Biographical Preliminaries

Stephen is a significant point of reference for legal academics as well as historians of Victorian Britain. He is, though, admittedly not top of mind among scholars of politics; in political theory, as noted above, he (misleadingly) appears, when he appears at all, as a touchstone for conservatives or as an authoritarian bugbear (Muller Reference Muller1997). Some background information is therefore in order. James Fitzjames was born in 1829 to a prominent family on the Evangelical wing of the rising “intellectual aristocracy,” the upwardly-mobile but (generally) non-noble milieux who would dominate the professions, administrative state, and universities as these were reformed over the course of the century (Annan Reference Annan, Trevelyan and Plumb1955; Smith Reference Smith2012). His father was James Stephen, an important administrator in the Colonial Office who, among other achievements, wrote the Slavery Abolition Act. His brother was the historian-essayist Leslie Stephen, who in turn was the father of the novelist Virginia Woolf and the painter Vanessa Bell; Albert Venn Dicey, still the greatest English constitutionalist, was his cousin. Unlike his brother, who made his living solely through letters, Fitzjames was first and foremost a man of the law. As a barrister he was involved in several noteworthy cases, and he finished his career as a High Court judge; in between he held various administrative posts of note, including a three-year stint as Legal Member of the Imperial Legislative Council in India, where he made an enduring mark as a codifier of Indian law. Through it all he wrote an astonishing amount, the majority of it for a periodical press that, compared with the likes of the Atlantic or New York Times today, was both more cerebral and more vituperative; these writings fell in such disparate areas as (what we would now call) political commentary; literary criticism; criminal and constitutional law; legal, imperial, and intellectual history; theology; epistemology; and political theory. His productivity was so inordinate that it even drew wry wonderment from J. S. Mill, himself hardly a literary slouch (Mill Reference Mill1963–91, XXXII, 206–7). Sadly for political theorists, the one writing ambition that Stephen did not fulfill was a long-projected tome of constructive social-political philosophy (O’Grady Reference O’Grady1987).

James Fitzjames Stephen: Aggressive Technocrat

When Liberty, Equality, Fraternity came out in 1873, the American intellectual/editor Charles Eliot Norton hailed this famous work, which attacked Mill and (what Stephen condemned as) other sacred cows of the era, as a landmark of “non-sentimental political discussion” (Norton Reference Norton1913, I, 469). It was a description after Stephen’s own heart. Stephen conceived of himself as opposing the “popular” upsurge of “enthusiasm,” as resisting “the pure despotism” of “irritable, noisy minds” and “effeminate understandings” who trusted that society would be perfected if only governance were brought into accord with their exultant feelings (Stephen Reference Stephen2017, 24–5; also Reference Stephen1857a; Reference Stephen1857b; Reference Stephen1859a). The “puerility and narrow-mindedness” of “modern philanthropy,” the certainty of the “the world-betterer[s]” that their hearts could guide public policy, were scourges that he felt compelled to eradicate (Stephen Reference Stephen1866a; Reference Stephen2017, 167–8).

The principal trouble that these forces posed was that they led people to underrate the need for intellectual excellence in the conduct of modern states. “All the instincts and feelings and all the faith that ever existed in the world are incompetent to enable a person to enunciate one single true proposition”; “there is only one type of politician who is of much use, namely the politician who has and acts upon true views,” yet only a fraction of the population were capable of such possession of truth (Stephen Reference Stephen1866c, 1217–18).Footnote ⁴ A small elite alone were capable of governing well; the political weight of people beyond these rungs ought to be minimized:

Quotations to this effect could easily be multiplied; Stephen was among the most ardent upholders in his generation of “the role of the intellect in the direction of national affairs” (Parry Reference Parry1986, 77).

It is not unusual to encounter paeans to the rule of the “best” or the “wisest” in classical, medieval, and early-modern texts. Yet Stephen did not believe himself to be repeating orthodoxies from classical republicanism about the greater virtue of property holders or aristocratic arguments in favor of the superiority of a hereditary ruling caste. Unlike the reactionaries or antimodernists with which he is sometimes associated, Stephen “did not fear change” as such; rather, he feared that a governing class equipped for the challenges of modernity might not materialize (Lippincott Reference Lippincott1938). Likewise, contra Burke, with whom he has too readily been lumped (Hajdenko-Marshall Reference Hajdenko-Marshall2012), he had no reverence for traditional hierarchies as such. In truth, in keeping with the contempt he expressed for conservatism as he understood it (Stephen Reference Stephen1882b), Stephen dissented from many of what are taken to be core articles of the conservative tradition.Footnote ⁵ Devotion to conserving the present powers-that-be, let alone to returning to an idealized past stage of society, had no appeal to him.

Stephen’s conviction of the low aptitude of most men did not, then, translate into a wish to halt the march of history. Instead, it led him to articulate a distinctly technocratic notion of the rule of the few. Stephen vindicated the hegemony of an elite constituted not by blood, heredity, wealth, divine inspiration, or charisma but instead by expertise, technical savoir-faire, efficient management, and educational achievement. Likewise he tended to picture the virtues of technocratic governance as tethered to conceptions of “science” and mastery of “rational” methods, as distinct from older “statesmanlike” ideas of Burkean prudence or Aristotelian phronesis. While “technocracy” is a coinage of the early twentieth century and consequently Stephen did not have the term, he certainly espoused the ideal that the word was coined to convey—namely, “a system of government in which experts organize and control the nation’s resources for the good of all” (Rosanvallon Reference Rosanvallon2013, 48).

As far as possible, Stephen contended, political power had to be reserved to an educated cream of the crop because tackling great problems of social organization demanded “special knowledge” (a phrase he incanted frequently). The most glaring defect of Victorian civic attitudes was the underrating of “the importance of special knowledge” (Stephen Reference Stephen2017, 152). Not only were the vast majority not themselves equipped to devote “real intellectual activity [to] political matters” outside the immediate purview of their personal lives; they did not even grasp that there existed, as he confidently asserted, “political” truths that were as real as “mathematical truths” (Stephen Reference Stephen1866c, 1). Beyond a baseline of natural aptitude with which few were endowed, technical adeptness gained from long study was vital to fundamental areas to statecraft, the paradigm for him being (naturally given his profession) the law (Roach Reference Roach1957). “The number of people,” as he put it bluntly,

This was “emphatically the age for special knowledge and study, the age for engineers, men of science, lawyers and the like,” and only by remodeling the apparatus of state to better reflect the intellectual habits and virtues of these professions could politics be redeemed from its “perfectly disgusting” condition (Stephen Reference Stephen1879).

Further, Stephen did not imagine that his elite simply established efficient instruments or practices to meet goals set elsewhere. In his eyes, the distinction between means and ends in political affairs was porous and contestable and, in any case, of little relevance in theorizing the distribution of political power because only the enlightened substratum had the requisite moral insight for “rigid adherence to the … general utility” (Reference Stephen1866c, 1). Being moved by “passion” and “imagination,” most people were not responsive to reasons, nor did they develop their rational faculties appropriately (Stephen Reference Stephen1863a). This left them unfit to answer questions of values or ends: “the intellect alone can judge what is the object of morality, and whether or not particular rules are calculated to promote that object” (Stephen Reference Stephen1863b, 607). For Stephen, all successful practical reasoning—and indeed, all reasoning simpliciter; he was adamant that the principles of “argument and evidence” were fundamentally one from morals and law through the natural sciences (Reference Stephen1865b)—relied not just on raw mental power but also on moral-temperamental qualities the cultivation of which necessitated achievement in the liberal (in the old sense of the word) disciplines. Like many Victorian liberals, Stephen prescribed a robust regimen of intellectual virtues: impartiality, earnestness, thoroughness in scrutinizing authorities, the acuity to give credence to a proposition only so far as the evidence bore it out but not further, and “moderation” to avoid getting carried away with alluring but one-sided theses (Reference Stephen2017, 77). Government in the absence of these attributes was calamitous. In recognition of the need for this technocratic approach to politics lay what Stephen dubbed “true liberalism” (Reference Stephen1862b, 82).

Outside of legal reform, Stephen was more naturally a critical than constructive thinker, and we can get a better grasp on what the technocratic ideal entailed for him by looking at what he considered its enemies.

First, Stephen saw it as threatened by what we would now call (the term was not in mainstream circulation then) libertarian currents of thought. Stephen fretted that liberals were drifting from their rationalistic, elitist conceptions of reform and instead becoming enthralled to an exaggerated idolatry of individual liberty (Reference Stephen2017, 94; Morley Reference Morley1873b). According to this “religious dogma of liberty,” government was to restrict itself to “mere police functions” and leave “everyone indiscriminately … to do what he likes” (Reference Stephen2017, 25, 148). This outlook, he charged, amounted to “a mean and cowardly” abdication of the rightful elite’s duty to the population; the former owed it to the latter not to maximize the liberty of each among them but to govern them well according to criteria that the elite alone was fit to determine: “wise and good men ought to rule those who are foolish and bad” (Reference Stephen2017, 10, 148). Nor did the wise need to be bashful about using law to set a direction for the country they knew to be beneficial because of the “force” that lay behind it (Leslie Stephen Reference Stephen1895). “Coercion” was an instrument for improving humanity no more morally suspect than any other; what mattered only was that the “compulsion” be exercised efficaciously for an all-things-considered “good” purpose (Stephen Reference Stephen2017, 32–3). Indeed, no great improvement, from the spread of Christianity to the Reformation to the French Revolution, had been accomplished without force (Stephen Reference Stephen2017, 33; also Reference Stephen1865c).

Stephen was confident that his technocratic riposte to the radical-liberal propensity to “attack all government whatever” held true perennially. Nevertheless, this lesson, as indicated by his previously quoted assertion that this was “emphatically the age” for government by specialists and experts, was intended to be especially apposite in modern times (Stephen Reference Stephen1879; also Reference Stephen1874a). For with “the affairs of both nations and individuals … constantly tend[ing] to become more and more complicated, and to require greater attention and management,” the premium on “skill,” “special knowledge,” “highly instructed, large-minded, and impartial intellect” to run “a powerful, well-organized, and intelligent government” and to craft the many “laws” needed “on pretty nearly every subject which can be mentioned” was higher than ever and would continue to rise (Stephen Reference Stephen2017, 112; also Reference Stephen1873d). In linking the need for a strong, expert-led state to a historical vision of the rise of social “intricacy” and complexity, Stephen beat later theorists to a theme that would be central to the growth of the administrative state over the twentieth century (Stephen Reference Stephen1873d; Vermeule Reference Vermeule2021).

The “sentimental” worship of liberty that would deny “the wiser part of the community” the pursuit of the public welfare “on a large scale” was, then, a first target of Stephen’s apologia for vigorous technocracy (Reference Stephen2017, 35, 57). A second was democracy. In Stephen’s eyes, these two foes were connected both practically and conceptually. In practice, the multitude were obviously too “ignorant” to appreciate the finer points of legislation/administration; they could be interested in matters of state only through the manipulations of demagogues and shady operatives that misled rather than edified them (Stephen Reference Stephen2017, chap. 5). Here Stephen was rehearsing longstanding antidemocratic tropes, although he attached to them themes of democratic-skeptical argumentation that would gain more currency later (e.g., Hirschman Reference Hirschman1991; Schumpeter Reference Schumpeter1942). Importantly, this ineptitude carried with it, in Stephen’s analysis, more than a dash of libertarianism—a not unsurprising link to draw in an era where radicalism was closely identified with aspirations to prune perceived government bloat (Biagini Reference Biagini1992). Hostility to democracy therefore followed from a conviction that a true liberalism of “national greatness” demanded that far-seeing, well-trained governors be insulated from popular clamor for cheap and short-sighted policies:

Beyond this practical fear of democratization bringing reflexive small-statism in its wake, the two enemy movements were in his eyes connected by another conceptual route. For the “worship” of liberty by nightwatchman-state proponents and the “worship” of equality from universal-suffragists shared a fallacious exaltation of individual reason that undercut beneficent technocratic authority (Stephen Reference Stephen2017, 153). Democrats’ assertion of equal political power rested on effacing the distinction “between wisdom and folly,” on presuming that “mediocrity,” “impudence and rudeness” were as much entitled to a voice in public affairs as intelligence and expertise (Stephen Reference Stephen2017, 148, 67). Libertarianism likewise assumed that all men were so reasonable that release from “restraints” would automatically produce the best social outcomes (Stephen Reference Stephen2017, 34). Such optimism ignored “tragedy-of-the-commons”-style collective action problems that only a governing elite could sensibly resolve, and it overlooked the obvious fact that most people were “selfish, sensual, frivolous, idle, absolutely commonplace and wrapped up in the smallest of petty routines” and thus required innumerable control and direction by enlightened authority (Stephen Reference Stephen2017, 158, 39).

For Stephen, as for most Britons before a more rigorous Anglo-American comparative constitutionalism arose at the end of the century, there were two chief paradigms of democracy. The first was the Caesarist regime of Louis-Napoleon in France, which Stephen (like many of his compatriots) understood as wedding a miserable peasant majority under universal suffrage at the bottom with lawless and personalistic rule at the top (Reference Stephen1859b; Parry Reference Parry2001). Stephen was only slightly less pessimistic about the second—namely, democratization under Westminster-style parliamentary government. In an epoch when Britain’s institutions were often identified with “good government” itself—this was the so-called classical age of parliamentarism, after all—Stephen was insistent that British self-congratulation on this score was mere complacency (Reference Stephen1883a). Parliamentary government was “grievously impair[ed]” (Stephen Reference Stephen1873d, 1). The basic problem of parliamentarism was that it was inseparable from parties, and the force of partisanship would (he rightly predicted) only increase as, limited suffrage giving way to universal enfranchisement, parties were required to function not just as vehicles for notables aiming to corral parliamentary majorities but as centralized extraparliamentary institutions run by “wirepullers” seeking to “sweep the greatest number” of “little bits” into a bigger “heap” than the other side (Reference Stephen2017, 146–7). Party government was antithetical to the “steady, restrained, and calm exertion” of the “immense amount of special knowledge” involved in “governing a great nation” (Stephen Reference Stephen2017, 149–50). Most party-political discussion was not merely pointless but harmful, motivated as it was not by evidence or argument but emotion and ambition. “The system of party government … makes every man who is out of office pick holes in the work of every man who is in office, and every man who is in office consider, not what is the best thing to be done, but what he is most likely to be able to carry in spite of opposition”; consequently “in every department of the State … the greater part of [the crucial work of reform] is going and will go undone, and [of that portion which is completed] much of it is ill done simply because there is so little continuity, so little permanent authority vested under our system” (Stephen Reference Stephen2017, 150–1). Given that a knowledgeable, discerning reformer “often lose[s] his seat by differing in opinion from the bigoted part of the constituency on some small question,” the quality of personnel was sure to be low (Stephen Reference Stephen1873d, 6).Footnote ⁶ Instead of having the most adroit minds till the same policy field until the harvest came good, “party government … produces an arbitrary connection between measures which ought to be considered on their own merits” (Stephen Reference Stephen1873a, 7). It made him “angry to think that anything of importance should be determined” in such irrational ways (Stephen Reference Stephen1882a).

While Stephen was implacably opposed to Caesarism, his hostility to parliamentary democracy, for all his animated denunciations, was more circumscribed in its immediate implications. Like many in an era awash in Tocqueville, his dislike of democracy was coupled with admission of its inevitable arrival: “the waters [of universal suffrage] are out and no human force can turn them back, but I do not see why as we go with the stream we need sing Hallelujah to the river god” (Reference Stephen2017, 148). Similarly, he accepted that sole rule of “the well-instructed few” could not with profit displace the present “machinery of government” any time soon—a degree of resignation that angered the most hardened antiparliamentarists (Stephen Reference Stephen2017, 153).Footnote ⁷ Nevertheless, he was fertile in suggesting “partial remedies.” These lay in the direction of (1) strengthening the executive qua head of the administrative apparatus, (2) increasing the independence and stability of specialists within the civil service, (3) consolidating the authority of the central state against the localist impulses of English political tradition, and (4) rationalizing the state’s structures in such areas as the administration of justice and relief of the poor (Stephen Reference Stephen1873a, 165–79). But the most intractable problem was, ultimately, cultural: how in an era of devotion to equality to inculcate respect for greater intellectual attainments and administrative/technical competence (Lippincott Reference Lippincott1931). To lift the “public business” out of its “miserable, fragmentary, scrap-like” condition would require gradually shrinking the area that the public considered “party questions” to cover and convincing the people’s deputies to “let” more and more subjects “alone” (Stephen Reference Stephen1866b, 105; Reference Stephen2017, 152). To arrest the trend toward “deifying almost casual public opinions and slight and ineffectual political sentiments,” to depoliticize the population so that they would “willingly” defer to their “natural leaders,” those “few” who through “a happy combination of personal gifts with accidental advantages” had come to possess “the moral and intellectual superiority” necessary to rule and administer a great state—this was the paramount challenge of political modernity (Stephen Reference Stephen1862b, 80).

In his exasperation with the inconstancy of party politics and the low intellectual level of the Commons’s “debating club” dynamics (Stephen Reference Stephen2017, 150; Reference Stephen1868b), Stephen had interesting company. For instance, he shared much with the archetypal theorists of scientific, elite-driven governance in the nineteenth century: Henri de Saint-Simon and his followers, the Saint-Simonians, and in particular the most vibrant branch to have grown off this trunk, the Positivism of Auguste Comte and his disciples (Simon Reference Simon1963). One scholar aptly summed up these movements as “technocracy with a religious aura” (Guérard Reference Guérard1969). As we will glimpse later, Stephen had no sympathy with the Saint-Simonian/Positivist package of extravagant religious positions. But in the aspiration to build up a bureaucracy of experts and technicians and fortify them against irresponsible partisan meddling—in the longing to replace, as the formula that Saint-Simon inaugurated put it, politics with administration—he resembled these groundbreaking, if eccentric, technocrats (Comte Reference Comte and Bridges1865; Saint-Simon Reference Saint-Simon and Taylor1975). This kinship was, moreover, recognized at the time by English positivists (Harrison Reference Harrison1873a; Smith Reference Smith1989, 301).Footnote ⁸

Stephen was, further, every bit the self-confident technocrat in castigating what he judged to be false elites or the imposture of expertise. He could be scathing about the inaptitude of the landed aristocracy; likewise, he was quick to anger about what he considered clerical usurpation or “priestcraft” and had a strong distrust of clergy generally (Reference Stephen1865a; also Reference Stephen1860). The mention of his anticlerical attitudes, and the earlier quotations of his use of religious imagery in negatively portraying the “creeds” and “worshippers” of egalitarianism and libertarianism, bring us to the final, and most overarching, enemy of technocracy that he identified: the religious or ideological approach to politics. Stephen believed himself to be living through (what an older historiography called) the “age of ideologies,” of “-isms” as he phrased it, and the chief way in which he sought to discredit these grand sociopolitical frameworks was by likening them to religion (Reference Stephen1864b). To illustrate just how crucial was this line of attack for Stephen, consider the opening words of Liberty, Equality, Fraternity: “The object of this work is to examine the doctrines which are rather hinted at than expressed by the phrase ‘Liberty, Equality, Fraternity.’ … It is the creed of a religion…. It has its solemn festivals, its sober adherents, its enthusiasts…. These doctrines are in very many cases held as a religious faith” (Reference Stephen2017, 23). The prime defect of the Millian perversion of liberalism was that, rather than really being a fact-responsive, empiricist outlook informed by rigorous moral reasoning and conceptual analysis, it had descended into fervent idolatry of mere “mottos” (Stephen Reference Stephen2017, 23). Casting aside all such “faiths” was the precondition for rationalistic government, that is, for rule by those whose mastery of the canons of evidence and whose technical facility had liberated them from distorting religious orientations, whether these came in a transcendental or secular-ideological package (Stephen Reference Stephen1870).

One last feature of Stephen’s technocratic elitism merits mentioning. Stephen was not bashful about linking his ideal of domestic government with imperial rule (Stokes Reference Stokes1959). Famously, Mill had attempted to delineate a threshold of societal development, above which coercion only to prevent the individual from harming others was admissible, but below which paternalistic or “civilizing” coercion by a despot or foreign power of greater enlightenment was demanded. Stephen decried this demarcation: “You would let Charlemagne coerce the Saxons, and Akbar the Hindoos. Why then may not educated men coerce the ignorant? What is there in the character of a very commonplace ignorant peasant or petty shopkeeper in these days which makes him a less fit subject for coercion on Mr. Mill’s principle than the Hindoo nobles and princes who were coerced by Akbar?” (Stephen Reference Stephen2017, 8, 34–5; Deslauriers Reference DeslauriersN.d.).Footnote ⁹ Stephen was one of many critics then and since for whom Mill’s distinction between imperial and European contexts proved too much, as it “seems to apply to every case where a government is far more intelligent than the governed,” (Dicey Reference Dicey1914, 147). So long as the British government was wiser than the population over which it ruled, then the domestic political system was better insofar as it approximated the imperial government in India of which Stephen had been a part, and contemporaries took his political theory to be the manifestation of how besotted he was with Indian administration (Cazzola Reference Cazzola2019; Harrison Reference Harrison1873b). An assertive technocracy was a kind of domestic imperialism, and Stephen believed it was justified not despite but because of that similarity.

James Fitzjames Stephen: Radical Pluralist

Stephen was, then, a militant prototype of the technocrat. His commitments to the rule of the educated and the expert wove together rejections of democratic radicalism, the party system, Caesarism, and libertarianism, and bore the marks of a hardened imperialism to boot. Running alongside this strain, but seldom crisscrossing it directly, was another: a radically pluralistic one. Indeed, so sharply expressed, and yet so rarely brought into contact, are the two lines of argument that it seems fair to say that Stephen’s right hand did not know what his left hand was doing.

A useful entry point into this aspect of his thought is to note that Stephen was a proud follower of Bentham and self-described utilitarian (Warner Reference Warner and Warner1993). Indeed, the Stephen-Mill contretemps was partly a battle for the soul of utilitarianism, with the younger jurist offering “a criticism of Mill’s [scheme] from the older Utilitarian point of view” (Leslie Stephen, Reference Stephen1900, III, 244). Yet Stephen was far from merely aping Bentham, and he accepted utilitarianism only in a chastened form. Stephen believed himself a staunch utilitarian insofar as he agreed that “from the nature of the case some external standard must always be supplied by which moral rules may be tested; and happiness is the most significant and least misleading word that can be employed for that purpose” (Reference Stephen2017, 159). Nevertheless, he parted ways with conventional utilitarians at a crucial point. He criticized the latter for not facing up to the dependency of even the most seemingly quantitative and objective verdict about “expediency” on an underlying “ideal of life” that was ineradicably contestable:

Like Hegel’s criticism of Kant’s moral theory for being formalistic and unable to give content to the ethical life (Habermas Reference Habermas1988), Stephen charged Mill and Bentham with failing to appreciate the extent to which happiness was merely a “vague and unsettled idea” (Reference Stephen2017, 204). Appeal to it could help resolve disputes about which path to take where a (usually thin) consensus had taken root within a specific community—for example, if we want speedier criminal trials and ceteris paribus proposal a will deliver that better than proposal b, then we know to select a. But the flipside, to which orthodox Benthamites gave less attention, was that invoking utility or its synonyms was likely to prove impotent in precisely the most difficult cases, when “very different ideals of happiness” clashed with one another (Stephen Reference Stephen2017, 161, 98). Stephen was willing to be classed as a utilitarian faute de mieux because other foundational moral theories suffered worse defects.Footnote ¹⁰ His own utilitarianism, though, was constrained.

Stephen’s discomfiture with more robust conceptions of utilitarianism and his sense that neither Bentham nor any other philosopher could provide a final ranking of the “comparative value of [contending] views of human life” broadened out naturally, in his mind, into a defense of diversity and conflict as constitutive elements of a free society (Reference Stephen2017, 161). A plurality of views could be expected to arise organically (at least in societies with high literacy rates and the technologies of mass communication) wherever drastic efforts at suppression were not undertaken, because “antagonism” was an “essential” concomitant to “the vitality of mind and spirit,” as one modern reader of Stephen has written (Edwards Reference Edwards, Horton and Mendus1985). Or in Stephen’s own words:

Such disagreements inevitably involved “argument, ridicule, the expression of contempt for cherished feelings, the exposure of cherished fallacies, chilled or wounded affection”; they caused “terrors” (Stephen Reference Stephen2017, 78). Yet like James Madison arguing that attempting to “destroy liberty” in order to eliminate “faction” was a “cure worse than the disease” (Cooke Reference Cooke1961, 61), Stephen rejected efforts to instill unity either via the state or heavy-handed social norms.Footnote ¹¹ On the contrary, what was wanted was a culture of “fair play” by which everyone accepted that even those they found most hateful could make themselves heard and win political victories (Reference Stephen2017, 77). So deep did his perception of the conflictual character of modern public life go that, though himself a proponent of religious/intellectual liberty, he castigated other advocates of toleration whom he judged to be peddling a false hope of harmony among divergent ideologies: he deplored the “excessive and irrational” picture of toleration that “aims at the complete suppression of these struggles, and so tends to produce a state of indifference and isolation” as a greater “evils” than the most confrontational pluralism could produce (Reference Stephen2017, 110).

From this embrace of pluralism followed several important aspects of Stephen’s outlook. One was his adoration of Hobbes (Colaiaco Reference Colaiaco1983). Perhaps surprisingly to many readers, Stephen understood Hobbes’s philosophy as an aid to a proper understanding of liberalism; he assented to key Hobbesian tenets not despite, but because of, his endorsement of the “practice of modern Liberals” (Reference Stephen2017, 75). Stephen was an acute reader of the beast of Malmesbury; in crucial respects he anticipated trends in Hobbes scholarship today (Abizadeh Reference Abizadeh2011; Tuck Reference Tuck, Hobbes and Tuck1991). Most salient for our purposes, he interpreted Hobbes’s natural condition as a device for showing not only the dangers that ideological conflict posed in the absence of the sovereign state, but also the naturalness and ineluctability of this conflict itself:

As is typical of Stephen’s style,Footnote ¹² he made his point in exaggerated fashion here. From its being “apparently part of the providential plan of life that men should differ endlessly,” the inevitability of ideological violence or civil war did not follow; this was what political theory generally, and Hobbes above all, had shown (Reference Stephen1859a, 734). The strong hand of the state was needed not to repress pluralism, but precisely because pluralism was ineradicable: “The great art of life lies not in avoiding these struggles, but in conducting them with as little injury as may be to the combatants” (Stephen Reference Stephen2017, 110). Without the state, our ideological quarrels would result in slaughter; the state’s purpose was not to suppress these quarrels but to ensure that they played out via dialogue rather than bloody disorder. Stephen favored large measures of press liberalization relative to the law of his day (such as repeal of the offense of blasphemy) and he mocked those who would strain to “arrest discussion” (Reference Stephen1862a, 324; Bury Reference Bury1913). But support for such policies went hand in hand, to his mind, with the forceful assertion that the state must be understood to retain the rights to: crack down on outrage-inducing forms of expression in emergencies; set the contours of the informational infrastructure in which debate played out (which spaces were and were not available for public meetings, what the legal rights and duties of publishers were, etc.); stringently apply the law and uphold the state’s monopoly on violence even when political or public-spirited motives were cited for acts of disorder; and (if need be) step in to curtail substate associations such as churches, clubs or leagues that might, if allowed to grow too powerful, “take [the State’s] place” and “become embryo governments” (Reference Stephen2017, 57–8; Reference Stephen1886).

In other words, Hobbes had, Stephen believed, elaborated the conditions under which an ineluctable conflictual pluralism could play out without leading to destruction and anarchy. Qua philosopher of law, Stephen claimed that as marriage served to “channel and regularize” rather than to exterminate sexuality, so criminal law served to channel and regularize vengeance rather than to eliminate it (Posner Reference Posner2012). We might extend his analogy to say that the Hobbesian state existed not to eliminate what Mill called “the rough process of a struggle between combatants fighting under hostile banners,” but to render it as safe and stable as possible (Mill Reference Mill1963–91, XVIII, 254).

The liberal twist that Stephen gave Hobbes connected to three important pieces of his analysis. First, it fed into his assaults on the humanitarian utopianism (largely symbolized for him by the aforementioned Auguste Comte’s “Religion of Humanity”) common in nineteenth-century philosophy (Stephen Reference Stephen1858). Many authors in this vein foretold that the coercive state would vanish and concord reign within society. To Stephen, precisely because there would come no end to the clash of “ideas,” “theories,” and “modes of life,” the state would always be necessary to keep this clash contained to the discursive realm, to constrain (as a later commentator summed up lessons from Stephen) the losers of a given political tussle to respect the “rules of the game” and steer their energies away from vengeance toward the next “fairly conducted” vote or argument (Haynes Reference Haynes1916, 128; Stephen Reference Stephen1869). Second, it motivated an overlooked part of Stephen’s critique of Mill. While the author of On Liberty is famous for singing paeans to diversity, Stephen reproached him for being a half-hearted end-of-history theorist: “the nervous fear that a time may possibly come when there will be nothing left to argue about appears to me about as reasonable as the ‘thought of the exhaustibility of musical combinations of the seven tones and semitones which make up the octave,’ by which Mr. Mill … was ‘seriously tormented’ at one time of his life” (Reference Stephen2017, 55).Footnote ¹³ “Moral controversies,” confrontations over “interests,” and “endless differences of opinion … on the nature of good and evil … the character of God, and the ideal of human life” would last as long as society itself (Stephen Reference Stephen1867b).Footnote ¹⁴ Third, it drove Stephen’s dissatisfaction with Mill’s jeremiads against “social intolerance” (Reference Stephen2017, 64). Stephen himself expressed concern about gossip, the invasion of unpopular individuals’ private lives, and the “ignoble littleness of character” that led to “noiseless excommunication” of one’s “neighbours” (Stephen Reference Stephen1859c; Reference Stephen1862b, 81). But he thought On Liberty had pushed too far. Where differences arose on “the greatest subjects of thought and feeling,” it was natural that one side should “reproach,” should “condemn and blame,” the other (Stephen Reference Stephen1862b, 76; Reference Stephen2017, 65). Yet Mill, as Fitzjames read him, required of us “absolute neutrality” where “enmity” and “disapproval” were often appropriate, for if liberty meant anything it surely meant being able to act on even our disapprobatory sentiments (Stephen Reference Stephen2017, 65–6). When disputes that went “to the very core and root of life” occurred, it was stifling to enjoin the opponents to celebrate or “love one another.” Instead, we ought to embrace quite a lot of ill feeling so long as the state kept the contenders “within bounds” and enforced common rules of “justice” on all (Stephen Reference Stephen2017, 65, 156).

From this deep pluralism emerged another crucial tenet: his rejection of the goal of the moral-religious neutrality of the state (Stephen Reference Stephen2017, 53–7). Because there were so many and such adverse outlooks, it was impossible that policy could be “really neutral” between them (Stephen Reference Stephen2017, 53). Even textbook liberal commitments like toleration, privacy, and equality before the law were not neutral but belonged to one “moral and social standard” among many, and when implemented they necessarily forced other “principles” to “give way” (Stephen Reference Stephen and Hunter1875; Reference Stephen2017, 40). To take an example of which he was fond: adopting the “voluntary system” of religion and thereby removing the formal connection between state and church was to take no less a “definite” line on the relationship between religion and politics than maintaining a state church (Stephen Reference Stephen1873c; also Reference Stephen1867a). Moreover, and typically for him, this lesson was graphically illustrated by the imperial regime in India, where he believed that, despite trying to avoid “proselytism” and to limit “direct interference” with native customs, the British could not but effect “essentially and substantially a displacement of Hindu in favour of European morality” (Stephen Reference Stephen and Hunter1875, 195). The central upshot of his radical pluralism, he believed, was that a state impartial between conceptions of the good was impossible; what marked the liberal state, from this point of view, was not that it governed in a neutral manner but that, rather than imposing unity of belief, it endeavored to contain contestation within a pacific public sphere.

Now, this recognition of non-neutrality did not mean that states should not cultivate consensus when they could or preserve it when it came about. Indeed, societies could not survive if centrifugal forces were not counterbalanced with centripetal ones; and there was no skirting the fact that fundamental goods like enforcing the law required broad public buy-in (Stephen Reference Stephen2017, 98–104).Footnote ¹⁵ Yet such overlapping consensuses did not disprove the basic pluralistic worldview, and they all had something more or less frail about them. Social cohesion was an achievement of statesmanship, not a gift of nature. Stephen’s sense of both the importance and fragility of cohesion amidst pluralism made him especially appreciative of institutions that had a capacity for what we might call expansive commonality. To give one salient example: he was a strong supporter of the Anglican establishment against those who preferred to sever church from state and follow the American model. Stephen’s support, however, was conditional upon the Church of England embracing the full spectrum of Christian opinion within it and permitting free discussion among its clergy (Reference Stephen1866d). Without this degree of inclusion and “liberalism,” the Church would be not a “national” but a “sectarian” institution, and it would forfeit its claims to public subsidies and privileges (Stephen Reference Stephen1864d).

Finally, it is worth noting that for Stephen the antagonism in society also reached, so to speak, inside the human being. Stephen’s picture of the core ethical difficulty confronting modern individuals was to pull off a kind of tightrope walk: (a) to maintain the courage of one’s convictions while (b) recognizing the plurality of “objects the attainment of which is desirable for men” and the impossibility of “certainty” on the great questions (Stephen Reference Stephen1864c). It was imperative that we adhere to our beliefs rather than sliding into a tepid indifference, but also to accept that those beliefs rested only on “probability” (Stephen Reference Stephen2017, 118; also Reference Stephen1868a). “Complete harmony is probably unattainable even by individuals”; “we are forced to live,” he wrote in Evangelical tone that remained with him even after drifting from his faith, in “a dark night” of “uncertainty and ignorance,” and our “trial” was to make a “frank admission” of the limits of available evidence and yet still live according to our convictions (Stephen Reference Stephen1873a, Reference Stephen1874b). Inescapable conflicts played out not just between us but within us.

Conclusion: Stephen and the Challenges of Modern Liberalism

Stephen, we can now see, articulated visions of both a radically pluralistic and an unapologetically technocratic political order. Strikingly, though, the twain never really met in his oeuvre. Beyond his professional métier of law, Stephen was a controversialist rather than a systematizer, and his technocratic elitism or conflictual pluralism were brandished as needed against perceived threats to “true liberalism” as they arose. As to how exactly the two coalesce, he does little more than gesture.

Given this dualism, it is natural that Stephen should have been interpreted in ways congruent with each side of his thought. First, he has been taken to typify a high-water mark of antidemocratic elitism (Anonymous 1873; Cocks Reference Cocks2004, 85; Wright Reference Wright2014, 61). He is thought not just to have been unimpressed with the extension of the suffrage but also to have championed a far-reaching marginalization and depoliticization of the masses. Where the aspiration of many mid-nineteenth-century reformers was to reconcile “brains and numbers” (Kent Reference Kent1978), Stephen is supposed to have held that brains should be allowed to operate the levers of the state in the silence of the populace over which they ruled. Second, there has, if less robustly, been a line that, taking up Stephen’s pluralism, read him in an agonistic manner. Oliver Wendell Holmes, the American Supreme Court Justice and legal thinker, was close to the Stephen brothers and was influenced by Fitzjames’s views of the ultimacy of conflict and coercion in politics; echoes of the English judge’s ideas about fundamental societal antagonisms can be heard in some of the Justice’s most celebrated opinions.Footnote ¹⁶ The pragmatist philosopher William James concluded his famous attack on the claims of “science” to dictate beliefs of social and religious import with a stirring quotation from Fitzjames about the moral disposition fit for navigating an age of ineradicable uncertainty (James Reference James1898, 31).Footnote ¹⁷ The pragmatists who remade American philosophy and social science at the turn of the twentieth century were steeped in the writings of Stephen and his circles, and they seem to have grasped Stephen in a proto or quasi-existentialist manner (Menand Reference Menand2002). This existentialist ring causes Stephen’s writing to resemble later intellectual currents more than his fellow mid-Victorians’. For instance, Weber’s famous dictum of political existentialism—that it was a “fundamental fact … that as long as life is left to itself and is understood in its own terms, it knows only that the conflict between gods is never-ending. Or, in nonfigurative language, life is about the incompatibility of ultimate possible attitudes and hence the inability ever to resolve the conflicts between them”—could be slotted seamlessly into the Stephen corpus (Weber Reference Weber, Owen and Strong2004, 27).Footnote ¹⁸

What is of note with regard to these interpretations is that, if either of them had captured the whole truth about Stephen—if it were the case that Stephen had only written apologias for the coercive rule of experts or only waxed poetic about the endless conflict between values—then he could never have been considered a liberal. If he had solely espoused the first set of views we analyzed, his outlook would have qualified as a kind of authoritarianism of scientists and experts; if solely the second, he would have offered a nineteenth-century preview of those forms of antifoundationalist agonism that set themselves against liberalism today. Stephen, by never giving himself wholly over to one impulse or the other, remained a liberal, but by giving powerful expression both to his technocratic and his pluralistic convictions without reconciling them, he shows us where the limits of liberalism lie.

For one way of thinking about liberalism, an investigation of Stephen prompts us to see, is that it is a family of theories that attempt to do justice to both the imperatives of technocracy and pluralism, and hence a fundamental task of a liberal theory is, however implicitly, to demonstrate how the two can be balanced, reconciled, or arranged in a mutually supportive manner. Much of the credibility of a given liberal theory lies in how convincingly it portrays the coexistence of the two, and much of the distinctive character of a specific theorization will derive from the respective weight it gives to these two elements.Footnote ¹⁹ A burden of liberal theories is to show how both conflict/contestation and expert-led, “objective” governance are vindicated, but also tempered by one another. Liberals, we might say, paint within the lines that Stephen drew.

To see this, let us look at two other prominent Victorian liberals who can be grasped as seeking to harmonize the claims of technocracy and pluralism. A first useful point of comparison is Albert Venn Dicey. As mentioned earlier, Dicey, the leading constitutionalist of his era, was Stephen’s cousin. He was also, like Stephen, both a proponent of systematic legal reform and a self-conscious adherent to an older, “truer” liberalism against socialistic and nationalist trends (above all, the movement for Irish Home Rule) which discomfited him later in the century. Dicey himself undertook to outline a system that could balance technocratic competence with the preservation of mass political contestation. Interestingly, for Dicey the lynchpin of this system was the referendum; he is, although this has seldom been recognized, the first major Anglophone thinker to have placed the referendum at the heart of his political theory (Weill Reference Weill2003). The lynchpin of Dicey’s vision of political reform was the implementation of the referendum for bills that touched “fundamental” or “constitutional” matters after they had received the assent of parliament but before they could become law. Dicey expected a great array of benefits from this proposal, but a central one was that it would grant both contestation and expert administration their due. Instantiating the referendum was meant to guarantee, on the one hand, that an unrepresentative elite could never alter the central pillars of British politics except with ratification from the whole electorate after the open airing of views from all segments of the public. On the other hand, he believed that, secure in the knowledge that the entire electorate would have a chance to weigh in on constitutional reforms, citizens would be willing to leave administrative matters in the hands of competent statesmen without reference to ideological or partisan allegiance; in other words, the normal demands of governance could be conducted in a properly “businesslike” manner if, and only if, conflict between the contending interests and ideas of the demos and majority ratification were assured on matters that went to the core of political life and national identity (Dicey Reference Dicey1890a; Reference Dicey1890b). Stephen died too soon to engage with his cousin’s key writings on this subject; but it is unlikely that he would have been satisfied by Dicey’s advocacy of the referendum. Wearing his technocratic hat, it would have seemed insufficiently elitist; wearing his pluralistic hat, it would have appeared to give too short shrift to the depth to which deep value commitments were implicated even by policies that did not rise to the level of “fundamental.”

J. S. Mill affords a second apt comparison. It has been recognized that Mill attempted to strike a balance, if not exactly between technocracy and pluralism, then between competence/intelligence and participation/inclusion (Miller Reference Miller2003; Thompson Reference Thompson1976). Some aspects of Mill’s theory of government prefigure a Weberian division between rationalistic administration by experts and a political arena of contestability (Mill Reference Mill1963–91, XIX, chaps. 5–6, 14–15). Yet in the end, Mill’s sensibility on these questions was closer to his younger compatriot’s than the later German’s.Footnote ²⁰ More than Stephen, Mill sought to theorize concretely a system that would satisfy as far as possible his twin desiderata and strike a compromise between them when they collided. For Mill too, however, the frontier between the two domains was difficult to delineate. To take only one example: the House of Commons was to be made both a place of greater enlightenment, expertise, and intellectual probity (through weighting the votes of the educated) and more inclusive of diverse perspectives and interest (through the single-transferable vote) (Conti Reference Conti2021a). The reconciliation of these two hinged on the expectation that the “minority” of MPs who could divine “reason, justice, and the good of the whole,” having heard all of the “sectional” appeals to the “interests” that “divided” the different factions in the assembly, would “turn the scale” in favor of the correct policies (Mill Reference Mill1963–1991, XIX, 447). In our age of tight party discipline, Mill’s thesis is unlikely to appear the final word.

While Mill was more fecund in suggestions for institutional reform, his theory had something of the same indistinct shape as Stephen’s. Nonetheless, in Stephen’s work the dilemmas posed by liberalism’s service to these two masters appear less tractable. Mill was never as elitist and exclusivist in developing the technocratic strain of his ideas; his apprehension that even a well-trained, efficacious bureaucracy was sure to degenerate into “pedantocracy,” as well as his Tocquevillian dread of administrative centralization, kept him from propounding sentiments such as Stephen’s (Mill Reference Mill1963–91, XVIII, 308; XIX, 439–40). But, for all of his laudations of “Antagonism” (1963–91, XIX, 458), he was also not as radically value-pluralistic as Stephen. Perhaps more striking, while Mill shares some important premises with trends in contemporary left-liberal theory such as “standpoint epistemology” or the “politics of presence,” he did not perceive the depth of the challenge that such movements could present to his notion of enlightened governance. For he explained the urgency of bringing hitherto marginalized groups like “the working classes” into the parliamentary fold fundamentally as a matter of guaranteeing that relevant data, testimony, and reasons were not overlooked (Mill Reference Mill1963–91, XIX, 405). The verdict on the weight to place on this information and on the appropriate courses of action to follow was to be rendered by an “élite” which the country recognized as such and whose standing it did not find “invidious” (Mill Reference Mill1963–91, XIX, 456, 474). This vision sounds almost quaint in our era of intense polarization, cultural fragmentation, calls for “identitarian deference,” and radical critiques (running the gamut from populist to postmodern) of social-scientific claims to objectivity. To the difficulties that come with diversity and societal disharmony in the twenty-first century, Stephen’s thought is more attuned than that of the “patron saint of liberalism.”

Figures such as Dicey and Mill attempted to reconcile commitments that Stephen left distinct. In one sense they can clearly be said to have had more “success” as liberal theorists than did Stephen. But revisiting them with Stephen in mind can help us to observe just how much friction there is between these sets of values. The vehemence with which he expressed both pluralistic and technocratic convictions helps point us to the boundaries of liberalism, to the space within which it operates, for whatever else a theory that lacks one or the other of these elements might be, it would struggle to qualify as liberal. Likewise, Stephen’s indifference to harmonizing them keeps us alert, in a way that reading more constructive liberal philosophers does not, to the fact that there is no permanent resolution to the conflict between these ideals. After all, despite their aspirations to coherence and system, neither Dicey nor Mill in fact described the liberal political orders in which we now live, and no liberal democracy looks likely to fall into one of their templates in the coming years. In a modern liberal society, it seems, we can no more deny the force of either ideal than we can follow either one taken alone to its extreme. Hence there is a certain instability built into the heart of liberal theories and liberal states. The resistance to systematization that keeps Stephen from the top flight as a normative theorist elevates him as a diagnostician of the “crises” into which liberalism appears destined periodically to relapse. Stephen points us to the lesson which we are perhaps now living: that the accord between the rationalistic-administrative and contestatory-pluralist imperatives of liberal legitimacy is always liable to fray, for each possesses a powerful logic of its own. The dualism at the center of Stephen’s thought qualifies, if anything does, among what Pierre Rosanvallon calls the “contestations and tensions always being reborn” in modern politics (Reference Rosanvallon2000, 405), and the fate of liberal regimes depends, as it always has depended, on the perception that they hold these discrete imperatives, and the norms and institutions following therefrom, in productive, rather than disintegrating, tension.