By Hadley Arkes, April 5, 2016
In The Importance of Being Earnest, the governess, Miss Prism takes herself away for a moment, and she tells her charge, Cecily, that in the meantime Cecily should read her primer on Political Economy. But she cautions her also to omit that chapter on “the Fall of Rupee”: It was altogether “too sensational” for a young girl.
Just as sensational or stirring was a matter that showed itself in a boisterous and, at times, charming way in the comments that came flowing in two weeks ago in response to my column on “Revisiting Catholic Social Teaching.” Of course I touched only an edge – though a critical edge – of the problem in the space we have, but I was surprised when some friends found this material new and asked me to say a bit more.
One of the things that seems to come as a surprise to people is that the classical economists were far closer to Leo XIII, Pius XI, and John Paul II in their understanding of the moral framework of political economy – closer than most economists are today, and closer even than those Catholics who have been lured into a Leftist version of “social justice.”
In the first place, neither the classical economists nor the American Founders ever described the system they had in mind as “capitalism.” What they saw here simply was the “system of freedom” as it expressed itself in the economy, in the way ordinary people made their livings.
For writers and intellectuals, the “freedom of speech” is usually taken as the anchoring freedom in a constitutional order. But for ordinary folks, with no bent toward public speaking, the freedom that makes difference may be the freedom to make a living at an ordinary calling, like driving cabs and running laundries, without those onerous regulations that make it harder to stay in business.
It was a question then of freedom in all of its dimensions, and in that case the laws that made it harder for people to support their families would have to be tested in the same, demanding way as the laws that restrained the freedom to publish.
Adam Smith, of course, came to the project as a teacher of moral philosophy. And he, along with Edmund Burke, assumed that the law would be in place to do what it was ever the function of the law to do – to mark off the things that were rightful and wrongful. In that way the law would mark the boundaries for those goods and services that a decent people could rightly demand and supply in the market place.
Whether prostitution and pornography would be available would not depend on whether people were willing to demand and supply these services. But to say that, is to say essentially what John Paul II said in Centesimus Annus. He saw all the good things that an economy of freedom and private property could do in lifting the material conditions of life. But he could not cast his approval over a capitalism, he said, that was “not circumscribed within a strong juridical framework which places it at the service of human freedom in its totality.”
Yet that is exactly how the matter was seen by classical economists, and even by our so-called laissez-faire judges at the end of the 19th century. Those judges saw a moral ground for that freedom of people to make a living, and therefore they saw rightful moral restraints that would bear on that freedom along with any other freedom.
They recognized, as Pius XI said in Quadragesimo Anno (1931), that there is a duty to use property only “in the right way.” And so those laissez-faire judges were willing to sustain virtually any laws having a plausible connection to the public safety and health. They would sustain laws barring fires at night in laundries in San Francisco, until those laws were used to bar the Chinese from the business.
One of the leading judges here, the redoubtable Stephen J. Field, offered a magisterial dissent in the famous Slaughter-house cases of 1873. And in the course of that dissent, he invoked the proclamation issued by Louis XVI, in 1776, removing in a sweeping way all State monopolies and guilds. John Paul II would later note that the obligation to earn one’s bread by the sweat of one’s brow had to imply a “right to work.” But the king’s proclamation made even clearer the standing of that right.
The proclamation was written by the estimable Finance Minister, Anne-Robert-Jacques Turgot. As Turgot had the king explain, he was vindicating the “natural right” of ordinary people to make their living at ordinary work; that this right was not, as he said, “a royal privilege which the king might sell, and that his subjects were bound to purchase from him.” It was, rather, a “natural right,” an inalienable right, not a right conferred by the positive law.
We have ample experience by now of regulations offered in the name of public safety, but used to bar new entrants from the field or bar people from earning their livings by doing such things as braiding hair or shining shoes. But it is not a question of sweeping away the laws that protect. It is a question, rather, of testing the justification for those laws as we would test the laws that barred any other freedom that we thought mattered.
This was the same Turgot, by the way, who spoke those memorable lines when faced with the first proposal for a graduated tax on income. It was one of those instances, as he said, in which we would show better judgment “if we executed the author rather than the project.” And as we approach the middle of this month, I can drink to that.
Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College. He is also Founder and Director of the Washington-based James Wilson Institute on Natural Rights and the American Founding. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is now available for download.