I am coming to slowly appreciate the fact that the societal or institutional defences of liberalism turn out to be surprisingly counter-intuitive. While reading David Bromwich’s brilliant intellectual biography of Edmund Burke, I am beginning to realise that one of the the greatest threats to liberty and the basic freedoms of people is probably the arbitrary exercise of power. Though Burke is not thought of as a ‘liberal’ thinker, he was, however, a defender of due process established by constitutional history and precedent, added to that was his anxiety of the overreach of basic institutions: he personally disliked Wilkes, but stood for him intellectually nevertheless, because of the basic principle at stake: the overreach of the royal prerogative and the influence of the executive into the legislature. Similarly, when he fought against the Stamp Act, he was behooving the legislature to be more responsible towards their colonies; his reasons against the enforcement of the Stamp Act turned out to be similar to those that the American revolutionaries articulated against it – the peremptory exercise of parliamentary power. Again, his attack on Hastings was a fight against overreach; against what Burke memorably called the “invention of government”; against government disguised as a commercial enterprise; and against moral corruption.
Now much has been written about Rawls but what needs emphasising I think is his anxiety of arbitrariness in government, Locke’s Second Treatise, some have argued, turn out to be surprisingly ambiguous on the institutional protection of liberty, but he was, to be sure, dead against arbitrariness. In fact, one can argue, I think, that whenever Locke turned against the royal and executive prerogative his main concern was with arbitrariness. Similarly whenever Locke rebuked the legislature, though admittedly rarely, it was for the same reason: against arbitrariness. Further, the reason why people might opt out of the state of nature, according to Locke, was due to the danger of partial and arbitrary enforcement of the law of nature by way of the executive embodiment of each individual.
It’s probably a little counter-intuitive to think of Burke as a protector of freedoms, he has been, after all, deemed a ‘conservative’. To be provocative about it: It’s time that those who consider themselves liberal to revive certain constitutional traditions, and to maintain a sense of scepticism against drastic inventive action. What comes to mind immediately is demonetisation, pushing Aadhaar through as a money bill, the recent Supreme Court reading on the Representation of People’s Act, and when the SC thought it wise for people to stand-up for the national anthem before the screening of movies in cinema halls.