Richard Reinsch, “The Law According to Harvey Mansfield,” Library of Law and Liberty, March 28, 2013.
Of course the modern state heightens this tension between the arbitrariness of law and the whole of law with its constant innovations. Modern political science laid the foundations for this tension with its reduction of law to protecting only physical necessities. The citizen, protected in his body, was free to do as he pleased. But what to do if law is just “cutting” and is not seen as capable of embracing the whole, what then? It follows, Mansfield observes, that we divide powers, separation and what not, to make them safe for liberty. But is this utility of power and its defined limits in support of a very basic freedom enough for a wondering being like man?
I think the most interesting move in the essay is Mansfield’s combination of modern political science that abstracts or cuts out the soul, or spirit for you squeamish types, in favor of just protecting the human necessities. But even the progressives with their pragmatism can support and protect your necessities, Mansfield argues. This seems true enough. Property in things and your body, among other market components are evidently protected even in the highly interventionist Nordic regimes. Such necessities can be maintained even while law and the overall regime is re-purposed in the spirit of endless experimentation. “Having no whole, it could change without changing the whole; it could experiment harmlessly, risking only bloodless revolutions. It would take three or four centuries of evolution and experiment after the invention of modern political science, but at the end we could call this result “pragmatism.”
Library of Law and Liberty