an obligation to perform it. (T 3.2.5.4; SEN 517) The manner, or kind, of displeasure relevant to moral obligation is, of course, the sentiment of moral disapprobation that, along with the sentiment of moral approbation, plays a central role in his moral sense ethical theory. He does not, in contrast, specifically explain the nature of interested obligation. If, however, moral obligation is constituted by displeasure in one certain manner at the neglect of an action, then it is reasonable to suppose that natural or interested obligation is constituted by displeasure in another manner at the neglect of an action—specifically, displeasure at the realization that the neglect of an act leaves one worse off than one would have been had the act been performed, so that neglect of it harms one's interests.14 One of the primary aims of the essay "Of the Original Contract" is to refute a central Lockean claim adopted by members of the Whig party—namely, that the

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moral duty to allegiance (i.e., obedience to government) is derived from the moral duty to fidelity (i.e., promise-keeping) through a literal "social contract." In the passage that Darwall cites, Hume is arguing that allegiance, like justice and fidelity but unlike the natural virtues, is recognized as a moral duty through a process in which a "sense of obligation" results from considering what he there calls "the necessities of human society, and the impossibility of supporting it, if these duties were neglected."15 But this consideration is not originally a moral consideration, as his Treatise accounts of the origins of these three virtues make especially clear. On the contrary, Hume holds that a "consideration of the necessities of human society" gives rise first to a sense of natural or interested obligation to justice, fidelity, and allegiance. For participation in human society is, he argues, essential to the well-being of every human being; and justice, fidelity, and (ultimately) allegiance are essential to the maintenance of society. Human beings are therefore motivated first by an appreciation of the serious harm to themselves that would result without the benefits of society that only justice, fidelity, and allegiance can provide. This is then followed, on his account, by a sense of moral obligation, when moral sentiments arise from reflecting sympathetically on the similar positive effects of justice, fidelity, and allegiance on everyone in society. It is through these (originally selfinterested) reflections, Hume remarks, that justice and fidelity "become obligatory, and acquire an authority over mankind" ("Of the Original Contract," 480). Accordingly, in the passage that Darwall emphasizes, Hume is claiming only that, unlike actions manifesting natural virtues, adherence to justice,fidelity,and allegiance must be motivated "entirely by a sense of obligation" that is first interested, and then also moral. For lacking natural (i.e., non-artificial) inclinations to adhere to these practices, human beings must instead be motivated first by a sense of the displeasing harm to their own interests, and then also a sense of the displeasing moral disapprobation, that will result from their non-performance.

II. Should Hume Allow a First Virtuous Non-Moral Motive to Justice? As we have now seen, Hume does not explicitly deny that there is any motive to justice other than the sense of duty. But can he provide a motive for justice that satisfies the First Virtuous Motive Principle, or should he conclude from his survey of available motives that no such non-moral motive exists? In the Circle Argument, as we have seen, he considers three potential motives to justice. He there provides three reasons why public benevolence cannot provide such an original motive (Step JIO), and three reasons why private benevolence cannot provide it (Step Jll). Both sets of reasons include acts of justice (for example, returning property in a "secret loan" or to a "profligate debauchee," respectively) that could not be produced by the motive in question. Thus, while not denying that some particular actions

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required by justice might happen to be performed out of public or private benevolence, Hume denies that either of these motives alone can explain the full range of just acts that are actually performed—what we might call the full "behavioral profile" of justice. Hence, he concludes that neither can be the original non-moral motive giving rise to just action that is demanded by the Undoubted Maxim. It is a further question, however, whether his survey allows that self-interest, when properly "corrected and restrained," might be such a non-moral motive. Self-interest in the Origin of Justice. In Treatise 3.2.2 ("Of the origin of justice and property"), Hume argues that "self-love" (i.e., a regard to self-interest) "is the original motive to the establishment of justice" (T 3.2.2.24; SEN 498; see also T 3.2.8.5; SEN 543), for it alone can motivate the adoption of a convention through which individuals allow one another stable possession of material goods.16 A convention exists among a group of individuals, as Hume explains it, when (i) each has an interest in following a particular course of conduct but only on the condition that the others follow a corresponding course of conduct; (ii) this common interest is mutually expressed and known among the parties; and (iii) this mutual expression and knowledge serve to produce "a suitable resolution and behaviour" (T 3.2.2.10; SEN 490). Conventions thus do not require any promise. The mutual willingness to adhere to the course of conduct specified by rules of justice creates a convention that bestows "stability on the possession of... external goods, [and leaves] every one in the peaceable enjoyment of what he may acquire by his fortune and industry" (T 3.2.2.9; SEN 489). The parties to this convention all serve their own interests (along with the valued interests of their families and friends) by "regulating their conduct" in accordance with the "strict and inflexible rules" of property, because such regulation allows the parties to maintain society, and in society each individual enjoys far more in the way of secure material goods than would be possible without this self-restraint. Given the recalcitrance of human passions, consistent adherence to fully worked-out conventions of justice "arises gradually, and acquires force by a slow progression, and by our repeated experience of the inconveniences of transgressing it" (T 3.2.2.10; SEN 490.) Yet the convention of justice is so essential to society that it is needed in some form to stabilize the family itself, for "every parent, in order to preserve peace among his children, must establish it" (T 3.2.2.14; SEN 493). Although the convention originates in self-interest, we soon come to approve morally those who adhere to its rules and disapprove those who do not; for we feel moral sentiments when considering with sympathy the effects of their characters on the members of society who benefit from the conventions. The increasing size of societies, though in many ways beneficial, creates a further threat to justice and fidelity: the harmful effects of individual acts of injustice and infidelity on one's own and the public interest become less certain, direct, and obvious, and so the temptations to violate the rules of property and promise-keeping in pursuit of a present desire increase. The solution to this problem

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is a new convention involving the institution of a government, a structure that provides some individuals (e.g., magistrates and their deputies) with a more particular interest in protecting and enforcing the property and contract rights of others. Meanwhile, moral approval of justice and fidelity is further encouraged by the praise of politicians, who appreciate the importance of justice to society, and by parents, who see justice as a virtue that will be useful to their children in society as well as conducive to the well-being of society as a whole.17 As a result, these virtues come to play an especially important role in one's reputation, so that every one who has any regard to his character, or who intends to live on good terms with mankind, must fix an inviolable law to himself, never, by any temptation, to be induced to violate those principles which are essential to a man of probity and honour. (T 3.2.2.27; SEN 501) The Range of Self-Interest Yet, although Hume specifies that self-interest is the original motive to justice, commentators have argued on two main grounds that he cannot ultimately regard it as satisfying the First Virtuous Motive Principle. The first of these is that Hume appears to allow, in three different passages, that there are circumstances in which acts of justice will notbe in one's own interest; hence, it seems, self-interest can no more explain the full behavioral profile of justice than public or private benevolence can. The first of the three passages occurs in Step J8 of the Circle Argument itself: 08] Should we say, that a concern for our private interest or reputation, is the legitimate motive to all honest [i.e., just] actions: it would follow that wherever that concern ceases, honesty can no longer have place. (T 3.2.1.10; SEN 480) Some commentators (e.g., Barry Stroud and Lorraine Besser-Jones)18 have read this remark as an admission that self-interest cannot be the original motive to justice because it cannot produce the full behavioral profile of justice. In fact, however, the passage only states a condition that self-interest must meet in order to provide the original motive—namely, that no actions in the behavioral profile of justice should fall outside its motivational range. Hume's immediately following remark, Step J9, indicates, as we have seen, only that self-interest cannot naturally (i.e., without the intervention of artifice and contrivance) meet this condition.19 This leaves open the possibility that self-interest can meet this condition as the result of artifice. A second passage (also cited by Stroud and Besser-Jones) occurs after Hume has offered his account of the origins of justice: Nor is every single act of justice, considered apart, more conducive to private interest than to public; and 'tis easily conceived how a man may

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impoverish himself by a signal instance of integrity, and have reason to wish, that, with regard to that single act, the laws of justice were for a moment suspended in the universe. (T 3.2.2.22; SEN 497) The purpose of this remark, however, is only to explain his claim in the same paragraph that tho' the rules of justice are established merely by interest, their connexion with interest is somewhat singular, and different from what may be observed on other occasions. (T 3.2.2.22; SEN 497) The passage thus reaffirms that self-interest is the original motive that explains the behavioral profile of justice; and Hume then goes on to describe the way in which it does so: But, however single acts of justice may be contrary, either to public or private interest, 'tis certain that the whole plan or scheme is highly conducive, or indeed absolutely requisite, both to the support of society, and the well-being of every individual. Tis impossible to separate the good from the ill. Property must be stable, and must be fix'd by general rules— And even every individual person must find himself a gainer on ballancing the account; since, without justice, society must immediately dissolve, and every one must fall into that savage and solitary condition, which is infinitely worse than the worst situation that can possibly be supposed in society. When, therefore, men have had experience enough to observe, that, whatever may be the consequence of any single act of justice, performed by a single person, yet the whole system of actions concurred in by the whole society, is infinitely advantageous to the whole, and to every part; it is not long before justice and property take place Taking any single act, my justice may be pernicious in every respect; and it is only upon the supposition that others are to imitate my example, that I can be induced to embrace that virtue; since nothing but this combination can render justice advantageous, or afford me any motive to conform my self to its rules. (T 3.2.2.22; SEN 497-8) That is, self-interest is able to motivate the full range of just acts not by favoring the just act in every case-by-case evaluation of interest, but rather by favoring the adoption of a "scheme" or policy of adhering uniformly to the rules of justice as long as others do so as well—a policy that replaces the default "policy" of trying to assess the outcomes of individual acts. The "infinite" advantages of stable property come only with "general rules" which, because of their generality, cannot

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"separate the good from the ill" so far as particular instances are concerned. But considerations of "good and ill" in particular circumstances do not compete with the considerations in favor of the general policy of uniform adherence, on Hume's account; rather, considerations of the advantages of having the general policy give each individual a motive to exclude from consideration the "good and ill" of particular instances—that is, to "fix an inviolable law to himself" (T 3.2.2.27; SEN 501). In short, self-interest "restrains itself" (T 3.2.2.13; SEN 492), as Hume says, by motivating individuals to adopt a policy that precludes acting on the assessment of interest in particular cases in favor of uniform adherence, thus producing the full behavioral profile of justice. It is this that benevolence alone, whether public or private, cannot do. This is by no means the end of the matter, however. For Hume remarks in a famous passage in the concluding section of An Enquiry concerning the Principles ofMorals: Treating vice with the greatest candour, and making it all possible concessions, we must acknowledge, that there is not, in any instance, the smallest pretext for giving it the preference above virtue, with a view to self-interest; except, perhaps, in the case of justice, where a man, taking things in a certain light, may often seem to be a loser by his integrity. And though it is allowed, that, without a regard to property, no society could subsist; yet, according to the imperfect way in which human affairs are conducted, a sensible knave, in particular incidents, may think, that an act of iniquity or infidelity will make a considerable addition to his fortune, without causing any considerable breach in the social union and confederacy. That honesty is the best policy, may be a good general rule; but is liable to many exceptions: And he, it may, perhaps, be thought, conducts himself with most wisdom, who observes the general rule, and takes advantage of all the exceptions. (EPM 9.22; SEN 282) This third passage—emphasized by Marcia Baron,20 Gauthier, Darwall, and many others—raises clearly the threatening prospect of a different policy, which we may call the "knavish" policy: act in accordance with the rules of justice except when one can violate the rules to one's own considerable advantage (typically, without detection).21 If self-interest motivates this policy rather than the policy of uniform adherence, then it appears that self-interest cannot, after all, produce the full behavioral profile of justice. In assessing the implications of this passage, however, it is important to understand what Hume's search for an original motive requires and what it does not. If self-interest is to be the original non-moral motive to justice, it must in fact be capable of causing human beings to will to engage in the full range of actions

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contained in the behavioral profile of justice—and to do so prior to any sense of duty to them, so that those actions can be signs of some other motive that will be judged virtuous. It is not required, for example, that every individual act of justice should actually maximize the interests of the person who performs it (even after taking into account its positive effects, if any, on the willingness of others to abide by the relevant convention). For a policy may still be the most advantageous policy to adopt even if there are some cases in which a violation of it would be more advantageous in its consequences than adherence. Specifically, it may remain the most advantageous policy to adopt as long as there is no other feasible policy that will, when adopted, provide the benefits of those violations without also producing greater harms to one's interest—for example, harms resulting from allowing too many or otherwise undesired exceptions. For these harms are not consequences of the intended violations considered individually, but rather necessary collateral costs of being able to implement the policy that then facilitates the violations. Nor is it even required, in order for self-interest to be the original motive to justice, that uniform adherence to its rules actually be the best policy to adopt from the standpoint of self-interest, so long as no other policy actually under consideration appears to be a better policy to adopt from that standpoint. Individuals faced for the first time with the question of whether to adopt a policy with respect to property are very unlikely to adopt the knavish policy for two reasons. First, the knavish policy is unlikely to occur to them. Such individuals will necessarily be socially inexperienced and so lacking in social cunning. (Indeed, since initiation into the conventions of justice typically occurs in the family, such individuals will usually be children.)22 And for obvious self-interested reasons, if for no other, no one is likely to suggest the knavish policy to them. Second, they will be in circumstances in which adopting (i.e., attempting to implement) the knavish policy would not, in fact, be or appear to be superior to uniform adherence from the point of view of selfinterest. The parties to the convention will initially constitute a very small society, consisting mostly of other individuals seen every day; and the opportunities for successful violations will be correspondingly very few, while the negative consequences for discovered violations may be great.23 In addition, these individuals will typically be bad judges of opportunities for successful violation; and they will lack skill in concealment. (For example, although small children naturally experiment with thievery and cheating, they are also—fortunately for the cause of virtue—outlandishly bad at it.) Thus, when such individuals do violate the rules—more likely from strong temporary temptation than from any proposed knavish policy—they will undergo what Hume calls "repeated experience of the inconveniences of transgressing" them (T 3.2.2.10; SEN 490), even in cases where successful violation seemed possible. For all of these reasons, the knavish policy will neither be nor seem preferable to such individuals. Accordingly, the possibility of that policy need not prevent self-interest from motivating adoption of a policy of universal adherence to justice.

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It is important to recognize that self-interest can thus constitute the original motive to justice even if later developments offer better opportunities for both the formulation of the knavish policy and the undetected rule-violations that it recommends. For once individuals motivated by self-interest have regulated their conduct by means of the rules of justice, prior to a sense of duty, the requirement of an original non-moral motive has already been met, regardless of the effects of later developments. In fact, however, Hume's account also offers many reasons why universal adherence to justice remains stable even in the face of such opportunities. First, the full determination to regulate one's conduct by its rules is, ipso facto, a commitment to try to avoid allowing contrary considerations to weigh in one's deliberations in cases covered by the rules; hence later alterations in circumstances may not be salient. Second, for what it is worth, the performance of any kind of action of moderate difficulty that becomes habitual—including, presumably, adherence to these rules—may become pleasurable through what Hume calls the mechanism of "facility" (T 2.3.5.1-5; SEN 422-4). Third, the more one participates in society, the more likely one is to take greater pleasure, through sympathy, with all those who do or would benefit from one's own acts of justice. Fourth, as societies become larger, governments are instituted by convention to provide additional sanctions against violators. Fifth, as Hume remarks in considering the "sensible knave," the psychological and practical difficulties of trying to implement a knavish policy without detection and the potentially catastrophic consequences of failure may still render it an inferior policy to adopt even from the perspective of a narrowly material conception of self-interest.24 Sixth, as he remarks in the same passage, the awareness of instances of such catastrophes for violators can be a source of "satisfaction" to those who do adhere uniformly to the rules. Seventh, what he calls a "reputation" for justice—something best obtainable by the inadvertent revelation that one has in fact acted justly when one might instead have violated the rules in secrecy—may be more valuable with a view to long-term self-interest, and also more immediately enjoyable through sympathy with others, than the material benefits of violating the rules. This will be especially true once moral approbation for justice arises, along with its resulting love and admiration for just individuals—a development that follows very soon after the origination of the conventions themselves. Finally, however, and most importantly for Hume, once moral approbation for existing justice does arise (and is then encouraged by "politicians and parents"), a new source of "interested obligation" to justice is created in the "inward peace of mind, consciousness of integrity, [and] satisfactory review of our own conduct" (EPM 9.23; SEN 283) that comes with moral approbation of, and pride in, one's own virtuous character. This steady approbation and pride, and the avoidance of the corresponding disapprobation and humility, is far more important to long-term happiness, Hume claims, than are

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mere material goods, which he calls "worthless toys and gewgaws" (EPM 9.25; SEN 283) in comparison.25 The Moral Merit of Self-interest. Thus, self-interest can and does, on Hume's view, constitute the original non-moral motive to justice. It may still be objected, however, that self-interest cannot be the "first virtuous motive, which bestows a merit on" (see 06]) acts of justice, as required by the First Virtuous Motive Principle. For unrestrained self-interest, at least, is not a virtue at all—on, the contrary, it is, as Hume observes, the primary source of violence and injustice. And he seems at best diffident about whether self-interest in general may be considered a virtue.26 Because he regards unrestrained self-interest as the primary cause of violence and injustice, it is sometimes supposed that the first virtuous motive bestowing merit on acts of justice is, for Hume, "enlightened self-interest"—meaning, presumably, a combination of the motive of self-interest with accurate knowledge about one's own real interests, including how the conventions bear on them. Yet it seems implausible to suppose that even this restricted form of self-interest could be the "first virtuous motive" responsible for the merit of acts of justice. For, as Rachel Cohon has observed, someone who performed a just act solely as a result of calculating that that individual action would best serve his or her own interests might be praised for being prudent, but not for having the distinctive motive constituting the virtue of justice.27 Conversely, if someone could discover through a careful and accurate analysis that a particular act of secret injustice would in fact be in his or her own interest, all things considered, such a violation of the convention would then be a behavioral sign of "enlightened self-interest" as just defined; yet that motive could not bestow any moral merit on the act. Moreover, it is possible for a sense of duty, in Hume's sense, to motivate acts of justice that one believes are contrary to one's enlightened self-interest; but this would be impossible if the "missing virtuous motive" one felt to be lacking and wished to develop in acting from duty were just "enlightened self-interest" itself. It seems, then, that although self-interest is, on Hume's view, the original motive in human nature to justice— thereby satisfying the Undoubted Maxim—it cannot be, even when "enlightened," the "first virtuous" motive that bestows merit on acts of justice. But there is no inconsistency here; for although the Undoubted Maxim is derived from the First Virtuous Motive Principle, they are not equivalent. The latter requires that, for every virtuous action, there be some first virtuous motive other than duty that bestows merit on the actions. The former requires that, for every virtuous action, there be some original motive, other than duty, in human nature to motivate its performance. The motive satisfying the Undoubted Maxim need not itself be a virtuous motive bestowing merit on the actions; for it may instead help to create that first virtuous motive, through the creation of a convention. The motive satisfying the Undoubted Maxim need only be, as Hume says, original "in human nature" since it should serve to explain the origins of any relevant conventions or

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contrivances. The motive satisfying the First Virtuous Motive Principle, in contrast, must be virtuous in order to bestow merit on actions, but it need not be original in human nature, since it may arise instead from convention. That is precisely what occurs in the case of justice. Self-interest motivates the invention of the relevant convention and the adoption of the policy of regulating one's conduct in accordance with its rules; but the motive that we find beneficial to its possessors and others, and so morally approve through sympathy, is the resulting artificial disposition to regulate one's conduct by the rules of justice, a disposition that is grounded in the new convention-dependent desire to regulate one's conduct by those rules.28 As Hume remarks in connection with fidelity, "the conventions of men ... create a new motive" (T 3.2.5.10; SEN 522). A particularly beneficial aspect of this regulating disposition is the disposition to follow the rules in a way that is independent of what might appear to be self-interested, or even publiclyinterested, reasons to violate them—for the willingness to weigh costs and benefits of particular acts at the expense of the policy of uniform adherence will rightly seem dangerous to society and often to individuals as well.29

III. Can Hume Allow a First Virtuous Non-Moral Motive to Justice? As we have now seen, the virtuous non-moral motive originally constituting the virtue of justice is, for Hume, the disposition to be just, or to respect property— that is, to regulate one's conduct by the relevant rules. Indeed, Darwall proposes, quite rightly though on other grounds, that Hume should regard such a disposition as the original virtuous motive to justice. Yet he also holds that Hume does not and cannot consistently do so, for two reasons. First, citing the passages from the Treatise and "Of the Original Contract" discussed previously, he interprets Hume as denying that there is any first non-moral motive to justice. If what I have argued is correct, these passages do not contain such a denial. Second, however, citing passages from the Treatise concerning the motivational role of pleasure and pain, he also argues that Hume cannot consistently regard the first virtuous motive to justice as a disposition to regulate one's conduct by rules, on the grounds that Hume's own conative psychology cannot accommodate the needed regulation of conduct by rules that motivate through their own authority independent of prospective pleasure or pain. Prospects of Pleasure and Pain. In support of this further claim, Darwall cites three passages in which Hume comments on the motivational power of pleasure and pain: [1] There is implanted in the human mind a perception of pain and pleasure as the chief spring and moving principle of all its actions. (T 1.3.10.2; SEN 118)

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[2] Tis from the prospect of pain or pleasure that the aversion or propensity arises towards any object: And these emotions extend themselves to the causes and effects of that object, as they are pointed out to us by reason and experience. (T 2.3.3.3; SEN 414) [3] DESIRE arises from good [i.e., pleasure] considered simply; and AVERSION is derived from evil [i.e., pain]. The WILL exerts itself, when either the good or the absence of the evil may be attained by any action of the mind or body. (T 2.3.9.7; SEN 439) As Darwall interprets these passages, they show that "Hume's theory of action thus not only employs the traditional idea that the will invariably aims at the good . . . [but] interprets that idea hedonistically and egoistically" (422). He notes quite properly that "just persons would appear to regard the fact that something belongs to another, or that the rule of property requires forbearance, as a motive—i.e., a ground or a reason—for not taking it" independent of the prospect of pleasure or pain in doing so. He concludes that "this motive [i.e., requirement by a rule] can find no place in Hume's theories of action and will as advanced in the Treatise" (422). In fact, however, although Hume clearly holds that prospective pleasure or pain can be sufficient to move the will, he never claims that it is necessary. (Nor does he treat motivation by the prospect of pleasure and pain egoistically—Appendix 2 of An Enquiry concerning the Principles of Morals, entitled "Of Self-Love," argues directly against psychological egoism). In the first passage just cited, he claims only that pleasure and pain are the "chief spring and moving principle" of human actions, not that they are the only spring or principle. The second passage cited may appear to be more restrictive, but Hume begins the paragraph in question by limiting his discussion to cases of motivation that arise "when we have the prospect of pain or pleasure from any object." His point is only that, in such cases, it is that very prospect of pleasure or pain—rather than reason itself—that first produces desire or aversion directed toward an object and then extends an additional desire or aversion to the inferred means to it. The third cited passage again states only that prospective pleasure or pain can be sufficient for motivation, not that prospective pleasure or pain is necessary. On the contrary, immediately after remarking that the will is moved by prospective pleasure or pain, he emphasizes that there are other passions that move it without any such prospect: Beside good and evil or, in other words, pain and pleasure, direct passions frequently arise from a natural impulse or instinct, which is perfectly unaccountable. Of this kind is the desire of punishment to our enemies, and of happiness to our friends; hunger, lust, and a few other bodily appetites. (T 2.3.8; SEN 439)30

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More importantly, however, and regardless of his view of the doctrine that only prospective pleasures and pains can motivate, Hume need have no difficulty in explaining how human beings can be motivated to act in accordance with a rule while discounting or even ignoring the prospective pleasure or pain offered by particular actions. For on his account, one can readily come to believe that adopting the policy of uniform adherence is better, even from the limited point of view of self-interest, than adopting any other course of conduct one is considering—including the default policy of simply weighing the consequences of each individual act and acting accordingly.31 This belief, combined with what he calls the "calm desire" for pleasure and avoidance of pain, naturally creates a desire to adhere uniformly—a desire that is thus caused directly by prospects of pleasure and pain. This desire may, in turn and if all goes well, motivate one to act consistently in accordance with those rules despite the potential motivating force of prospective pleasures and pains associated with particular actions. Moreover, as one realizes that the blandishments of particular pleasures and pains offered by particular violations of the rules may cause deviations from this desirable and desired policy, the desire to adhere uniformly and so not to deviate will produce a further desire to discount or ignore those blandishments. Yet it is still the prospective pleasures and pains offered by the possible policies that motivate one to try to ignore these blandishments. To be sure, these blandishments may be difficult to ignore, and they may themselves produce a competing desire to ignore the advantages of the policy of uniform adherence. The recognition of such conflicting desires about what considerations to ignore may give rise to a second policy question: namely, what policy to adopt about ignoring considerations in cases covered by the rules of justice. A consideration of prospective pleasures and pains will again tend to favor the policy of discounting individual blandishments over the policy of discounting the advantages of uniform adherence; and this may give rise to a further desire to implement the policy of discounting blandishments. Even so, uniform adherence may be psychologically difficult: it may require outside encouragement, voluntarily directed attention, habituation, repeated reinforcement (both positive and negative), and what Hume calls "strength of mind" (i.e., the tendency to be motivated by "calm" rather than "violent" passions; see T 2.3.4.10; SEN 418). But forces suitable for motivating uniform adherence are available in his conative psychology, and there is nothing in that psychology dictating that they cannot be effective—nor, on the other hand, that they must be effective. That is as it should be, for they are not always effective. Obligation and Authority. Even with this schematic account of the motivation to adopt and follow the rules of justice, however, one might still wonder whether Hume can explain the nature of the obligating authority that one must recognize in such rules in order truly to regulate one's actions by reasons that invoke them, so

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as to "fix an inviolable law" for oneself concerning them. In Darwall's interpretation, it is the tensions produced by just such an explanatory inability that lead Hume (1) sometimes to deny that there is any non-moral motive to justice at all, and (2) surreptitiously and somewhat confusedly to introduce a third species of obligation (in addition to moral and interested obligation), which Darwall calls "rule-obligation." We have already seen, however, that Hume does not deny that there are nonmoral motives to justice; he denies only that there are such motives naturally—i.e., without a convention. The suggestion that Hume introduces a third species of obligation derives from the following passage: After this convention, concerning abstinence from the possessions of others, is entered into ... there immediately arise the ideas of justice and injustice; as also those of property, right, and obligation. The latter are altogether unintelligible, without first understanding the former. (T 2.1.1.22; SEN 490) Darwall rightly emphasizes that neither moral nor interested obligation, as Hume understands them, is unintelligible without a convention; hence, he proposes, Hume here recognizes a third species of obligation that must be understood in terms of the authority of rules. If so, however, Hume's remark would still be odd— for the rules of justice are only some of the rules that might have such authority, and Hume gives little reason to think that justice must necessarily be the first convention into which one can enter. Nor would understanding this third kind of obligation be a precondition for understanding "obligation" generally. Fortunately, however, such a revisionary interpretation is not required to make sense of the quoted passage. For as Jason Baldwin has recently argued, the "idea of obligation" that becomes intelligible with the convention of justice need not be that of a new species of obligation in addition to moral and natural obligation; it may instead be, and presumably is, simply that of a new obligation (or alternatively, a new set of obligations)—that is, the obligation (or obligations) to act justly.32 The obligation to act justly is, as we have seen, both interested and moral, but is unintelligible without conventions of property. In fact, Hume has no need to introduce a third species of obligation, for he can readily explain both the authority of the rules of justice and their ability to generate reasons to act without it. "Authority," for Hume, is simply reflectively approvable power, just as "reasons" are reflectively approvable considerations, and virtues are reflectively approvable character traits. The authority of the rules of justice originates in their power to inspire the desire to act in accordance with them—a power that is then regularly approved, first from an interested and then also from a moral standpoint. This approval involves a sense of natural and moral

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obligation—that is, awareness that we will feel disapproval of ourselves, as selfharming and as immoral, respectively, for neglecting adherence to these rules. Since we approve of ourselves, in both an interested and a moral way, for regulating our action by these rules, we recognize them as reasons, both interested and moral, to act. The power and authority of these rules is particularly evident in their naturally and morally approved ability to motivate us to exclude other considerations, such as the prospects of pleasure or pain offered by particular acts, from weighing in the determination of our wills. In this way, the rules constitute what Joseph Raz has called "exclusionary reasons"—that is, reasons to exclude other potential reasons from weighing at all in the determination of one's action.33 Indeed, Raz explains the authoritative character of a directive precisely as a matter of its providing a positive reason to act while excluding other reasons: The fact that an authority requires performance of an action is reason for its performance which is not to be added to all other relevant reasons when assessing what to do, but should exclude and take the place of them (46). That is precisely how Hume understands the approved positive and exclusionary force of the rules of justice once they have, as he says, "become obligatory, and acquired an authority over mankind" ("Of the Original Contract," 480)—an authority that they begin to acquire when we are moved by the consideration of prospective pleasure and pain to adopt uniform adherence to these rules as a scheme or policy. IV. Conclusion I have argued that, contrary to common perception, Hume does, should, and can recognize a motive to justice that satisfies the requirements of the First Virtuous Motive Principle. This motive is a disposition grounded in a desire to regulate one's actions by the rules of justice. Because it refers to conventional rules, it is a "new motive" not original in human nature; it is instead produced by self-interest, which is the original motive in human nature that satisfies Hume's Undoubted Maxim. In creating this new motive, self-interest authoritatively restrains itself, just as Hume says it does. Another popular perception is that, on a Humean account, justice can only be maintained by erroneous judgment—what Baron has called a "noble lie." While the question cannot be pursued further here, we have found little reason to think that any such errors are essential for Hume. Uniform adherence to rules of justice, both in small societies and in modern larger ones, may, as we have seen, rightly be judged to be the best policy to adopt from the point of view of self-interest even if

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some individual acts of adherence fail to maximize self-interest. Similarly, uniform adherence to rules of justice may also properly win Humean moral approval, at every stage of society, without reliance on any errors about their consequences for public utility; for the Humean moral sense may approve of those who adhere to the rules of property and disapprove of those who would readily violate them for public benefit, even if some individual acts of adherence fail to maximize public interest. This is easy enough to understand: a likely result of the existence of public-spirited violators will be that others will feel forced to take greater precautions to protect their property than they otherwise would, so that no greater sum of public benefits will actually be produced and everyone will instead simply be inconvenienced by the need for costly additional precautions. Justice may indeed be judged, without error, to be the best policy34—which is not, of course, any guarantee that we will not make many mistakes about it anyway.

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Appendix: Fidelity and the Circle Argument Just as Hume gives a version of the Circle Argument to establish that justice is an artificial virtue, so too he gives a version of it to establish that fidelity (promisekeeping) is an artificial virtue. And just as it may be asked whether Hume can, should, and does allow a first virtuous non-moral motive to justice, so too it may be asked, on parallel grounds, whether he can, should, and does allow a first virtuous non-moral motive to fidelity. The answers to all three questions are in both cases positive, and for similar reasons. Just as his cognitive psychology can accommodate the regulation of one's conduct by authoritative rules in the way required for justice (Section III above), so too it can accommodate the regulation of one's conduct by authoritative rules in the way required for fidelity. Just as self-interest serves as the original motive in human nature to the practice of justice while the disposition that it creates to regulate one's conduct by those rules serves as the first virtuous motive to justice (Section II), so too self-interest serves as the original motive in human nature to the practice of fidelity (T 3.2.5.11; SEN 523) while the disposition that it creates to regulate one's conduct by those rules serves as the first virtuous motive to fidelity. A close reading of the passage Darwall cites from "Of the Original Contract" (Section I) shows not only that it allows a non-moral motive to justice but also a non-moral motive to fidelity, and for the same reasons. However, in addition to citing the specific Treatise passage that we have already considered (Section I), in which Hume appears to deny that there is any motive to justice other than a sense of morality or duty (T 3.2.1.17; SEN 483), Gauthier also calls attention to a parallel passage from the Treatise in which Hume appears to deny that there is any motive to fidelity other than the sense of duty: Now, 'tis evident we have no motive leading us to the performance of promises, distinct from a sense of duty. If we thought, that promises had no moral obligation, we never shou'd feel any inclination to observe them. (T 3.2.5.6; SEN 518-9) This passage occurs near the conclusion of Hume's extension of the Circle Argument to fidelity. In order to determine whether it indeed denies that there is any non-moral motive to fidelity, it is necessary to understand both the context and the content of that extension of the argument. Hume begins the section "Of the obligation of promises" (T 3.2.5.1; SEN 516) by describing his strategy for demonstrating the artificiality of fidelity: That the rule of morality, which enjoins the performance of promises, is not natural [i.e., is not non-artificial], will sufficiently appear from these two propositions, which I proceed to prove, viz. that a promise would not

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be intelligible before human conventions had established it; and that even if it -were intelligible [before human conventions had established it], it-would not be attended with any moral obligation. (T 3.2.5.1; SEN 516) Throughout the execution of this strategy, Hume emphasizes the limitation of the circumstances he is considering to "natural" ones, not involving human conventions. He argues for the first proposition—"that a promise would not be intelligible before human conventions had established it"—by surveying various acts of the mind that do not involve conventions and showing that none of them is equivalent to promising; these acts include resolving, desiring, and -willing the promised action. This result suggests that if promising is to be any natural (i.e., non-artificial) act of the mind, it must somehow be, not the willing of the promised action, but the willing of the obligation itself. Yet obligations result, Hume claims, only from agreeable or disagreeable sentiments with respect to an action, and we cannot "naturally" (i.e., directly, without some artifice and contrivance) change our sentiments by an act of will. Hume later refers back to this conclusion—in a passage that Gauthier also cites—when he remarks that "we have prov'd already, that there is no such act of the mind [as naturally willing an obligation in a promise], and consequently that promises impose no natural obligation" (T 3.2.5.12; SEN 523). There is no violation of the First Virtuous Motive Principle in this passage, since "natural obligation" again means "non-artificial obligation," and an account of the obligation to fidelity as artificial does not require that promising be an act of willing an obligation. Hume then offers two arguments for his second proposition—namely, that even if promises were intelligible prior to human conventions, such pre-conventional "promises" could not "naturally [i.e., non-artificially] be attended with any moral obligation" (T 3.2.5.5; SEN 518). The first argument for this proposition appeals to the same set of considerations that ruled out the suggestion that promising could be the natural willing of an obligation: This appears evidently from the foregoing reasoning. A promise creates a new obligation. A new obligation supposes new sentiments to arise. The will never creates new sentiments. There could not naturally [i.e., non-artificially], therefore, arise any obligation from a promise, even supposing the mind could fall into the absurdity of willing that obligation. (T 3.2.5.5; SEN 518) Hume's extension of the Circle Argument to fidelity constitutes the second argument for the second proposition. He introduces it by remarking that "the same truth" just established—namely, that "there could not naturally [i.e., nonartificially] ... arise any obligation from a promise" (T 3.2.5.5; SEN 518)—"may

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be prov'd still more evidently by that reasoning, which prov'd justice in general to be an artificial virtue" (T 3.2.5.6; SEN 518). Thus, by the time he comes to apply the Circle Argument to fidelity, he can assume that the restriction of his negative arguments about fidelity to circumstances that are "natural," in the sense of being "non-artificial," is well-understood, and he makes the restriction explicit only intermittently—though still reasonably of ten—in the course of the new version of the Circle Argument itself.35 Hume begins this version of the Circle Argument with a new formulation of the Undoubted Maxim. This is, of course, the same maxim that he has already derived from his Core Virtue Ethics Principle Thesis by means of the First Virtuous Motive Principle in his discussion of justice: Fl. No action can be required of us as our duty, unless there be implanted in human nature some actuating passion or motive, capable of producing that action, (from J3) He then offers an analogue of his earlier logical point (J4), phrased this time in terms of duty and obligation: F2. A sense of duty supposes an antecedent obligation, (from J4) Next, he gives a three-step argument to show that a "natural" obligation to an action requires a "natural" passion to motivate it: F3. Where an action is not required by any natural [i.e., non-artificial] passion ... it may be omitted without proving any [non-artificial] defect or imperfection in the mind or temper. F4. Where an action is not required by any natural [i.e., non-artificial] passion it may be omitted without proving any . . . [non-artificial] vice, (from F3) F5. Where an action is not required by any natural [i.e., non-artificial] passion it cannot be required by any natural [i.e., non-artificial] obligation, (from F4)36 In this argument, the unstated implicit limitation of steps F3 and F4 to non-artificial defects and vices (i.e., to conditions that could be defects or vices independent of artifice) is required in two ways. First, it is required for plausibility. For Hume allows that conventions can give rise to "new motives"37 or passions—such as desires concerning the rules of those conventions—and he has done nothing to argue that the lack of such motives or passions, in the presence of a convention, could not constitute a new defect or vice. Second, the limitation is required in order to explain the explicit limitation to "natural" (i.e., non-artificial) obligations in the conclusion at step F5.

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From this conclusion and the previous logical point, he infers that it must be some motive other than duty itself that makes possible a natural (i.e., nonartificial) duty: F6. The motive [implanted in human nature through which an action can be required of us as our {non-artificial} duty] cannot be the sense of duty, (from F2 and F5) The restriction in the scope of step F6 to non-artificial duties is required by the explicit restriction to natural obligations in step F5, from which it is derived. Next, Hume observes: F7. If we thought, that promises had no moral obligation, we shou'd never feel any [non-artificial] inclination to observe them. From this, he infers: F8. We have no [non-artificial] motive leading us to the performance of promises, distinct from a sense of duty, (from F7) And from this, in turn, he infers: F9. There is naturally [i.e., non-artificially] no inclination to observe promises, distinct from a sense of their obligation, (from F8) Finally, from this plus his Undoubted Maxim and his elimination of duty itself as a possible original motive to acts required by natural duties he concludes: F10. Fidelity is no natural [i.e., no non-artificial] virtue, and... promises have no force, antecedent to human conventions, (from Fl, F6, and F9) Steps F7 and F8 together constitute Gauthier's second passage. Their implicit restriction to non-artificial motives and inclinations isjustifiedby the general and often-expressed restriction of the entire argument (and of the larger strategy of which it is a part) to the case of non-artificial circumstances; but it is also needed in order to make sense of the explicit restrictions to "natural inclinations," "natural virtues," and circumstances "antecedent to human conventions" that occur in steps F9 and F10, which are derived from Steps F7 and F8. Thus, Hume is not denying that there is any motive to fidelity other than a sense of duty, but only that there is no such motive independent of artifice and convention. On the contrary, he immediately goes on to argue that self-interest leads individuals to adopt a convention through which they do have a "new motive" to keep their promises, concluding that "interest is the first obligation to the performance of promises" (T 3.2.5.11; SEN 523).

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NOTES I have benefited greatly from discussions of Hume's Circle Argument with Kate Abramson, Geoffrey Sayre-McCord, Gerald Postema, Lorraine Besser-Jones, David Owen, Tito Magri, and Colin Howson, as well as from written comments from Annette Baier. I have also benefited from comments and questions from audiences at the Thirty-Second Hume Conference at the University of Toronto (2005); the Philosophy in Assos Conference, in Assos, Turkey; Dartmouth College; the University of Massachusetts, Amherst; and Princeton University. Finally, I would like to thank Michael Gill and two anonymous Hume Studies referees for helpful comments and suggestions. 1 References to the Treatise (abbreviated "T") by Book, part, section, and paragraph are to Hume, A Treatise of Human Nature, The Clarendon Editions of the Texts of David Hume, ed. David Fate Norton and Mary J. Norton, 2 vols. (Oxford: Clarendon Press, 2007); the page reference following "SBN" is to Hume, A Treatise of Human Nature, ed. L. A. Selby-Bigge, revised by P. H. Nidditch (Oxford: Clarendon Press, 1978). As soon emerges, artifice is essential to the "approbation" of justice by playing an essential role in the very origin of justice itself. Artifice does, however, often play a role in the encouragement of virtue and the heightening of approbation for it as well, as Hume also makes clear. 2 Hume also sometimes uses the term "justice" somewhat more broadly, to include "fidelity"—i.e., promise-keeping—as well as respect for property, but this usage is only sporadic. Throughout T 3.2 ("Of justice and injustice"), he uses the term "equity" interchangeably with "justice" as a term for accordance with the rules of property. He also uses the term "equity" in a list of natural virtues (at T 3.3.1.11; SBN 578), but there it clearly has the quite different sense of "evenhanded mildness, especially in pressing claims." The explanation of Hume's sometimes surprising terminological choices— including his very narrow sense of "justice," which is uncharacteristic even for the period—is beyond the scope of this paper. 3 Francis Snare, Morals, Motivation, and Convention (Cambridge: Cambridge University Press, 1991) and Rachel Cohon, "Hume's Difficulty with the Virtue of Honesty," Hume Studies 23.1 (1997): 91-112, have proposed that Hume should be interpreted as making the former allowance; Knud Haakonssen, The Science of a Legislator: The 'Natural Jurisprudence of David Hume and Adam Smith (Cambridge: Cambridge University Press, 1981) and David Gauthier, "Artificial Virtue and the Sensible Knave," Hume Studies 18.2 (1992): 401-28, have suggested that Hume may (ultimately, at least) be interpreted as making the latter allowance. Both of these lines of interpretation are desperate remedies, however. Contrary to the former, Hume must rely on the Core Virtue Ethics Thesis and the First Virtuous Motive Principle that he derives from it not only as key premises in his argument that justice is artificial but again to support his later argument that fidelity is artificial, which occurs only after his discussion of justice is quite concluded and beyond revision; and indeed he never issues anything like a recantation of either the thesis or the principle. Contrary to the latter, his lists of the virtues consistently include justice and fidelity, and at no point does he show any inclination to revise his classification of them; indeed, one of the final appendices to An Enquiry concerning the Principles of Morals, ed. Tom L. Beauchamp [Oxford: Oxford University Press, 1998]—Hume's last exclusively moral work—is devoted to them

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specifically as virtues. It should be noted that, according to Haakonssen's proposal, Hume allows that we originally regard acts of justice and fidelity as meritorious as a result of the misapprehension that they indicate the presence of a praiseworthy motive (which is in fact merely feigned); and we are then moved to perform those acts not by this (feigned and illusory) motive but by the further virtuous motive of duty, out of a regard for their supposed merit. This might be interpreted as allowing Hume to retain both his view of justice and fidelity as real virtues and his virtue ethics by denying that the First Virtuous Motive Principle really follows from his Core Virtue Ethics Thesis. But while Haakonssen's proposal, so understood, suggests an interesting potential objection to Hume's derivation of the First Virtuous Motive Principle—namely, that his virtue ethics requires only that for any virtuous action we at least suppose that there is a first virtuous non-moral motive—Hume himself never expresses any doubts about that principle. 4 David Gauthier, "Artificial Virtue and the Sensible Knave." 5 Stephen Darwall, "Motive and Obligation in Hume's Ethics," Note 27A (1993): 415-48. See also his The British Moralists and the Internal Vughf: 1640-1740 (Cambridge: Cambridge University Press, 1995), chap. 10 ("Hume: Norms and the Obligation to Be Just"), which is based on this article. 6 Specifically, in A Treatise of Human Nature, ed. L. A. Selby-Bigge, revised by P. H. Nidditch (Oxford: Clarendon Press, 1978) and A Treatise of Human Nature, ed. David Fate Norton and Mary J. Norton, 2 vols. (Oxford: Clarendon Press, 2000/2007). 7 Unfortunately, he never supervised a second edition, as the first edition did not sell out during his lifetime. For this reason, the correction remained absent from subsequent editions of the Treatise as well prior to the Selby-Bigge/Nidditch 1978 edition. (Remarkably, Nidditch makes the addition to the 1978 edition without any editorial comment.) In consequence of its history of omission, commentators sometimes quote the passage without the qualifying amendment. For example, two of the three quotations of the passage in Darwall, "Motive and Obligation in Hume's Ethics," lack it, as does Cohon's quotation of it in "Hume's Difficulty with the Virtue of Honesty." Cohon does add a footnote mentioning, though not defending, the omission. 8 In his primary discussions of justice and fidelity (Treatise 3.2.1-5), he uses the term "natural" in no fewer than three of these five senses—occasionally to mean "not unusual" and sometimes to mean "non-moral" (i.e., not morality-regarding), but most often to mean "non-artificial"—often relying on context alone, as promised, to indicate the intended meaning. 9 Hume provides three premises in support of this claim: "(i) Public interest is not naturally [i.e., non-artificially] attach'd to the observation of the rules of justice, but is only connected with it, after an artificial convention for the establishment of these rules, (ii) If we suppose, that [a] loan was secret, and that it is necessary for the interest of the person, that the money be restor'd in the same manner (as when the lender wou'd conceal his riches), in that case the example ceases, and the public is no longer interested in the actions of the borrower; tho'... there is no moralist, who will affirm, that the duty and obligation ceases, (iii) [M]en, in the ordinary conduct of life, look not so far as the public interest, when they ... abstain from theft, and robbery, and injustice of every kind" (T 3.2.1.11; SBN 480-81).

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10 Hume provides three premises in support of this claim: "(i) [If] the party concerned ... be my enemy, and has given me just cause to hate him... [or] he be a vicious man, and deserves the hatred of all mankind... [or] he be a miser, and can make no use of what I wou'd deprive him o f . . . [or] he be a profligate debauchee, and wou'd rather receive harm than benefit from large possessions... [or] or I be in necessity, and have urgent motives to acquire something to my family ... in all these cases, the original motive to justice wou'd fail, (ii) Were private benevolence the original motive to justice, a man wou'd not be obliged to leave others in possession of more than he is obliged to give them [or] at least the difference wou'd be very inconsiderable, (iii) A man's property is supposed to be fenced against every mortal, in every possible case. But private benevolence towards the proprietor is, and ought to be, weaker in some persons, than in others: And in many, or indeed in most persons, must absolutely fail" (T 3.2.1.13-16; SEN 482-83). 11 Hume, "Of the Original Contract," in Essays Moral Political and Literary, ed. Eugene F. Miller (Indianapolis: Liberty Fund, Inc., 1978): 465-87. 12 In epistemic contexts, Hume often describes steps in reasoning or argumentation (for example, taking particular points into consideration, challenging opponents to provide counterexamples, and drawing particular conclusions) as things we are "obliged" to do. 13 In keeping with his general policy on the use of the term "natural," Hume also sometimes uses the phrase "natural obligation" to mean "non-artificial obligation" where the context makes this clear, as in his claims that "where an action is not required by any natural passion, it cannot be required by any natural obligation" (T 3.2.5.6; SEN 518) and that "promises impose no natural obligation" (T 3.2.5.12; SEN 523); see note 9. 14 This point was originally suggested to me in conversation with Daniel Amoni. The two kinds of practical obligation thus correspond to the two different kinds of sentiments that, Hume holds, one can feel in considering a character—namely, those "from interest and morals" (T 3.1.2.4; SEN 472). In the case of "sentiments from interest," one considers only the effects of a character on one's own interest; whereas in the case of "sentiments from morals," one considers its effects in general, without special regard to how it will affect one's own particular interest. It is reasonable to conclude, then, that on Hume's view one has a natural, or interested, obligation to perform an act when not performing it would leave one worse off with respect to one's interests in such a way that one would be personally displeased with oneself for not having performed it; and when not performing an act would indicate a character trait of which one would morally disapprove, in contrast, one has a moral obligation to perform it. Gauthier proposes that, while moral obligation is created by sentiments of moral approbation, "the motive associated with a redirected passion constitutes a natural obligation. The redirection curbs the natural force of the passion, restraining it so that it may be 'better satisfy'd'" (410). Annette Baier proposes that "anything others count on or expect of us counts as an 'obligation,' a tie to them. So... self-interest may, if socially coordinated, generate obligations" (Baier, "Artificial Virtues and Equally Sensible Non-Knaves: A Response to Gauthier," HumeStudies 18.2 [1992]: 439). Butneither of these interpretations accords with all of Hume's examples of natural or self-interested obligation. He describes, for example "very strong motives of interest or safety to forbear any action"

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as, in general, constituting an "obligation" (T 2.1.10.6; SEN 312), without any mention either of motives restraining themselves for their own better satisfaction or of social coordination. Similarly, near the end of An Enquiry concerning the Principles of Morals, Hume remarks: "Having explained the moral approbation attending merit or virtue, there remains nothing, but briefly to consider our interested obligation to it, and to enquire, whether every man, who has any regard to his own happiness and welfare, will not best find his account in the practice of every moral duty" (EPM 9.1; SEN 278). (The reference is to Hume, An Enquiry concerning the Principles of Morals [EPM], ed. Tom L. Beauchamp [Oxford: Oxford University Press, 1998], cited by section and paragraph, and to Hume, Enquiries concerning Human Understanding and the Principles of Morals [SEN], ed. L. A. Selby-Bigge, revised by P. H. Nidditch [Oxford: Clarendon Press, 1975], cited by page). Here he seems to treat the question of whether we have an interested obligation to act as our moral duties requires as depending entirely on whether such action is most conducive to one's own "happiness and welfare." The implication is that we may have an interested obligation to all virtuous action—even though acting as required by natural virtues need not involve any redirected passions, on Hume's account. And although even such self-benefiting virtues as prudence may well create social expectations, Hume's defense of the claim that there is an interested obligation to virtue does not mention such expectations. Moreover, Baier's interpretation cannot readily explain why there seem to be only two species of obligation—moral and interested—on Hume's account, since, given human foolishness, other people may well "count on" one regularly doing certain things that are neither morally required nor in one's own interest. And Gauthier's interpretation cannot readily explain why Hume regards both moral obligation and natural obligation as members of a common species, since the redirection of passions and the feeling of moral approval or disapproval have little obvious in common. It is worth emphasizing that not every case of preference or choice is a case in which one has a natural obligation to choose one of the alternatives; for although one might happen to enjoy one alternative more than another, it does not follow that either alternative would leave one sufficiently worse off in the aftermath that one would be displeased with oneself for having chosen it. And this corresponds to Hume's usage, for he treats only choices in which one's ongoing interests may be harmed as involving a natural obligation. It is, of course, quite possible that one should have both a natural and a moral obligation to perform the same action. 15 The passage reads in full: "The second kind of moral duties are such as are not supported by any original instinct of nature, but are performed entirely from a sense of obligation, when we consider the necessities of human society, and the impossibility of supporting it, if these duties were neglected. It is thus justice or a regard to the property of others, fidelity or the observance of promises, become obligatory, and acquire an authority over mankind. For as it is evident, that every man loves himself better than any other person, he is naturally impelled to extend his acquisitions as much as possible; and nothing can restrain him in this propensity, but reflection and experience, by which he learns the pernicious effects of that licence, and the total dissolution of society which must ensue from it. His original inclination, therefore, or instinct, is here checked and restrained by a subsequent judgment or observation. The case is precisely the same with the political or civil duty of allegiance, as with the natural (i.e., non-civil) duties of justice and fidelity. Our primary instincts lead us, either to indulge ourselves in unlimited freedom, or to seek dominion over others: And it is reflection only, which

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engages us to sacrifice such strong passions to the interests of peace and public order. A small degree of experience and observation suffices to teach us, that society cannot possibly be maintained without the authority of magistrates, and that this authority must soon fall into contempt, where exact obedience is not payed to it. The observation of these general and obvious interests is the source of all allegiance, and of that moral obligation, which we attribute to it" (Hume, "Of the Original Contract," 480). 16 Such a convention is valuable, because—given the "selfishness and limited generosity" of humans and the relative "scarcity and easy change" of possession of material goods—it is essential to the maintenance of human society; and human society, in turn, is essential to satisfying human beings' basic needs. Society is essential to human well-being, Hume observes, because it alone allows human beings to satisfy their needs by (i) augmenting their force through combining their powers, (ii) augmenting their abilities through the specialization permitted by a division of labor, and (iii) augmenting their security through rendering mutual aid in time of need. Human beings could not be expected to foresee these advantages prior to any experience with society; but fortunately, they are naturally induced to enter into society, first by the "appetite between the sexes" and then by the "natural affection" of parents for their children. Hume offers this explanation in T 3.2.2.2-4 (SEN 484-5). 17 Thus, while self-interest is the only motive that could motivate the original adoption of the conventions of property that make justice possible, such additional and potentially non-moral motives as the desire to please one's parents may be among the contributing motives that first motivate adherence to rules of property within a society already practicing such a convention. 18 Barry Stroud, Hume (London: Routledge & Kegan Paul, 1977); and Lorraine BesserJones, "Living on Good Terms with Mankind: Hume's Circle Argument" (conference paper, Pacific Division Meetings of the American Philosophical Association, Pasadena, CA, March 2004). See also Besser-Jones's Personal Integrity and the Sense of Duty: A Humean Theory of Justice and Moral Obligation (unpublished Ph.D. dissertation, University of North Carolina at Chapel Hill, 2003). 19 Similarly, Hume's reference to the inability of public benevolence to "operate with any force in actions so contrary to private interest as are frequently those of justice and common honesty" (T 3.2.1.10; SBN 481), also refers implicitly to a pre-conventional consideration of the benefits of just action. 20 Marcia Baron, "Hume's Noble Lie: An Account of His Artificial Virtues," Canadian Journal of Philosophy 12.3 (1982): 539-55. 21 Although the passage begins by mentioning only justice, Hume is here using the term "justice" in the broader sense that includes fidelity, as the remainder of the passage makes clear. 22 It would presumably be difficult at the least, on Hume's view, for any human being to come to maturity without the nurturance of a family that inculcated the rudiments of justice. However, to deny that any human being could ever come to maturity without growing up in a family whose older members had themselves grown up in other families would be to court an infinite regress. As his silence on this question suggests, Hume has no answer to the question of the origins of humanity itself.

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23 These negative consequences may include hatred and loss of material benefits to violators if their identity is discovered, and harm to the potentially fragile but essential convention of justice even when the occurrence of a violation is discovered without the identity of the violator. In the case of children, the negative consequences will likely also include loss of desired parental approval and protection when violations are discovered. 24 Thus he writes, "[W]hile they purpose to cheat with moderation and secrecy, a tempting incident occurs, nature is frail, and they give into the snare; whence they can never extricate themselves, without a total loss of reputation, and the forfeiture of all future trust and confidence with mankind" (EPM 9.24; SEN 283). 25 Jason Baldwin, "Hume's Knave and the Interests of Justice," Journal of the History of Philosophy 42.3 (2004): 277-96, in the course of arguing that the "sensible knave" passage poses no serious problem to Hume's accounts of justice and fidelity, also mentions the effects of sympathy, government, and (to some extent) reputation in providing motives to the maintenance of justice and fidelity. 26 Thus he writes," [W] hether the passion of self-interest be esteemed vicious or virtuous, it is all a case, since itself alone restrains it; so that if it be virtuous, men become social by their virtue; if vicious, their vice has the same effect" (T 3.2.2.13; SEN 492). 27 Rachel Cohon, "Hume's Difficulty with the Virtue of Honesty," Hume Studies 23.1 (1997): 91-112; seepages 104-5. 28 Because this new motive is artificial, it is essential to note again that, as previously argued, the term "natural" in the First Virtuous Motive Principle clearly means "nonmoral," not "non-artificial." 29 Although the disposition to regulate one's actions by the rules of justice is the first virtuous motive bestowing merit on acts of justice, we may well think that a fully civilized individual in modern society should also be motivated, in part, by a sense of duty in performing such actions. In the case of a natural virtue, such as affection for children, we would not, Hume holds, think less of someone who acted directly from that inclination without stopping to think of its moral character. But someone who faced a decision regarding justice without some awareness of its moral character might well be thought to be lacking in an appropriate, and important, use of the moral sense. Because the disposition to regulate our actions by rules of justice is artificial and requires that we discount other reasons for acting that might be attractive, we strongly approve the desire to attempt to re-inculcate and sustain in ourselves by practice—and this is a kind of motive of duty. (Similar remarks apply to fidelity.) Kate Abramson has helped me to appreciate the force of this point. Given this, it might be argued, one can even have a motive of meta-duty: regretting that one lacks a sufficiently strong first virtuous motive, and regretting that one doesn't feel much present desire or ability to inculcate it in oneself by practice, either one then tries to make oneself more like the kind of person who would try to inculcate it by practice, or one tries to hide one's lack of a sense of first-order duty from oneself. 30 Darwall notes this passage, of course, but interprets it as further evidence of Hume's inconsistency ("Motive and Obligation in Hume's Ethics," 422-3; The British Moralists: 293-4).

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31 Of course, self-interest is not the only motivating point of view for Hume, since there is also genuine benevolence; but his account of the origin of the rules of justice does ascribe their initial motivating force primarily to self-interest. As already indicated, the virtuous motive to justice is, for Hume, the firm disposition to follow the rules of property; that the acquisition or development of this disposition may itself be the result of self-interest does not undermine the virtue of the disposition itself. At most, it illustrates the fact that a genuinely virtuous character can be acquired through a non-virtuous motive—a state of affairs that would not disturb Hume. 32 Baldwin, "Hume's Knave and the Interests of Justice," 286n8. 33 Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1988), 124. 34 This is not to say, however, that Hume would necessarily disapprove morally of every violation of the rules of justice. For while it is a genuine virtue, it is not the only virtue; and someone who adhered to the rules of property even when a small violation of them was the only way to preserve life on the planet would obviously be taking the disposition of uniform adherence too far. Hume notes that the number of circumstances excusing violations of justice and fidelity in the case of "princes" is "greater" than that in the case of private individuals—which implies that there can be such circumstances even in the case of private individuals. 35 Baldwin also mentions, more generally, that the context of the argument suggests a limitation of the passage Gauthier cites to natural (i.e., non-artificial) motives (288-9). As with the parallel case of justice, Gauthier rather remarkably allows that this interpretation of the passage is possible but rejects it anyway. 36 The line of argument in steps F3-F5 parallels a line of argument that Hume has already offered—also limited, implicitly but clearly, to non-artificial circumstances (i.e., "in uncultivated nature")—with respect to justice (T 3.2.2.8; SBN 488). 37 "They are the conventions of men, which create a new motive, when experience has taught us that human affairs would be conducted much more for mutual advantage, were there certain symbols or signs instituted, by which we might give each other security of our conduct in any particular incident. After these signs are instituted, whoever uses them is immediately bound by his interest to execute his engagements, and must never expect to be trusted any more if he refuse to perform what he promised" (T 3.2.5.10; SBN 522).

[22] THE SHACKLES OF VIRTUE: HUME ON ALLEGIANCE TO GOVERNMENT Rachel Cohon

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irtue theorists today are starting to deploy their ethical theories to address issues in political philosophy. A good ethical theory is expected to provide some foundation for, or at least to be compatible with, an acceptable theory of just government. Virtue ethics, however, normally eschews talk of rights, liberties, and duties, and gives conceptual priority to individuals' motivational and emotional dispositions. Thus it seems difficult to develop a virtue-theoretic approach to the just state and the obligations of citizens, especially for heirs of the (early) modern tradition in political philosophy, with its focus on rights and duties. Hume is an interesting figure from this point of view. He at least attempts to combine a virtue-theoretic approach to ethics with developed positions on the crucial issues in modern political philosophy, such as the origin and justification of governmental power, the legitimacy of particular rulers, and the putative right to revolution. One may wonder how well he joins these two aspects of his moral philosophy. This paper reveals connections between Hume's virtue ethics and his political philosophy by investigating two specific questions. First, is allegiance to government, as Hume understands it, a virtue of character like other virtues that Hume recognizes (such as justice and fidelity to promises)? Second, can Hume account for the power or motivational influence of governments to engender obedience? The connection of the second question with Hume's virtue-theoretic approach will emerge in what follows. An objector might answer no to both questions, so let us regard these as two objections to Hume's account of allegiance to government in the Treatise.

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I. PRELIMINARIES: THE STAGES OF SOCIETAL DEVELOPMENT In order to illuminate the origins of justice and the rules of property, Hume first imagines human life without any general social structure.1 Unlike Hobbes and Locke, Hume believes the transition from an unstructured condition to a governed society occurs in two distinct stages. Humanity begins in a possible state of unstructured relations with one another outside the family. First a group of people develops into a society ordered by informal and wholly voluntary customs of what Hume calls "justice"; after that it may proceed to a further condition, that of being governed by magistrates and rulers. So for Hume there are two separate developments: the development of society-without-government (call this pre-civil society), and the development of government. Precivil society is needed by all human beings, but only some societies need government. For Hume, to create pre-civil society, people gradually but voluntarily adopt conventions of ownership, transfer of goods, and promise (contract). Hume invokes the initial, entirely unstructured state of humanity only in order to explain the formation of these informal conventions of property and promise, not to explain or justify the formation of government. So there is reason not to read Hume as invoking the "state of nature" in the sense found in Hobbes, for example. Hobbes sees the state of nature as the only alternative to civil society (society that includes government). By contrast, Hume thinks human beings could develop a primitive but moderately stable society without granting anyone dominion or authority over others. In this respect Hume also differs from Locke. Locke indeed sees the state of humanity prior to the invention of government as laced with complex commercial interactions, but for Locke these interactions are regulated not by norms created by social convention, but by the laws of nature. (Hence for Locke this condition is still the state of nature.) For Hume there are no comparable laws of nature. Rather, such activities as cooperative work among mere acquaintances, buying, selling, and labor for hire, are made possible only by conventions of property and promise. These need to be invented jointly by groups of people all of whom reach a shared understanding. When Hume considers the invention of government, then, he is not talking about a transition to dominion from a state entirely lacking in humanly-contrived social organization. Furthermore, while Hume explicitly declares that the state of nature envisioned by philosophers is a mere theoretical construct, he maintains that pre-civil societies involving commerce and contract are and have been historically real (T 539-541).

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Thinking of Hume as a state-of-nature theorist is also unwise because it may mislead the reader to think Hume identifies the state of nature (that mere theoretical construct) with the imagined time before the formation of pre-civil society. In fact, he does not. The state of nature, as Hume uses the term, would be a state in which all people were solitary individuals without any emotional attachments—or rules—to regulate any of their interactions. This condition never existed, because "men are necessarily born in a family-society" (E 190). Family members are joined in cooperative activities by ties of affection. They are also governed by simple rules of proto-ownership. But if it be found, that nothing can be more simple and obvious than [the rule for the stability of possession]; that every parent, in order to preserve peace among his children, must establish i t . . . If all this appear evident, as it certainly must, we may conclude, that 'tis utterly impossible for men to remain any considerable time in that savage condition, which precedes society; but that his very first state and situation may justly be esteem'd social. (T 493, sic.) Hume's unstructured condition is one in which economic activity takes place only within small family groups. This is not the (entirely fictitious) state of nature of the philosophers. Instead, it is probably a real though very brief stage in human prehistory. The transition to a pre-civil society with rules of justice occurs when strangers enter into conventions with one another to abide by such rules, and when moral approval is then extended to all adherence and moral disapproval to all violation of them. It may also seem that when Hume talks about human life without rules of stranger-transactions, he is making a hypothetical, normative argument. He seems to follow a pattern now familiar in political philosophy, of arguing thus: if we were in the state of nature, which of course we never were and never will be, then we would have pressing reasons to form a society and follow its rules; therefore, as we actually are (or would be in a better society), the rules of society are normative for us. But this interpretation is in error. Hume's purpose in imagining the genesis of justice is not to give a hypothetical-contract type of argument to the effect that rules of justice are warranted. His purpose is both to trace the natural (including psychological) history of justice, and to explain its status as a virtue of character. Hume does, of course, make a normative argument about justice, but one quite different from a hypothetical-contract argument. He argues that just characters generate approval. He has already established to his

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satisfaction that all mental qualities that generate approval are virtues (T 471); hence the character trait of justice is a virtue. Just characters generate the approval they do as a causal consequence of the fact that they make possible smoothly-operating conventions of property and promise, which produce happiness in society. II. THE ORIGIN OF GOVERNMENT AND THE SOURCE OF ALLEGIANCE After explaining the formation of pre-civil society, Hume proceeds with the sections of the Treatise called "Of the origin of government" and "Of the source of allegiance" (T S.2.7-8).2 Let us review that account to see how our two objections arise. Hume must tackle a special problem. Why do we need government, given that we can form a community of peaceful property-owners and traders without it, and obtain compliance with the rules of justice by means of informal convention and its voluntary sanctions? Submission to rulers reduces our individual liberty (E 205), and so, prima facie, we must be shown why it is worthwhile. What might move people to create governments, and why is this a good idea?3 This is a question we must address before tackling our two objections (that allegiance is not a Humean virtue, and that a government created by previously unruled people cannot acquire enforcement power). Human beings, Hume remarks, are in great measure governed by their own interest and that of their friends. The best way to serve this interest is to adhere inflexibly to the rules of justice already devised: rules of refraining from the property of others, transferring property only by consent, and abiding by promises and contracts. Only by so doing can people preserve society, which is indispensable to their interest. What is more, everyone knows that this is so. But human beings cannot always regulate their conduct by their judgments of interest. Now as every thing, that is contiguous to us, either in space or time, strikes upon us with [a strong and lively] idea, it has a proportional effect on the will and passions, and commonly operates with more force than any object, that lies in a more distant and obscure light. Tho' we may be fully convinced, that the latter object excels the former, we are not able to regulate our actions by this judgment; but yield to the solicitations of our passions, which always plead in favour of whatever is near and contiguous. (T 535)

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So although we make an unimpaired judgment of which of two results is better, it cannot motivate us to pursue the better when the better is more distant, because the passions and the will are drawn to what is vivid and lively, and so move toward what is near.4 Because distance in time is especially what tends to distort the emotional and motivating influence of the near at the expense of the remote, let us call this psychological feature of human beings temporal myopia.5 The harms to come from a breach of justice are (or seem) remote, whereas the profit of injustice is near at hand. So even though everyone in a pre-civil society knows that the long-term disadvantages of a breach of justice actually outweigh its shortterm advantages, at least some of the time people will not be able to control the urge to seek the near-term advantage. This will happen when the pre-civil society produces wealth, for then the near-term gains become very tempting to passion. Injustices will occur more and more often. The perpetrators encourage others by their bad example, and in time the frequency of injustice grows great enough that people fear they will be "the cully of [their] integrity" by conforming alone when all others violate (T 535). At this point people lose confidence in the conditional intentions of property and promise ("I intend to conform if others will"), and the bond that preserves pre-civil society is broken. One expects a solution that involves the consent of the people. However, the people will not consent to immediate sacrifices for the sake of long-term gain, because of their temporal myopia. Fortunately, a further feature of temporal myopia helps them consent to future constraints for the sake of gain in the more distant future. Because of their general "negligence about remote objects," they do not react to the intervals between separate events when both events are far enough in the future; they only attend to the relative magnitude of the goods to be produced (T 536). If, for example, I must write a grant proposal now in order to travel next year, the present pain will influence my will much more than the future, and greater, good; and so temporal myopia will keep me from writing the proposal. But if I must commit myself now to write a grant proposal next year in order to travel the following year, the fact that I will bear the burden a year before I enjoy the advantage has no influence on my passions. (Thus it is misleading to call temporal myopia a preference for near- over long-term gains. It is only the immediate gains, which are in the myopic's clear focus, that have a disproportionate influence on action.) I will gladly commit myself to write the

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proposal next year, since the travel grant is well worth the trouble. Similarly, the people will gladly commit themselves to more distant adherence to justice for the sake of the still more distant benefits of preserving society. However, it is evident at the outset that when the time comes to fulfill the commitment, temporal myopia will once again get in the way. So, at the time the people make the commitment, they need to adopt some expedient to change that circumstance in the future. "The utmost we can do is to change our circumstances and situation, and render the observance of the laws of justice our nearest interest, and their violation our most remote" (T 537). But we cannot insure that when the time comes to conform, every person will have a powerful immediate inducement. What we can do is give to just a few people an immediate interest in the execution of justice, and leave those few to motivate the rest. (By an execution of justice Hume probably means an act of enforcement of the rules of justice, rather than an act of mere conformity to them.) These individuals whom we interest in enforcing the rules thus become civil magistrates, kings, governors, and rulers. Apparently, we make the execution of justice their immediate interest by creating for these few people a preferred position in society, one they will take care to protect. This makes the preservation of society especially precious to them; and since "every execution of justice" is necessary to that preservation, they acquire an especially strong interest in every execution of justice. At the same time, most acts of injustice in society occur between people who are strangers to the magistrates and offer the magistrates no chance to profit, so the magistrates have no incentive to tolerate injustices. Their nearest-term interest is to preserve society and secure their position by stopping violations; they have none nearer. Once magistrates have their status and accompanying motives, they will naturally extend their activities from merely enforcing the rules of justice to deciding disputes concerning what those rules require (T 538).6 We have noted that pre-civil societies with a subsistence economy can endure for generations without need of government, even though their people are as temporally myopic as any. Increased productivity is what makes people need government. Even so, the idea for such a social innovation must arise somehow. Hume suggests the idea probably comes from war. The purely voluntary cooperation of pre-civil society disintegrates under foreign attack, and internal chaos threatens. To save themselves not only from the enemy but from each other, the people select

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and submit to a military leader for the duration of the war. Once they have experienced such authority, they can resort to it again when the social order is threatened by increased wealth. The first rulers, in a given pre-civil society, must be identified by some special joint action. A likely such action is this: the people assemble, select magistrates, decide what their powers will be, and all promise to obey them. (Apparently Hume sees this as one available option.) If this is the method used, then the resulting promissory obligation is the first obligation to obey the magistrates. Since promissory obligation was already extant in pre-civil society, it provides a lever to start government in motion. However, even if it is used, "the duty of allegiance . . . quickly takes root of itself, and has an original obligation and authority, independent of all contracts" (T 542). This is because continued obedience to the magistrates, with or without a promise, proves highly beneficial to all. Indeed, allegiance to magistrates is invented to remedy "inconveniences" very similar to those for the remedy of which property and promise were invented. "On whichever side we turn this subject, we shall find, that these two kinds of duty are exactly on the same footing, and have the same source both of their first invention and moral obligation. They . . . acquire their moral sanction in the same manner, from their remedying those inconveniences" (T 543). So an initial social contract is at most a launching device for a duty of submission which acquires independent moral force. That independent obligation arises in the same way as other artificial duties arise. Interest induces us to invent a way of acting (in this case, obedience to magistrates). A great temptation can lead us to overlook the long-term advantage of conformity to the convention in our own case; but when others violate it we see the defection (here, disobedience to governors) as "highly prejudicial to pubic interest, and to our own in particular. This naturally gives us an uneasiness, in considering such seditious and disloyal actions, and makes us attach to them the idea of vice and moral deformity" (T 545). The uneasiness comes from sympathy, the psychological mechanism by which the sentiments of others are transmitted to me. "Education, and the artifice of politicians, concur in bestowing a farther morality on loyalty, and branding all rebellion with a greater degree of guilt and infamy" (T 546). As Hume points out, this process exactly parallels the development of moral disapproval of property violations and infidelity to promises. Sympathy gives rise to the moral sentiment of disapproval of disloyal actions, and a second artifice is

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employed to raise this sentiment to the strength of a sense of honor, which may have an influence on action.7 Once this is accomplished, there is no further need for subjects to make a promise of obedience in order to be bound to obey both by interest and by duty. (To show that obedience to our governors is our duty, it is sufficient to show that disobedience is disapproved in the requisite way.) This is fortunate, since, as Hume notes repeatedly, the subjects of most governments throughout history never promised their allegiance, explicitly or tacitly.8 III. THE Two OBJECTIONS A. Power and Motivation to Conform The initial formation of government thus has the look of a Ulysses contract, a contract in which we obtain a commitment now, from certain other people, to force us later to act as we now prefer that we shall act then, because we expect that then we will be unwilling to do so. Our temporal myopia is incurable. So we appoint magistrates who will be poised to enforce justice later, when the irresistible temptation to violate it will come upon us. We do this in order to get the greater benefit of social stability. How is the magistrate to enforce conformity? He does not look as if he would have the power to induce the populace to obey the rules of justice. This is our first objection. The ruler is just one person, or at most a few persons; how are they to control the behavior of the many? Ulysses' sailors, after all, outnumbered Ulysses, and they tied him to the mast with strong ropes that held him in place. Even if the handful of magistrates had some armed minions, what use would they be against the myopic multitude? Hume himself has this concern in mind as early as 1741 (just after the publication of Book III of the Treatise), in his essay "Of the First Principles of Government" (Miller, pp. 32-6). His opening sentences make it very clear that force is not sufficient. Nothing appears more surprising to those, who consider human affairs with a philosophical eye, than the easiness with which the many are governed by the few. . . . When we enquire by what means this wonder is effected, we shall find, that, . . . FORCE is always on the side of the governed. . . ." But if justice is not to be executed by force, then how? If, by virtue of his status, the ruler has a larger share of property than the people, he could induce obedience by reward; but given the

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universality of temporal myopia, he would soon deplete his fortune. Long before that happened, it would cease to be worthwhile to him to execute the rules of justice. Obedience to the magistrate is, of course, in everyone's long-term interest, if the magistrate is indeed enforcing the rules of justice. However, this is just the sort of interest whose motivational efficacy is defeated by temporal myopia. People who could not conform to the rules of justice for the sake of long-term interest will not be able to obey the magistrate from long-term interest either. It seems that the Ulysses contract cannot be carried out. A related objection is considered by Hume himself in an essay written much later, also called "Of the origin of government."9 Perhaps by causing the human psyche to develop the feeling that we have a moral duty of allegiance (a duty to obey the magistrate's commands), we may provide the motivating force we need to fulfill the Ulysses contract. (Perhaps the sense of duty is not subject to the distortions of temporal myopia.) In that case, when selfinterested motivation to conform to justice is thwarted by temporal myopia, the duty of obedience to the magistrate takes over, and provides the impetus for just action. "But still," Hume worries in this essay, "it may be thought that nothing is gained by this alliance, and that the . . . duty of obedience, from its very nature, lays as feeble a hold of the human mind, as the . . . duty of justice. Peculiar interests and present temptations may overcome the one as well as the other... And the man, who is inclined to be a bad neighbor, must be led by the same motives, well or ill understood, to be a bad citizen and subject" (Miller, p. 38). That is, if the sense of justice or equity was insufficient to motivate someone's regular adherence to justice, the sense of allegiance or law-abidingness will be similarly insufficient to motivate obedience to the magistrate. Thus it seems that government lacks the motivational influence, whether interested or moral, to bring about the results for which it is invented. B. Is Allegiance a Virtue? Our second objection, the more important one for Hume's general theory of morals, is that his account of the origin of government does not seem to analyze allegiance as a virtue. Book III, Part II of Hume's Treatise, called "Of justice and injustice," is a series of analyses of those virtues he labels artificial. With respect to three of the four (honesty, fidelity, and chastity), he

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not only explains how and why the rules regarding the relevant sorts of activities are cooperatively invented, but he depicts the artificial virtue in question as a genuine state of character, defined in part by its characteristic, and approved, motivating sentiment. There is plenty of interpretive disagreement about the exact structure of these virtues. But that they are virtues, and that in coming to possess them a person must undergo some motivational change, is fairly clear.10 Allegiance to government, while it is also classified as an artificial virtue, seems to be given no comparable analysis. Hume does not seem to say anything about the development of new or changed motivating sentiments on the part of those who become law-abiding, nor about the general approval of their motives. Thus it may seem that Hume's virtue-based approach to ethics fades out of the picture when he turns to matters of government. This problem, that allegiance to government is not a genuine Humean virtue, appears most acute if we interpret Hume as not merely expecting that every virtue will have its own characteristic motive (as he seems to do, for example, at T 480-482), but as specifying moral motives for each of the other artificial virtues. There is ample evidence that he indeed does this for justice, fidelity to promises, and feminine chastity and modesty (T 479, 499-501, 523, 533-34, 571-572). Let us briefly consider his account of the motive of the virtue of (property-related) justice or probity, both to see how he describes the development of a virtuous motive and how this causes difficulty for his account of allegiance to government. In Treatise 3.2.2, aOf the Origin of Justice and Property," Hume describes a different transition, that from the condition of small family groups to pre-civil society, by means of the introduction of rules of ownership. There he says: To the imposition, then, and observance of these rules, both in general, and in every particular instance, they are at first mov'd only by a regard to interest; and this motive, on the first formation of society, is sufficiently strong and forcible. But when society has become numerous, and has increas'd to a tribe or nation, this interest is more remote. . . . (T 499) when the injustice is so distant from us, as no way to affect our interest, it still displeases us; because we consider it as prejudicial to human society, and pernicious to every one that approaches the person guilty of it. We partake of their uneasiness by sympathy. . . ; . . . this is the reason why the sense of

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moral good and evil follows upon justice and injustice. And tho' this sense . . . be derived only from contemplating the actions of others, yet we fail not to extend it to our own actions. . . .Thus self-interest is the original motive to the establishment of justice-, but a sympathy with the public interest is the source of the moral approbation which attends that virtue, (ibid.)

The clear suggestion of this paragraph is that while the first motive of complying with property rules is interest, when that wanes, the moral sentiment provides a further motive to fill the breach. This impression is reinforced in the next paragraph: Tho' this progress of sentiments be natural . . . it is here forwarded by the artifice of politicians, who, in order to govern men more easily, and preserve peace in society, have endeavour'd to produce an esteem for justice, and an abhorrence of injustice. This, no doubt, must have its effect... .(T 500) If men are more easily governed by increasing their esteem for justice and abhorrence of injustice, then clearly those moral sentiments move people to conform to property rules where they might otherwise not. The moral sentiment provides a disposition to behave justly, indeed, one that is in some settings more reliable than interest.11 Immediately before turning to the origin of government, Hume again refers to the "sense of honor and duty in the strict regulation of our actions with regard to the property of others," a moral sense "augmented" by the teachings of parents and politicians (T 534). This suggests that in populous but poor societies, it is not interest alone, or even primarily, that is to be relied upon to insure conformity to the rules of justice, but rather the augmented moral sense—the sense of honor. It is strange, then, that in the next section (indeed the next paragraph), Hume talks only about interest, and its inability to motivate in cases of temporal myopia. We were just led to believe that interest is no longer indispensable for conformity to justice; we have the sense of honor to supplement it. So what difference does it make if interest is sometimes hobbled in its motivating power? It looks as if Hume is having the people invent government to solve a problem that has already been solved. In light of this, we ought to restate the part of the abovedescribed motivational objection pertaining to the moral sentiment. It really has the form of a dilemma: If the moral sentiment motivates conformity to justice, then there is no need to invent government. And if the moral sentiment is inadequate to

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motivate just behavior, then the addition of a duty of allegiance will not solve the problem. We have seen that the sense of honor seems to be the motive that characterizes the honest and faithful person. A person who has "the least grain of honesty, or sense of duty and obligation" will find that his "regard to justice, and abhorrence of villainy and knavery, are sufficient reasons" for him to repay a loan (T 479). Justice is a personal virtue, and the person possessed of it is characteristically motivated by the sense of honor, that augmented moral sentiment. It is this motive of which we approve. In the Treatise's section "Of the Origin of Government," however, we seem to be dealing with a society mainly of amoral individuals, or at least individuals who lack the virtue of justice. The motive of interest alone sustains their conformity to property and contracts, and where interest fails to motivate, they fail to conform. What happened to the just individuals and the motivating force of the sense of honor indicated just a few lines before? We must also wonder whether, when government is created, any new virtue comes into being analogous to the virtue of justice. If government is a Ulysses contract, it would seem to leave the people with the same interested motives as before. If they violate the rules of justice, the magistrate will force them back into line (somehow), as do Ulysses' bonds. But at the time of temptation, they have no efficacious motive to obey the magistrate, any more than Ulysses has an efficacious motive to resist the sirens; or rather, what moves them to obey is not virtue, but immediate interest in avoiding the magistrate's penalties. If that is the case, it seems that Hume has no reason to discuss allegiance under the heading of the artificial virtues. Yet Hume seems to think allegiance a character trait of individuals.12 IV. SOLUTIONS TO THESE DIFFICULTIES To determine whether these criticisms are well-founded, we must supplement the account of the Treatise with the two essays already quoted and with other elements of the larger Treatise account of the artificial virtues. If we fill in the gaps from these sources in the right way, both objections can be refuted. The Humean magistrates have the right sort of motivational levers to enforce the rules of justice and obtain obedience, and allegiance to government is a Humean artificial virtue. Indeed, understanding the psychological aspect of the virtue of allegiance is the key to explaining how the device of government can succeed in achieving its ends. Hume's

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virtue theory is thus well integrated with his political theory, and indeed provides the underpinnings that make the latter theory plausible. Let us take up the objections in reverse order: the question of virtue first, and second, the question of the magistrate's power to motivate obedience. The first clue appears in the 1741 essay "Of the first principles of government." The sentence quoted earlier in which Hume says that "FORCE is always on the side of the governed," goes on to say "the governors have nothing to support them but opinion." One opinion that motivates obedience to the governors is the belief that this is in the general interest. That, of course, will not solve the myopia problem. But in addition there is opinion of right, which includes both "right to power" and "right to property." The feeling that magistrates have a right to power, and the motivational influence of this attitude, Hume says, is greatly enhanced by rulers' claims to belong to an ancient line. The next clue comes from Hume's late essay "Of the Origin of Government." After worrying that a man who is an unjust neighbor will have the same motives to be a bad subject of the ruler, he goes on: Experience, however, proves, that there is a great difference between the cases. . . .[O]ur duty to the magistrate is more strictly guarded by the principles of human nature, than our duty to our fellow-citizens. . . . The persons, who first attain this distinction by the consent, tacit or express, of the people, must be endowed with superior personal qualities of valour, force, integrity, or prudence, which command respect and confidence: and after government is established, a regard to birth, rank, and station has a mighty influence over men, and enforces the decrees of the magistrate. The prince or leader exclaims against every disorder, which disturbs his society. He summons all his partizans and all men of probity to aid him in correcting and redressing it; and he is readily followed by all indifferent persons in the execution of his office. He soon acquires the power of rewarding these services. . . . Habit soon consolidates what other principles of human nature had imperfectly founded. . . . (Miller, p. 38-9) We see that it is not force that brings about obedience, and even though reward can come in eventually, it need not at first. Rather, the motives of obedience are respect for and confidence in the magistrate, regard to birth and status, partisanship, probity (the

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virtue of justice), and eventually, habit. In elevating a magistrate we make use of the individual's charisma and moral suasion to motivate acts on the part of the people that interest alone was powerless to motivate. This personal charisma and moral superiority (or noble birth) bring the multitude to the magistrate's aid in enforcing the rules of justice.13 The final clue lies in Hume's parallel descriptions in the Treatise of the evolution of the moral sentiment in each of the other artificial virtues. In the development of the sense of equity (T 499-501), the sense of fidelity (T 523, and both equity and fidelity T 531-4), and the sense of modesty (T 572-3), all of the following elements are present: 1. A conventional form of behavior is invented. 2. Sympathy, or some similar awareness of the benefits and harms to others, evokes moral approval of this conventiondefined behavior. 3. Education by parents and the "artifice(s) of politicians" augment this sentiment of approval by associating the behavior with pride, and its opposite with shame. 4. Those who have an interest in the cumulative effects of the behavior approve it, and the others are "carried along with the stream" (T 572) to approve it as well, and to be shocked by transgression. 5. Unlike what is the case in natural forms of human motivation, those who take the convention to heart are guided by general rules, which they extend beyond the interested reasons for which the convention first arose. In this way the moral approval and disapproval that naturally arise from the cumulative beneficial effects of the conventional behavior are transformed into a moral motive to conform to it oneself, with great strictness, in every instance. We can, indeed, find four of these features in Hume's account of allegiance in the Treatise. Government, and obedience to it, are invented. We recognize the disobedient acts of others not only as potentially harmful to ourselves, but "highly prejudicial to the public good," and as a result we feel "an uneasiness, in considering such seditious and disloyal acts, and . . . attach to them the idea of vice and moral deformity. 'Tis the same principle, which causes us to disapprove of all kinds of private injustice. . ." (T 545). And then, "Education, and the artifice of politicians, concur in bestowing a farther morality on loyalty, and branding all

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rebellion with a greater degree of guilt and infamy" (T 546). (Note the augmentation.) And further, with respect to the moral obligation to submit to government, "general rules commonly extend beyond the principles, on which they were founded; and . . . we seldom make any exception to them, unless that exception have the qualities of a general rule," which is the case for the conditions (of oppression and tyranny by cruel and ambitious rulers) under which revolution is justified (T 551). The remaining, and more minor, feature is not articulated in the Treatise, nor in the contemporaneous essay "Of the First Principles of Government." It emerges explicitly in the later essay "Of the Origin of Government." In the paragraph quoted above, all those who are neither partisans nor men of probity are carried along by the impulse to obey and support the ruler who has captivated everyone else, until habit takes over for everyone. Thus for Hume the invention of government goes hand in glove with the cultivation of the moral sentiment, so that the moral sentiment becomes a motive of strict compliance with the convention of government (that is, obedience to governors). The initial compliance must be otherwise motivated, of course; for the moral sentiment cannot approve of obedience until obedience has begun and has started to produce its salutary effects. Interest of the general, shared sort—interest in preserving society—moves the people to select a governor. While this interest may also, sometimes, move them to obey the commands that their ruler issues later, this is not a reliable motive, because of temporal myopia. A variety of complex psychological factors also move the people to obey the governor when the time comes to do so: admiration or awe of his personal virtue or ancestry, the sense of justice, the influence of others, and eventually, habit. Different motives may come into play at different moments. Then the moral sentiment reacts to the widespread benefits of obedience and the harm of disloyalty. The moral sentiment is augmented by education, which links sedition to shame and loyalty to pride. The outcome of the process is a motivating, moral sentiment: allegiance. This is the artificial virtue. It begins from a patchwork of sentiments more fragmented than those that give rise to the other artificial virtues, but it works. The result is not only a new mechanism for appeasing the interested affection, but a new virtuous motive. It seems as if Hume neglects the cultivation of a new motive in his account of the origin of government because most of his remarks about this are embedded in his lengthy arguments against

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the thesis that the duty of allegiance is founded for all time on promissory obligation. The passages quoted above are extracted from those discussions. But in arguing against the contractarians, he also, in passing, gives an account of the origin of the moral obligation of allegiance that perfectly parallels the like accounts for the other artificial virtues. And in doing so, he draws the same motivational conclusion for allegiance that he is committed to for justice and chastity. What Hume does not explicitly say, but what he needs here and no doubt believes, is that the motivating moral sentiment of allegiance, and indeed all the moral sentiments, are not subject to temporal myopia. The impulse to keep a promise because to break it would be shameful, or to rebuff an illicit sexual advance because of a repugnance to "gallantry," is an immediate response, not the desire for a means to long-term net gain. The feeling that a violation of justice, or of chastity, or of the command of my governor, is itself "infamous and base" (T 501) is not a response to a distant prospect; thus there is no distance to obscure it. This enables Hume's incipient citizens to make the Ulysses contract, and their new magistrate to enforce it. The people bind themselves to obey their new governors by creating conditions under which it will come to seem honorable to obey and shameful to disobey. The new subjects are not induced to obey by force, or by bribery, or in some cases even by long-term interest, but by various immediate impulses (the sense of promissory duty, admiration, the influence of peers) that lead in time to the formation of a moral sentiment of allegiance that motivates obedience from the "opinion of right." One issue remains to be addressed. If the moral sentiment becomes the motivating sentiment of an artificial virtue, and if, as previously argued, that motive is not compromised by our temporal myopia, then why did the people need government in the first place? True enough, their interest could not always move them to conform to the voluntary conventions of justice in the face of tempting riches. But wouldn't their sense of justice fill the gap and keep them on the straight and narrow when interest was incapacitated? What we have said so far only seems to make this difficulty more acute. To solve this problem on Hume's behalf we must notice two features of pre-civil society. Hume intimates that the virtue of justice takes hold in at least some people once the society becomes large enough. But he never says it is inculcated in everyone. While the

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society is poor, it can survive with a manageable balance between just and merely self-interested members, since these two motives will mostly generate the same actions. With an increase in wealth the merely self-interested members will succumb to temporal myopia and indulge in more injustices, and this will wear away at the virtue of the just. One can face sacrifices for the sake of one's conscience if one's conscience is reinforced enough by others, but if many are unjust, one can begin to lose one's sense of honor on the subject. The second thing to notice is that even in explaining how the moral sentiment is augmented to motivate conformity to justice, Hume talks about the influence of politicians. However, there are no politicians in pre-civil society. There are parents and private education, so some cultivation of the sense of honor with respect to promises and property can be carried out. But it is reasonable to infer that the process of making people just, of giving them the virtue of justice, is not completed in pre-civil society. The sense of justice may not be strong enough to motivate, or it may not be strong enough in very many people, before politicians come on the scene. Thus we need to make the transition to civil society, not only to insure social stability, but also to perfect the virtue of justice. This is why we still need to invent government, even though the sense of justice can to some extent fill the motivational gaps left by interest: the sense of justice is not yet potent enough for consistent motivation throughout society, without the influence of public leaders and opinion-makers. And in the process of perfecting the individual virtue of justice by creating such leaders, whom we can rely upon to praise honesty and trustworthiness and to blame injustice in order the better to manage us, we also bring into being the additional artificial virtue of allegiance.14 For Hume a virtue is constituted by a characteristic motivating sentiment, or a disposition to experience a motivating sentiment. The creation of the personal virtue of justice requires the invention of property, the natural operation of sympathy, and the collusion of parents and politicians to perfect the appropriate motivating sentiment. The completion of this process requires the formation of government and the further invention of the virtue of allegiance. We need public leaders to bring the virtue of justice to full flower (where it does develop—of course not all citizens will be just). To have public leaders is to have government, and the continuing power of government depends upon the development in citizens of a further motivating sentiment, the sense of allegiance. While what binds us to obedience initially is

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our admiration for our leaders and other influences, ultimately we are moved to obey by our virtue of allegiance, that new motivating sentiment. It is this that gives princes their power over us. Thus Hume makes crucial use of his theory of the virtues to account for the power of magistrates and rulers. We see that in this respect Hume's virtue theory is in fact intertwined in his political philosophy. The virtue theory, according to which allegiance to government qualifies as a bona fide virtue, identifies the motives of obedience that explain the power of government.15 State University of New York at Albany

NOTES 1. References to Hume's works are given in parentheses in the text, as follows: "T" followed by a number indicates a page in A Treatise of Human Nature, second edition, edited by L. A. Selby-Bigge and P. H. Nidditch (Oxford: Oxford Univ. Press, 1978). "E" followed by a number indicates Enquiries Concerning Human Understanding and Concerning the Principles of Morals, edited by L. A. Selby-Bigge and P. H. Nidditch (Oxford: Oxford Univ. Press, 1975). Citations in this paper are all from An Enquiry Concerning the Principles of Morals. "Miller" followed by a number indicates Essays Moral Political and Literary (first ed. Edinburgh, 1741), edited by Eugene F. Miller (Indianapolis: Liberty Press, 1987). All emphasis in quoted passages is Hume's own. 2. Hume's sole discussion of government in the second Enquiry is restricted to a single paragraph at E 205. His basic account there, that the "allurements of present pleasure and advantage" overcome our strength of mind and thus precipitate the need for government, is entirely consistent with the Treatise account, but leaves out all the details. 3. Note that Hume is not giving the (pre-)history of actual governments. He does this separately, acknowledging that many governments throughout history were the product of conquest or usurpation. While he thinks pre-civil society was historically real, he does not think the formation of actual governments followed a single pattern. Here he addresses a different consideration: we have governments, which we acquired one way or another. What good are they? Would we be better or worse off without them?

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4. It is clear from this passage that Hume thinks our judgment of the goodness of an outcome is distinct from our motivation to pursue it. It may be (though I cannot argue for it here) that to judge one outcome better than another, for Hume, is to predict that it will involve or provide more pleasure. If that is his view, and if he also thinks that the expectation of pleasure is what motivates, he must allow that motivational influence is not directly proportioned to the quantity of expected pleasure. 5. This label fits because Hume uses the analogy of perspective in vision to model the differential responses of the sentiments. The prospects of pleasure and pain motivate, but their influence becomes fainter with distance, as a visual image becomes blurry with distance or shortsightedness. (We even call a person or action short-sighted when he or it aims for a present advantage at too great a long-term cost.) Arthur Kuflik points out that a better label might be "temporal emotional (or motivational) distortion," since distance does not distort our recognition of which option is better for us, but rather distorts our sentimental and motivational reactions to the two options. We still "see" (that is, believe) that the remote outcome is better, but we feel more drawn to the near outcome. However, if we keep in mind that it is the attraction that becomes faint, the short label "temporal myopia" will serve. 6. A pressing problem for Hume's account, which I do not address in this paper, is how, in the new government, we are to prevent corruption of the magistrates by those who wish to commit private injustices with impunity. A magistrate will prevent me from defrauding you, Hume thinks,.since the magistrate realizes no short-term gain from my act of fraud, and the preservation of society from such injustices is in her interest. But all I must do is offer the magistrate a bribe to look the other way; then she has a near-term interest in tolerating my injustice to you. And she, like everyone else, is vulnerable to temporal myopia. Thus in the end government will not enforce the rules of property, but only make violations more expensive. I do not see an obvious solution for Hume, but he has some resources between the lines. For example, he may think that should it become known that a magistrate (especially a judge) is not enforcing the rules of justice, the people would promptly replace her, since such enforcement is the only reason to provide her with the perquisites of office. (See David Miller, Philosophy and Ideology in Hume's Political Thought, [Oxford: Clarendon Press, 1981], p. 83.) There is also evidence that Hume thinks the first magistrates will be chosen in part for their integrity, which means, on my view, their strong repugnance to acting unjustly (an immediate motive). I discuss this below. 7. Here I assume one particular interpretation of the motive of just action. I explain below. 8. Much of Hume's work in this portion of the Treatise is aimed at refuting, first, the contractarians, and secondly, the advocates of passive obedience. I omit the parts of these attempts that have no bearing on the issues at hand.

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9. According to Eugene Miller (Miller, p. xiv), this was first published posthumously in 1777. 10. The nature of the change and of the artificially virtuous psyche is in dispute. The person of probity (the one who is honest with respect to property) provides a good example of the variety of interpretations. Some think that in coming to be honest, one's natural motive of greed ("avidity") is changed by being redirected, so it now moves the honest person to conform to the rules of property, where formerly it moved everyone to try to acquire what others possessed. See, for example, Annette Baier, A Progress of Sentiments: Reflections on Hume's Treatise, (Cambridge, Mass.: Harvard Univ. Press, 1991), chapter 10, esp. p. 242. Some think the virtue of probity not only involves enlightened self-interest but also requires the (in fact false) belief that every dishonest action harms the social order. Varying, more elaborate views of this kind may be found in Knud Haakonssen, The Science of a Legislator: The Natural Jurisprudence of David Hume and Adam Smith (Cambridge Univ. Press, 1981), chapter 2; Marcia Baron, "Hume's Noble Lie: An Account of His Artificial Virtues," Canadian Journal of Philosophy 12, 1982; and David Gauthier, "Artificial Virtues and the Sensible Knave," Hume Studies XVIII, no. 2, 1992. My own view is that in becoming a person of probity one's sense of justice (the moral sentiment insofar as it approves conformity to, and disapproves violations of, the rules of property) is augmented to become a motivating sentiment; so it is not enlightened self-interest alone that makes one a person of probity, but the further, moral motive. See Rachel Cohon, "Hume's Difficulty with the Virtue of Honesty," Hume Studies XXIII, no. 1, 1997. 11. A fuller defense of this interpretation appears in my "Hume's Difficulty with the Virtue of Honesty," ibid. 12. For example, Hume groups allegiance with the other virtues that conform to the model provided by feminine chastity and modesty (T 5703). This model involves an inculcated motivating sentiment that is generally approved. 13. Superior integrity and prudence may make that first magistrate immune to corruption as well, or nearly so. If I am right that the virtue of probity (justice) involves feeling a direct repugnance to any violation of the rules of property, then the magistrate of superior integrity would have difficulty overcoming such a repugnance for the sake of profit. And perhaps superior prudence entails a less than average degree of temporal myopia. This does not, however, solve the corruption problem for subsequent magistrates, who come to their position by birth rather than personal superiority. Hume surely realized that fear of adverse public reaction would not be sufficient to prevent all graft (especially since some could be kept secret). Perhaps he considered a certain amount of lowlevel, unchecked corruption of the nobility the inevitable cost of the blessings of government. When it comes to rulers "transported by their passions into all the excesses of cruelty and ambition," however, especially those with "supreme power," it becomes worse to have government

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than to lack it, and Hume thinks revolution is justified. So while smalltime corruption may be irremediable, princes will be deterred from "enormous tyranny and oppression" (T 563) by the threat of revolution. 14. According to the Oxford English Dictionary, second edition (Oxford: Clarendon Press, 1989), vol. XII, p. 34, "politician" in this period had the well-accepted meaning of a law-maker, leader of government, statesman, or leader of a political party. However, note Duncan Forbes's suggestion ("Hume's Science of Politics," in Bicentenary Papers, ed. Morice) that "politician" may also have meant a political opinion-maker, someone who wrote about the science of government and the issues of the day. 15. I thank Tito Magri and Jon Mandle for valuable comments on an earlier draft of this paper; the audience at the Hume Society Conference in Cork, Ireland, 1999 (especially Donald Ainslie, Stephen Darwall, Arthur Kuflik, and James King); and the audience at Binghamton University, SUNY, in April 2001, for helpful discussions. Thanks, too, to Charlotte Brown for her enthusiasm about this paper.

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[23] HUME'S CRITIQUE OF THE CONTRACT THEORY Stephen Buckle and Dario Castiglione

Hume's Critique of the Contract Theory1 The object of this paper is to put Hume's criticism of the 'fashionable theory' of the original contract within its proper contexts. This will enable us to show the inner coherence of Hume's arguments, but also their pronounced difference from those characteristically modern versions of contract theory which, like Rawls's, appeal to the notion of a hypothetical contract. We begin, however, with a few observations on the history of contract theories. Histories of Social Contract Theories It is an open question whether a meaningful history of social contract theories can be written at all. That it has been attempted is certain. However, these attempts have usually avoided the most immediate dilemma: is it to be a history of self-styled contract theories, charting the substantive variations between them; or must it begin with a prior conception of what contract theory properly is, and then sort explicit contract theories into genuine articles and mere pretenders? It may be suggested that the philosophical unity of these theories lies in their subject matter: political obligation. This has been partly contradicted by the emergence of neo-contractualism, whose primary concern has been with social justice. In fact, classical seventeenth- and eighteenth-century contractualism itself developed along two main lines of enquiry: the reasons for our obligation towards government, and the problematic nature of social cooperation between selfinterested individuals. Some authors indeed maintained that two separate pacts were needed to address these questions (pactum societatis, andpactum subjectionis). The unity of social contract theories must therefore be looked for elsewhere. Another source of scepticism with regard to a history of contract theories is in the nature of the object of research itself. If one assumes, with Professor Pocock,2 that the peculiarly historical way of looking at political thought is the search for languages, because only languages — not single ideas, theories or concepts — can have a history; one may conclude that theories of contract cannot be ordered in a 1 The broad outlines of this paper were shaped while we were visitors at the History of Ideas Unit at the Research School of Social Sciences (ANU). We are particularly indebted to Knud Haakonssen for arranging this opportunity, and for his and for the seminars' other participants' comments. We have also greatly profited from the remarks to the written version from Professor Conal Condren, Iain HampsherMonk and the Journal's anonymous reader. 2 cf. J.G.A. Pocock, * Introduction: the State of the Art', in Virtue, Commerce, and History: Essays on Political Thought and History, Chiefly in the Eighteenth Century (Cambridge, 1985).

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meaningful historical sequence, unless they may be marshalled to form the core of a language, or perhaps a vocabulary, with enough coherence and continuity partly to determine the sense and direction of the individual writers' theories. To our knowledge, no scholar has consistently and successfully engaged in the history of the 'contractual moment'. Yet the current literature, less sanguine about the role of languages in the historical enterprise, offers a variety of reconstructions which may be roughly divided into four groups: the philosophical, the ideological, the jurisprudential and the narrowly historical. This is not the place to discuss the rationale of such a typology. A few examples may suffice to illustrate it: 1. Patrick Riley3 has contended that contract theories speak a philosophical language of voluntarism, organized around the key concepts of will and consent, which characterize and depend on the idea of the free moral agent. The diffusion of contractualist thought would signal, on the one hand, the passage from the paradigm of the 'good state'to that of the 'legitimate state', and on the other, the solution of the ambiguities which characterized the conception of the will before Kant (i.e. the confusion between the psychological and the moral realms, eventually and sharply separated by Kant himself). 2. The ideological view may be associated with the more classical studies of Gough and Vaughan,4 who appear to stress the democratic overtones of the tradition and its peculiar place in the struggle for liberty and democracy. Inevitably, they read the history of the social contract doctrine back to front; and their view of the tradition is both selective and teleological. Of the two horns of the dilemma mentioned at the beginning, both the first two approaches choose the one based on an a priori conception of the contract theory. 3. The third vision, here named the jurisprudential, does not necessarily conflict with the previous two; although, in principle, it is less selective and more historically minded. Its peculiarity consists in treating the theories of the social contract as part of a more general model of political thinking, identified with modern natural law, and seen in opposition to the classical Aristotelian model. In the version of the Italian scholar Norberto Bobbio,5 this approach mainly contends that private law proved to be more resilient than public law to the crisis of medieval society and the emergence of the modern state. Consequently, contractual relationships, which loomed so 3

cf. P. Riley, Will and Political Legitimacy. A Critical Exposition of Social Contract Theory in Hobbes, Locke, Rousseau, Kant, and Hegel (Harvard, 1982). 4 cf. J.W. Gough, The Social Contract (Oxford, 1957); and E. Vaughan, Studies in Political Philosophy Before and After Rousseau (Manchester, 1925). 5 cf. N. Bobbio, 'H Modello Giusnaturalistico', in N. Bobbio and M. Bovero, Societd e Stato nella Filosofia Politica Moderna (Milano, 1979).

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large in private law, became a powerful paradigm for the representation of political relationships in a society which was increasingly conceptualized as the sum of separate individuals (a societas, or partnership, in the classical sense) and not any longer as a tightly knit community. 4. The historical view questions the very possibility of considering contractualism as a single language. The only unifying element left in the kaleidoscopic picture emerging from the contextualization of contract theories in the skirmishes of contemporary politics is the image of the contract as a rhetorical device, variously rooted in contrasting languages. As Martyn Thompson6 has shown, the deconstruction of contractual theories does not need to work only synchronically; it may also be applied to a single period. His particular analysis of English contract theories at the end of the seventeenth century deprives the 'age of Locke' of its natural centre; and, by showing the very different things that these theories were meant to do, it denies them any real homogeneity. If there is no commonly accepted view of what contract theory at large is, it is hard to imagine a critique which could aspire to confute all its versions. In discussing the characteristics of Hume's particular critique, we will implicitly show that, although each of the above visions contribute something to our appreciation of Hume's arguments, none of them represents a fully satisfactory theoretical background against which to pitch our analysis. Promises and Conventions Distancing himself from Hobbes, Hume denies, in the Treatise, that men are incapable of society without government. He indicates the extent of the difference between such a view and his own in the following passage: so far am I from thinking with some philosophers, that men are utterly incapable of society without government, that I assert the first rudiments of government to arise from quarrels, not among men of the same society, but among those of different societies.7 How then are societies established? Hume's answer is gradually, through the development over time of a sense of common interest. Families form initially through the 'natural appetite betwixt the sexes', and become more firmly bonded through the 'new tye' of the parents' 'concern for their common offspring', a concern that 'becomes also a principle of union betwixt the parents and offspring, and forms a more numerous society'. Families are thus mixtures of parental authority and mutual affection, and so provide an environment in which the advantages of social life are 6

cf. M. Thompson, Ideas of Contract in English Political Thought in the Age of Locke (New York and London, 1987).

7

David Hume, A Treatise of Human Nature, ed. L.A. Selby-Bigge, 2nd edn. revised by P.H. Nidditch (Oxford, 1978), pp. 539-40.

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learned, and where the 'rough corners and untoward affections, which prevent coalition' are rubbed off.8 Harmonious relations between different families do not arise from such natural appetites and affections but, as within families, they do develop through time and habit. In this case, however, the establishment of harmony depends on rather different factors, in particular the development of forms of respect for what is not one's own. Different households gradually come to recognize the necessity of respecting the possessions of others: 'the rule concerning the stability of possession . . . arises gradually, and acquires force by a slow progression, and by ... repeated experience of the inconvenience of transgressing it'.9 Recognition of this rule is, for Hume, the foundation-stone of peaceful social relations, so its establishment over time can be equated with the gradual formation of society. The key element in this process, the sense of common interest (sharpened by 'experience of the inconvenience of transgressing it'), he calls a convention. His point in doing so is to draw out two features: human society and its necessary rules arise (a) as the result of human interaction, but (b) not from promises. For the purposes of this paper the important feature is the latter: that the fundamental principles of natural society are not established by promises. Hume does not settle merely for arguing that promises did not found natural society. He goes further, and argues that society could not be so founded because promises are unintelligible, or are unable to obligate, until they are themselves created (as a distinctive form of human behaviour) through human conventions — conventions which cannot exist prior to human society.10 It would be wide of our purpose to investigate Hume's reasons for coming to this view with regard to the formation of society in general. What matters here is that he also denies that promises can be the foundation of civil society. It is not that he argues, in this latter case, that there is no obligation to perform promises prior to the establishment of government. He concedes that there is. The obligation to perform promises is one of the three fundamental laws of nature (the other two are the stability of possession, and its transference by consent),11 and these laws 'men invented... when they observ'd the necessity of society to their mutual subsistance'.12 However, he argues that the obligation to perform promises nevertheless cannot be the foundation on which civil society is built, and he offers the following two reasons for his view: So far ... our civil duties are connected with our natural, that the former are invented chiefly for the sake of the latter; and that the principal object of government is to constrain men to observe the laws of nature. In this respect, however, that law of nature, concerning the performance of promises, is only compriz'd along with the rest; and its exact observance is to be considered as

9 10

Ibid., p. 490. Ibid., ffl.ii.5 (pp. 516-25).

» IbUL, p. 526. 12

Ibid., p. 543.

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an effect of the institution of government, and not the obedience to government as the effect of the obligation of a promise. Tho' the object of our civil duties be the enforcing of our natural, yet the first motive of the invention, as well as performance of both, is nothing but self-interest: And since there is a separate interest in the obedience to government, from that in the performance of promises, we must allow of a separate obligation. To obey the civil magistrate is requisite to preserve order and concord in society. To perform promises is requisite to beget mutual trust and confidence in the common offices of life. The ends, as well as the means, are perfectly distinct: nor is the one subordinate to the other.13 Hume's central point here is that both promise-keeping and allegiace to government are justified by reference to the interest we have in maintaining such institutions; and consequently it is misguided to attempt to explain one by means of the other. He further observes that recognizing the distinctness of the specific interests involved shows that the obligations must be likewise distinct. This is, on the face of it, rather curious, since it apparently ignores the possibility of recognizing a general obligation that would cover different specific interests. It will be argued, however, that Hume has not made a mistake — that on his view interests and obligations must go together. The discussion so far shows two things: that Hume rejects social contractualism, but that this is not the basis for his rejection of political contractualism.14 As for the former question, it is rather irrelevant whether Hume's conjectural account of the beginning of society alludes to some kind of natural state; what matters is that he rejects the idea, implicit in the works of Hobbes and Locke, and explicitly put forward by Pufendorf, that the state of nature (and the subsequent contracts between individuals or families) represents the architectonic of political discourse. However, Hume's discussion of institutions as social conventions, and of the artificial obligation of promises, is not primarily aimed at rejecting the idea that society is the product of one or more contracts, but at demonstrating that the fundamental social institutions have no natural origin in human sentiments and instincts.15 13 Ibid., pp. 543-4. In a footnote Hume adds that by 'first motive' he means 'first in time, not in dignity or force'. 14 A point on terminology is appropriate. By separating the origin of society from that of government (thepactum societatis from th&pactum subjections of the jurists), Hume should, ideally, separate social contract theories from political contract theories. This he rarely does (at least explicitly), but this need not concern us too much since most social contract theories include the political contract and since it is the latter that is Hume's main target, especially in the Essays. For this reason, we deliberately speak, throughout this paper, merely of 'contract theory'. 15

Here lies the major weakness of Gauthier's discussion of Hume as a 'contractarian'; see Gauthier, 'David Hume, Contractarian', The Philosophical Review, 88 (1979), pp. 3-38. By sharply separating Hume's general theory of morals from his specific analysis of justice, Gauthier perverts the inner logic of both Book III of the Treatise and the Enquiry Concerning Morals, which is to reconcile the artificial and the natural accounts of morality. Moreover, by making 'contractarianism' a species of 'conventionalism' Gauthier misses the philosophical originality of Hume's analysis of justice and allegiance. The only thing one can say in defence of his ahistorical reading is that its ingenuity clearly shows that both

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When Hume criticizes the original contract, he is instead arguing that the rules of private law (whether natural or adventitious), although historically prior to the institutes of public law, cannot be considered their foundations, because each refers back to the natural principles of utility and self-interest and because, logically, public law comes into being for the very purpose of underpinning the 'common offices of life': i.e. those regulated by private law. (It must also be noticed that Hume's criticism of the thesis that promises carry a natural obligation is no direct part of his philosophical arguments against the original contract; for he has already admitted that the social practice of promising had been established before the appearance of stable governments, and that this practice can even play some part in the first origin of government. The reference that Hume makes to his philosophical argument against the natural obligation of contracts and promises is only intended to reinforce his main point that allegiance depends on utility, and to show how to short-circuit the contractualist confusion between moral and political duties.16 To this it may be objected that if Hume were to agree on the natural quality of the obligation to promises his main argument against the original contract would be fundamentally weakened. But, as Forbes17 has noticed, this is only to say that Hume's criticism of contractualism is rooted in both his rejection of the religious hypothesis and his own conception of morals.) The Necessity of Government As already mentioned, Hume holds men to be capable of natural society. Nevertheless, his account of government, in particular of our obligation to obey it, is haunted by the spectre of a hostile ungoverned state. At one point, for example, he says that political society provides us with a degree of security and protection which we can never attain to when perfectly free and independent.18 Although people may at times forget that this is so, they very promptly remember it during conditions of genuine political disorder. Hume makes the point in his essay 'Of the Original Contract': In reality, there is not a more terrible event, than a total dissolution of government, which gives liberty to the multitude, and makes the determination or choice of a new establishment depend upon a number, which nearly approaches share a common anthropological presupposition in their view of the * self-interested individual'. 16 'If the reason be asked of that obedience, which we are bound to pay to government, I readily answer, because society could not otherwise subsist: And this answer is clear and intelligible to all mankind. Your answer is, because we should keep our word. But besides, that no body, till trained in a philosophical system, can either comprehend or relish this answer: Besides this, I say, you find yourself embarassed, when it is asked, why are we bound to keep our word"? Nor can you give any answer, but what would, immediately, without any circuit, have accounted for our obligation to allegiance/ D. Hume, 'Of The Original Contract', in Essays Moral, Political, and Literary, ed. E.F. Miller (Indianapolis, 1985), p. 481. 17

cf. D. Forbes, 'Hume's Science of Polities', in David Hume: Bicentenary Papers, ed. G.P. Morice (Edinburgh, 1977), pp. 48-9. 18

Hume, Treatise, pp. 550-1.

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approaches to that of the body of the people: For it never comes entirely to the whole body of them. Every wise man, then, wishes to see, at the head of a powerful and obedient army, a general, who may speedily seize the prize, and give to the people a master, which they are so unfit to chuse for themselves. So little correspondent is fact and reality to those philosophical notions.19 So, for Hume, genuine political crises serve to illustrate that even absolute government, established if not backed by the military, is manifestly preferable to disorder. The point of bringing this out is not merely to stress Hume's central concern with preserving the stability of government — which, in mid-eighteenth-century Scotland, was of more than academic interest20 — but to explain why, to the modern reader, it may easily appear that his account of the contract theory in particular, and of political obligation in general, is guilty of confusing fact with right. (If he is guilty, a further problem would arise: how to explain Hume's confusion on the matter since, on a common interpretation, Hume's famous observation about 'is' and 'ought' in the opening section of Book Three of the Treatise insists on precisely this distinction.)21 Hume appears to make an illicit shift from fact to right because he tests the contract theory, a diesis concerning the legitimacy of government, by means of historical cases — cases which show that obedience to established governments has not depended on belief in the existence of a contractual obligation. Thus he argues, for example, that: we find, every where, princes, who claim their subjects as their property, and assert their independent right of sovereignty, from conquest or succession. We find also, every where, subjects, who acknowledge this right in their prince, and suppose themselves born under obligations of obedience to a certain sovereign, as much as under the ties of reverence and duty to certain parents. These connexions are always conceived to be equally independent of our consent... wherever the doctrines above-mentioned have not been carefully 19

Hume, 'Of the Original Contract', Essays, p. 472.

20

Some recent historical literature has emphasized the centrality of the Jacobite question throughout the first half of the century. Without going as far as assuming that this was the dominant issue of party politics, it is true that it kept the question of allegiance alive. Hume's writings on the subject always make reference to both the historical question of the 1688 Revolution and the political question of Jacobitism. In 1745, the year of one of the Jacobite rebellions, Henry Home, a close friend of Hume and a Jacobite sympathizer in the 1730s, wrote a pamphlet significantly entitled Aw Essay on the hereditary and indefeasible right of kings. Composed in the year 1745 (Edinburgh, 1797). For a balanced judgment on the relevance of the Jacobite question in Hume's writings, see D. Forbes, Hume's Philosophical Politics (Cambridge, 1975), pp. 93-6. 21

Hume, Treatise, pp. 469-70. The common interpretation referred to, while not completely unfaithful to the spirit of Hume's remarks, is nevertheless not what he had in mind. For more faithful interpretations see A.C. Maclntyre, 'Hume on "Is" and "Ought" ', Philosophy, 37 (April 1962), pp. 148-52; R.D. Broiles, The Moral Philosophy of David Hume (The Hague, 1964), Ch. VI; andE. Sapadin, 'Hume's Law, Hume's Way', in Morice, David Hume. The three authors here mentioned do not agree fully on the meaning of the passage; but they all believe that it cannot be read in an anti-naturalist sense, not least because this would contradict the rest of Hume's moral theory.

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inculcated. Obedience or subjection becomes so familiar, that most men never make any enquiry about its origin or cause, more than about the principle of gravity, resistance, or the most universal laws of nature.22 After pointing out that, if the contract theory is restricted to a theory of original contract, it cannot explain why children should be bound by the promises of their parents (an argument from reason), he concludes that the theory of contract 'is not justified by history or experience, in any age or country of the world'.23 The conclusion neatly illustrates the problem: how can a thesis about a matter of right be justified by history or experience? Many views can indeed be justified by reference to history or experience, but all uncontroversial cases of such views would appear to be views about some matter of fact, whether physical, social or psychological. So Hume does seem to be trying to have his cake and eat it. What is more, suspicions about his method are compounded by the frequent use he makes, in his argument, of * authority', since this is a word that can reasonably be taken to imply either legitimacy or mere power. Since he does not qualify it carefully, as its potential for damaging ambiguity requires, Hume's use of the term seems to suggest a lack of care precisely where it is most needed. The way around this problem depends on recognizing, firstly, that the connection Hume apparently assumes to hold between history and justification is not an imposition on most contemporary forms of the contract theory: for it is characteristic of those theories that questions of history and justification are intertwined, as evidenced by the fact that, typically, they are theories of an original contract. This might seem to provide little comfort for Hume, since it might show only that his targets were no less muddled than he. This would miss the point, however. Most social contract theorists tended to treat questions of history and justification together, not because they failed to think clearly about different kinds of judgments (factual and evaluative, in modern jargon), but because they held to some important but never fully articulated beliefs about the nature of history (and legal history). The beliefs in question were often Christian, or related beliefs, about history as a Providential process. On this view, the question of the origins of a social institution was not merely a question about the past, but the disclosure of an event which was part of the unfolding of a divine plan for the creation, and which therefore stood as a watershed in human history. Against such a background, questions of history and justification could not be separated. For the critic, therefore, to attack the historical element of the theory was not to confuse the mystical shell for the rational kernel (even if that is how we now see the matter), but to attack it at the source.24 Perhaps, it might be argued, this is Hume's strategy.

22

Hume, 'Of the Original Contract', Essays, p. 470.

23

Ibid., p. 471. For a discussion of the three kinds of arguments (from reason, experience and history) advanced by Hume, see below.

24

This is perhaps over-simplified, but an increased regard for the impact of Providential assumptions is crucial if we are to gain an adequate understanding of the relationship between 'genetic' (or historical)

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Such an explanation is too ambitious, however, since there is no evidence that it was theories of this kind that Hume had particularly in mind. The internal evidence of the Essays is that his targets were common Whig positions, not the highly charged views of a fundamentalist faction. Besides, Hume's appeal to history and experience seems intended to make a positive point — that the real foundation of political authority is indeed (in some way) dependent on the actual experiences and beliefs of the governed. Secondly, for Hume the question of legitimacy is settled elsewhere. To bring this out we first need to return to the remarks quoted above, stressing the insecurities of the ungoverned state. His view is, at bottom, that there is a general obligation to obey government, because an ungoverned state is so disorderly. He spells out the point in the closing paragraphs of 'Of the Original Contract': The general obligation, which binds us to government, is the interest and necessities of society, and this obligation is very strong.'25 Of course, a general obligation to obey government is not sufficient to establish the obligation to obey this government. Hume recognizes the point, but believes it to make no substantial difference because, as for the general obligation, the threat of disorder remains the determining factor: The determination of [the obligation] to this or that particular prince or form of government is frequently more uncertain or dubious. Present possession has considerable authority in these cases, and greater than in private property; because of the disorders which attend all revolutions and changes of government.26

and * analytic' elements in early modern political thought. For an illustration of the issues see W.R. Lund, The Historical and "Politicall" Origins of Civil Society: Hobbes on Presumption and Certainty', History of Political Thought, 9 (1988), pp. 223-35. For a more careful distinction between the various forms of contract theory, and the role history plays in each of them, see the section below on 'The Fashionable Theory'. The argument from Providence acquired a particular place in the Anglican justification of 1688. As Gerald Straka has argued, the 'divine right of Providence' became the most common version of the divine right theory of government at large (cf. G. Straka, 'The Final Phase of the Divine Right Theory in England, 1688-1702', The English Historical Review, LXXVII, 305 (1962), pp. 638-58). Many other theories of the origin of government (and monarchy in particular) — conquest, election, will of the people, defacto power and stability—could ultimately be reduced to the intervention of a 'governing Providence': the latter was seen as the real cause, while the particular ways in which a government was established became the simple means, or signs, of Providence itself. But providential theories could also be too unsettling (cf. Straka, 'Final', p. 655), and tended to justify too much. Accordingly, they came under fire from many quarters (cf. J.P. Kenyon, Revolution Principles. The Politics of Party, 1689-1720 (Cambridge, 1977), pp. 24-8). They should probably be seen as an alternative to contract theories in the post-1688 political debate. This does not imply that many supporters of the theory of an original contract did not also have a providential conception of history, against whose background they justified their political positions. 25

Hume, 'Of the Original Contract', Essays, p. 486.

26

Ibid.

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This shows just how strong, for Hume, the claims of the present sovereign are, since his account of property is notable for its concern to fix and settle property.27 If the sovereign's claim to legitimacy is stronger than the present possessor's claim over a piece of property, then he must regard it as almost insuperable. He is nevertheless not tempted to conclude that it is insuperable. In the Treatise he summarily dismisses the possibility, observing there that 'in all our notions of morals we never entertain such an absurdity as that of passive obedience';28 and although, in the Essays, the tone tends to be more moderate, the doctrine of passive obedience still receives a blunt assessment: The maxim, fiatJustitia & mat Coelum, let justice be performed, though the universe be destroyed, is apparently false, and by sacrificing the end to the means, shews a preposterous idea of the subordination of duties . . . The case is the same with the duty of allegiance; and common sense teaches us, that, as government binds us to obedience only on account of its public utility, that duty must always, in extraordinary cases, when public ruin would evidently attend obedience, yield to the primary and original obligation. Salus populi suprema Lex, the safety of the people is the supreme law.29 He then calls on historical experience to furnish us with incontrovertible cases of justified rebellions: Those who took up arms against Dionysius or Nero, or Philip the second, have the favour of every reader in the perusal of their history; and nothing but the most violent perversion of common sense can ever lead us to condemn them.30 Hume thus unequivocally accepts the people's right to resist the sovereign, in all those cases where the safety of the people demands it. Equally, however, he insists that such occasions are quite rare. Resistance is lawful only as 'the last refuge in desperate cases, when the public is in the highest danger, from violence and tyranny'.31 It is possible to imagine Locke saying much the same, but the profound gap between his and Hume's view of how much this abstract assessment licenses in fact is best illustrated by a remarkable conclusion Hume draws in the Treatise: 'Twas by the sword ... that every emperor acquir'd, as well as defended his right; and we must either say, that all the known world, for so many ages, had no government, and ow'd no allegiance to any one, or must allow, that the right

27

Hume, Treatise, IH.ii.2.

28

Ibid., p. 552.

29

Hume, 'Of Passive Obedience', Essays, p. 489.

30

Hume, Treatise, p. 552. Hume makes the same point in 'Of Passive Obedience', but there restricts the examples to the insurrections against Nero and Philip (Essays, p. 490). 31

Hume, 'Of Passive Obedience', Essays, p. 490.

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of the stronger, in public affairs, is to be received as legitimate, and authorized by morality, when not oppos'd by any other title.32 Since he has rejected the former, there can be no doubt about which of these alternatives Hume himself favours. If the question of legitimacy is ultimately to be settled by the satisfaction of the fundamental human need of a life of peace and tranquillity (salus populi) — a matter which, according to Hume, can be decided by reference to experience33 — it matters little whether the original establishment of a government was by either force, consent or other connections of the imagination.34 So, for Hume the right of resistance, though real enough, must be thoroughly circumscribed. The present possessor of sovereign power must, in all but the most extreme of cases, be recognized to be the legitimate ruler. If this should seem to deliver the people defenceless to the ruler's pleasure, Hume points out that the right of resistance, or at least the strong version of it which licenses tyrannicide, may actually threaten the very end it seeks to secure. He refers to ancient examples in which the threat of tyrannicide made tyrants 'ten times more fierce and unrelenting'. Consequently, tyrannicide 'is now justly . . . abolished by the laws of nations, and universally condemned as a base and treacherous method of bringing to justice these disturbers of society'.35 Hume attaches no small significance to considerations of this kind, since he concludes that political education should not stress, and perhaps should even omit, the people's right to resist the sovereign in certain circumstances. A moderate step in this direction is indicated in 'Of Passive Obedience'. He observes there that we must recognize that 'as obedience is our duty in the common course of things, it ought chiefly to be inculcated; nor can any thing be more preposterous than an anxious care and solicitude in stating all the cases, in which resistance may be allowed'.36 This may seem to remain on a 'common sensical' ground, but when he comes to consider the question in The History of England—after recording the fate of Charles I — it is not merely such 'anxious care and solicitude' that gives Hume pause. The question of resistance and its legitimacy was central to the popular reaction to Charles' execution, and in the History Hume introduces it in this fashion: The tragical death of Charles begat a question, whether the people, in any case, were intitled to judge and to punish their sovereign; and most men, regarding 32

Hume, Treatise, p. 558.

33

Hume notices that the question of resistance is a very fine one, and that 'being admitted in extraordinary emergencies, the question can only be among good reasoners' (Hume, 'Of Passive Obedience', Essays, p. 490). 34

Two things should be noticed: that Francis Hutcheson also considered the rights of succession to be of a very 'phantastick nature', cf. E Hutcheson, A Short Introduction to Moral Philosophy (Glasgow, 1747), p. 308; but that, according to Hume, the imagination is an extraordinary powerful mechanism of our mind. 35

Hume, 'Of Passive Obedience', Essays, p. 490.

36

Ibid.

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chiefly the atrocious usurpation of the pretended judges, and the merit of the virtuous prince who suffered, were inclined to condemn the republican principle, as highly seditious and extravagant.. ,37 Despite his strong opposition to the execution of Charles, Hume does not endorse this common view. His sympathies clearly lie with those whom he imagines held to a more 'moderate' view: that is, those * who, abstracting from the particular circumstances of this case, were able to consider the question in general, and were inclined to moderate, not contradict, the prevailing sentiment'.38 The moderate's viewpoint, however, differed from the prevailing view more in spirit than substance for, although it recognized the right to resist, it considered the more prudent course lay in concealing the existence of such a dangerous right. Hume sets out this view in the following passage: If ever, on any occasion, it were laudable to conceal truth from the populace; it must be confessed, that the doctrine of resistance affords such an example; and that all speculative reasoners ought to observe, with regard to this principle, the same cautious silence, which the laws, in every species of government, have ever prescribed to themselves. Government is instituted, in order to restrain the fury and injustice of the people; and being always founded on opinion, not on force, it is dangerous to weaken, by these speculations, the reverence, which the multitude owe to authority, and to instruct them beforehand, that the case can ever happen, when they may be freed from their duty of allegiance. Or should it be found impossible to restrain the licence of human disquisitions, it must be acknowledged, that the doctrine of obedience ought alone to be inculcated, and that the exceptions, which are rare, ought seldom or never to be mentioned in popular reasonings or discourses.39 While it is true that at no stage does Hume identify this remarkable view as his own, he neither criticizes it nor gives any clear indication of when he has passed from spelling it out to speaking in his own voice. These two factors may alone be thought sufficient to establish that he has no significant disagreement with the more moderate position, but two other factors make the case all the stronger. The first is the use of the term 'moderate' itself: throughout the Essays and History Hume uses the term regularly, and always with approval. It reflects both the ancient (Aristotelian) notion that virtue lies in a mean between extremes, and also the more specific sense given it by the third Earl of Shaftesbury, for whom the man of moderation was the man skilled in the handling of practical affairs.40 The second additional factor is the appeal in the quoted passage to the doctrine that government is 'always founded on opinion, not on force'. Although William Temple had already advanced a similar thesis, this 37

D. Hume, The History of England (Indianapolis, 1985), V, p. 544.

38

Ibid. Ibid. cf. Forbes, Hume's Philosophical, Ch. 3.

39 40

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political doctrine was not fully articulated until Hume expounded it in the essay 'Of the First Principles of Government' .41 Since he thus fills out the view he is describing by drawing on one of his own central doctrines, it is clear that his position, though perhaps not identical to the one described, is nevertheless not to be sharply distinguished from it. It can thus reasonably be concluded that for Hume, as for the moderate men he has in mind, the right of resistance although real ought not to be stressed in accounts of the nature and limits of political obligation, and may, depending on social circumstances, even have to be concealed. Since government is instituted 'in order to restrain the fury and injustice of the people', which is an ever-present possibility, then, in the general course of affairs, the sovereign's encroachments on the proper bounds of the constitution are threats less to be feared than the chaos or disorder unleashed by the vigorous prosecution of the right of resistance. Although, for Hume, the right of resistance is an undeniable political right, constituting as it does the last resort for a people reduced to desperation by tyranny, it is itself a threat to (comparative) political stability. Further, as pointed out above, Hume is committed to the view that it may even become, in specific circumstances, a positive incentive to tyranny, precisely by undermining the sovereign's security. Hume's position then is that government is so necessary to human flourishing, and its dissolution so chaotic, that it must be secured against all threats to its stability, and the present possessor of the sovereign power must, in all but the most extreme circumstances, be recognized as thfe legitimate sovereign. The right of resistance itself, if too much insisted upon, is capable of unduly threatening established sovereigns. It follows that any political theory which accords prominence to the right of resistance constitutes a threat to political security, and thus also to human happiness. It ought therefore to be rejected. The case against the contract theory is now clear: its stress on the conditions under which obedience is to be rendered to an established sovereign means that it cannot but accord prominence to the right of resistance. To spell it out a little more fully: the contract theory places in the hands of the people a reserve power over the established government, a power which can be — indeed, according to the theory, ought to be — exercised whenever the government deviates from its appointed course. As Hume puts it, according to the contract theory: 'the subjects have tacitly reserved the power of resisting their sovereign, whenever they find themselves aggrieved by that authority, with which they have, for certain purposes, voluntarily entrusted him'.42 To reserve this power is to affirm the right of resistance. So the contract theory cannot but exemplify those political theories which, by giving undue prominence to the right of resistance, undermine the stability necessary for government.

41

Hume, Essays, pp. 32-6.

42

Hume, 'Of the Original Contract', Essays, p. 466.

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S. BUCKLE & D. CASTIGLIONE The Fashionable Theory

Hume's choice of terms in the quotation above indicates that it is mainly the Lockean version of the theory he has principally in mind. The Lockean notion of government as a trust is perhaps the clearest expression of the reserve power the contract theory places in the people. In the essay on the original contract, Hume quite clearly refers to Locke as the 'most noted of its partizans'. Nevertheless, Locke's is not the only such theory, and it may not have been the most influential. Indeed, Martyn Thompson has shown that there are at least three different contract theories in the age of Locke: philosophical contractualism (Locke's own version), which insists on the moral nature of people, and on the rights and duties established by the law of nature; constitutional contractualism (William Atwood, Robert Ferguson and Samuel Johnson), which treats the original contract as a positive occurrence in legal and constitutional history; and 'integrated' contractualism (James Tyrrell and Algernon Sidney), whose general thrust was partly determined by its supporters' intention to give a complete answer to Filmer, and which tried to ground the historical discussion of customary laws and ancient constitutions in a theory of (rational) natural law (the sources of this version of natural law are to be found more in Cumberland and the continental jurists than in Locke). In the case of Hume's particular criticism of the original contract, Thompson argues that, if Locke was meant to be his target, Hume's criticism had misfired because: (a) Hume's historical arguments do not undermine Locke's theory; in fact, Hume's and Locke's conjectural accounts of the origin of government seem to be remarkably similar on many points; and (b) Locke's theory of political obligation is not a theory of consent, and therefore Hume's criticism of the equation between the duty of allegiance and that of fidelity does not seem to undermine it. We will soon return to the latter point. On the former, it should be noticed that Hume's criticism of contract theory is based on three kinds of arguments: rational, historical, experiential, which apply differently to the various versions of the 'fashionable theory' of the original contract. The historical evidence, in so far as it is directed at those who attached a particular force to the arguments from custom and history (clearly not Locke), has a negative value, for Hume has neither a providential conception of history nor a normative understanding of precedents. But the argument from experience (and one should also include historical facts, when they are considered as 'experiments'; and the particular force that custom, as it is known by experience, has on the imagination of people) undermines, at least from Hume's point of view, Locke's own position.43 43 It is difficult to overstate the role that experience plays in Hume's science of politics. The fact that the theory of contract seems to Hume to fail to give a plausible account of the experience of allegiance in situations in which, according to this theory, there is no strictly legitimate government, makes it unfit to be part of a 'science of polities'. However, it must be said that at times Hume fails to keep his own 'scientific' standards. Forbes has acutely noticed ('Hume's Science'), for instance, that Hume's argument from 'authority' (i.e. the fact that in common life people do not seem to be aware of the existence of a contract) does not stand close scrutiny; for 'philosophy', according to Hume himself, consists in the methodical translation of common sense. If people are not aware of the existence of the law of gravity, this does not make the law less true. The issue is slightly different with regard to moral phenomena, as it

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As for the main alternative notion of the contract (the constitutional version, first pointed out by John Pocock in the Ancient Constitution and the Feudal Law),44 its importance at the end of the seventeenth century, and probably throughout the first half of the eighteenth century, was due to the political relevance of the question of the succession to the British thrones.45 According to this view, the original contract of the king with the people is identified with the coronation oath, the central element of which was to observe the 'ancient constitution'. This is a considerably more confined notion of contract, but it preserves a clear recognition of reserve power (whether directly political or generally moral). Moreover, reserve power had been exercised on precisely these terms, according to the standard justification for the deposition of James II. So it is worth asking why Hume is not more forthright in his criticism of the idea of the ancient constitution. This is not to suggest that Hume is not critical of the idea. Indeed he is, especially in The History of England where it is one of his main targets. But his objection to the idea tends simply to be that there is (or was) no such thing—that, instead, English political institutions, including the fundamentals of the relationship between sovereign and people, evolved over time — not that the idea of the ancient constitution poses a threat to British liberty. In his political essays he presents (without much commentary) the Tory case against the Whig use of the idea, and criticizes it mainly on the ground that 'there is not a more effectual method of betraying a cause, than to lay the stress of the argument on a wrong place, and by disputing an untenable post, enure the adversaries to success and victory'.46 The explanation for the different treatments of the two kinds of contractualist discourses could be simply that Hume considered the Lockean theory philosophically more consistent, particularly in its justification of the right of resistance. (He may also have considered it to be more 'popular', in spite of the opinion to the contrary of many modern historians).47 But Hume may have also thought that appeals will be discussed below, but Hume's argument on the question remains fuzzy. There is, however, a philosophical consequence regarding the problem of consent which Hume derives from the 'argument from authority', and also discussed below. 44

cf. J.G.A. Pocock, The Ancient Constitution and the Feudal Law (Cambridge, 1957), pp. 230-1

45

The plural is necessary here because the union of the two British thrones did not take place until later, in 1707. 46

47

Hume, 'Of the Coalition of Parties', Essays, p. 501.

Hume was not alone in considering the Lockean version to be influential. Other Scottish authors, before and after Hume, discussed Locke's theory of government extensively. Later in the century William Paley wrote that 'it was impossible not to observe, in the language of party, in the resolutions of public meetings, in debate, in conversation [...], the prevalency of those ideas of civil authority which are displayed in the works of Mr. Locke', W. Paley, The Principles of Moral and Political Philosophy (London, 1824), XIX. In his English Society 1688-1832 (Cambridge, 1985), J.C.D. Clark has argued that until the mideighteenth century there was no prominent place for Locke's Two Treatises, neither in England nor in America. But his own emphasis on the issue of allegiance seems, in a sense, to undermine this contention. Although not hegemonic, Locke's theory was certainly well known and influential: cf. R. Ashcraft and M.M. Goldsmith, 'Locke, Revolution Principles, and the formation of Whig Ideology', The Historical Journal, 26 (1983), pp. 773-800. It must be added that the question of the relation between the government

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to the ancient constitution were less threatening than the Lockean conception of the contract, since the former, unlike the latter, could be expected to work largely through the existing social framework. The idea of the ancient constitution, by vesting crucial significance in the established law, maintains a distinction between the people and their institutions — with the latter as the vehicle appropriate for dissent — which is wholly lacking in the Lockean * appeal to Heaven'.48 The ancient constitution is thus more limited as a form of social criticism, lacking the dangerously revolutionary thrust of the Lockean conception of the contract. So it is reasonable to conclude that Hume's attack on the contract is aimed principally at the Lockean version because it is the version which poses the most serious threat to the stability of government. If this is accepted, then we must also conclude that Hume was well aware of the difference between constitutionalism and the contract theories he has in his sights in 'Of the Original Contract'. So Thompson's thesis, that Hume's attack on contract theory frequently fails to deliver effective blows to the Lockean position, and that this failure is to be explained by the fact that Hume is attempting to attack two different things at the same time, cannot wholly be accepted. Hume's failure to discriminate sharply between the various theories is not because he ran distinct positions together; in fact, he recognized their differences, but is able to criticize them without distinguishing them because he thought they both failed in the same way. His view is that contract theories, of whatever type, fail because they cannot provide an adequate account of our political obligation. The Original Contract as Speculative Theory There is perhaps another reason why Hume is particularly interested in opposing the 'philosophical' version of the original contract, and this may be linked to a further feature of Hume's critique of the contract, one not commonly recognized. Hume considers the contract theory as an instance of a peculiarly modern phenomenon: the tendency of political parties to justify their respective causes by appealing to a general, 'speculative', theory. He opens the essay 'Of the Original Contract' with the following observation: As no party, in the present age, can well support itself, without a philosophical or speculative system of principles, annexed to its political or practical one; and the people was not just linked to the issue of allegiance. The debate on the public debt, for instance, was another important question with consequence for a theory of government, and touched upon the issues of resistance, trust and liberty, as it is made quite clear in Cato's Letter, number 17 of January 21, 1720 (A Collection of Cato's Political Letters in the London Journals (London, 1721)). The reconstruction of the contract theory in Britain in the first half of the eighteenth century needs to consider a broader compass of political issues. 48

See, for example, John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge, 1967), II. 168. On the other hand, Hume thought that the present British Constitution justified a greater role for the theory and practice of resistance, on account of its complexity: 'Resistance therefore must, of course, become more frequent in the British government, than in others, which are simpler, and consist of fewer parts and movements', Hume, 'Of Passive Obedience', Essays, p. 492.

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we accordingly find, that each of the factions, into which this nation is divided, has reared up a fabric of the former kind, in order to protect and cover that scheme of actions, which it pursues.49 This is an interesting passage for more than one reason.50 Most important for our purposes, however, is Hume's location of the contract theory within a general account of modern parties. He is thus able to treat contract theory as a distinctively modern phenomenon: not simply because it is novel, but because it is a manifestation of a more general, characteristically modern, phenomenon — the party, or faction, of (philosophical) 'principle'.51 He thereby exposes the theory to broader criticisms, particularly to some of a sociological spirit. In the first place, since it is the theory of a particular party, the contract theory is, in the relevant sense, essentially partisan. As such it represents a limited interest, and therefore threatens social stability. Hume's castigation of parties is therefore simultaneously an attack on the contract theory. The preceding analysis of the threat posed by the theory is generalized in his attack on parties: As much as legislators and founders of states ought to be honoured and respected among men, as much ought the founders of sects and factions to be detested and hated; because the influence of faction is directly contrary to that of laws. Factions subvert government, render laws impotent, and beget the fiercest animosities among men of the same nation, who ought to give mutual assistance and protection to each other. And what should render the founders of parties more odious is, the difficulty of extirpating these weeds, when once they have taken root in any state. They naturally propagate themselves for many centuries, and seldom end but by the total dissolution of that government, in which they are sown.52 Secondly, by recognizing the contract theory to be another product of the speculative temper, it is possible to attribute to it the same failing Hume detects in other speculative systems. That is, the contract theory can be regarded as a political counterpart to those speculative systems of pure reason which, for Hume, undermined the securities of common life. 49

Hume, Essays, p. 465.

50

The final clauses of the above quotation, with their suggestion that theories can cloak, rather than display, real interests, hint perhaps at a later theory of ideology — although this can also be read as the generalization of the long-standing debate on the role played by religion in cloaking interests, etc. 51 He spells out the distinctive features of these entities in D. Hume, 'Of Parties in General', Essays, pp. 54-63 (esp. p. 59). In establishing the close relationship between the modernity of the 'parties of principle' and that of the theory of the original contract, the qualification 'philosophical* is important, because Hume does not say that the theory of passive obedience is also modern. The distinction between 'philosophical' and 'religious' principles is made, though not fully developed, at the beginning of the essay 'Of Passive Obedience': 'In the former essay ['Of the Original Contract'], we endeavoured to refute the speculative systems of politics advanced in this nation; as well the religious system of the one party, as the philosophical of the other', Hume, Essays, p. 488. 52

Hume, Essays, p. 55.

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However, the most important conclusion to be drawn from the speculative character of the theory is that, since it is a product of faction (and faction of a particular kind), it can come into being only where the relevant kind of faction — the faction of principle — already exists. Factions of this sort are a distinctively modern phenomenon, because they can exist only in sophisticated societies characterized by clear divisions of social groupings — divisions which provide a foundation for divisions of interest or principle. Although factions of interest are not uncommon, the faction of principle is, historically speaking, both rare and distinctive: 'Parties from principle, especially abstract speculative principle, are known only to modern times, and are, perhaps, the most extraordinary and unaccountable phaenomenon, that has yet appeared in human affairs'.53 As a product of such parties of principle, the contract theory is equally a distinctively modern phenomenon. It too can exist only in sophisticated societies. At this point one may be tempted to ask whether anything is gained by such sociological observations. For Hume they matter a good deal, since moral matters are not like natural science in the relevant respect. Moral judgments are not attempts to uncover a hidden reality existing independently of our beliefs (although, in a weaker sense, Hume's moral theory may be described as 'realist').54 In contrast, because they are principally concerned with how we should act, they are also vitally concerned with the sources of our actions: with our beliefs and desires, and therefore with our motivations. This is shown most clearly by the relationship, in Hume's view, between motivation and obligation. This relationship is not spelt out explicitly; however, it is apparent that, from a twentieth-century (or, more accurately, post-Kantian) viewpoint, Hume has an unusual conception of obligation. For example, Hume distinguishes between 'natural' and 'moral' obligation, a distinction with no modern counterpart, and then speaks of 'the natural obligations of interest'.55 For the eighteenth-century reader, however, nothing may have appeared amiss in expressions of this kind. An obligation was typically understood to be something which bound (or moved) the will of an agent. Accordingly, Hume's treatment of moral questions does not seem to distinguish clearly between obligations and motivations. Motives are what move us to action, and since we can be moved by either interested (natural) or disinterested (moral) considerations, motives (and indeed obligations) can be divided into the natural and the moral. A closer examination of the Treatise would be necessary to provide a demonstration of the close relationship between the two in Hume's account, but the foregoing suffices to show that his notion of obligation differs from the common 53

Ibid., p. 60. Of course, Hume does not think it to be so 'extraordinary and unaccountable' that it frustrates even his explanatory powers! The subsequent part of the essay attributes the advent of these factions to the rise of Christianity in Roman society. The effective ingredients, he believes, are the authority of the priests, the separation of the ecclesiastical and civil powers, and the 'philosophical' character of the Christian religion (i.e. its 'system of speculative opinions'). See ibid., pp. 61-3. 54

Hume's moral views are explained as a weak form of realism in David Fate Norton, David Hume: Common-Sense Moralist, Sceptical Metaphysician (Princeton, 1982), Ch. 3.

55

Hume, Treatise, pp. 547,545.

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modern conception (which tends to explain obligations in terms of reasons),56 and does so because it is part of a distinctive viewpoint which sees morals as a particular form of human behaviour — and therefore understands the task of a moral theory to be not only a matter of justifying certain goods, but also of explaining how moral behaviour is possible.57 For present purposes the important point is that if obligation and motivation cannot be completely distinguished from one another (or if the stronger claim is made that, according to Hume, obligation is another name for motivation) it must be that where there is no motivation, neither can there be an effective internal obligation. Since Hume believed that force (a kind of 'external' obligation)58 is always on the side of the people, government cannot possibly rely on sources of obligation which produce no clear and strong motivation.59 The fashionable theory of contract, and the Whig historical contentions, are, or so Hume maintained, of this kind. This explains why Hume held the contract theory to be not only seditious but, as an attempt to explain the general foundation of political obligation, manifestly absurd. The following passage is an ample illustration: Were you to preach, in most parts of the world, that political connexions are founded altogether on voluntary consent or a mutual promise, the magistrate would soon imprison you, as seditious, for loosening the ties of obedience; if your friends did not before shut you up as delirious, for advancing such absurdities. It is strange, that an act of the mind, which every individual is supposed to have formed, and after he came to the use of reason too, otherwise it could have no authority; that this act, I say, should be so much unknown to all of them, that over the face of the whole earth, there scarcely remain any traces or memory of it.60 Tacit, Implicit and Hypothetical Contracts As the above quotation shows, central to Hume's position is the conviction that the contract theory requires an act of mind on the part of the citizen in order to ground the obligation. This act of mind is necessary on two accounts. Firstly because, if we 56

See, for example, J.L. Mackie, Ethics: Inventing Right and Wrong (Harmondsworth, 1977), Ch. 3.

57

cf. John P. Wright, The Sceptical Realism of David Hume (Manchester, 1983), p. 32. This larger concern for a science of morals also underlies Hume's criticism of the Rationalists for failing to give an adequate account of the transition from 'is' to 'ought' (Hume, Treatise, pp. 469-70). Cf. Sapadin, 'Hume's Law, Hume's Way'. The account here suggested of the relationship between obligation and motivation in Hume is perhaps controversial; for a fuller analysis, see S. Buckle, Natural Law and the Theory of Property (Oxford, 1991), pp. 270-84. 58

Notice that even 'external obligations' need to be related to motivation; for, in order for force to oblige and move, it must be perceived as real, and its threat must be 'internalized'.

59

Hume's approach seems to make impossible the sharp distinction between 'duties' and 'obligations' made by Rousseau in the Contrat Social (in Oeuvres Completes (Paris, 1964), I, tii): 'Le plus fort n'est jamais assez fort pour etre toujours le maitre, s'il ne transforme sa force en droit, et obeissance en devoir'. 60

Hume, 'Of the Original Contract', Essays, p. 470.

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are to acknowledge that we are bound by a contract, we must be aware of having entered one: without psychological awareness there is no definite motivation and, for the reasons given in the previous section, no clear obligation. Secondly, and more importantly, consent itself necessitates an act of mind: after all, contract is a deed between two willing parties. This takes us back to Locke. Thompson maintains that Locke's theory of political obligation is not dented by Hume's critique because, as Dunn61 and others have justly maintained, it is not based on consent, as Hume seems to believe, but on God's command (through reference to natural law, etc.).62 However, we contend that Hume is not the only one to have advanced such interpretation. Not only did many other critics throughout the eighteenth century share the same belief;63 but, what is more important, this was the reading commonly accepted by the Scottish supporters of the contract theory. This aspect of the intellectual context of Hume's criticism of the original contract has not yet been fully recognized; although its broad outlines have been exhaustively discussed by Duncan Forbes64 and, more recently, Knud Haakonssen65 has pointed to the contract as one of the questions which divided Hume from a number of Scottish professors of morals. What is notable is that Locke's reception in Scotland also passed through the teaching of natural jurisprudence. Locke's theories of government, political power and natural liberty were often quoted by authors like Carmichael and Hutcheson to improve on their largely Pufendorfian reading of natural law. This however implied that Locke's political theory was considered within a distinctive framework, dominated by the traditional categories of Roman and private law. As a consequence of this approach, the features of political pacts had to be made consistent with private contracts at large. It is therefore not surprising to find that Hutcheson shares in Hume's belief that consent is a relevant feature of the theory of contract. His preoccupation with Locke's use of tacit consent indirectly proves the point. Hume had subjected the contractualists' recourse to tacit consent, for all those members of civil society who could not possibly participate in the original pact, to a heavy barrage of criticism. The case is first put forward in the Treatise: 'a tacit promise is, where the will is signified by other more diffuse signs than those of speech; but a will there must certainly be in the case, and that can never escape the person's notice, who exerted it, however silent or tacit'; in fact, people either think they are 'born to such an obedience' or, if they happen to dwell in the dominions of 61

cf. J. Dunn, 'Consent in the Political Theory of John Locke', in Political Obligation in its Historical Context. Essays in Political Theory (Cambridge, 1980).

62

cf. M. Thompson, 'Hume's Critique of Locke and the "Original Contract" ', // Pensiero Politico, 10 (1977), pp. 189-201.

63

See, in particular, Adam Smith, Lectures on Jurisprudence, ed. R.L. Meek, D.D. Raphael and P.O. Stein (Oxford, 1978), LJ (A) v. 114-20, LJ (B) 15-18.

64 65

cf. Forbes, Hume's Philosophical, Part I in particular.

cf. Knud Haakonssen's introduction and commentary to his edition of T. Reid, Practical Ethics (Princeton, 1990).

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the established government, do not imagine that the * affair depends on their choice'.66 The case against tacit consent is strengthened in the Essays by suggesting the paradox (from a contractualist point of view) that: where [a man] thinks (as all mankind do who are born under established governments) that by his birth he owes allegiance to a certain prince or certain form of government; it would be absurd to infer a consent or choice, which he expressly, in this case, renounces and disclaims. Also, rather mockingly: Can we seriously say, that a poor peasant or artizan has free choice to leave his country, when he knows no foreign language or manners, and lives from day to day, by the small wages which he acquires? We may as well assert, that a man, by remaining in a vessel, freely consents to the dominion of the master; though he was carried on board while asleep, and must leap into the ocean, and perish, the moment he leaves her.67 The case against tacit consent seems to be overwhelming when referred to posterity: It never was pleaded as an excuse for a rebel, that the first act he perform'd, after he came to years of discretion, was to levy war against the sovereign of the state; and that while he was a child he cou'd not bind himself by his own consent, and having become a man, show'd plainly, by the first act he perform'd, that he had no design to impose on himself any obligation to obedience.68 Hume also observed that, to be coherent, the contractualists should admit that the 'truest tacit consent' is the one which applies to foreigners who settle in another country; but this they never do. Finally, in the essay 'Of the Original Contract' he spelt out the destabilizing consequences of this theory of tacit consent: Did one generation of men go off the stage at once, and another succeed, as is the case with silk-worms and butterflies, the new race, if they had sense enough to choose their government, which surely is never the case with men, might voluntarily, and by general consent, establish their own form of civil polity, without any regard to the laws or precedents which prevailed among their ancestors. But as human society is in perpetual flux, one man every hour going out of the world, another coming into it, it is necessary, in order to preserve 66

Hume, Treatise, pp. 547-8.

67

Ibid. The latter point is cited by Smith in his Lectures, p. 317. It has been pointed out to us that it is rather strange that Hume did not notice that, in his own time, many 'poor peasants*, 'artizans', etc. were indeed exercising the 'free choice' of leaving their country to go to the Americas. The implications of such a remark, both in terms of Hume's ideology and his historical imagination, are intriguing, but wide of our present purpose. 68

Hume, Treatise, p. 548.

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stability in government, that the new brood should conform themselves to the established constitution, and nearly follow the path which their fathers, treading in the footsteps of theirs, had marked out to them.69 Nature, as always in Hume, wins over the subtleties of reason. We have gone through Hume's arguments on the paradoxes of tacit consent at some length, to give an idea of the impact these arguments may have made on contemporary readers. To be sure, Locke's theory of tacit consent had problems of its own;70 but Hume's Treatise may have been responsible for Hutcheson's decision to ditch tacit consent as the explanation for the political obligation of posterity in their first coming to the age of discretion. In his version of the theory of contract, Hutcheson suggests that their obligation comes from quasi-contract.11 The essential feature of the legal category of quasi-contract is that the contractual deed is implicit in the situation in which the parties find themselves. In the cases of tutelage and restitution, for example,72 the obligation we have incurred is not, strictly speaking, a contractual one; for we did not (could not) engage in any consensual transaction. The nature of the quasi-contractual obligation is ambiguous, because it falls in none of the classical groups of obligations: ex delicto, ex contract^ ex generatione.13 Ultimately, we are obliged to the government under which we have been born out of a sense of justice (a sense firmly rooted in natural law):

69

Hume, Essays, pp. 476-7.

70

cf. LW. Hampsher-Monk, Tacit Concept of Consent in Locke's Two Treatises of Government: A Note on Citizens, Travellers, and Patriarchalism', Journal of the History of Ideas, 40 (1979), pp. 135-9. 71

Hutcheson makes the point in Philosophiae Moralis. Institutio Compendiaria (Glasgow, 1742), III, v. *De Civitatum Structura et Summi Imperii', pp. 266-7, where he says: 'Civium quisque non sibi solum, verum et liberis, a civitate defensionem stipulatur, et omnia vitae civilis commoda. Liberis gestum est negotium utilissimum; unde citra suum consensum, ad ea omnia, pro ipsorum viribus, facienda praestanda adstringuntur, quae ab istiusmodi commoda ab adultis jure flagitan poterant. Nihil autem aequius quam ut singuli, pro virili parte, earn tueantur civitatem, neque ab ea intempestive descendant, cujus beneficio diu protect!, innumeris potiti fuerant vitae excultae commodis; utque haec a majoribus accepta ad posteros transmittant.' The Latin text does not mention the obligation quasi ex contractu, but this is made quite obvious to a reader familiar with the legal literature by Hutcheson's reference to a 'liberi gestum' and a 'beneficium'. In the English translation, given below, the point is made explicit by the addition of a footnote. 72

Hutcheson, Smith, and Reid discussed quasi contract as part of private jurisprudence in their University lectures. See: Hutcheson, Short Introduction, II, p. 14; Smith, Lectures, LJ(A) ii. 85-8, LJ(B) 180; Reid, Practical, p. 166. For further references cf. Haakonssen's commentary to the latter, in Reid, Practical, note 123, p. 356, and also note 4, p. 403, where a passage from Hutcheson's Illustrations upon the Moral Sense is quoted which makes clear Hutcheson's understanding of the nature of quasi-contractual obligations: 'in the Quasi Contractus, the Civilians do not imagine any Act of the Mind of the Person obliged to be really signified, but by a sort offlctio juris supposing it, order him to act as if he had contracted, even when they know that he had contrary intention'. 73

On the ambiguities of the concept of quasi-contract, and on its survival in English common law, see P. Birks and G. McLeod, The Implied Contract Thoery of Quasi-Contract: Civilian Opinion current in the Century before Blackstone', Oxford Journal of Legal Studies, 6 (1986), pp. 46-85.

David Hume

HUME'S CRITIQUE OF THE CONTRACT THEORY

489

479

Each citizen in subjecting himself to civil power stipulated protection from the whole body, with all the other advantages of a civilized life, not only for himself but for his posterity: and in this, tho' uncommissioned, did them a most important service. They are bound therefor [and in note: 'this is an obligation quasi ex contracts see Book II, Xiv, 2'; notice the reference back to private law], whether they consent or not, to perform to the body of the state, as far as their power goes, all that which could reasonably be demanded from persons adult from such important benefits received.74 But this, as Hume was quick to notice when he read the equivalent passage in Hutcheson's Latin version of his moral theory, was tantamount to giving up what Hume thought was Locke's position. In a letter to Hutcheson he wrote: *P. 266. L. 18 & quae se: You imply a condemnation of Locke's opinion, which being the received one, I could have wisht the condemnation had been more express.'75 Naturally, Hume's view of the question did not reflect Hutcheson's conviction. The latter, and Reid after him, found in the established systems of natural jurisprudence the general framework within which to combine a consensual reading of the 'original contract' with a non-voluntaristic approach to the political obligation of successive generations. If we move from the historical context of Hume's discussion to modern conceptions of contract, it should be clear that Hume does not conceive the possibility of a contractualist position based on some form of implied consent. This is the direction towards which modem contractualism has gone, first with Kant and more recently with Rawls's distinctively modern conception of the hypothetical contract.76 Recognizing this should both console and caution the modern reader who, with Rawlsian or other hypothetical contracts in the back of his or her mind, finds Hume's critique of the contract so frustrating and unsatisfying. It should console and caution for the same reason: Hume's target is very different from those modern theories that go under the same name. We should therefore not expect him to throw light on such theories; nor can we assume that the collection of self-styled contract theories are alike in their fundamental commitments. The logic of a political theory, and the vocabulary in which it is couched, are, even if not unrelated, not identical. To help illustrate the point, it is useful to consider the place of consent in Hume's positive view. Since the appeal of contract theory has frequently been due to the central position it accords to consent, it might be thought that Hume's attack on the theory is a rejection of consent as a possible source of political obligation. As we have seen, his is an attack on the undue significance bestowed on the citizens' reserve powers, but it is not thereby an attack on consent itself. His contention is, rather, that consent cannot be the sole or ultimate foundation of government: 'I only pretend, 74

Hutcheson, Short Introduction, pp. 286-7.

75

Hume, The Letters, ed. J. Y.T. Grieg (Oxford, 1932), I, p. 48.

76

What we have here argued should make it clear why Gauthier's contention ('Hume', p. 15) that nothing in Hume's argument on political obligation 'is incompatible with hypothetical contractarianism' fudges both the historical and the philosophical issue.

490

David Hume

480

S. BUCKLE & D. CASTIGLIONE

that it has very seldom had place in any degree, and never almost in its full extent. And that therefore some other foundation of government must also be admitted.'77 In fact he goes further and, on the one hand, argues that consent is the most likely way in which governments first originated (this is confirmed by his conjecture that in early societies military occasions made people aware of the necessity for leadership); on the other hand, he maintains that consent plays a role in the process of acquiescence to a government, for it reinforces people's belief in the legitimacy of a government. Thus he argues that the people: 'imagine not, that their consent gives their prince a title: But they willingly consent, because they think, that, from long possession, he has acquired a title, independent of their choice or inclination'.78 Clearly, this sort of argument will not work unless consent is understood to be an actual act of mind of the people concerned. This deserves emphasizing because, by keeping these commitments firmly in view, it is then possible properly to appreciate Hume's central contention, that the ultimate foundation of government lies in opinion.19 Stephen Buckle Dario Castiglione

77

Hume, 'Of the Original Contract', Essays, p. 474.

78

Ibid., p. 475.

79

Hume, 'Of the First Principles of Government', Essays, p. 32.

LA TROBE UNIVERSITY UNIVERSITY OF EXETER

Name Index Adair, Douglass xv, 28, 93, 94, 95, 96, 97, 101, 110 Adelaide, Queen 69 Alfred the Great 37, 206 Anne, Queen of Great Britain 14 Aquinas, Saint Thomas 298, 359, 407 Aristotle 60, 62, 126, 130, 274, 298 Atticus, Titus Pomponius 238 Atwood, William 480 Ayer, Alfred Jules 57 Bacon, Francis 197 Baier, Annette C. xvi, xvii, 297-318, 347-56, 406 Baldwin, Jason xvii, 393-412, 431 Balfour, James 219, 236, 237, 238 Balguy, John 225, 227, 228, 229 Banning, Lance 115 Baron, Marcia 355, 410, 424, 432 Barre, Isaac 63 Bayle, Pierre 239, 300 Beard, Charles A. 97 Beattie, James 237, 246 Benezet, Anthony 246 Bentham, Jeremy 2, 57, 62, 274, 282 Bentley, Richard 222 Besser-Jones, Lorraine 422 Blackburn, Simon 412 Blackstone, Sir William 209, 281 Bland, Theodorick 101 Bobbio, Norberto 468 Bolingbroke, Viscount (Henry St John) xiv, 2, 3, 5, 6, 7, 8, 9, 10, 12, 14, 15, 16, 21, 23, 29, 45, 50, 51, 77, 104, 220 Bonald, Louis de 66 Bonaparte, Napoleon 65 Bradford, William 100, 113, 114 Brady, Robert 205, 216 Brown, John 31, 23 7 Buckle, Stephen xv, 467-90 Burke, Edmund xv, 57, 63, 65, 66, 67, 75, 84, 85, 86, 87 Burnet, Gilbert the younger 225, 227, 228, 229

Bute, Earl of (John Stuart) 83-4, 85 Butler, Joseph 300, 302, 394, 395 Calhoun, John C. 63 Campbell, Archibald 225, 227, 229, 230, 231, 235 Campbell, John, Duke of Argyll 76, 77 Campbell, Archibald, Earl of Islay, 76 Camus, Albert 66 Carmichael, Gershom 226, 486 Carteret, John, 2nd Earl Granville 80 Castiglione, Dario xv, 467-90 Cato the younger 220 Chamley, Paul 249 Charles I, King of England 37, 46, 55, 65, 66, 70, 142, 196, 477, 478 Charles II, King of England 46, 215 Charon xi Christ, Jesus 65, 229 Church, Jeffrey xvi, 121-32 Cicero, Marcus Tullius xiv, 62, 219-40 passim, 276, 277, 300, 307 Clarke, John, of Hull 225, 227 Clarke, Samuel 121 Cleghorn, William 233 Cockman, Thomas 221 Cohon, Rachael xv, 427, 445-62 Coke, Edward 203, 204, 205, 207, 209, 211 Collingwood, R.G. 38 Collins, Anthony 221, 222 Condorcet, Nicolas de 264 Copernicus, Nicolaus 241 Costa, Michael J. 411 Coustures, Jacques Parrain des, Baron 237 Craig, James 277 Crassus, Marcus Licinius 15 Cromartie, Alan 209 Cromwell, Oliver 65, 147, 243 Crusius, Christian August 361, 384, 385 Cudworth, Ralph 225, 232, 359 Cumberland, Bishop Richard 274, 359, 361, 480 D'Holbach, Baron (Paul-Henri Thiry) 59

492

David Hume

Dalrymple, David 236 Darwall, Stephen xvii, 359-85, 393, 395, 399, 400, 402, 403, 404, 407, 408, 409, 415, 419, 420, 424, 428, 429, 431, 434 Darwin, Charles 318 Davidson, Donald 41 Dees, Richard H. xi, xiv, 33-56 Descartes, Rene 58, 60, 61 Dicey, A. V. 189 Dionysius 476 Domitian, Emperor 46 Dunn, John 486 Dunning, John 15 Edward III, King of England 215 Edward the Confessor 193, 195, 206, 208, 210, 214 Elibank, Lord (Patrick Murray) 23 Elizabeth I, Queen of England 48 Elliot, Gilbert 84, 85 Epicurus 238 Erskine, James 81 Ethelbert, King 197 Everard, Robert 147 Evremond, Saint 235 Ferguson, Adam 17, 18, 22, 31, 198, 280, 310, 317 Ferguson, Robert 480 Feuerbach, Paul Johann Anselm Ritter von 299 Filmer, Robert 204, 216, 480 Fink, Zera 2 Fletcher, Andrew 2, 175 Forbes, Duncan xiii, xvi, 40, 177-80, 205, 216, 268, 301, 472, 486 Freneau, Philip 101 Furneaux, Philip 114 Galbraith, Agnes 316 Gardiner, Bishop Stephen 117 Garrett, Aaron xiv, 241-66 Garrett, Don xvii, 413-37 Gassendi, Pierre 222, 235, 236, 237 Gauthier, David xvi, xvii, 319-43, 347-56 passim, 376, 383, 384, 393, 395, 399, 400, 401, 402, 403, 404, 405, 406, 407, 408, 409, 410, 415, 418, 424, 434, 435, 437 George II, King of Great Britain 80 George III, King of United Kingdom 83 Giarrizzo, Giuseppe 23, 268

God 116, 192, 225, 226, 229, 232, 282, 302, 309, 312, 359, 361, 364, 394, 468 Gordon, Thomas 107 Gough, J.W. 468 Gracchus, Tiberius 21, 223 Green, T.H. 267 Grose, T.H. 267 Grotius, Hugo xvi, 274, 300, 301, 311, 312, 314, 353, 360 Gunn, J.A.W. 12

Haakonssen, Knud xi-xviii, 285-95, 332, 337, 338, 383, 486 Hale, Matthew 205 Hamann, Johann 66 Hamilton, Alexander 3, 26, 27, 28, 29, 30 Hardwicke, Lord (Philip Yorke) 281 Harrington, James xiv, 3, 7, 8, 9, 15, 16, 21, 26, 27, 74, 86, 97 Hart, H.L.A. 366, 369 Hegel, Georg Wilhelm Friedrich 177 Henry I, King of England 151, 152, 195, 212 Henry II, King of England 19, 194 Henry III, King of England 46, 210 Henry IV, King of England 50, 51, 52, 53, 105 Henry VIII, King of England 142, 146, 149 Henry, Patrick 115 Hermenric, King 197 Hoadly, Benjamin, Bishop of Bangor 229 Hobbes, Thomas xvi, 58, 161, 162, 204, 222, 235, 236, 268, 269, 293, 300, 302, 303, 307, 308, 312, 337, 351, 353, 354, 355, 359, 360, 394, 446, 469, 471 Hobsbawn, Eric 149 Holt, J.C. 211 Home, John 22, 311 Hont, Istvan xvi Horace 230 Hume, David xi-xviii passim, 1-31 passim, 33-56 passim, 57-67, 69, 70, 71, 72, 73, 74, 75, 76, 77, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 93-120 passim, 121-32 passim, 135-52 passim, \59-76passim, 177-80 passim, 181-98 passim, 203-217 passim, 219-40 passim, 241-66 passim, 267-83 passim, 285-95 passim, 297-318 passim, 319-43 passim, 347, 348, 349, 350, 351, 352, 353, 354, 355,

David Hume 356, 359-85 passim, 393-412 passim, 413-37 passim, 445-62 passim, 467-90 passim Hutcheson, Francis xiv, 122, 123, 131, 219-40 passim, 268, 274, 300, 359, 360, 364, 365, 369, 370, 384, 394, 486, 488, 489 Huxley, T.H. 317, 318 Huygens, Christiaan 72 Ingulf, Abbot 206, 211 Innes, Alexander 230 Jacobi, Friedrich 66 James I, King of England 50, 64, 118, 142, 212, 214 James II, King of England 37, 45, 46, 47, 48, 50, 51, 53, 54, 481 James, D.G. 6 Jefferson, Thomas 31, 63, 64, 110, 245, 264 John, King 207 Johnson, Samuel 480 Justinian I, Emperor 76, 214, 276, 277, 300 Kames, Lord (Henry Home) 18, 198, 216, 230, 236, 273, 280, 281 Kant, Immanuel 62, 66, 128, 244, 245, 248, 299, 318, 359, 362, 384, 385, 411, 468, 489 Ketcham, Ralph 115 Kirk, Russell 57, 64 Kuehn, Manfred 299 La Rochefoucauld, Francois de 13, 20 Laski, Harold 267 Livingston, Donald W. xv, 57-68, 69, 70, 71, 72, 83, 85, 87, 89, 90 Locke, John xv, 75, 235, 269, 278, 279, 298, 300, 302, 307, 308, 309, 353, 359, 360, 413, 415, 446, 469, 471, 476, 480, 486, 488, Long, Edward 245, 264 Louis XIV, King of France 173 Louis XVI, King of France 65, 66 Lovejoy, Arthur O. 268 Lucian of Samosata xi Lycurgus 18, 19 Macaulay, Catherine 31, 65 Machiavelli, Niccolo xiv, 2, 3, 9, 10, 12, 13, 16, 21, 81, 300 Maclntyre, Alasdair xvi, 159, 160, 161, 174, 175

493

Mackenzie, James Stuart 85 Mackie, J.L. 38, 310 Madison, James xi, xv, 3, 26, 28, 29, 30, 93-120pass/m Maistre, Joseph de 66 Malebranche, Nicolas 177, 300 Mandeville, Bernard xvi, 13, 17, 121, 122, 123, 124, 126, 128, 131, 162, 227, 236, 270, 300, 394 Marie Antoinette, Queen of France 69 Mariette, Jean Baptiste, abbe Dubos 249, 253 Martin, Thomas 99 Marx, Karl 58, 62, 268, 276, 299 McArthur, Neil xv, xvi, 181-98, 203-217 McDonald, Sir James 59 Midas, King 58 Mill, J.S. 57, 59, 318 Millar, John 17, 18, 216, 264, 273, 279, 280 Miller, David 87 Miller, Eugene 452, 457 Monboddo, Lord (James Burnett) 246 Montaigne, Michel de 222, 239 Montesquieu, Charles-Louis de Secondat, baron dexiv, 21, 27, 31, 101, 131, 180, 198, 206, 221, 239, 248, 249, 252, 253, 259, 262, 264, 281, 300 Moore, James xi, xiii, xiv, 1-31, 219-40, 267-83 More, Thomas 26 Morellet, Abbe Andre 151 Morgan, Edmund S. 97, 98, 104, 106 Moyle, Walter 11 Mure, William 80, 85 Nero, Emperor 46, 476 Newton, Isaac 21, 251 Norton, David Fate 38 Oakeshott, Michael 64 Oswald, James xv, 76, 80, 85 489 Palter, Robert 249, 257, 259, 260, 264 Panaetius 222 Peel, William 70 Petyt (Petit), William 216 Philip II, King of Spain 476 Pitt, William, the Elder 20, 23 Pitt, William 63, 83, 84, 85 Plato xii, 26, 34, 58, 128, 268, 276 Pocock, John G.A. 71, 204, 205, 207, 216, 467, 481

494

David Hume

Pole, Cardinal Reginald 117 Pope, Alexander 10, 20, 198, 270 Postema, Gerald J. 203, 209, 210 Pratt, Justice 84 Pringle, John 221 Proudhon, Pierre-Joseph 58 Pufendorf, Samuel xvi, 221, 236, 274, 300, 301, 302, 307, 308, 309, 312, 313, 314, 318, 360, 361, 384, 385, 471 Raab, Felix 12 Rawls, John 34, 56, 365, 384, 467, 489 Raz, Joseph 432 Reid, Thomas 219, 237, 238, 281, 282, 489 Richard II, King of England 50, 51, 52, 53, 55, 192 Richard III, King of England 194, 195, 196 Riley, Patrick 468 Ritchie, I.E. 300, 301 Robertson, Donald 18, 99, 280 Robespierre, Maximilien Marie Isidore de 65 Romulus 16, 18, 19 Rorty, Richard 56 Rousseau, Jean-Jacques 27, 31, 268, 317 Ruge, Arnold 62 Russell, Bertrand 267 Russell, William, Lord 215 Selden, John 205 Shaftesbury, 3rd Earl of (Anthony Ashley Cooper) 226, 227, 268, 269, 270, 300, 359, 360, 364, 365, 394, 478 Shakespeare, William 20, 129 Sidney, Algernon 2, 11, 480 Smellie, William 300 Smith, Adam xi, xiv, xvi, 18, 63, 102, 112, 113, 150, 152, 175, 198, 216, 232, 264, 270, 273, 279, 280, 281, 282, 316, 317 Smith, John 225, 232 Smith, Samuel Stanhope 100 Socrates 60 Soemmering, Samuel Thomas von 247 Sorbiere, Samuel 222 Spartacus xiii Spelman, John 205 Spencer, Mark G. xv, 93-120 Stair, Lord, (James Dalrymple) 215, 216 Stein, Peter 273 Stephen, Leslie 267 Stewart, Archibald xv, 76

Stewart, Dugald 279 Stewart, John B. xv, 69-91, 123, 268 Stilz, A.B. xvi, 159-76 Strahan, William 23, 85 Stroud, Barry 411, 422 Swift, Jonathan 20 Tacitus, Publius Cornelius 206, 258 Temple, William 84, 478 Thompson, Martyn 469, 480, 482 Tocqueville, Alexis de 63 Toland, John 2, 221 Trenchard, John 107 Tucker, Josiah 114 Turgot, Anne-Robert-Jacques, Baron de Laune 23 Tyrrell, James 480 Ulysses 452, 453, 456, 460 Vaughan, Charles E. 468 Vinnius, Arnoldus 276, 277, 300 Virgil 276, 277 Vlachos, George 268 Voet, Johannes 276, 300 Voltaire (Fransois-Marie Arouet) 221, 239, 240 Vries, Gerard de 226 Wallace, William 193 Walpole, Sir Robert xv, 14, 15, 76, 77, 79, 80, 83, 107, 220 Wand, Bernard 328 Weber, Max 177 Wennerlind, Carl xvi, 135-52 Wertz, S.K. 40 Whatmore, Richard xi-xviii Whelan, Frederick G. 204 White, Charles 245, 246, 247 Wilkes, John 63, 84, 85, 86, 177 William I, King of England 194, 196, 205, 206 William of Orange (William III of England) 45, 51, 53, 54, 55 Wills, Garry 95 Winstanley, Gerrard 147 Wishart, William 233, 234 Witherspoon, John 99, 100, 113 Woden 239 Wollaston, William 121, 274, 275 Xenophon xii