Edmund Burke's German readers at the end of Enlightenment, 1790-1815

TLDR: Rehberg as mentioned in this paper pointed out that a prescriptive government, such as ours, was not the work of any Legislator, never was made upon any foregone theory, and one of the ways of discovering, that it is a false theory, is by comparing it with practice.

Abstract: legalistic sense (i.e., a right to act), but in the hard-nosed, Schmittian sense of Macht. For Burke, in other words, the fate of liberty was inseparable from the practical dynamics of constitutional realpolitik. Underneath law, lie politics. This made Burke deeply wary of reformers who use abstract moral theories to indict concrete political institutions. As he explained in 1784, an abstract theory of politics, unmoored from practical considerations, were a threat to liberty: A prescriptive Government, such as ours, never was the work of any Legislator, never was made upon any foregone theory. It seems to me a preposterous way of reasoning and a perfect confusion of ideas, to take the theories which learned and speculative men have made [and] to accuse the Government as not corresponding with them. ... Whenever I speak against theory, I mean always a weak, erroneous, fallacious, unfounded or imperfect theory; and one of the ways of discovering, that it is a false theory, is by comparing it with practice. This is the true touchstone of all theories, which regard man and the affairs of men—does it suit his nature in general;—does it suit his nature as modified by his habits?54 In ‘Geist Englands’, Brandes posited this sort of practically-minded liberalism as the lynchpin of the British system. Following Burke, he argued that the Constitution was threatened by moralizing politicians who ‘fantasize about Platonic republics’ and are ‘led astray by the cries of republican ideologues – those who always criticize established systems of government, who only want to tear down, but never to build up.’ What such men fail to understand is that ‘acting and reasoning, practically participating and passively observing, are two very different things’.55 54 Burke, ‘Speech on Parliamentary Reform’ (16 June 1784), in W&S, vol. 4, pp. 215-226, at pp. 22021. 55 Brandes, ‘Geist Englands’, p. 320; cf. ibid, p. 121, where Brandes complains of ‘philosophers’ who ‘do not want to adapt their schemes to men, but men to their schemes’, and pp. 109, 219, 299. Chapter 3: August Wilhelm Rehberg 62 Explaining the practical operations of the British system to German readers was difficult. The writers who had grasped Britain’s ‘true constitution, the spirit that upholds it, the causes and effects of partisanship: in short, that through which England truly is what it is, and remains what it is’ – he pointed to Hume, Blackstone, and de Lolme in particular – were largely unknown in Germany.56 Further complicating matters, the misguided definitions of ‘Freiheit’ that prevailed among his compatriots were insufficient to comprehend Britain’s ‘exceptional constitution and national spirit’.57 The German aristocracy was too quick to associate freedom with ‘anti-noble ressentiment’ ‹Fürstenhaß› and the threat of rebellion. Their bourgeois counterparts, on the other hand, cynically conflated the cause of liberty with the defense of the nobility’s legal privileges, especially their exemption from taxation. Philosophers, finally, confused liberty and popular sovereignty: following Rousseau, they held that liberty entailed ‘a very precise equality’ of rights and was inimical to any social hierarchy that contravened the ‘original equality of men’.58 But as Brandes went on to argue, each of these assumptions were undermined in the case of Britain. Its example proved that liberty and aristocracy were not incompatible; that taxes on noble property were not (necessarily) a prelude to absolutism; and, above all, that the rule of law did not imply a precise equality of rights. Citing Möser on the distinction between ‘human rights and civil rights’ ‹Menschenrechte und Bürgerrechte›, Brandes explained that different groups in British society held distinct responsibilities under its constitution. It was entirely fitting that their legal rights corresponded to their particular duties. He defended property-based restrictions on the franchise, the right of hereditary Peers to sit in the Lords, and the immunities given to Parliamentarians as indispensable elements of constitutional order in Britain. Each of these prerogatives were vital in order to maintain an effective legislature powerful enough to set limits to executive power.59 It was this political balance of power, he explained, that safeguarded what was fundamental about British liberty – namely, the 56 Ibid., p. 105. According to Brandes, the best systematic overview of the British Constitution was de Lolme’s Constitution de l'Angleterre (1771), but it had been poorly received in Germany – perhaps because of the author’s suspicious background as a ‘Genevan’ and a ‘republican’, or perhaps because his analysis was too empirical for the taste of German natural lawyers (pp. 108-9). 57 Brandes, ‘Geist Englands’, p. 102. 58 Ibid., pp. 115, 117. Cf. ibid., 125-6, where Brandes criticizes Rousseau’s suggestion that ‘the liberty of the English is an illusion, and that they are slaves except during the season of parliamentary elections’. Burke had earlier denounced the same passage in the ‘Debate on the Conduct of Government during Tumults’ (8 March 1769); qtd. in Richard Bourke, Empire and Revolution: The Political Life of Edmund Burke (Princeton: Princeton University Press, 2015), at p. 264. 59 Ibid., p. 118. Chapter 3: August Wilhelm Rehberg 63 freedom from caprice or despotism that was afforded to all subjects, regardless of their station in society.60 As matters stood in 1785, Brandes told his readers, the constitution was in relatively good health: royal prerogative was limited by Parliament’s powers of review and by its control of the Treasury, while the Parliament was checked by the king’s veto and, more subtly, by the growing influence of his ministers in the Commons.61 But this balance was extremely delicate. In ‘Geist Englands’, Brandes intimated that George III’s attempts to consolidate his authority begun to jeopardize this equilibrium, imperiling a constitution which, as Hume had noted decades ago, was more towards monarchy than republicanism.62 Because he believed that the Parliament was under assault from the executive, Brandes, like Burke, had little patience for Pitt the Younger’s proposed electoral reforms. It was obvious why ‘those who brood on politics’ ‹Staatsgrüblern› in abstraction would endorse the abolition of ‘pocket boroughs’, the standardization of constituency sizes, and the expansion of the franchise, he conceded; indeed, when considered in abstraction the preservation of the status quo seemed self-evidently unjust. Yet as ‘the wisest’ voices in this debate understood – it is difficult not to hear Brandes speaking of Burke here – ‘the English constitution consists in an artificial synthesis ‹Gewebe› of three forms of government [i.e. monarchy, aristocracy, and democracy]; their relation to each other cannot be articulated or determined in mathematical terms’.63 Pitt’s proposed reforms would cripple the Prime Minister’s ability to form a durable, competent government (a process in which allocating party-controlled seats was vital). Thus enervated, Parliament would be unable to exercise its constitutional duties, creating a power vacuum that would be filled by the king’s ministers. Ironically, then, a reform movement that was meant to expand popular liberty would in fact radically augment the power of the executive, imperiling constitutional order and threatening liberty itself.64 Brandes picked out three additional, indispensable elements of the British constitution. First, he argued that the uniquely ‘republican’ character of the British people – woven into their culture, education, institutions, religion, and mœurs – was the sine qua non of their exceptional liberty. This ‘Nationalgeist’ was the motor that drove the British 60 Ibid., p. 217. 61 Brandes depicted the ‘royal veto’ as a legal fact (see ibid., p. 218); Rehberg suggested the same in his Untersuchungen (vol. 1, p. 143). In fact, its constitutionality was contested throughout the eighteenth century: see Eric Nelson, The Royalist Revolution (Cambridge: Harvard University Press, 2014), p. 9-23. 62 ‘By all indications, if a great alteration in the Constitution were to take place, an unconstrained monarchy would be far more likely to emerge than a headless republic’: ibid., p. 234. 63 Ibid., pp. 240-41. 64 For discussion of Burke’s identical argument, which he made in Parliament one year before Brandes’s visit, see Bourke, Empire and Revolution, pp. 440-47. Chapter 3: August Wilhelm Rehberg 64 constitution.65 From a young age, Britons were taught to see deliberative government as a positive good to be defended, and their liberties as a prize to be protected. He considered the latitude granted to the British press; the English Church’s tolerant attitude towards heterodoxy; the British university system, and the love of rhetoric that its curriculum inspired. All these institutions fostered a civic-minded ‘public spirit’ that pervaded all levels of British society.66 It was not true, he insisted, that ‘Publicität’ debased British political discourse relative to Germany. Channeling Burke’s arguments for the dignity of parliamentary deliberation, he insisted that the British system of government in fact conferred gravity on vital matters of state. Popular scrutiny focused the attention of government officials, and incentivized the virtues of persuasion, eloquence, and probity. ‘It is not merely the eyes of England that observe the proceedings of Parliament’, he wrote in ‘Geist Englands’, in language redolent of Burke’s ‘Speech on Fox’s India Bill’; ‘the great orator [in Parliament] ... sees that the eyes of the whole civilized world are upon him.’67 Obliquely, Brandes used this point to suggest that the Räte of Hanover would become more effective, not less, if their opaque proceedings were opened to the public. Similarly, he intimated that Hanover’s political culture would be improved if its rigid class system were gradually softened. In Br