John Selden and the Foundations of Social Order

How properly understanding the development of historical society collapsed my commitments to doctrinaire libertarianism

NOTE: this article is one of several that I am republishing from my previous writing project. These have been slightly edited to make them basically endorsable under my own mental shifts, yet they may reflect the priorities of my own need to grapple over problems I think about less often, now that I have abandoned my libertarian political framework

In my essay for the Paleoconservative Anthology, I made the observation that the development of history undermines the approach to political theory which begins and concludes in the abstract—this is one of the key differences between an authentic conservatism and the libertarian doctrine; the latter being the product of the revolution of social rationalism in the Western world.

I argued that libertarianism rested on the presumption that its technical formulations had obvious relevance to the complex structure of the fabric of society's institutions. In short, history is a long winded development of legitimate and just associations, groupings, orderings... coupled with moments of illegitimate coups, conquests, and unjust centralizations of power. That is, the social fabric that had been built up in the West could not be said to be fully unjust or fully just and unraveling it has been a recipe for disaster. Indeed, the spirit of upheaval has largely facilitated the rise of an entirely new, totalitarian, civilization.

One of the key theorists who helped me out of libertarianism—despite his own intentions—was Hans Hoppe. In several of his writings, he emphasized an aspect of the organic growth of political orders by explaining that families bonded with other families into associations, villages, towns, and so on. These decisions are made not by the consent of every individual, but by the representative head of each lower body. Fathers, community leaders, heads of tribe, judges, and so on. Every situation is different. But individuals are always born into a complex arrangement with a certain particular dynamic of "rights and restrictions." And the social order outlasts the life of any one individual.

This is, without a doubt, about as "Burkean" as it gets. Burke, that eloquent opponent of the French revolutionary spirit, wrote:

Dark and inscrutable are the ways by which we come into the world. The instincts which give rise to this mysterious process of nature are not of our making. But out of physical causes, unknown to us, perhaps unknowable, arise moral duties, which, as we are able perfectly to comprehend, we are bound indispensably to perform. Parents may not be consenting to their moral relation; but consenting or not, they are bound to a long train of burthensome duties towards those with whom they have never made a convention of any sort.

Children are not consenting to their relation, but their relation, without their actual consent, binds them to its duties; or rather it implies their consent because the presumed consent of every rational creature is in unison with the predisposed order of things. Men come in that manner into a community with the social state of their parents, endowed with all the benefits, loaded with all the duties of their situation. If the social ties and ligaments, spun out of those physical relations which are the elements of the commonwealth, in most cases begin, and always continue, independently of our will....

Burke did not come to this observation ex nihilo. He was a student of a particular English political and legal tradition. In 2017, Ofer Haivry published John Selden and the Western Political Tradition. On page 5, he writes:

The influence of Selden's ideas on the constitutional views of such figures as Clarendon, Hale, and Edmund Burke makes him a founding figure of what we may term the traditionalist approach to constitutionalism—of continuity through change—that to this day exerts a strong influence on the political thought of the UK, the US, and other countries.

The English political tradition, Haivry takes a considerable portion of his book to demonstrate, can be seen in four major streams: Hugo Grotius, Thomas Hobbes, Robert Filmer, and John Selden. The political and historical context of these streams took place on the back of an intellectual crisis at the dawn of the modern Western world: the collapse of the stronghold of the Scholastic legal tradition. Summarizing these streams would make a fascinating future article, but for the moment, Selden's understanding of the origins of social orders is quite interesting with regard to their obvious influence on Edmund Burke.

We find in Selden's (1584-1654) works, particularly his Mare Clausum, some fascinating observations regarding the origin of property, law, and, especially, political authority. Selden takes up the model that all of human history is a series of associations toward union, de-association toward "secession," migrations of groups not individuals, and everything in between. To take up Hoppe's own meta-narrative, families combined into clans, clans into tribes, tribes into nations. These decisions were not made with the consent of every individual, but with the authority representative of each particular body. Fathers, chiefs, leaders, judges, etc. Complexity, not clarity, is the story of the human past.

Selden echos this model. In Mare Clausum, Book 1, Chapter IV, he amazingly explains that the world was divided into three domains by the Biblical Noah for his three sons. These "lords of the earth" did not hold their domains "in common" but belonged to them specifically as proprietors of large domains.

[Noah] admonish[ed] them altogether, that no man should invade the Bounds of his Brother, nor should they wrong one another; becaus it would of necessitie occasion Discords and deadly Wars among them."  

(note: older English spelling and stylism kept in place for all quotes. Deal with it.)

The original proprietors of the land then chose the terms and conditions under which this social order was to be divided for his own heirs:

But yet, whether it were by Donation, Assignment, or any other Grant whatsoever, it appear's (before hee died or left any Heir to succeed him) his children did enjoy their several Bounds and Territories, in a way of peculiar Dominion or Possession.

The reference to "peculiar dominion or possession" is to juxtapose this private property nature of the land with the model of "common" or shared land (some forms of utopian communism). The nature of this model necessitates that, at least several hundred years in, there would be far less proprietors than there were common folk living on the proprietor's land. Across the world, each area developed unique customs, laws, norms, and interpretations of these three.

The custom developed naturally into new activities and social roles:

After this, Exchanges, Buying, and selling came in fashion; and besides Weights and Measures, they appointed Judges of Co∣venants and Contracts, and added Bounds or Limits to Fields and Pastures.

So at length came in private Dominions or Possessions; which (whether by vir∣tue onely of a preceding universal dominion of a single person, as in Adam; or of som universal and common interest in Things, as betwixt Noah and his Sons) hapned first by the Donation, Assignment, or som other Grant of those whom it concerned, either to Princes, or Communities representing a single per∣son, or to any others whomsoever, as particular Lords.

It gets even more interesting as Selden notes that those who were not inheritors of land did, by compact, agree that they had no "right" to the land being passed on to the proprietor's posterity:

But in this division of Bounds and Territories, there intervened, as it were, a consent of the whole bodie or universalitie of mankinde (by the mediation of something like a compact, which might binde their posteritie) for quitting of the common interest or antient right in those things that were made over thus by distribu∣tion to particular Proprietors; in the same manner as when Partners or Co-heirs do share between themselvs any portions of those things which they hold in com∣mon.

That is, it was the social arrangement of the development of ancient society that the passing on of territories could be made to particular heirs. But vitally (and with reference to what Burke would one day call an "eternal contract"), it was not just the ownership of the land that was passed on, it was also the role and office of the particular social order which the proprietor was to oversee.

Nor can it otherwise bee conceived in the case of Partners or Co-heirs (such as all men seem to have been in the State of Communitie) how those things which com not under division, should not con∣tinue common, as before. Therefore (I suppose) it must bee yielded, that som such Compact or Covenant was passed in the very first beginnings of private Dominion or possession, and that it was in full force and virtue transmitted to posteritie by the Fathers, who had the power of distributing possessions...

So that wee may conclude no less concerning distri∣bution by Assignment, then touching Seisure by occu∣pation of things relinquish it at pleasure, that a general compact or Agreement was made or ratified, either expressly in words, or implicitly by custom.

The origin of these communities were not some creative version of a social contract theory where consenting property owners came together and signed a charter, which dissolves upon their death or exit. This is the typical interpretation, by libertarians, of Hoppe’s covenant community concept. Rather, their origin laid in those who came to a protector, the owner of a territory, who would approve of them for settling on his lands.

Here is the important part, and where libertarianism falls apart: the proprietor would sell them portions of the land and yet withhold certain rights. He sold the rights to a piece of land, except for the rights to do certain things in what might be considered public space; not publicly owned, but publicly interactable. The ownership was conditional and not absolute. All actual Western property ownership came about in this way: within a context of pre-existing conditions and rules and restraints. (Or otherwise by plunder.)

Hoppe once noted: “Originally, such covenants were based on kinship relations, with the role of the proprietor performed by the head of a family or clan.” Man is born into the world not in a state of nature, naked in the absence of any construct, but rather in the context of a structure of rules and regulations, rights and duties, in a house and land that did not belong to him. These families, then, either entered the jurisdiction of a proprietor, or else cultivated their land such that they were able to be the proprietor themselves for other entering families.

The Burkean-Selden camp is not that "tradition makes right," it is that the complex development of the relation of associations, some of which are legitimate and organic, some of which are not, precludes us from making universalistic pronouncements about how all societies must be organized; that is, it is against rationalistic formulations or blueprints for planning the social order. It is a rejection of what Thomas Sowell described as the Quest for Cosmic Justice.

Hence Paul Gottfried, himself friendly to libertarians (especially Rothbard and Hoppe), cannot find it in him to adopt the label. After noting his general sympathies, he writes in Revisions and Dissents:

The notion of individuals defending their values and identities—while inhabiting an imaginary state of nature—does not seem to be a convincing account of where we come from as human beings. [...] Unlike the essentialist Right's reading of Aristotle or Burke, Libertarians understand freedom as a universally shared good to which everyone everywhere is entitled by virtue of being an individual. [...] The classical conservative view of liberty flows from the legal implications of someone's standing in a particular society, held together by shared custom and distributed duties.

From this view that obtained among opponents of the French Revolution there arose a concept of socially situated liberty, which stands in vivid contrast to the Libertarian idea of unfettered individual liberty. Libertarians are seen from the Right as promoting a leftist position, which presupposes the idea of universal equality and even universal citizenship. The doctrinaire [libertarians] scorned [by the Old Right] rejected the conservative notion of the social bond and were proclaiming principles that issued from the French Revolution.