Anti-war demonstration in the USA, 1968: The neo-Marxist cultural revolution of the late 1960s and 1970s changed the public discourse and, in some ways, led to a closing of ranks between liberals and conservatives. (Image: Wikimedia Commons) The burden of proof rule says that it is not those who want to preserve what already exists but those who want to replace it with something new who must offer reasons for its justification. It is typically considered a “conservative” rule. In the 1970s, however, this rule, borrowed from legal terminology, was mainly used by liberals in Germany to justify their opposition to socialist as well as left-wing and social-liberal reform. Less zeitgeisty liberals saw in it that element of a conservatism that was fashionable at the time, and which could justify alliances against the left-wing progressive intellectual forces that dominated after 1968.
Conservatives are quite prepared to use the coercive apparatus of the state to enforce their own values regarding an ideal society. Liberals do not want this, even if they personally share some of these values.
In view of this fact, however, it seems questionable whether the burden of proof rule is suitable for characterizing conservatism in its essence, as Otfried Höffe recently suggested—from a thoroughly liberal perspective—with reference to Edmund Burke in the Neue Zürcher Zeitung. My counter-thesis is as follows: this claim hides the basic features of conservatism, thereby blurring the essential differences between it and liberalism.
F. A. Hayek: “Why I Am Not a Conservative”
Friedrich Hayek made this difference clear in a classic text. The great liberal concluded his first major socio-philosophical work The Constitution of Liberty from 1960 with a famous epilogue entitled “Why I am Not a Conservative.” Precisely because the work of the Austrian-English economist, social philosopher, and Nobel Prize winner, contains many overlaps with so-called value-conservative positions (especially in his later work), but especially because of his admiration for Edmund Burke, he was repeatedly categorized as a conservative. This was especially the case in the English-speaking world. But he defended himself against this.
According to Hayek, the “Old Whig” Edmund Burke represented a classic liberal position with his criticism of the French Revolution. Burke belonged to the party that defended “free growth and spontaneous evolution” against those who try to “impose upon the world a preconceived rational pattern.” In fact, this is also a conservative concern. However, Russell Kirk, who in his influential book The Conservative Mind (1953) elevated Burke to an icon of the conservatives, also saw the Irish-English politician as the pioneer of a liberalism that was primarily concerned with the preservation of freedom. Kirk stated that all important liberals were supporters of Burke
Moral Values Instead of Political Principles
This is precisely why Hayek felt it was important to make the difference between “liberal” and “conservative” clear. For Hayek, this difference lay in the fact that conservatives had moral convictions but no overriding political principles. Conservatives were quite prepared to use the coercive apparatus of the state to enforce their own values regarding an ideal society. Liberals do not want this, even if they personally share some of these values.
So, what the conservative lacks are “political principles” that “enable him to work with people whose moral values differ from his own for a political order in which both can obey their convictions. It is the recognition of such principles that permits the coexistence of different sets of values that makes it possible to build a peaceful society with a minimum of force.” Because “for a liberal the importance he personally attaches to specific goals is no sufficient justification for forcing others to serve them.”
Typical of the conservative, however, is his “fondness for authority.” He distrusts “abstract theories” and “general principles,” as expressed in liberal principles, and is therefore also unable to understand “spontaneous forces on which a policy of freedom relies.” In reality, “true” conservatism has only ever been a “brake on the vehicle of progress.” Therefore, the conservative “simply represents a mild and moderate version of the prejudices of his time.”
Creative Freedom versus the State’s Pretense of Knowledge
Liberals, on the other hand, do not see themselves as obstructionists. Because they are guided by political principles of freedom, they are unyielding at the level of principles, but at the same time—precisely because of these principles—they have a great openness for unknown developments, for innovation and for the forces of progress as they develop from the interaction of people as political and economic actors in markets that are rule-based but unaffected by state intervention.
If we follow Hayek, then the liberal also advocates the superior reasonableness of what already exists, unless there are good reasons for changing it. However, this is not to protect—in a “structurally conservative” manner—the “traditional” and “existing” as presumably better, but because he is of the opinion that a state that intervenes in society as a social planner, as it were, eliminates the evolutionary and creative spontaneity of freedom and thus prevents true progress. This political constructivism is based on a “pretense of knowledge”: the presumption of political-state actors to be able to shape a still unknown and unpredictable future according to their plans and ideas.
Freedom Serves Progress
The burden of proof rule is thus also essentially part of liberalism. However, liberals do not agree with it out of conservative motives, but out of liberal motives. Conservatives want to apply the brakes because, in their view, they want to preserve tried and tested institutions and structures. For liberals—in Hayek’s sense— it is because the state prevents innovation that they want to prevent the state’s grip over what has evolved.
He also has a theory for this: the theory that institutions serving freedom and prosperity develop in a spontaneous, evolutionary process and are not the result of deliberate design, i.e. they are not the result of social planning and rational “construction.” For this reason, the conservative who only applies the brakes often comes across as pragmatic, whereas the liberal who is guided by political principles, especially in his opposition to state intervention in market forces, tends to be viewed as ideological or even dogmatic. This is because—in the interests of freedom—he does not allow his political principles to be shaken.
Understandably, the common opposition to some forms of dirigiste and tendentially collectivist political measures repeatedly leads to coalitions between conservatives and liberals. The decisive difference, however, concerns the motives of their opposition. And their corresponding invocation of the burden of proof rule will be based either on the conservative’s belief in the ultimate inescapable reasonableness of what exists or, in the case of the liberal, on the belief in the creative power of freedom. The latter, in fact, always creates unpredictable and unplannable novelty. Whichever way you look at it, the difference is profound.
This article first appeared in the Neue Zürcher Zeitung on 12.29.2023, p. 18 and online at nzz.ch. Translation from German by Thomas and Kira Howes.
