Teaching Montesquieu. A classic in danger of genteel decline

(cross posted at New APPS, a group blog I strongly recommend in ‘Art, Politics, Philosophy, Science’)

This has been a semester of not just one but two courses based on a a big classic. As I explained recently, I gave a course on the whole of Montaigne’s Essays. I also gave a course on the whole of The Spirit of the Laws, by Charles de Secondat, better known as Montesquieu. I won’t go so far as to suggest that Montesquieu should be given a central role in introduction level courses. Rousseau is just too obvious an alternative for dealing with Enlightenment political theory, and himself follows on from Machiavelli or Hobbes as the standard opening figures for introductions to modern political theory. 

I will only go so far as to say that Montesquieu deserves to feature more frequently, though preferably with some attempt, which does creates difficulty, at incorporating passages   that represent the different aspects of The Spirit of the Laws properly. A course devoted to Montesquieu is a great way of getting deeply into questions such as: the relation between history and theory, the relation between political concepts in antiquity and modernity, and not forgetting the Medieval concepts;  development of law as key to concepts of sovereignty, and therefore the basic concepts of political philosophy, as well as key to political economy; the multiplicity of different political forms and examples; the role of physical geography in history, political economy, and political life; the importance of gender relations and desire as key to social and political forms; comparisons between European political systems and those of the rest of the world; the role of colonialism in the politics of the European metropolis; the importance both of classical models and of states on the periphery of the Greek and Roman worlds; the place of war, invasion, force, and ethnic domination in the formation of modern European states.

On the more negative side, Montesquieu’s understanding of gender relations does include an excess of fascination with the harem in ‘despotic’ countries and the social role of female flirtation in ‘monarchies’, his understanding of the ‘south’ is bursting with negative stereotypes, and he certainly misunderstands the Ottoman polity as a pure naked personal despotism, with no restraints on the power of the Sultan apart from religion. Nevertheless, Montesquieu is no worse than we would expect from his time in these kinds of leanings, and even where he looks obnoxious now he is often advanced in at least raising issues that expand the range of historical and political thought, pushing towards what we now understand as the social sciences.

Montesquieu’s work seems in danger of relegation to antiquarian curio in comparison with some other eighteenth century classics, particularly when we can see a rise in interest for some other figures from that time, most notably Adam Smith. However, The Spirit of the Laws is clearly a very  large part of the pre-history of German Idealist philosophy of history, Marxist ‘historical materialism’, nineteenth century liberalism, and early sociological theory. His approach to history anticipates a long period of French work in social and geographical approaches to that discipline, culminating in Fernand Braudel and the Annales School. Even with regard to recent work in social science and political theory we can see foreshadowings in Montesquieu. James Scott’s discussion of hill peoples in southern Asia escaping state power can be taken back to the links Montesquieu makes between mountain communities and liberty. John Rawls’ arguments for the veil of ignorance in the original position is anticipated by Montesquieu when he argues against French aristocrats who advocate slavery that they should imagine a lottery in which they might end up as slaves. His thoughts about antiquity, free speech and political liberty, feudalism, the modern state and law, certainly anticipate Foucault, and to some degree influenced him. As with Montaigne, Foucault simply prefers to avoid getting lost in commentary on a Great Thinker and keeps the encounter indirect.

The difficulties and apparent incoherencies of The Spirt of the Laws come in general from Montesquieu’s attempts to incorporate all theoretical and historical elements in a unified system, with very creative results. Montesquieu’s notorious difficulty in applying antique concepts to the modern world is productive in its consequences, and I do not think he does such a bad job of comprehending the France and Britain of his time. It helps to study the later sections of The Spirit of the Laws and see how Montesquieu examines what comes from the republics of the ancient German tribes both conflicting and converging with post-Roman societies to create the new form of feudalism, and then examines that Germanic-Roman convergence transformed again through the revival of Roman law. Taking that fully into account, it seems to me that Montesquieu looks less like a classicist blundering about in the modern world. Equally he should not be taken as a Romantic-Gothic nostalgic advocate for ‘Germanic’ liberty and feudal customs, which is the danger of giving those later sections too much weight in relation to his antique republican inclinations, and his analyses of his own world.

Foucault’s Lectures on the Punitive Society I

Last month EHESS/Gallimard/Seuil Paris published Michel Foucault’s lectures at the Collège de France in the 1972-73 academic session, in fact they all date from 1973. The edition has been prepared by Bernard Harcourt under the direction of François Ewald and Alessandro Fontana. I believe that a translation from Palgrave can be expected about two years from now. I will be posting my notes, slightly tidied up and shaped into essay form, lecture by lecture. This week we begin with the lecture of third January 1973.

Foucault picks up on a distinction made by the anthropologist Claude Lévi-Strauss between incorporation and exclusion of those who are awkward in some way. Foucault describes the distinction as playful, but also significantly implies that the second option is the option of the scapegoat (the religious sacrifice) while the first is as Lévi-Strauss appears to suggest, an example of cannibalism. Foucault may be thinking of René Giard’s analysis of scapegoating in Violence and the Sacred here. (Anyway, I have started reading Girard’s volume to check this.

Foucault suggests that the idea of exclusion (presumably the second pole of the Lévi-Strauss distinction) be applied to minorities in out societies, and then more particularly to those who are outside production and consumption, those considered abnormal or delinquents. We have to understand exclusion beyond and behind the way the social sciences intervene, and the masking affect of those social sciences, which Foucault refers to as invading the human sciences. The exclusion has to be understood not through a general representation, but through a variety of strategies of power. It is important to distinguish those strategies of exclusion and the illusion of a social consensus behind exclusion.

This distinguishes Foucault from Lévi-Strauss and he offers a second area of difference, which is that he rejects Lévi-Strauss’ distinction between inclusion and exclusion. The psychiatric hospital is a place of inclusion and exclusion of the mad. The mad are treated with regard to integration to the institution itself and to the outside world. This comprise a combination of surveillance/discipline and supposedly scientific treatment. It is the medical-scientific discourse that is more oriented to the outside world. Foucault announces a critique of ‘transgression’ which has played a role similar to that of ‘exclusion’. It can have negative and positive interpretations as with ‘exclusion’, but it refers to ‘limit’ rather than ‘law’. The critique should be directed at power and knowledge rather than at law and representation.

There are four major tactics of punishment. 1. Exclusion. 2. Reparation. 3. Marking. 4. Confinement. 1. Exclusion means exiling. An individual is banned from communal or sacred places. Hospitality is forbidden. The home of the exile is burned, or in a practice prolonged from the Middle Ages into modern revolutions, the home of someone you wish to exile is burned. Foucault mentions the privilege of such a penalty in ancient Greece, resumable referring to Ostracism. 2. Tactics of reparation and compensation identify an individual or a group who should receive compensation. It is the opposite of exclusion, in that the punishment ties the perpetrator into the community through ties of obligation and compensation. 3. Marking can include a shameful change in someone’s name, but largely refers to physical marking through scars, amputations, and injuries in the stocks. It shows shame and also the power of the sovereign. It is not about compensation, but about memory of the shame. It was the dominant means of punishment in the west from the end of the High Middle Ages to the 18th century. 4. Confinement is the means of punishment dominant from the late 18th/early 19th century.

There are many hints of Montesquieu’s account of the appearance of customary Frankish-German law in post-Roman Gaul, what became the kingdom of France in the Middle Ages,  the evolution of that law and the erosion of customary German law by Roman law, at the instigation of the monarchy in the High Middle Ages, imposing its own sovereignty. I doubt that it is possible to fully appreciate Foucault’s comments in this area without some knowledge of the later books of The Spirit of the Laws, which deal with this historical process. A knowledge of Essay II of Nietzsche’s On the Genealogy of Morals is also rather important here.

The most extreme form of exile is to throw someone from the cliffs into the sea, which removes them from the territory where the crime was committed. The criminal is deprived of appeal and removed from the homeland. In a system of reparation, the most extreme punishment is death of a relative of the criminal, which shows that this is a system concerned with debt. The system of marking has a variety of torture and ways of marking the body connected with the nature of the crime.

The execution of Damiens for attempted regicide in the eighteenth century shows the sovereignty of political power at the centre of the penal system. Foucault has a full description of the prolonger and brutal execution as the opening of Discipline and Punish.  Death appears in the system of imprisonment as the life sentence, the link between death and enclosure, and is something more obviously linked to political sovereignty than other forms of punishment .

The emphasis on penal tactics in this analysis cuts across the distinction between general functions and different roles, undermining the apparent permanence of customs. The basic object is the operations of power not the ethical-legal justifications and representations with regard to punishment. The aim is not to unmask ideology either, as the analysis of delinquency in normal law is to some degree an analysis of political struggle, but they are not the same. Foucault’s implication is that though we can look at ideological political aspects of the penal system, we cannot think of the system as conceptually saturated in this way.

Civil war is an important and misunderstood term for discussing penal practices. Rousseau and Hobbes imagined it as something that belongs to the state of nature and that is ended by the social contract. Foucault seems a bit vague about the distinction between Hobbes and Rousseau here. For Rousseau the violence comes after the earliest stages of human society rather than in nature, but for Foucault there may not be much difference if they both emphasise the possibility of complete violence at the beginning of society.  After the stage of the social contract, war becomes understood as something external to the state. Civil war is then understood as the monstrous intrusion of something external into the state. However, we can understand penal practice, particularly of confinement, through the strategies of power in a generalised civil war.

Adam Smith: Republicanism and Military Virtue

Yesterday I looked at how Smith links the progress of commercial society, with all its virtues of education, culture, politeness etc., to the rise of guns used by professional armies. Reading on to An Inquiry into The Nature and Causes of the Wealth of Nations V.i.e, antique republican military virtues make a return in Adam Smith’s account of modern education. Smith thinks everyone should be educated to some degree, and this should be legally required, but with a multiplicity of providers. He’s very critical of the provision of education by schools and universities, which he argues is arranged to suit teachers not students. He prefers a more personal relationship between students and teachers, based on the availability of different instructors who have passed a public examination but are not employees of the state.

Smith’s model for this is education in Ancient Greece and Rome, particularly with regard to gymnastic and military instruction, both required for all citizens in the ancient republics, and linked with each other because as Smith has already pointed out, ancient warfare rests more on physical strength than war with guns.

At this point Smith is full of admiration for the military courage and capacities of the citizens of ancient republics. He compares this unfavourably with the spirit of modern militias (that is locally raised units of non-professional soldiers who are part-time outside a state of war). Smith has just explained approvingly how military spirit diminishes, and becomes more specialised, as societies move to commerce, prosperity and liberty.

There was an ambiguity in that I didn’t mention which is that Smith suggests the army chief and head of state should be the same, and that the army generals should be those associated with the head if states. This seems to justify early modern monarchical absolutism, which does rest on the idea that the king is the military chief in a very strong sense, and that his aristocracy provides the generals. It might just mean a return to ancient republicanism where military chiefs might be the main elected state official (e.g. Pericles in Athens), and holding a military post was a political honour.

The passage I’m currently considering pushes in the direction of ancient republicanism. Smith belongs with Montesquieu in The Spirit of the Laws (which he often invokes), Wilhelm von Humboldt (in Limits of State Action) and Benjamin Constant in an ambiguity about ancient and modern virtues and liberties. In their different ways, all these ‘Classical Liberals’ are admiring of the freedom and virtue of ancient republics, driven by the struggle for life against nature, the struggle for the city in war, absolute respect for law, and the institutions and traditions of the city. Smith, for example, is very admiring of the importance the Romans gave to the keeping of oaths (Nietzsche suggests in Genealogy of Morals that human history is about breeding an animal that can keep promises). Smith, Montesquiue, Humboldt and Constant also regard the modern world as better than the ancient world in its individual freedoms and the growth of commerce, which reduces military spirit, respect for ancient customs, and love of the state. There are many deep ambiguities in all of them on these issues.

The one way we should definitely not approach this question, is to think the Classical Liberals can be defined as people who were only concerned with ‘negative’ or ‘modern’ liberties, that is of freedom from external constraints rather than freedom which comes from participation in a community, its politics, and civic values, including courage in war and willingness to die for the common good.

Adam Smith: Republicanism and Military Virtue

Primary version of this post, with visual content, at Barry Stocker’s Weblog

Yesterday I looked at how Smith links the progress of commercial society, with all its virtues of education, culture, politeness etc., to the rise of guns used by professional armies. Reading on to An Inquiry into The Nature and Causes of the Wealth of Nations V.i.e, antique republican military virtues make a return in Adam Smith’s account of modern education. Smith thinks everyone should be educated to some degree, and this should be legally required, but with a multiplicity of providers. He’s very critical of the provision of education by schools and universities, which he argues is arranged to suit teachers not students. He prefers a more personal relationship between students and teachers, based on the availability of different instructors who have passed a public examination but are not employees of the state.

Smith’s model for this is education in Ancient Greece and Rome, particularly with regard to gymnastic and military instruction, both required for all citizens in the ancient republics, and linked with each other because as Smith has already pointed out, ancient warfare rests more on physical strength than war with guns.

At this point Smith is full of admiration for the military courage and capacities of the citizens of ancient republics. He compares this unfavourably with the spirit of modern militias (that is locally raised units of non-professional soldiers who are part-time outside a state of war). Smith has just explained approvingly how military spirit diminishes, and becomes more specialised, as societies move to commerce, prosperity and liberty.

There was an ambiguity in that I didn’t mention which is that Smith suggests the army chief and head of state should be the same, and that the army generals should be those associated with the head if states. This seems to justify early modern monarchical absolutism, which does rest on the idea that the king is the military chief in a very strong sense, and that his aristocracy provides the generals. It might just mean a return to ancient republicanism where military chiefs might be the main elected state official (e.g. Pericles in Athens), and holding a military post was a political honour.

The passage I’m currently considering pushes in the direction of ancient republicanism. Smith belongs with Montesquieu in The Spirit of the Laws (which he often invokes), Wilhelm von Humboldt (in Limits of State Action) and Benjamin Constant in an ambiguity about ancient and modern virtues and liberties. In their different ways, all these ‘Classical Liberals’ are admiring of the freedom and virtue of ancient republics, driven by the struggle for life against nature, the struggle for the city in war, absolute respect for law, and the institutions and traditions of the city. Smith, for example, is very admiring of the importance the Romans gave to the keeping of oaths (Nietzsche suggests in Genealogy of Morals that human history is about breeding an animal that can keep promises). Smith, Montesquiue, Humboldt and Constant also regard the modern world as better than the ancient world in its individual freedoms and the growth of commerce, which reduces military spirit, respect for ancient customs, and love of the state. There are many deep ambiguities in all of them on these issues.

The one way we should definitely not approach this question, is to think the Classical Liberals can be defined as people who were only concerned with ‘negative’ or ‘modern’ liberties, that is of freedom from external constraints rather than freedom which comes from participation in a community, its politics, and civic values, including courage in war and willingness to die for the common good.

Montaigne and Pascal on the Foundation of Law

Primary version of this post at Barry Stocker’s Weblog, with visual content!

I’m more familiar with Blaise Pascal than with Michel de Montaigne, but I am doing some work on Montaigne at present. I’ve noticed something that I had not noticed before, how much Pascal takes from Motaignes’s Essays and uses in his Pensées. That include Pascal’s famous phrase about the mystical foundation of law.

What is the difference between them in the context of that phrase, something which will give me a start in thinking about the relationship between them. Montaigne, who had been a judge, refers in the immediate context to the impossibility of justice in law, There is always a contrast between following the forms of law and what the sense of justice tells the judge. There are always mistakes so that the innocent are punished. Montaigne concedes that as a judge he must have been involved in many mistakes and many occasions in which his sense of justice collided with the decision he had to bring. In the broader context, he refers to the endless possibilities of interpreting law. The law is never obvious, it can always be debated and there is no end to the debate or the number of positions that can arise in the debate. So justice is not present for at least three reasons: inevitable mistakes, the conflict between intuitions of justice and what the existing law requires, the impossibility of certainty in knowing what the law says. Legal judgements can only arise through a biased interpretation of law, there simply is no interpretation which will not be endlessly discussed if we try to be completely objective. The way law works as whole is that it is there and has to be applied, it has not foundation beyond the fact of its existence. This acceptance of legal institutions though they cannot be just is the mystic foundation of authority.

Pascal’s contextualisation refers to the force of law. This does not exactly contradict Montaigne, but Montaigne seems to think more in the sense of law as a habit rather than something imposed by force. Pascal also refers to the link between custom and equity. Equity, the sense of the broad justice of law as a whole, is an outcome of custom. This does not exactly contradict Montaigne either, but it seems more radical to emphasise that any sense of equity is a product of custom. Pascal directly criticises Montaigne’s view by saying that people do not not follow law through custom, but because they believe it is just. Again, even here, Pascal does not really contradict Montaigne, he is also concerned with the role of custom and habit. What marks out Pascal’s position is he thinks irrational beliefs are necessary to laws and the state. Montaigne emphasises imagination, but Pascal goes further in seeing the social world as something that depends on what people imagine.

Montaigne does not really emphasise contradiction, he presents a self that knows it is highly fallible but does it best to follow a modestly defined reason. Legal institutions are not just, but people obey them because they are used to them.

Pascal strongly emphasises contradiction. He strongly emphasises the irrationality of the self; and the way it imagines itself and the world. People obey legal institutions because they believe them to be just. The process by which people come to believe they are just must be a least partly as in Montaigne, habit. But for `Pascal, the habit builds on force and the imagination. The human self is not just confused, it is driven by imagination, by the search for glory, and external force.

Montaigne versus Pascal, is like Montesquieu versus Rousseau?

I don’t suggest that will completely work, but it would be a useful comparison.

Montaigne and Montesquieu see moral imperfection, errors of judgement and lapses into violence, intruding into social life.

Pascal and Rousseau see constitutive egotism, illusion, and violence, at the origin of social life.

Link of the Day: Philip Gerrans on Montesquieu

Primary version of this post at Barry Stocker’s Weblog, with visual content!

The Disposition of Things: Spontaneous Order in the Esprit des Lois, by Philp Gerrans.

This is not a very new piece of work, Gerrans published it a few years ago in European Legacy, but has now made it freely available to download as a a pdt, through his home page at the School of Philosophy, University of Adelaide.

Gerrans looks at a few hypotheses about how to interpret Montesquieu Spirit of the Laws (1748), an Enlightenment masterpiece of what we would now call philosophy of history, social science, and political theory. The political theory is sometimes described as liberal and sometimes described as republican. Gerrans interprets that as the difference between liberty defined as freedom from limitations on action, and liberty defined as participation in the community and the political process. I’m rather dubious about how absolute the distinction is and Gerrans seems to accept an absolute distinction, coming down on a purely ‘liberal’ interpretation of Montesquieu. Anyway his account if clear and economical. As Gerrans points out, Montesuieu was highly revered by the framers of the American constitution, though I think he could have said more about the distinction between claiming to incorporate a position, and the

Gerrans looks at how the readings of the separation of powers in Montesquieu, one of the most famous issues in the Spirit of the Laws, referring to divisions between different branches of government. As Gerrans points out, the context is a wish to limit the power of the absolute monarchy in France, and to follow the example of English parliamentarianism. One point I really like in Gerrans is that he refers to Montesquieu’s economic reasons for preferring close relations with England, he wanted to be free to export wine to that country from his domains. That is strictly speaking a trade issue rather than a political system issue, but the English system, then as now, was more free trade oriented. Montesquieu believed in free trade as a matter of principle, but there is no need to detach great thinkers from their economic interests and context. More political economy of he great thinkers would be a good thing, but not in the sense of simply condemning them for having individual economic interests, or for upholding class interests.

The division of powers can be read in different ways in Montesquieu because of he way he is caught between understanding political systems according to Aristotle’s categorisations and a social scientists’ concern with the reasons that institutions exist as they do. There is a third factor, Lockean contract theory in which the executive is limited by the neutrality of judges and the creation of laws by an elected assembly. I think it is a bit of a mistake to get a fully formed theory of separation of power in Locke, that comes from later extrapolation and the persistent tendencies of all interpreters to think their interpretation is present fully formed in some text they particularly revere. Another reading could be on the socio-economic interpretation that as a member of the aristocracy, Montesquieu wanted to protect particular local aristocratic privileges from the threat of a centralising monarchical state. The Aristotelian aspect is the notion of the ‘polity’, the proper political state as a ‘mixed constitution’ combining elements if democracy, aristocracy, and oligarchy (Gerrans leaves out oligarchy).

Gerrans decides to cut through this by putting the interpretative weight on ‘spontaneous order’. This phrase is particularly associated with the free market economist, and limited state, political thinker, F.A. Hayek. Unfortunately I can’t right now find if Hayek invented the phrase, anyway he was developing a way of thinking found in the Scottish Enlightenment, particularly Adam Ferguson, Adam Smith and David Hume. This is the idea that human society and economic welfare advance through the effects of an aggregate of freely made individual actions rather than through planning. It’s a matter of discussion whether Hayek has the best handle on those thinkers, as a I’ve pointed out in a number of posts on the egalitarian liberal political theorist, John Rawls. Since Rawls believes in a a market economy, he must agree with Hayek to some degree. Gerrans associates the idea with Hayek and the Scottish Enlightenment, and also with Bernard Mandeville, Michel de Montaigne and the Jansenists (presumably mostly thinking of Blaise Pascal).

The interesting leap Gerrans makes is to link spontaneous order with Newton’s mechanics which do explain how the universe works according to laws of physics without outside intervention. As Gerrans concedes there is no direct evidence that Montesqueiu was interested in Newton, but Gerrans argues for a link on a logic of the text basis. The bits of the text which look Newtonian are the early references to a Malebrancheian philosophy of universal laws, applied to societies, Malebranche’s thinking was close to the Jansenists, so maybe Gerrans could have said more about Pascal’s view of science, but broadly speaking he is correct to draw attention to the link between Montesquieu and the physics of the time.

What Gerrans could have added is that ‘spontaneous order’ is more obviously connected with biology than physics, after all Darwin picked up on Scottish Enlightenment and early political economy ideas. That was well into the future for Montesquieu and his project of a ‘Newtonian’ theory of society does inform his view of separation of powers. Gerrans argues that separation of powers can be seen on the basis of how individuals interact under limited government, so that provides a social basis. That does not explain everything, but I think it is valuable to incorporate this aspect, particularly with regard to what Montesqueiu says about the ‘spirit of monarchy’ which refers to a social mechanism running on individual pursuit of wealth and status.

From Montesquieu’s point of view a ‘moderate monarchy’ on this foundation can accept limitations from the law and from representative bodies. He seems to think in terms of a synthesis of republicanism and monarchy, without making it clear. As Gerrans points out, for Montesquieu a republic relates to classical notions of virtue which don’t seem appropriate to modern commercial society, In Montesquieu’s theory a republic becomes decadent and collapses when it’s citizens pursue wealth, A republican-monarchical synthesis might establish ‘liberal’ and ‘republican’ liberty in the modern world, though that thought is never there in a very direct way (not that I remember).

Negative and Positive Liberty: A Short History

The distinction between negative and positive liberty was famously discussed by Isaiah Berlin in his 1958 lecture ‘Two Concepts of Liberty’. The essay is very widely quoted which is very odd in some respects since it is not a very good paper. It is readable introduction to the distinction in very vague terms. It refers to a distinction between freedom from restraint and freedom to improve the self. The essay vaguely gestures at Eighteenth Century origins without explaining them. The essay has a very polemical purposes, delivered as it was 13 years after the end of World War Two and 5 years after the death of Stalin. Berlin emphasises the value of negative liberty in distinguishing liberal democracy from Fascist and Marxist-Leninist totalitarianism, while leaving some room for the idea of liberty as the pursuit of human perfection.

There’s a lot more going on, here is a list with so elements of a discussion.

Seventeenth Century.
Hobbes
defines liberty as freedom from physical restraint. The political regime is irrelevant. Ancient ideas of political liberty are an illusion. A regime based on monarchy, aristocracy, and democracy all rest on obedience to sovereign authority.

Eighteenth Century
Montesquieu
distinguishes between Ancient Republicanism and modern Monarchy.
Republicanism is Democratic, resting on the Principle of Virtue Or
Republicanism is Aristocratic, resting on the Principle of Moderation
Monarchy rests on the principle of Honour, which is refers to Ambition.
Monarchy offers freedom absent in Despotism which rests on the principle of fear.
In all regimes Montesquieu is concerned with liberty. Ancient Republicanism gives liberty on the basis of following a character of Virtue or Moderation, linking the right to political freedom with perfection of the self. Monarchy gives liberty through honour, the principle of competitive self-interest detached from political rights.
Kant
Morality refers to positive duties/freedom and negative duties/freedom. There are negative duties limit us from harming ourselves or others. There are positive duties which encourage us to be concerned with the gaols, and ends, of others.
Negative freedom in Kant is freedom from harming the self.
Positive freedom is the freedom to perfect the self from impurity, positive freedom is willing the good of all, the perfection of humanity as a whole.
Constant Liberty of the Ancients and the Moderns Hunboldt Negative Welfare and Positive Welfare
Humboldt: in the Ancient world, the state protected the negative welfare of the population, which refers to protecting its security.
In the Ancient world, the state protected the positive welfare of the people by acting to improve their souls.
In the modern world, state power is more dangerous because the possibilities of control and interference are much greater. In the Ancient world, dependence on the state was limited by the individual’s struggle with nature to survive and struggle with neighbouring states as as a soldier. Positive welfare in the modern world means the state bureaucracy interfering with the economy and providing social welfare for the poor. These measures result in a constant increase in the size of the state, and in a growing dependence of individuals on the state.

Hegel
Morality and Ethical Community
In the freedom of private morality and conscience the individual is free from external constraint but has no external constraint on its consciousness and actions which are dangerously self-centred.
In the freedom of ethical community, the individual finds it is free through the family, civil society and the state, which all create the conditions for the individual to enjoy freedom though family relations, the economic corporations of civil society, the way in which the state establishes law.
In the Ancient world, the individual sees itself in the state and community of its limited social world. Following Montesquieu, Hegel suggests that in the Ancient world the state is identical with the community. In the modern world, the state is distinct from the complex structure of the community, which contains a complex civil society.
For Hegel, the complexity of the modern world gives more space for individual freedom, while establishing a a state which is the condition of modern liberty under laws.

Montesquieu, Tocqueville, Foucault

Foucault’s work from Society Must be Defended onwards needs to be understood in relation to Montesquieu and Tocqueville. We could even read Foucault as the third figure in a French liberal triumvirate spanning three centuries. This reading may have some problems attached to it, but no more than the other readings of Foucault around and less than most. Foucault’s reputation has been taken over by Post-Marxist/ Post-Modernist/Post-Structuralist leftists for whom liberalism is a dirty word. However, Society Must be Defended coincides with a liberal revival in France which includes a Tocqueville revival. It uses the terms and references of the two great French liberals (and republicans). It’s concerned with the kind of liberty that can exist under different kinds of regime. It’s concerned with the limitation of society in relation to the state. It uses Montesquieu to establish the evolution of the French state, bureaucracy and aristocracy in the Eighteenth Century. The understanding of the relation between the Ancien Regime and the French Revolution follows the analysis of Tocquville’s book of that name. Foucault refers to majoritarian and demagogic aspects of the emergence of left wing and democratic politics, very much in line with Tocqueville’s understanding of the possible dangers of democracy.

The reading of Foucault’s later work will be very incomplete until it is thoroughly understood and discussed in the terms of his two French predecessors in social and political thought devoted to liberty.