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Notes on Moral Virtue

Edmund Waldstein, O.Cist.

1 Virtue in general

1.1 Etymologies

Like so many words in English, “virtue” is derived from the Latin. This Latin derivation has the disadvantage of obscuring the original experience from which the concept signified is abstracted. Moreover, the cultural history of 19th century Britain has given “virtue” a sort of missish ring, whereas it and similar words in other languages originally had martial connotations. Unfortunately, there is no good Anglo-Saxon equivalent still in use. The closest would be “dought” or, in the more common adjective form, “doughty,” derived from Old English dohtig, which now has an almost comically archaic ring to it: “Yet many doughty warriours often tride / In greater perils to be stout and bold.”[1] Doughty now means “brave,” and that was probably its oldest meaning as well, but in the 11th century it was used in an extended sense to mean “competent” and “good” as well. Thus Bosworth-Toller cites the following line from a charter of Earl Godwin from sometime around the year 1016: Ðyssa þinga is gecnǽwe ǽlc dohtig man on Kænt and on Súþ-Sexan. (“Of these things is cognizant every good [doughty] man in Kent and Sussex”).[2] Dohtig is related to dyhtig (strong) and dugan (to be fit, able, strong). It is thus etymologically equivalent to the Modern German word for virtue Tugend from taugen (power, ability, efficiency).

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Integralism versus the Marxist and post-Marxist Left

By Vincent Clarke

In this essay, we will be asking whether there is anything of worth on the intellectual left. We will not be considering more pragmatic disciplines such as economics. Rather we will be focusing on philosophical and expressly political ideas. Some thinkers in the post-fusionist Catholic sphere have pointed to these ideas—typically formulated as some sort of Catholic Marxism—as being a way forward. Others—including the integralist movement—have rejected the worldview lying behind these ideas but have claimed that there are interesting components that can be refashioned.

So far, the discussion of these ideas has not considered that they emerged as a response to and ultimately as a replacement for the liberal ideas that arose during the Enlightenment. The original proponents attempted to incorporate the Romantic critiques that arose against liberal Enlightenment ideas in the 18th and early 19th century into the liberal Enlightenment project. By taking this perspective we hope to show that these left-wing ideas are ultimately the flipside of the liberal Enlightenment project that was formulated against classical and Catholic systems of thought. For that reason, they should, at best, be viewed coolly, at worst, with extreme suspicion.

For reasons of space we will stick closely to what appear to be the core ideas. This will allow us to give a full contextual and historical overview of the idea and how it relates to classical and pre-Enlightenment thought.

Alienation, or Marxian Metaphysics

Whether we argue that liberalism began to emerge with Hobbes or Locke or even Bacon, we can say that it was originally formulated as a mechanistic and dispassionate intervention in politics and culture. These ideas were, from the beginning, a response to the passions of religion as manifest in the Wars of Religion. The first generation of liberals were not antinomian revolutionaries so much as they were nervous administrators—social and political managers preaching tolerance in the hope of avoiding civil war.

But it soon became clear that Man was not made for management. The Romantic thinkers brought the question of passion and affirmative personal freedom back on the stage. Whether this was in the immature fantasies of Goethe’s young Werther or in the sophisticated political mythology of Rousseau’s Man-in-the-state-of-nature, the message was clear: notional freedom coupled with drab political management was not enough; Man was built for love, transgression, self-actualisation and the Enlightenment project must recognise that.

Accusations soon followed: It was thought that the liberal Enlightenment project, with its dull bourgeois rationalism, crushed Man in his project to be free. In throwing off the shackles of religion, the Romantics argued, post-Enlightenment Man had signed himself up to the slave ship of dreary rationality. Man, they claimed, was alienated by liberal bourgeois society.

‘Alienation’, or ‘Entfremdung’ in the original German, is an unusual term. At the time when the Romantics, especially Hegel, were discussing it, there were three general meanings. One was a legal meaning which denoted the selling of a man’s rights over his own property. Another was a social term meaning the estrangement of a man from his peers. The final medico-psychiatric meaning – connected to the previous usage—was the loss of a man’s capacity for reason and his falling into insanity (Geyer et al 1976, p5). Indeed, until the mid-twentieth century it was not uncommon for psychiatrists to be referred to, especially in France, as ‘alienists.’

The original Hegelian use of the term was most closely associated with the medico-psychiatric meaning. In his Phenomenology of Spirit, Hegel discusses “the Alienated Soul” or, in his terminology, “the Unhappy Consciousness” as “the consciousness of self as a divided nature, a doubled and merely contradictory being” (Hegel 1807, B. IV, (b))[1]). Hegel describes a consciousness that looks upon itself as an object – that judges itself and deems itself unworthy. In modern pop psychological language, Hegel seems to be discussing something like self-hatred. Hegel takes the alienated consciousness to task saying that this self-judgement rests on a contradiction: if the consciousness is judging itself, this is equivalent to a judge judging his own judgement. Infinite regress follows. This is overcome for Hegel when the alienated consciousness recognises itself as its own judge and in doing so overcomes the contradiction and becomes unified.

Note that Hegel does not project the alienation onto the external world. This, for him, would merely be a cop-out—a manifestation of blaming the world for problems that the Spirit or psyche has not sufficiently overcome. Later on, Hegel will warn against this projection of the alienated consciousness outward:

The heartthrob for the welfare of mankind passes therefore into the rage of frantic self-conceit, into the fury of consciousness to preserve itself from destruction; and to do so by casting out of its life the perversion which it really is, and by straining to regard and to express that perversion as something else. The universal ordinance and law it, therefore, now speaks of as an utter distortion of the law of its heart and of its happiness, a perversion invented by fanatical priests, by riotous, revelling despots and their minions, who seek to indemnify themselves for their own degradation by degrading and oppressing in their turn—a distortion practised to the nameless misery of deluded mankind. (Hegel 1807, AA. V, B, (b)—my emphasis.)

Of course, some of Hegel’s followers decided to do just that. The most prominent was Ludwig Feuerbach who used Hegel’s dialectical apparatus—built to accommodate a fusion of post-Enlightenment rational deism and a defence of Christian morality—against religion. In his The Essence of Christianity, published in 1844, Feuerbach argued that religion was a product of alienation. Man thought that he was worshipping God, Feuerbach argued, but really this was just a projection of his own consciousness. Feuerbach could not be clearer:

The consciousness of God is the self-consciousness of man; the knowledge of God is the self-knowledge of man. Man’s notion of himself is his notion of God, just as his notion of God is his notion of himself—the two are identical. What is God to man, that is man’s own spirit, man’s own soul; what is man’s spirit, soul, and heart—that is his God. God is the manifestation of man’s inner nature, his expressed self; religion is the solemn unveiling of man’s hidden treasures, the avowal of his innermost thoughts, the open confession of the secrets of his love. (Feuerbach 1844, I, §2.)

From here it was not long before Feuerbach and his followers were denouncing—just as Hegel warned they would—the “perversions invented by fanatical priests.” But that was not enough. The French Revolution, in its attempt to fuse liberal Enlightenment Reason and Romanticism, was content with directing its ire against the priests and the kings, but in 19th century Europe it was becoming clear that a new ruling class was ascendant: the bourgeoisie. So, it was inevitable—especially after the revolutions of 1848—that the notion of alienation would be pushed further than Feuerbach had attempted.

Feuerbach’s account was purely negative. It counselled that Man should throw off the shackles of religion and worship at the altar of himself. Perhaps that would require murdering a few priests, but it did not require upending the social order: it could not be used to justify the 1848 revolutionaries. Marx would soon make the point that Feuerbach’s thesis was ahistorical and it “does not see that the ‘religious sentiment’ is itself a social product, and that the abstract individual whom he analyses belongs to a particular form of society” (Marx 1845). Here the critique moves up the ladder, from the relation between the individual and the Church, to the relation between the individual and society as mediated by the Church.

Now a new avenue for social criticism is opened. We have swung all the way back from the medico-psychiatric meaning of ‘alienation’ to the social. Social alienation was, until now, largely seen as the product of a defective individual consciousness. But Marx would turn that around: it was not the alienated man who felt his alienation like a weight on his shoulders that was the problem; it was the society itself.

Marx conceived of alienation in bourgeois society as being tied up with the production process under capitalism. The key passage is as follows:

The worker becomes all the poorer the more wealth he produces, the more his production increases in power and size. The worker becomes an ever-cheaper commodity the more commodities he creates. The devaluation of the world of men is in direct proportion to the increasing value of the world of things. Labor produces not only commodities; it produces itself and the worker as a commodity— and this at the same rate at which it produces commodities in general. This fact expresses merely that the object which labor produces—labor’s product—confronts it as something alien, as a power independent of the producer. The product of labor is labor which has been embodied in an object, which has become material: it is the objectification of labor. Labor’s realization is its objectification. Under these economic conditions this realization of labor appears as loss of realization for the workers; objectification as loss of the object and bondage to it; appropriation as estrangement, as alienation. (Marx 1844, I, IV.)

The solution to this is obvious: to change the relations of production in such a way as to ensure that Man sees the objects of his production as objects of his production. We have come a long way from Hegel. Whatever one thinks of Hegel’s Panglossian post-Enlightenment liberal Protestantism, at least he was dealing with an issue that was straightforward: the psychological problem of self-alienation. Hegel was playing philosopher as psychologist and encouraging his readers to reflect on themselves until they occupied a place of coherence and mental comfort. It is not hard to see how Hegel expects the Alienated Soul to get from A to B.

With Feuerbach this becomes rather dubious. He seems to be suggesting that the problem is the priest. His solution would then be to throw off the shackles of religion. If the notion that less religion would lead to less personal alienation appeared dubious in the first half of the 19th century, today it appears absurd – the very opposite of the truth. One need not even cite statistical studies[2] showing much less alienation amongst the religious, but just reflect on the fact that modern sociology as it emerged in the work of Durkheim was premised on the idea that secularisation led to alienation or ‘anomie’[3]. Still, on his own terms we can at least take Feuerbach’s argument seriously: if it really is the priest that is the cause of personal alienation—presumably through the spreading of some nefarious morality—then it is clear how the removal of the priest will remove the source of alienation.

Few have commented on it, but from a common sense point-of-view Marx’s thesis seems very strange indeed. It seems to imply that self-alienation—effectively a psychological problem—will disappear if Man gets greater consciousness of the fact that the goods he is producing in a factory and then buys at the market are actually the goods he produced. How does this work exactly? Would the same effect be achieved if Man is sat down and made to watch hours of film about the production and distribution systems of a modern, decentralised economy? It is hard to see why the latter should not work in the Marxian frame of reference. Marx’s theory sounds impressive when pitched at a high theoretical level, but when closely examined it seems a little silly.

How does it relate to Catholic thought? Well, first it should now be clear that it arises out of a system that is totally at odds with Catholic thought. It starts with the well-meaning liberal Protestantism of a Hegel that encourages Man to overcome his alienation through rational self-reflection—not unlike contemporary psychotherapy—and then counsels a combination of post-Enlightenment deism and stripped down Christian morality as a principle on which to organise an effectively liberal society[4]. It then mutates into belligerent atheism with Feuerbach who is quick to blame the Church for psychological distress—a very common underbelly of post-Enlightenment rationalism. Finally, it turns into a critique of the production process in capitalism and religion is tossed aside as the ‘opium of the masses.’ At best, this final development is a form of naïve Pelagianism; at worst, it is the sort of ideology that led to everything from the Spanish Red Terror to the violent suppression of the Church in the Soviet Union. Lying within every Marxist is an angry Feuerbachian—and this especially so when the seizing of private property fails to ameliorate psychological distress.

In Catholic thought, alienation is simply a product of a disordered Will that is not sufficiently aligned with God and the natural law. “Our heart is restless,” St Augustine writes of his former alienation, “until it finds its rest in Thee.” Alienation is the product of Sin. Even abstracting from the deep theological components of this account, it lines up remarkably well with common sense. A person likely feels alienation because he is living poorly. He is devoting himself to various false gods and not recognising the truth of the real God. His desires are clamorous and disordered because he will not submit his Will to the natural law. Thus, for integralists and promoters of Catholic thought it is obvious how mass alienation should be overcome: by ordering our societies to the natural law. The better aligned societies are with the natural law, the less people will experience alienation, because by being ordered by the natural law, man is being ordered in accordance with his own nature. It is a simple, straightforward account and one that lines up remarkably well with the statistical studies that post-Durkheimian sociology would have us believe. It is also—last time this author checked—the official position of the Catholic Church.

Even if some Catholic Marxists accept this broad account, they might argue that a more streamlined version of Marx can be helpful in achieving precisely that. It is to this that we now turn.

Commodity Fetishism, or Marxian Anthropology

One line of defence of Marxist thought is to say that the concept of alienation was a product of the ‘young Marx’s’ thinking which was superseded in his later mature works—most notably Capital. The idea here is that Marx in his ‘Hegelian phase’—as a young man concerned with personal feelings of alienation—got caught up in questions that would later become irrelevant. On this account, Marx’s later work represents an ‘epistemic break’ from his earlier work; Marx moves from the vague realm of metaphysics into the precise world of science.

The most notable proponent of this argument was Louis Althusser. In his seminal 1965 collection of essays For Marx he writes:

[I]f we are prepared to stand back a little from Marx’s discovery so that we can see that he founded a new scientific discipline and that this emergence itself was analogous to all the great scientific discoveries of history, we must also agree that no great discovery has ever been made with out bringing to light a new object or a new domain, without a new horizon of meaning appearing, a new land in which the old images and myths have been abolished—but at the same time the inventor of this new world must of absolute necessity have prepared his intelligence in the old forms themselves, he must have learnt and practised them, and by criticizing them formed a taste for and learnt the art of manipulating abstract forms in general, without which familiarity he could never have conceived new ones with which to think the new object. (Althusser 1965, p85.)

Althusser dismisses the young Marx as naïve man caught in the trappings of outmoded philosophical idealism—and contrasts him with the mature Marx the scientist and objective theory of History and Communism. If we accept this interpretation, the theory of alienation slips into the background—an embarrassing product of an immature and underdeveloped mind.

Despite the fact that Althusser dismisses the idea of ‘commodity fetishism’ as a product of the pre-scientific Marx and replaces it with his own theory of ideological apparatuses (Althusser 1970), some claim that the notion of commodity fetishism is a viable anthropological theory that can be deployed by Catholics in defence of the natural law. This is supported by the fact that, although the notion of alienation is dropped in his mature work, Marx nevertheless discusses commodity fetishism. In his Capital he explains it as such:

As against this, the commodity-form, and the value-relation of the products of labour within which it appears, have absolutely no connection with the physical nature of the commodity and the material relations arising out of this. It is nothing but the definite social relation between men themselves which assumes here, for them, the fantastic form of a relation between things. In order, therefore, to find an analogy we must take flight into the misty realm of religion. There the products of the human brain appear as autonomous figures endowed with a life of their own, which enter into relations both with each other and with the human race. So it is in the world of commodities with the products of men’s hands. I call this the fetishism which attaches itself to the products of labour as soon as they are produced as commodities, and is therefore inseparable from the production of commodities (Marx 1870, p165).

Here we see more echoes of Feuerbach. But only by analogy. Marx is no longer discussing the psychological or metaphysical phenomenon of alienation. Instead he is highlighting the fact that the highly abstract social relations that capitalism gives rise to lead to a mystification of the production process and hence of the nature of society. In turn, this gives rise to an ideology, a false consciousness, that tricks Man in capitalist society to think that his lot is a natural one and not the product of political forces that can be altered. This is not metaphysics, but anthropology.

But is it good anthropology? Again, Marx’s theory sounds good from a high theoretical level but when we start to think it through it becomes a little muddy. And again, the questions that we raised about alienation rise to the surface, albeit in different form. If Man is told clearly the actual relations of production, will he instantly recognise them as unjust and rebel against the system? Certainly, if Marxists are told what Marx thinks to be the relations of production they will come to this conclusion—there is plenty of historical evidence in favour of that proposition—but it does not follow that everyone comes to this same conclusion. Many have studied Marx’s work and concluded that the capitalist relations of production are, if not ideal, at least a best approximation of how to organise a functional society. Others have concluded that these relations are deeply flawed, but that this does not mean the whole system need be overthrown – rather they should be ameliorated by the State. The point is that, even with Marx’s critique laid out, it is not obvious that one accepts it as true as one might a mathematical demonstration. It has, embedded within it, more than a few value judgements – not just on the utility of capitalism but also on the prudence of revolutionary social change.

From this perspective, Marx’s notion of commodity fetishism is not neutral anthropology. Rather it is a statement that we are only likely to accept if we accept Marx’s broader vision—that is—if we ourselves are socialists or communists. It is also slightly dubious. Take the former Soviet Union as an example—whether the Soviet system was a true socialist economy or not, it was certainly not capitalist. Relations of production in the Soviet Union were extremely opaque— ‘plans’ were handed down by the Gosplan without much explanation. Most people, it would be fair to say, experienced the arbitrariness of Actually Existing Socialism as utterly mystifying—especially when a triple order of toilet paper arrived but no soup. Does it therefore follow that the centrally planned economic system, in the manner it produced and distributed commodities, provided ideological cover for the system? This seems unlikely. In fact, it was the opaqueness and dysfunction of the system that led citizens to look across the West jealously at the societies of abundance. If anything, the opaqueness and dysfunction generated cynicism and opposition to the system.

Yet, if Marx’s account is right, why does commodity fetishism ‘work’ in the relatively functional capitalist economies, but not in the dysfunctional centrally planned economies? After all, the same mechanism of opaqueness of production relations exists in both. Yet they generate different responses. Under capitalism, most of the time, most people accept the system as relatively natural. Yet under Really Existing Socialism people had a lingering sense that the system was dysfunctional and performed poorly in comparison with the Western capitalist systems. The more we think about it the stranger and less convincing Marx’s account is, even on its own terms. Again, it sounds good when stated theoretically—but when applied it becomes vague and strange.

What about its relation to Catholic thought? Certainly, Catholic thought is sympathetic to the idea that people should have more immediate control over their lives, including in their economic relations. It states this in its principal of subsidiarity. But it certainly does not call for the overthrow of markets or capitalism. Rather its response to this problem has been one of corporatism; of the organisation of society into empowered corporate entities that gain some modicum of control over blind market forces.

As with Catholic thought’s description of alienation as arising from Sin, this comes across as much more in line with common sense. It is not hard to see how the Catholic policymaker gets from A to B. Without the ‘corporations,’ the capitalist system is bewildering and punitive. But after they are introduced it is tamed to the needs of the community. This is much more specific than Marx’s vague notion that an imprecisely defined ‘communism’ will overcome the opaqueness of the system—and it makes no grandiose claims that the opaqueness of the system is fooling people into not joining the Church and becoming virtuous. Indeed, the idea that people are not joining the Church because of the opacity of economic relations comes across as so ridiculous as to be funny— but it is functionally equivalent to what Marxists are claiming when they claim that the only reason that the masses do not join the Marxist revolution is due to the opacity of economic relations.

Finally, we will turn to the post-Marxist left. Although no Catholic thinkers are counselling that we embrace the postmodern theories of desire and identity, there may be something interesting there that some have missed.

Desire and Pleasure, or Post-Marxist Politics

Defining the post-Marxist left is not altogether easy. It encompasses everything from identity politics to the sexual revolution. It encompasses thinkers as broad as Jacques Derrida, Roland Barthes, and Jacques Lacan. In what follows we will stick with two key thinkers, Michel Foucault and Giles Deleuze, as these best articulated the goals and methods of their politics. This is not to dismiss other thinkers. Lacanian neo-Marxists, for example, have drawn on Lacan’s theory of alienation as being superior to Hegel’s and integrated it into a post-Althusserian Marxism that reintegrates something resembling metaphysical critiques[5]. These are interesting, albeit flawed, from a Catholic perspective for the same reason that Marx’s original alienation theory is flawed. But Foucault and Deleuze articulate the politics that we see on the left today in the most concise manner.

Foucault and Deleuze, in their respective ways, shift the focus away from the production process as such and onto what they think to be a repressive society that suppresses the best tendencies—the true desires—of the individual. We are back, therefore, to the pre-Hegelian Romantics. It does not take long for them to find behind the curtain the oppressive figure of the priest. We are back, once more, to Feuerbach.

Foucault and Deleuze view society as a collection of institutions that repress individuals and force them to conform. Foucault is more inclined to examine institutions that are overtly punitive—the school, the hospital, the prison; while Deleuze is more inclined to examine institutions that shape the culture—most notably, psychotherapeutic intervention. But both recognise that the real repressive tool is morality. They argue that morality did not disappear after the Enlightenment destroyed religion but, rather, snuck in through the backdoor into social science and psychology and deployed via social and political institutions.

Foucault is quite explicit about this return to morality and ethics in his review of Deleuze’s book Anti-Oedipus, co-authored with Felix Guattari:

I would say that Anti-Oedipus (may its authors forgive me) is a book of ethics, the first book of ethics to be written in France in quite a long time (perhaps that explains why its success was not limited to a particular ‘readership’: being anti-oedipal has become a life style, a way of thinking and living) (Deleuze & Guattari 1972, pxiii).  

Here we get the gist of the whole project. The revolution is not so much about changing society as of changing oneself. True, the institutions that are not allowing oneself to self-actualise must be destroyed —and in that sense society must be changed—but the focus is on oneself, on lifestyle. Post-Marxist leftism is a lifestyle leftism. In this it is much closer to religion than the old Marxist framework. This is because it is much more about cultivating a sort of anti-morality; a rejection of all moralities and the following of the raw, unstructured instinct.

It is not surprising then that these thinkers eventually find at the root of the contemporary pseudo-scientific morality the Christian – and indeed, Catholic – morality of old. They set their work up as an opposition to this. Foucault jokes about this in his introduction: “Paying a modest tribute to Saint Francis de Sales, one might say that Anti-Oedipus is an Introduction to the Non-Fascist Life (ibid).” In his later work Foucault became obsessed with the old Jesuitical ethical manuals, especially those that dealt with the confessional—which he saw as a prototype of psychiatric and psychotherapeutic repression. He also found this type of subjectivity—which he defines as the problem that creates alienated social beings—to have been invented by St Augustine (Harcourt 2019).

Foucault and Deleuze are, in more ways than one, completely correct. They are not so much a repudiation of the Catholic tradition as an attempt to turn it on its head. For that reason, they are much closer to the Catholic thought tradition than is Marx. They understand that the key question is a moral one—to what extent society is organised in line with the natural law. But for them, the natural law is oppressive and the source of misery, whereas for Catholics it is liberationist and the source of contentment. Where St Augustine tells of his decadent lifestyle, the misery it brought him, and his finding of peace in God, Foucault and Deleuze tell us that peace in God is an illusion and that St Augustine would be much better off pursuing his carnal desires.

How they come to this conclusion is mystifying. Neither seemed like a happy man. Foucault died from AIDs and Deleuze from suicide. For all the talk of self-actualisation in their work, it seems that the lady doth protest too much and the writing is really flowing from a deep unhappiness and personal alienation. One suspects that their politics does not really have the goal of flourishing but instead of self-destruction. They are the theorists of decadence and death because they are decadent and death-oriented. Since no one succeeded in talking them out of this, they tried to convince others to follow them—and called on the destruction of Western Christian society. The story of the post-Marxist left is the story of the snake in the garden.

Yet for all that, integralists have much to learn from these thinkers. Since they are dealing with the same problem as integralists—namely, the moral regulation of the Good Society—their tactics and critiques only need to be flipped over to be useful. Where they implore transgression, integralists simply implore moral restraint and regulation. Where they implore the pursuit of instinctual satisfaction, integralists warn of the dangers of such libertinism and catalogue its effects. Where they call for post-1968 libertarian ‘liberation’, integralists point out that the only true freedom is freedom from one’s whims and desires. The key project for integralists when it comes to leftist thought should not be trying to repurpose Marx’s dubious concepts, but rather turning the post-Marxist left on its head.

Bibliography

Althusser, L. (1965). For Marx. Allen Lane.

Althusser, L. ‘Ideology and Ideological State Apparatuses’ in Lenin and Philosophy and Other Essays. Monthly Review Press.

Badious, A. (1982). Theory of the Subject. Continuum.

Chen, Y. & VanderWeele, T. (2018). ‘Associations of Religious Upbringing With Subsequent Health and Well-Being From Adolescence to Young Adulthood: An Outcome-Wide Analysis.’ American Journal of Epidemiology, Volume 187, Issue 11, November 2018, Pages 2355–2364.

Clarke, V. (2019). ‘Jordan Peterson: Shepard of the Easily Freudened.’ American Affairs Journal.

Deleuze, G. & Guatarri, F. (1972). Anti-Oedipus: Capitalism and Schizophrenia. University of Minnesota Press.

Durkheim, E. (1897). Suicide: A Sociological Study. Snowball Publishing.

Feuerbach, L. (1844). The Essence of Christianity. Marxists.org.

Geyer, R. F. (1976). Theories of Alienation: Critical Perspectives In Philosophy And The Social Sciences. Springer Books.

Harcourt, B. E. (2019). ‘Foucault’s Keystone: Confessions of the Flesh. How the Fourth and Final Volume of The History of Sexuality Completes Foucault’s Critique of Modern Western Societies.’ Columbia Public Law Research Papers. No. 14-647.

Hegel, G. W. F. (1807). The Phenomenology of Mind. Marxists.org.

Marx, K. (1844). Economic and Philosophical Manuscripts. Marxists.org.

Marx, K. (1845). Theses on Feuerbach. Marxists.org.

Marx, K. (1870). Capital Volume I. Penguin Press.

[1] Interestingly, this important sentence, taken from JB Baillie’s 1910 edition of the Phenomenology, is left out of the popular 1977 AV Miller translation. Yet in his introduction Miller discusses Hegel’s concept of alienation nine times. A strange discrepancy, as he obviously finds the category very important to Hegel’s thought.

[2]See, for example: (Chen & VanderWeele 2018).

[3]See: (Durkheim 1897).

[4] The Hegelian prescription bubbles up constantly in our society. Recently it has found expression in the popular figure of Jordan Peterson. See, Clarke (2019).

[5] In brief, this neo-Marxism posits that alienation is overcome simply by taking part in the revolution. See: (Badiou 1982). A cruel critic would say that the neo-Marxists have moved from Hegelian psychotherapeutic intervention to post-Lacanian group therapeutic intervention—and such a cruel critic would see those criticisms confirmed if they ever went to the embarrassing self-help spectacle that is a post-1968 radical leftist meeting.

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Leo XIII: Reputantibus saepe

In April 1897 Count Kasimir Felix Badeni, Prime Minister of Cisleithania (the part of Austria-Hungary represented in the Vienna Reichsrat) published an ordinance requiring civil servants in Bohemia to use Czech as well as German in official business. The measure was meant to appease Czech nationalists, but it caused outrage among German civil servants—especially in predominantly German speaking parts of Bohemia. The controversy caused the fall of Badeni’s ministry in November of the same year, and continued through the short ministries of Gautsch, Thun and Clary-Aldringen which followed in quick succession. Pope Leo XIII was concerned by the conflict, and in 1901 sent the following encyclical to Bishop Theodor Kohn of Olomouc (Olmütz ). He does not deny the natural inclination to speak the tongue of one’s own nation (gens), but emphasizes that national rights have to be subordinated to the common good of the whole polity (res publica). Finally, the supernatural brotherhood of all in Christ should overcome all partisan feeling. Though written for a particular occasion, Pope Leo’s teaching has a wide application.

The English translation is taken from the Vatican website, corrected with a view to the Latin original.

REPUTANTIBUS SAEPE

ENCYCLICAL OF POPE LEO XIII
ON THE LANGUAGE QUESTION IN BOHEMIA

To Our Venerable Brothers Theodore, Archbishop of Olomouc,
and the Archbishops and Bishops of Bohemia and Moravia.

As We reflect often on the condition of your churches, it seems to Us that at this moment nearly everywhere everything is full of fear, full of concern. However, this situation is more serious in your case because, while the Catholic cause is exposed to the hatred and cunning of external enemies, domestic issues also divide it. For while heretics both openly and covertly endeavor to spread error among the faithful, seeds of discord grow daily among Catholics themselves – the surest means to hinder strength and break down constancy.

2. Surely the strongest grounds for dissension, especially in Bohemia, are to be found in the languages which each person, according to his origin, employs. For it is implanted by nature that everyone wishes to preserve the language inherited from his ancestors.

3. To be sure, We have decided to refrain from settling this controversy. Indeed one cannot find fault with the preservation of one’s ancestral tongue, if it is kept within defined limits. However, what is valid for other private rights, must be held to apply here also: namely, that the common utility of the polity [communis rei publicae utilitas] must not suffer from their preservation. It is, therefore, the task of those who are in charge of the state to preserve intact the rights of individuals, in such a way that the common good of the polity [commune tamen civitatis bonum] be secured and allowed to flourish.

4. As far as We are concerned, Our duty admonishes Us to take constant care that religion, which is the chief good of souls and the source of all other goods, not be endangered by controversies of this nature.

5. Therefore we earnestly exhort your faithful, although of various regions and tongues, to preserve that far more excellent kinship which is born from the communion of faith and common sacraments. For whoever are baptized in Christ, have one Lord and one faith; they are one body and one spirit, insofar as they are called to one hope. It would be truly disgraceful that those who are bound together by so many holy ties and are seeking the same city in heaven should be torn apart by earthly reasons, rivaling with one another, as the Apostle says, and hating one another. Therefore, that kinship of souls which comes from Christ must constantly be inculcated in the faithful and all partiality must be eradicated. “For greater indeed is the paternity of Christ than that of blood: for the fraternity of blood touches the likeness only of the body; the fraternity of Christ, however, conveys unanimity of heart and spirit, as is written: One was the heart and one the spirit of the multitude of believers.”(1)

6. In this matter the holy clergy should surpass in example all others. Indeed, it is at variance with their office to mingle in such dissensions. If they should reside in places inhabited by people of different races or languages, unless they abstain from any appearance of contention, they may easily incur hatred and dislike from both sides. Nothing could be more detrimental to the exercise of their sacred function than this. The faithful, to be sure, should recognize in fact and practice that the ministers of the Church are concerned only with the eternal affairs of souls and do not seek what is theirs, but only what is Christ’s.

7. If, then, it is well known to all alike that the disciples of Christ are recognized by the love that they have for one another, the holy clergy must observe this same love mutually among themselves far more. For not only are they thought, and deservedly so, to have drunk much more deeply from the charity of Christ, but also because each one of them, in addressing the faithful, ought to be able to use the words of the Apostle, “Be imitators of me, as I am of Christ.”(2)

8. We can easily admit that this is very difficult in practice, unless the elements of discord are erased from their souls at an early time when they, who aspire to the clerical state, are formed in our seminaries. Therefore, you must diligently see to it that the students in seminaries early learn to love one another in a fraternal love and from a genuine heart, as those born not from a corruptible seed but an incorruptible one through the word of the living God.(3) Should arguments break out, restrain them strongly and do not allow them to persist in any way; thus those who are destined for the clergy, if they cannot be of one language because of different places of origin, still may certainly be of one heart and one spirit.

9. From this union of wills, indeed, which must be conspicuous in the clerical order, as we have already intimated, this advantage among others will follow: that the ministers of the sacraments will more efficaciously warn the faithful not to exceed the limits in preserving and vindicating the rights proper to each race [gentis], or by excessive partisanship not to do violence to justice and overlook the common advantages of the polity [communes reipublicae utilitates]. For we think that this, according to the circumstances of your various regions, should be the principal task of priests, to exhort the faithful, in season and out, to love one another; they should warn them constantly that he is not worthy of the name of Christian who does not fulfill in spirit and action the new command given by Christ that we love one another as He has loved us.

10. Certainly, he does not fulfill it, who thinks that charity pertains only to those who are related in tongue or race. For if, as Christ says, you love those who love you, do not the publicans do so? and if you salute your brothers only, do not the pagans do so?(4) For to be sure a characteristic of Christian charity is that it extends equally to all; for, as the Apostle warns, there is no distinction between Jew and Greek, for there is the same Lord of all, rich to all who invoke him.(5)

11. May God, who is Love, kindly grant that all be united in their thoughts and in their convictions, thinking the same and having no contention; grant that in humility they may think each other better than themselves, each not looking to his own interests, but to those of others.

12. May the Apostolic blessing, which we grant most lovingly in the Lord, to you, Venerable Brothers, and the faithful committed to each of you, be a token of this and also of Our benevolence.

Given in Rome at St. Peter’s, 20 August 1901, in the 24th year of Our Pontificate.

LEO XIII

REFERENCES:

1. St. Maximus, among the sermons of St. Augustine, 100.

2. Phil 3.17.

3. Pt 1.22 f.

4. Mt 5.46 f.

5. Rom 10.12.

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Taming the Woes of Leviathan: Direct Democracy and the Problem of Authority

by Michaël Bauwens, Ph.D

As is well known, Catholic social teaching is ambivalent on the question of what particular regime is best. At The Josias, we have considered the relationship of the Church to several types of regimes, including both monarchy and republican democracy, as well as the crumbling relationship between democracy and progressive liberalism. As Carl Schmitt observes in Catholicism and Political Form, “[The Church’s] elasticity is really astounding; it unites with opposing movements and groups. Thousands of times it has been accused of making common cause with various governments and parties in different countries…” (p.4) Accordingly, The Josias is happy to host a wide variety of opinions concerning the Church’s relations with modern democracy. We are therefore pleased to publish the following essay by Dr. Michaël Bauwens, on “direct democracy” and its relationship to liberal-utilitarian individualism on the one hand and the Catholic Church on the other hand. Not all may agree with the direction or logic of Dr. Bauwens’ argument here, yet it is a worthy example of infiltrating the logic of anarchistic liberalism with that of integralism, by way of a “back door” or a “Trojan Horse.”

— Jonathan Culbreath

Abstract

The question of direct versus representative democracy is first of all cast within the wider question of what legitimate political authority is. Although that question has historically been closely tied to theological issues, political reality and political thought in modernity are strongly defined by an explicit rejection of any such links. Hence, understanding the modern problem of political authority requires taking this historical reality and its rejection into account. More specifically, the rejection of divine omnipotence has shifted that omnipotence to the modern secular state with all the ensuing problems of trying to tame it. Direct democracy is then arguably the final step in the gradual emergence of human autonomy, since representative democracy fails to really place authority in the people. However, that same argument of human freedom and equality can be used to defend the right of secession, otherwise even a direct democratic state would fail to live up to its ideals. This leads to the question of the justification of these individual rights in the first place, and a brief version of the argument from argumentation is presented, able to legitimate private property and self-defense. However, this argument opens up the possibility that someone claiming to be God would thereby acquire supreme political authority, though this need not have the fearsome implications that are usually associated with it. Finally, given that the main danger lies in the modern omnipotent state, both direct democracy and monarchical rule share the characteristic of locating authority in real and concrete human beings, and are commendable for that.

By way of introduction, why there are more things in heaven and earth than is dreamt of in modern politics

The question ‘Who decides?’ is, as such, a simple factual matter, to be decided by journalists or historians. But in a normative mode, the question who ought to decide, who has the right or the authority to decide, is one of the most hotly contested and often rather bloody disputes in all of human history. It is a tangled web of political, philosophical, moral, legal and even theological oppositions. Human freedom is one of the most remarkable and precious things on the face of the earth, distinguishing humans from anything discoverable either by microscopes or telescopes. Suppressing the freedom of one person by handing over the authority to decide to another person therefore requires a very solid justification, or should be rejected outright as a demeaning and dehumanizing practice. As Hans Kelsen forcefully asked: “He is a human being just like me, we are equal! Whence his right to dominate me?”[1] 

A quick, seemingly pragmatic solution might be to argue that whatever the most efficient or cost-effective procedure, system or person to decide would be, should be chosen to make the decisions. The choice between direct democracy and representative democracy would then be akin to the choice between paper-based voting or electronic voting. But much more seems to be at stake. For the problem with that argument is that cost-effectiveness can only be measured given a definite goal to be obtained. Human freedom however, and the political problem that is implied by it, precisely centers on the question what the goals are or should be. Human freedom and politics is not about what the costs and benefits are of building a school or a hospital with brick rather than concrete walls, but about whether we value health care more than education or vice versa. The very question what the costs and benefits of something are can only be answered given a set of values, and those values are precisely what is at stake when political decisions are being made – including the decision who ought to decide, and how.

Quick legal answers merely reflect the fleeting political consensus of the moment or the century. Pragmatic solutions by ‘practical men’ likewise more often unconsciously than not rest on received opinions of the past: “Practical men, who believe themselves to be quite exempt from any intellectual influence, are usually the slaves of some defunct [philosopher]”.[2] If that implicit political or philosophical consensus starts to break, there arises the need for a critical, philosophical engagement with the ultimate principles behind the structures of authority. If no universally acceptable principles can be found upon which to ground an answer to that question, no distinction can be made between the factual question who decides and the normative question who has the authority to decide. In that case, might simply makes right.

Such a principled philosophical investigation quickly encounters theological questions, even merely by noting the explicit and strong opposition to any links between political and theological questions that has marked the intellectual landscape in the West for the past handful of centuries. Prima facie at least, the question who has authority over something is closely tied to the question who is the author of something. So if there is indeed a God who created heaven and earth, all authority would belong to Him. Moreover, questions about what we find of ultimate value are closely tied to the notion of an omnibenevolent God who is goodness itself. Finally, questions about what are the ultimate rules of justice which ought to guide interhuman affairs are closely tied to the existence of a God as the final and perfectly wise judge, the highest court of appeal that everyone will sooner or later have to face.

Starting from the Constantinian era, there were indeed clear and strong ties as well as conflicts between Church and secular authorities in the West, with the Church claiming ultimate superiority over secular authorities – think of the Investiture struggle, or the Gelasian two-swords theory forcefully exemplified in the papal bull Unam Sanctam by Boniface VIII in 1302. The treaty of Westphalia in 1648 was a first clear break with that model and marked the emergence of the modern, sovereign, territorial state. The American and French revolutions of 1776 and 1789 further severed the tie between religious and secular authorities, and the First and Second Vatican Council of the Catholic Church seemingly completed that movement with Pastor Aeternus in 1870 and Dignitatis Humanae in 1965. Understanding the present day structures of Western (thinking about) politics has to take this explicit move away from Church-state relations into account, as it is one of its most characteristic features. Finally, to the extent that the modern state is one of the most successful European export products for organizing human life and political authority across the planet, it is crucial for understanding global political reality as such.

Moreover, the very structure of the question – who has the authority to decide? – and several of its key implications remains the same, whether or not the protagonist is God, the Church, or the modern state. The frontispiece of Hobbes’ Leviathan in 1651, one of the key texts of modern political thought, famously represents a commonwealth with the members composing the body of the king, who is himself both head and total body of the commonwealth. That book was moreover published during the reign of Louis XIV of France, the Sun King who allegedly declared ‘l’état, c’est moi’.[3] This was all well after the reign of Henry VIII who appointed himself, instead of the Pope in Rome, as the supreme head of what came to be known as the Anglican church. This is all too reminiscent of the classical ecclesiological picture of the Church and its members composing the body of Christ, who is Himself both head and total body of the Church – “And he is the head of the body, the church” (Colossians 1, 18), “ Now you are the body of Christ and individually members of it.” (1 Corinthians 12, 27), and other loci classici. Carl Schmitt is the standard 20th century author who argued that most of our central political concepts are immanentized theological and especially ecclesiological concepts. More recently, theologians like William Cavanaugh argued that what happened in modernity was not so much a separation of politics from religion, and of the state from the Church, but a sacralization of politics and a divinization of the state.[4] In brief, the question of political authority, and who gets to exercise it, is intimately bound up with theological issues, either in direct connection to it, or in opposition to it, or as a transformation of it.

Democracy and human authority

In line with this brief historical evolution of a gradual detachment of political authority from religious authority, one often sketches a gradual emergence of ever more democratic forms of government and political decision making. The waxing of democracy and the egalitarian ideal in politics seems to be historically matched with the waning of religious authority and hierarchical elements in politics. The less power to God or his divinely appointed kings, the more power to the people. Given the rightful importance attached to human freedom, this seems indeed like a gradual victory for freedom and human dignity as it liberates itself from heteronomy and oppression. Democracy then seems to be the logical twin of autonomy and freedom, since it embodies the ideal where nobody has authority over anyone else, and ‘we’ decide for ‘us’.

Within democracy, there is the further distinction between direct and representative democracy. Direct democracy often means semi-direct democracy, in that there are structural tools of direct democracy available to correct a system that is mostly working as a representative democracy, thereby overcoming many of the alleged practical impossibilities of direct democracy in large-scale modern states. Rousseau was a famous early critic of the representative democracy that he saw, for example, in the British system:

“The English people think they are free; they are gravely mistaken, for they are but free during the election of the members of Parliament; as soon as they are elected, they are in slavery, they are nothing. In the brief moments of its liberty, the use they make of it merits that they lose it.”[5]

Indeed, if you can only choose who decides, i.e. who has the authority to decide; but if it is never you who can really decide, is it really you who is in power? Jos Verhulst gives the example of a band of robbers who force you to hand over your wallet, but give you the freedom to choose to which of the robbers you want to give your wallet. When the one robber to whom you gave your wallet is subsequently caught by the police, he pleads innocent, claiming that you were not forced to give your wallet to him.[6] This argument is even stronger than Rousseau’s, since it implies that we are not even free on election day, as it is only a tragic witness of the fact that we are forced to give away our freedom and autonomy, without ever having the possibility of exercising it directly ourselves. Direct democracy seems like a good solution at that point, finally allowing people to decide for themselves. There is a one to one correspondence between the persons deciding and the persons undergoing the (effects of) the decision. With the advent of direct democracy, the aspirations of human freedom seems to have reached its culmination point.

Or has it? Robert Nozick borrowed a fascinating argument from Herbert Spencer, known as ‘the tale of the slave’.[7] Through a series of gradual steps, a slave owner relaxes his treatment of the slaves, ultimately giving all of his 10,000 slaves the right to vote on all possible issues related to their treatment. The question Nozick rhetorically asks is at which point in the story the slaves are no longer slaves, the pun being that even in modern democratic states – possibly even coupled with direct democratic tools – a problem remains as to whether it really is compatible with human freedom. Does having the power to cast a vote, together with 10,000 other slaves, in the policy of a slave-owning plantation, make you less of a slave? There are evident arguments that those policies will quite likely be better and more humane policies than in the case of a single slave owner making all the decisions, but why would being treated well make you less of a slave?

In brief, God has been replaced by the King, the King has been replaced by parliament, and parliament is often replaced by the power-games of political parties – and multi-party systems don’t necessarily fare better than bipartisan systems here.[8] But even when we couple representative democracy with decent tools of direct democracy like the ones exemplified in Switzerland, there is still a distance between the one deciding and the one being decided for. Hence, the primordial question who decides remains, for one feature of the 1648 crumbling of political Christendom was the principle of territoriality. Who decides who does and who does not belong to the ‘we’ in the famous ‘We, the People’? What if ‘I’ don’t want to belong to the ‘We’ who is now making autonomous decisions for ‘Us, the People’? The probably two most democratic countries of the 19th century, Switzerland and the USA, both experienced a civil war of secession in less than two decades – the Sonderbundskrieg in 1847 and the Civil War in 1861-1865 respectively. How much freedom is there ultimately, even in a (semi-)direct democracy, if one is not free to leave the political body?

Hence, the right of secession seems to be the logical and final element to really live up to the ideal of freedom that direct democracy aims for. Otherwise, the majoritarian logic of democracy couldn’t answer why a Swiss majority would not have authority over the minority of people in Liechtenstein, or a French majority would not have authority over the minority in Belgium. Territorial borders are the blind spot for a lot of arguments claiming that democracy, even direct democracy, can fully realize the ideal of political freedom. One can argue that the closer feedback loop in a direct democracy improves the quality of the decisions made, and direct democracy indeed allows for more precise steering of the policy of a country than the very indirect way of influencing policy by voting for candidates or political parties. Moreover, politicians are only in office for so many years, but citizens have to make decisions for their entire lifespans and those of their children, which again ensures a closer fit between the ones making and the ones undergoing the decision. These arguments might be valid, but they remain vulnerable to the tale of the slave.

Only individuals left, but still, whence the authority?

However, this line arguing itself rests on the idea of individual sovereignty, which it then takes to its logical political conclusion in the right of secession. But even if it is true that no human being has, by nature, authority over another human being, this does not necessarily imply the validity of that very principle of individual sovereignty. Even such a strictly individualistic principle of human freedom requires that people accept the legitimacy and authority of that principle over their lives and mutual dealings with one another. Even a world consisting of 7.5 billion tiny micro states, only joined in loose confederations for as long as they deem that beneficial for their private ends in order to reap certain economies of scale, needs to respect the ‘thou shalt not steal, kill, etc.’ commandments needed to keep the market economy going. But where does their authority come from? Why are people under the authority to obey them? Why should we honor our contracts and pay back our debts?

There are sophisticated utilitarian game-theoretical arguments available for why even strict egoists will find it to be in their own best interest to honor their contracts and pay back their debts, but it is highly controversial whether they are successful.[9] Within the Austrian School, argumentation ethics is a well-known strategy to give an individualist and moral realist ultimate grounding for one’s authority over one’s private property – and hence, by extension, ultimately over one’s claims to have sole authority over that virtual micro-state consisting of one’s private property. Hans-Hermann Hoppe, partly inspired by Karl-Otto Apel and Jürgen Habermas, is usually the point of reference,[10] but here we take Frank van Dun’s similar argument in his Het Fundamenteel Rechtsbeginsel as a point of inspiration.[11] 

The argument from argumentation, in the version on offer here, proceeds as follows. One first of all recognizes, necessarily, that we are able to think and speak reasonably and that we ought to think and speak reasonably. Otherwise, argumentation is impossible to begin with. Hence, one recognizes truth and rationality as having authority over one’s thoughts and words. Second, one grants the position of the other as an equal partner in the dialogue, i.e. as some who is likewise able to follow truth and reason and ought to follow truth and reason. Third, one recognizes in principle the equal capacities of the other person in this regard. Any argument that one of the partners in the dialogue is more knowledgeable, smarter, etc. should first of all itself be rationally established and accepted as such by the other participants. Hence, no one has any authority over another, but we both recognize that truth and rationality have authority over what both of us say and think and argue. If someone says something irrational or tells a lie, all others have the authority to correct it and demand acknowledgement of that correction. However, the others do not have that authority by themselves, but merely as acting on behalf of the truth and rationality that all agreed upon as an authority from the outset. Hence, one human person can only exercise legitimate authority over another person as a representative or vicar of that higher authority, but not on his or her own authority.

Next, this authority applies to both ‘words’ as well as ‘actions’, since making the distinction between ‘words’ and ‘actions’ for the applicability of that authority would itself require an argument that would have to be accepted. Next, every action, except for a knee-jerk reflex, exhibits a minimal sense of rationality because it is acting upon a reason for that action, as a manifestation of the rationality of the actor – however fallible and limited it may be. Since we all acknowledge truth and rationality to be the supreme and sole authority over everything we do, as well as our equality as beings capable of discerning truth and rationality, no unilateral overruling of one action over another is possible. There will be countless disagreements over whether the actions of other persons are rational or not, but as long as they are irresolvable we have to accept a principle of fallibilism or agnosticism and respect every action of the other person – out of respect for the minimal, and in our opinion possibly even misguided, rationality such an action manifests.

On that basis, one can argue for a homesteading principle of sorts – not a Lockean one in the sense of mixing one’s labour with unowned property, but in the sense of homesteading a sphere of action by acting upon one’s reasons for those actions. Those actions can include things like ‘keeping a house at one’s disposal’ after having constructed it. Every other stranger has to respect whatever reasons the constructor of that house might have (had) for building that house and keeping it at his personal disposal. One can homestead the countless possible actions one may perform by virtue of the reasons one has for performing those actions, which are subsequently unavailable for other people on the authority of the rationality behind those actions they necessarily have to accept.

Evidently, one can try to reason someone out of a certain action, or convince a person to freely give up his rightful claims to something and give it to someone else instead. This is exactly what happens in cases of charity, gifts or donations. However, to the extent that this does not succeed, one has to recognize these limits on one’s legitimate sphere of activity as other people’s rights and property. One can of course proceed to buy or sell these rightful claims, in which case my rightful authority over my piano is swapped for your rightful authority over your guitar – or for a certain amount of your dollars. In those cases both parties agree that it would be more reasonable, for whatever reason each party might find convincing, to swap their rights over these goods. Every sale or purchase is a swapping of rights the result of which is deemed to be better and more reasonable to all parties involved in the transaction.

Finally, transgressing those borders, rightfully established in virtue of the rationality of the other person, would clearly be an irrational act, for which the other person does not have the authority. Hence, forms of self-defense can be grounded in the authority one has to act as a representative or vicar of the authority of reason or truth that argumentation ethics accepted to begin with. As a consequence, forms of physical protection or policing as well as judicial systems can be given a legitimation as well, and the individualistic system is complete. Summing up, although direct democracy is the most perfect embodiment of political freedom within a state, it is itself only justified if the right to secede is acknowledged. Moreover, the right to secede and the principle of individual sovereignty on which it rests is justified by the argument from argumentation itself, which we cannot escape except at the cost of completely leaving rational discourse and dialogue.

The theological question through the back door

However, what if someone were someday to arrive and claim to be the truth – e.g. “I am the way, and the truth, and the life” (John 14, 6)? Based on the preceding argument from argumentation that granted all authority to truth and rationality itself as opposed to granting authority to other persons, if that one person would indeed be the truth, he would ipso facto be the one to whom “All authority in heaven and on earth has been given” (Matthew 28, 18). Moreover, His representatives, and especially His vicar, would, within the due limits set by that very person and by truth and rationality itself, acquire a special and privileged status vis-à-vis all earthly political authorities. We would have the investiture struggle all back again, but through the back door of the individual sovereignty of market anarchism as grounded in argumentation ethics.

Evidently, one can question the veracity of that person’s claim, but one cannot a priori deny the possibility as such of a person truthfully making that claim. This is not the place to argue for the veracity of such a claim made by the particular historical person Jesus Christ, but one can consider the necessary political implications it could have or has had. Believing in that person would simply imply believing in the truth of the claim of that person to be the truth. That kind of ‘belief’ has just as much political and legal relevance as the ‘belief’ in a courtroom whether a freely incurred debt was to the amount of 1000 euros or 10,000 euros, the ‘belief’ as to what the mathematical method to calculate the interest due on that loan is, or the ‘belief’ whether a president seized power in a coup d’état instead of being validly elected. One cannot reduce or limit these truth claims to ‘private’ beliefs because the political or legal structures and their operation are themselves at stake. Similarly, the claim that someone is truth itself has immediate political and legal implications if accepted or rejected. For example, all political authority would owe loyalty to that person, and all laws in contradiction with the commandments of that person would, in principle, be void.

To be sure, there is no danger of theocratic despotism here. Because of the preceding argument relying on argumentation ethics and the authority of truth and rationality, it is to be expected that the implications of the acceptance of that claim will concur in a lot of cases with the legal and political structures arrived at ‘within the bounds of mere reason’. It is no historical coincidence that natural law and liberalism arose in a Christian context. The idea of all men being made in the image and likeness of a God who transcends all earthly realities provides an important bulwark against despotism. The idea of God who paid an infinite price – namely His own life on the cross – for each and every single individual gives a rock-solid foundation for the infinite worth of each individual. To the extent that democracy, and especially direct democracy, is the political embodiment of the freedom and equality of individuals, it is heir to these fundamental presuppositions that are far from self-evident and have a specific theological underpinning in the history of the Christian West. Even the deep-rooted conviction of the possibility of science arose, according to Whitehead, out of medieval theology: “the faith in the possibility of science, generated antecedently to the development of modern scientific theory, is an un­conscious derivative from medieval theology,” namely “the medieval insistence on the ra­tionality of God.”[12] Creation is open to rational investigation because it was created by a rational Creator. Critics will be quick to point out historical conflicts between certain representatives of the Church and some of these developments, but this is an argument as to what Christianity in general disposes a civilization towards, not that it turns real or apparent adherents into perfect automatons of truth and justice.

Moreover, although the divine right of kings might sound like a clear contradiction to anything resembling liberalism and individual rights, the wonderful thing about divinely ordained kings is that neither they nor anyone else can expand the limits of their power. Their ‘checks and balances’ are the tight reins immutably held by God instead of by elections. When Boniface VIII thundered in 1302 against Philips IV of France of the spiritual and the temporal sword that “both are in the power of the Church,” whereby “the latter is to be used for the Church, the former by the Church” and that “one sword must of necessity be subject to the other, and the temporal authority to the spiritual”, he gave as a reason that “the spiritual power excels the earthly power in dignity and worth, […] just in proportion as the spiritual is higher than the temporal.”[13] 

The general outline of this argument is simply that temporal power can only be used when it is in accord with the authority of truth and justice, which is entrusted to the Pope. However, the Pope himself is the mere vicar – not the successor – of Christ, and hence lacks the kind of omnipotence that every single modern state currently has. So the claim made by Christ to be the truth and hence the absolute authority on heaven and earth first of all undercuts any claim for absolute authority made by any other human person, group or state. Second, the institution of the papacy, itself strictly deprived of omnipotence, can act as a concretely embodied break on any concentration of political power in temporal authorities. An authority can only be checked by a higher authority, and merely human checks and balances will only work for a couple of centuries as long as the cultural inertia of a preceding era in which that common higher authority was recognized lasts – “attempting to preserve the fruits of Christianity after having surrendered the roots”[14] will sooner rather than later prove to be an utter failure. The history of the Church during the past 2000 years is not all sunshine and roses, but abusus non tollit usum.

Direct democracy and supreme authority

How does all of this apply to the comparison of (semi-) direct democracy to (merely) representative democracy? In the case of a merely representative democracy, arguments like the ones advanced by Rousseau and Verhulst showed that merely representative democracy fails to live up to the ideals of democracy itself. The representatives are indeed designated by the people, but if the people can never directly exercise their authority it is difficult to see how the people are the supreme authority at all. Moreover, these representatives cannot claim to exercise power on their own authority, as could be the case in an aristocracy. Hence, a merely representative democracy necessarily has to rely on the fiction of a sovereign ‘State’ or ‘Nation’ on whose authority they are exercising their power. For example, the Belgian Council of State, the supreme administrative court of Belgium, has repeatedly argued against the possibility of direct democracy in Belgium because article 33 of the constitution stipulates that “all powers emanate from the Nation”, hence “the Constitution has not established a regime based on popular sovereignty, but on national sovereignty” which implies that when the representative bodies take their decisions they can “neither in law nor in fact be bound”, not even by the people whom they allegedly represent (e.g. by tools of direct democracy) because “the role of the population in the creation of laws, decrees and ordonnances is in the current constitutional system limited”.[15]

Hence, who or what is really sovereign is ‘the Nation’, a mythical entity which is neither a God nor a human being, and yet is wielding omnipotence over all human beings on its territory. This entity then becomes, as Frédéric Bastiat noted centuries ago, “that great fiction by which everyone tries to live at the expense of everybody else.”[16] But the money Bastiat worried about is just one consequence of the fact that the omnipotence of the state is up for grabs for whoever succeeds in convincing a majority that it will be used for their purported benefit. Merely representative democracy on the other hand covers up a nameless omnipotent state because there is a mismatch between the ones making the decisions and the ones bearing the consequences of them. In trying to locate the responsibility in a representative democracy, the representatives can always point back to the electorate who authorized them, but the electorate can point back to the representatives who made the real decision that they were unable to alter. Amidst the shadows of this mismatch arises the nameless legal construct known as Leviathan. If people rightfully refuse to submit to the authority of another human being, but likewise refuse to submit to the authority of God, the only place where omnipotence can be placed is in that faceless creature of modernity called the state, which has since left a bloody trail through history.

On the other hand, in a direct democracy there is no nameless or faceless ‘state’ or ‘nation’, but real and concrete individuals who are ultimately exercising their joint individual authority – and only allowing their representatives to decide if they do not do so themselves. The possibility of direct democratic decisions on the highest legislative level of a country ensures that who is really in power are the concrete human beings living across the street. There is a clear match between the ones really making the decision and the ones being responsible for it and bearing the consequences of the decision. In that sense, direct democracy and monarchical forms of government have more in common than what might be expected at first sight. In the case of a monarchy, there is likewise a concrete individual exercising his or her private authority over his or her property, dealing not with citizens of a state but with other concrete and private persons. Moreover, there is a clear match between the one making the decisions and the one bearing the full responsibility for it. There might be a great imbalance in political and economic power between all the persons involved, so the consequences of decisions made by a powerful individual – for good or for evil – will be felt by more people than when persons with very little power make decisions, but this is much like a contemporary CEO having far more power than a simple employee of a multinational, in that the decisions of the former have more repercussions for the latter than vice versa. What matters is that there is no categorical difference between a CEO and an employee in the way that there is between a citizen and ‘the State’. The latter difference is closer to the difference between a human being and God – which is not much of a surprise given the above mentioned indications of the state as an immanentization of divine omnipotence.

Conclusion

In the end, both direct democratic or monarchical forms of government, or a combination thereof, can be used for good or for ill. No form of government or decision-procedure can in and of itself guarantee good, or bad, outcomes. Hoping or believing the opposite would reflect an unhealthy faith in and fixation on the state under the modern motto ‘in the state we trust’, however disappointed we may be time and time again in politics – with alternatives like ‘in science and technology we trust’ or ‘in the market we trust’ being merely variants of the core theme ‘in man we trust’. While direct democracy is for some of the above-mentioned and other reasons worthy of being implemented as a more perfect embodiment of the democratic ideal, its decisions will only be as good as the people taking them are. It is and can only be a part of the full story in taming the woes of Leviathan – for which a stronger ally as supreme authority will have to be found. To the extent that people who care about the possibility of direct democracy are interested to further the cause of justice, human freedom, and ultimately truth itself, they might do well to pay heed to that full story.

Bibliography

Bastiat, Frédéric. “L’État.” Journal des Débats (September 25, 1848).

Bonifacius VIII. “Unam Sanctam,” 1302.

Cavanaugh, William T. The Myth of Religious Violence: Secular Ideology and the Roots of Modern Conflict. Oxford: Oxford University Press, 2009.

Dewachter, Wilfried. De Mythe van de Parlementaire Democratie: Een Belgische Analyse. Leuven: Acco, 2001.

van Dun, Frank. “Argumentation Ethics and the Philosophy of Freedom.” Libertarian Papers 1 (2009): 1–32.

———. “Concepts of Order.” In Ordered Anarchy: Jasay and His Surroundings, edited by H. Kliemt and H. Bouillon, 59–92. London: Routledge, 2016.

———. “Economics and the Limits of Value-Free Science.” Reason papers 11 (1986): 17–32.

———. Het Fundamenteel Rechtsbeginsel. 2nd ed. Antwerpen: Murray Rothbard Instituut, 2008.

———. “On the Philosophy of Argument and the Logic of Common Morality.” In Argumentation: Approaches to Theory Formation, edited by E. M. Barth and J. L. Martens, 281–294. Amsterdam: John Benjamins, 1982.

Hoppe, Hans-Hermann. The Economics and Ethics of Private Property. Studies in Political Economy and Philosophy. Auburn, Alabama: Ludwig von Mises Institute, 2006.

Kelsen, Hans. Vom Wesen Und Wert Der Demokratie. Tübingen: Mohr-Siebeck, 1920.

Keynes, John Maynard. The General Theory of Employment, Interest and Money. London: Palgrave Macmillan, 1936.

Manning, Henry Edward Cardinal. The Vatican Decrees in Their Bearing on Civil Allegiance. London: Longmans, Green, and Co., 1875.

Nozick, Robert. Anarchy, State and Utopia. Malden, Mass.: Basic Books, 1974.

Rousseau, Jean-Jacques. Du Contrat Social. Amsterdam: Marc Michel Rey, 1762.

Sheen, Fulton John. Communism and the Conscience of the West. Indianapolis: Bobbs-Merrill, 1948.

Spencer, Herbert. The Man versus the State. Caldwell, Idaho: The Caxton Printers, 1960.

Verhulst, Jos. Het Verdiepen van de Democratie: Feiten, Argumenten En Ervaringen Omtrent de Invoering van Het Referendum. Brussel: Cypres, 1998.

Vonglis, Bernard. La Monarchie Absolue Française: Définition, Datation, Analyse D’un Régime Politique Controversé. Paris: Editions L’Harmattan, 2006.

———. L’Etat C’était Bien Lui: Essai Sur La Monarchie Absolue. Paris: Cujas, 1997.

Whitehead, Alfred North. Science and the Modern World. Pelican Mentor Books. New York: The new American library, 1948.

[1] “Er ist ein Mensch wie ich, wir sind gleich! Wo ist also sein Recht, mich zu beherrschen?” Hans Kelsen, Vom Wesen Und Wert Der Demokratie (Tübingen: Mohr-Siebeck, 1920), 4.

[2] The full original quote by Keynes reads as follows: “The ideas of economists and political philosophers, both when they are right and when they are wrong, are more powerful than is commonly understood. Indeed the world is ruled by little else. Practical men, who believe themselves to be quite exempt from any intellectual influence, are usually the slaves of some defunct economist. […] I am sure that the power of vested interests is vastly exaggerated compared with the gradual encroachment of ideas.” John Maynard Keynes, The General Theory of Employment, Interest and Money (London: Palgrave Macmillan, 1936), 383.

[3] For background information about what the exact legal and political meaning of this statement might have been, regardless of whether Louis XIV really said this or not, cf. Bernard Vonglis, L’Etat C’était Bien Lui: Essai Sur La Monarchie Absolue (Paris: Cujas, 1997); Bernard Vonglis, La Monarchie Absolue Française: Définition, Datation, Analyse D’un Régime Politique Controversé (Paris: Editions L’Harmattan, 2006).

[4] Cf. William T. Cavanaugh, The Myth of Religious Violence: Secular Ideology and the Roots of Modern Conflict (Oxford: Oxford University Press, 2009).

[5] “Le peuple Anglois pense être libre; il se trompe fort, il ne l’est que durant l’élection des membres du Parlement ; sitôt qu’ils sont élus, il est esclave, il n’est rien. Dans les courts momens de sa liberté, l’usage qu’il en fait mérite bien qu’il la perde.” Jean-Jacques Rousseau, Du Contrat Social (Amsterdam: Marc Michel Rey, 1762), 214.

[6] Jos Verhulst, Het Verdiepen van de Democratie: Feiten, Argumenten En Ervaringen Omtrent de Invoering van Het Referendum (Brussel: Cypres, 1998), 18.

[7] Robert Nozick, Anarchy, State and Utopia (Malden, Mass.: Basic Books, 1974), 290–292. The original and longer version is in Herbert Spencer, The Man versus the State (Caldwell, Idaho: The Caxton Printers, 1960), 41–43.

[8] Cf. Wilfried Dewachter, De Mythe van de Parlementaire Democratie: Een Belgische Analyse (Leuven: Acco, 2001). He provides an analysis of the power of political parties and the government vis-à-vis the weakness of the parliament in Belgium.

[9] Cf. for example the elegant critique by Frank van Dun, “Concepts of Order,” in Ordered Anarchy: Jasay and His Surroundings, ed. H. Kliemt and H. Bouillon (London: Routledge, 2016), 59–92.

[10] Cf. Hans-Hermann Hoppe, The Economics and Ethics of Private Property, Studies in Political Economy and Philosophy (Auburn, Alabama: Ludwig von Mises Institute, 2006), 339–346.

[11] Frank van Dun, Het Fundamenteel Rechtsbeginsel, 2nd ed. (Antwerpen: Murray Rothbard Instituut, 2008), 148–160. Van Dun has also written in English on these issues, cf. Frank van Dun, “On the Philosophy of Argument and the Logic of Common Morality,” in Argumentation: Approaches to Theory Formation, ed. E. M. Barth and J. L. Martens (Amsterdam: John Benjamins, 1982), 281–294; Frank van Dun, “Economics and the Limits of Value-Free Science,” Reason papers 11 (1986): 17–32; Frank van Dun, “Argumentation Ethics and the Philosophy of Freedom,” Libertarian Papers 1 (2009): 1–32.

[12] Alfred North Whitehead, Science and the Modern World, Pelican Mentor Books (New York: The new American library, 1948), 13–14.

[13] “Uterque ergo est in potestate ecclesiae, spiritualis scilicet gladius et materialis. Sed is quidem pro ecclesia, ille vero ab ecclesia exercendus, ille sacerdotis, is manu regum et militum, sed ad nutum et patientiam sacerdotis. Oportet autem gladium esse sub gladio, et temporalem auctoritatem spirituali subjici potestati. […] Spiritualem autem et dignitate et nobilitate terrenam quamlibet praecellere potestatem, opportet tanto clarius nos fateri quanto spiritualia temporalia antecellunt.” Bonifacius VIII, “Unam Sanctam,” 1302. The English translation is taken from Henry Edward Cardinal Manning, The Vatican Decrees in Their Bearing on Civil Allegiance (London: Longmans, Green, and Co., 1875), 58–59.

[14] Fulton John Sheen, Communism and the Conscience of the West (Indianapolis: Bobbs-Merrill, 1948), 166.

[15] “Zowel uit deze bepaling zelf, als uit de overige bepalingen van de Grondwet betreffende de uitoefening van de machten, blijkt dat de Grondwet niet een stelsel gebaseerd op de volkssoevereiniteit heeft ingesteld, doch wel een stelsel gebaseerd op de nationale soevereiniteit (…) Het door de Grondwet aldus ingesteld representatieve stelsel impliceert dat het de volksvertegenwoordigende vergaderingen zijn die de beslissingen nemen in de aangelegenheden die tot hun bevoegdheid behoren en dat ze in de uitoefening van hun mandaat, noch in rechte, noch in feite, mogen worden gebonden. Het aandeel van de bevolking bij de totstandkoming van wetten, decreten en ordonnanties is in het huidige constitutionele bestel beperkt” Advies van de Raad van State, NR. 37.804/AV.

[16] “L’État, c’est la grande fiction à travers laquelle tout le monde s’efforce de vivre aux dépens de tout le monde.” Frédéric Bastiat, “L’État,” Journal des Débats (September 25, 1848).

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The Josias Podcast, Episode XXI: We Live in a Society

We live in a society in which the few live in excess, while the many live in miserable and wretched conditions. We live in a society in which the poor are defenseless against the inhumanity of employers and the unbridled greed of competitors. We live in a society in which these evils are compounded by a devouring usury practiced by avaricious and grasping men. We live in a society in which innocent children are murdered in abortion clinics. We live in a society in which the sin of Sodom is paraded with open pride and enjoys the favor of the laws. We live in a society in which depravity exults; science is impudent; liberty, dissolute. We live in a society in which the holiness of the sacred is despised; sound doctrine is perverted; and errors of all kinds spread boldly. We live in a society in which the divine authority of the Church is opposed and her rights shorn off. We live in a society in which by institutions and by the example of teachers, the minds of the youth are corrupted. We live in a society… We live in a society? Do we actually live in a society? What sense does it make to call the clownish chaos of our lamentable times a “society”? The editors are joined by P.J. Smith of southern Indiana to discuss these and related questions.

Bibliography and Filmography

Music: “Vesti la Giubba” from Leoncavallo’s Pagliacci, sung by Luciano Pavarotti.

Header Image: Joaquin Phoenix in Joker (2019)

If you have questions or comments, please send them to editors(at)thejosias.com.

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Introduction to Natural Law Jurisprudence (part 4)

By Professor Brian M. McCall

Adapted from ch. 1 of The Architecture of Law: Rebuilding Law in the Classical Tradition (Notre Dame Press 2018). Part 1 can be found here, part 2 here, and part 3 here.

OVERVIEW OF THE EDIFICE: DO WE NEED TO KNOW ITS ORIGIN?

Combining the elements of Aquinas’s definition and effects of law produces an understanding of law as a rule and measure of human acts ordained by reason toward the common good, which is promulgated by one who has care of the community and which makes use of punishment to make men good by commanding good, forbidding evil, and permitting neutral acts. This definition identifies the genus of law, but when we penetrate deeper we see that law is composed of different species. To help understand these distinctions we can draw upon the image of an architectural structure. Just as a building is composed of many levels, so too the genus of law is composed of several levels of law. Before looking at individual levels, however, it is necessary to survey the design of the overall structure. How do the pieces fit together?

Gratian begins his treatise on laws with the following division of the types of law making up the legal structure: “The human race is ruled by two things: natural law and long-standing human customs.”115 Gratian immediately sheds more light on this two-part division of law in the first causa of this first distinction when he quotes Isidore of Seville:

All the laws that exist are either of divine or human origin. Divine laws are constituted [constant] by nature, but human laws are constituted by human customs, and therefore human laws differ from community to community because certain things are pleasing to different communities. The immutable divine will [fas] is the content of divinely made law, and political or conventional justice [ius] is the content of human law. That is why it is in accordance with divine law [fas] to cross through the field of another person, but it is contrary to human-made law [ius].116

The passage begins with a differently worded two-part division. Whereas the first division was between natural law and custom, the second is between divine law and human law. The terms “divine” or “human” can be reconciled to the earlier division, natural law and custom. The second division refers to their respective origins, whereas the first refers to a representative type of each genus produced by divine or human agency. Huguccio in his commentary on Gratian confirms the divine origin of natural law and verbally links Gratian’s opening division to the passage of Isidore quoted by Gratian.117 He also explains that custom (mos) is human law (jus humanum), which is invented by man.118 Isidore says that divine laws stand in or are based on (constant) nature, whereas human law is based on longstanding practices. Hence, natural law has its origin in God, and custom is the creation of human law. The Ordinary Gloss on this opening passage explains natural law is “divine,” and “custom” is “customary law or written or unwritten human law.”119 Isidore further notes that since human laws are rooted in the customs of nations, they can vary from nation to nation and are not universal. The implication is that divine law, rooted in nature, does not so vary. The divine law is immutable because it has its source in nature, which is universal.

Gratian’s text then introduces yet another pair of words to identify each of these two categories. First it calls laws of divine origin (that which stands in the nature of things) “fas.” This Latin word means that which is “right or fitting or proper according to the will or command of God.”120 Its universality and unchangeable nature is conveyed even by its grammatical status as an indeclinable noun—a noun that, uncharacteristically for Latin, does not change its ending according to its function in a sentence. Huguccio describes fas as whatever is “permitted,” “said to be appropriate and good,” and “ought to be said to be pleasing.”121 As opposed to customs that may please one people but not another, fas ought to be pleasing to all. The text then calls all human laws “jus.” This is a general Latin term often translated as “law,” but as Kenneth Pennington has argued, it conveys a rich penumbrae of meanings beyond mere legal enactments.122 It encompasses the sense of that which is right or just in light of human judgment.123 Justinian’s Digest contains a general definition of jus as that which is “always equitable and good” (semper aequum ac bonum).124 Cicero in a letter to Atticus uses the same construction of fas and jus to refer to everything that is right according both to divine and human reckoning.125 Natural law (jus naturale) and long-standing custom (mos) thus stand in the opening lines of the Decretum as representatives of these two overarching groupings of everything that is right and good, from both the perspective of God (fas, rooted in the nature of things or natural law) and man (jus, rooted in human determinations of what is right or of long-standing customs). Both sides of this coin of what is right and good must be examined to determine a rule and measure for conduct. Man is ruled by both natural law and custom, fas and jus. Gratian gives a specific example to illustrate the need to consult both types of law for a complete answer: human law (lex humana) might prohibit something that could be permissible by divine law (lex divina). Passing through another’s field may be permitted by divine law (fas), but prohibited by human ordinance (ius).

Thus, for a complete understanding of the rule and measure of human action, both groupings of law must be consulted. In this vein, Justinian’s Digest defines jurisprudence (the wisdom of law) as “the knowledge of divine and human things, and the knowledge of justice and injustice.”126 Natural law is a component of a dual system. To understand natural law, one must know it in this context.

As Gratian comments, this two-part division of law is itself subdivided into many species.127 This first category of law identified by Gratian, divine, contains the three types of law, which Aquinas calls eternal law (lex aeterna), natural law (lex naturalis), and divine law (lex divina), the last sometimes referred to as the law of the scriptures (lex scripturae). Each of these types has been promulgated directly by God. Gratian’s second category contains written statutes and long-standing customs, both promulgated by human lawgivers. Each of these species of law is epistemologically and jurisdictionally related to the others. One can understand neither one of these individual species nor the entire concept of law as a whole without understanding the essence of each species. Most contemporary jurisprudence proceeds on the assumption, stated or implied, that either (1) only the species contained under the heading “human law” exist and the others are not real, or (2) if the other species under “divine law” exist, knowledge of them is unnecessary to understanding human law. Classical jurisprudence rejects both assumptions. Simply because the trim carpenter cannot see the foundation or the wall studs does not mean they do not exist. At least some knowledge of the entire edifice is indispensable to anyone who works on or within its walls.

The eternal law is the most general and foundational element of the structure. It contains the definition of all created finite beings. Its precepts, legislated from the foundation of the world, determine the end or perfection of each substance and provide means for the attainment of that end. The eternal law does not directly tell rational creatures how to act. It rather invites rational creatures to participate in the determination of human action by electing means to the end established by eternal law. In this sense, eternal law limits action by limiting the end of human action. The natural law is deeply connected to the eternal law and provides precepts orienting rational beings to their end established by the eternal law. The precepts of natural law provide generally worded principles of action that orient freely chosen human action to the perfection of human nature. Natural law precepts thus rise up out of the eternal law as the frame of a building rises out of the foundation. A frame gives more concrete definition to the structure of a building, which is constrained by the footprint of the foundation. Yet, the frame only generally defines the final appearance of the building. Many more details will determine it. Likewise, the natural law, by identifying hierarchically related ends of various aspects of human nature, provides more direction for electing means to attain the end of human nature. Yet, these precepts of natural law by their very design require further determination or specification, which specification is left to legal authorities, personal superiors, and individual persons, depending upon the nature and effect of the particular action contemplated. Human beings thus participate in making specific laws or rules of action at varying levels depending upon the circumstances. Likewise, artisans and craftsmen add detailed work and decoration to a frame to give the structure its final appearance.

To decorate the legal structure, practitioners of the legal craft must understand the eternal and natural law to know what it is they are decorating. This knowledge is not merely interesting but essential. Even the pagan philosopher Cicero understood that knowledge of these fundamental laws was necessary to the study and practice of law. In De Legibus, which is written as a dialogue, Atticus and Quintus want Cicero to begin discussing the details of the civil laws of Rome. Cicero responds that he cannot start a discourse on law at that point. First the most basic truths about human nature and the purpose of human existence must be understood:

You must understand that there is no subject for discussion in which it can be made so clear what nature has given to humans; what a quantity of wonderful things the human mind embraces; for the sake of performing and fulfilling what function we are born and brought into the world; what serves to unite people; and what natural bond there is among them. Once we have explained these things, we can find the source of laws and of justice.128

Atticus then objects that in this plan of discourse Cicero is departing from the common practice that the understanding of law should be drawn from the “praetor’s edict . . . or from the Twelve Tables.”129 To which Cicero responds:

In this discussion we must embrace the whole subject of universal justice and law, so that what we call “civil law” will be limited to a small and narrow area. We must explain the nature of law, and that needs to be looked for in human nature; we must consider the legislation through which states ought to be governed; and then we must deal with the laws and decrees of peoples as they are composed and written, in which the so-called civil laws of our people will not be left out.130

Cicero understood that the study of law must begin with the most fundamental principles of human nature, which are known through the eternal and natural laws, but contemporary legal scholarship and education in American law schools limit themselves to cataloging, interpreting, and discussing the details of the edicts and other texts of civil law. If Cicero were alive today, he likely would say all of this work needs to follow and be subordinate to a knowledge of these higher laws.

Later Christian philosophers and jurists add to Cicero’s understanding a new font of knowledge. In addition to the eternal and natural law, which all rational creatures can come to know by use of their innate reason, God has promulgated a third type of law, referred to as the “divine law” or the “law of the scriptures.” One of the roles of the precepts of this type of law is to reveal principles of natural law more clearly. In addition to relying on our own, fallible reason to discover these fundamental laws, Gratian and Aquinas argue that we have direct access to them through revelation. Gratian makes this point clear in the opening passage of the Decretum when he introduces the division of law into natural law and long-standing custom. He explains that the natural law is contained in the Law (by which he means the law revealed in the Old Testament) and the Gospels, which he summarizes by quoting the Golden Rule (Matt. 7:12).131

Cicero’s insistence that we must start with cosmological and ontological truths, and later Christian jurists’ insistence that we must consult the divine law, before studying the details of civil laws raises an important question. The classical natural law tradition is rooted in a theological perspective. For the pagan philosophers and jurists this perspective was a vaguely articulated perspective, sometimes pantheist and sometimes a monotheist tendency, that transcended the popular polytheist religions of Greece and Rome. Upon the dawning of Christianity, the perspective shifted to a clearly articulated Christian theology. For Cicero, the eternal and natural laws had their origin in a vague supreme power in the universe. For Gratian and Aquinas, jurisprudence was firmly rooted in the soil of Christian theology, and the origin of all law was more than a cosmic force—it was a personal God who became incarnate to save mankind and make the contents of divinely promulgated law more clearly and widely known.

The question then arises for jurists who are committed to the natural law tradition but are living in a pluralist and largely secular and atheistic world: To what extent is belief in and knowledge of God (either vaguely as for Aristotle and Cicero, or as with the revealed God of the Trinity) a prerequisite to accepting, understanding, and using natural law in legal practice? We can sketch a preliminary answer here.

Scholars such as Michael S. Moore have argued that commitment to natural law jurisprudence is possible without any theological commitments. Unlike Moore, a professed atheist,132 Finnis clearly professes Christianity but argues that although one who accepts Christian revelation may understand the purpose and origin of natural law better than one who does not, Christian revelation and theological commitments are not necessary to come to know natural law or, in the nomenclature of Finnis, the principles of practical reason. Theological truths may be important to Finnis in other contexts, but they are not necessary to articulate his understanding of practical reason. On the other end of the spectrum from the claims of Moore and Finnis, Kai Nielsen has argued that “if there is no God or if we have only the God of the Deist, the classical natural law theory is absurd, for there will then be no providential governing of creation, no plan for man of which the natural law is a part.”133 Although Nielsen is no fan of classical natural law, his reading of Aquinas is more faithful to the Angelic Doctor than that of Finnis. Nielsen rightly sees that Aquinas’s, and hence all classical natural lawyers’, understanding of and justification for natural law is dependent upon specific theological (at least those of natural theology) claims: “For such [Aquinas’s] natural law theory to be justified, God, in fact, must exist; and it must be a further fact that God’s nature is essentially what Aquinas says it is.”134 Although on this point, and not on many others, I agree generally with Nielsen’s claim that at the end of the analysis God and particular aspects of His nature are ultimately indispensable to a complete justification for and understanding of natural law, my own answer, however, does add a nuanced distinction to Nielsen’s claim. The philosophers and jurists of antiquity demonstrate that one can come to know that natural and even eternal law exist and can come to know specific precepts thereof. Thus far, Finnis and Moore are correct that some knowledge of and argument in favor of natural law can be had without specific theological commitments. Yet, I will argue, owing to failures of both the human will and reason, a theologically neutered approach is ultimately incomplete and likely to persist in erroneous conclusions. One who follows the thread of natural law reasoning, because it argues from final ends, that is, teleology, must one day reach the question: From where did these final causes arise? Since these final causes as precepts of eternal law are an ordinance of reason, they must come from somebody’s reason. As Aquinas argues, to be law they must be promulgated by someone. Ultimately, a natural law jurist must confront this question. Likewise, anyone’s ability to accurately know all of those principles of natural law and, more to the point, correctly apply them to particular circumstances, is severely limited without recourse to divine law. The history of unjust and evil laws and legal regimes throughout history is evidence of the difficult work of knowing and correctly applying the principles of the natural law. Succeeding in this task without recourse to divine revelation is analogous to building an edifice without consulting an architect. The approach of Finnis to minimize the role of God in natural law jurisprudence may have some initial success and overcome the initial mocking of critics like Nielsen, but I argue it will be ultimately unsatisfactory.

Moore offers a categorization of different metaphysical foundations for a natural law that can be very useful in explaining my answer to this question. Moore first formulates a two-pronged, general definition of any form of natural law theory: “(1) there are objective moral truths; and (2) the truth of any legal proposition necessarily depends, at least in part, on the truth of some corresponding moral proposition(s).”135 This definition clearly distinguishes natural law jurisprudence from positivism because it requires that laws (legal propositions) have a relationship to truths outside of the legal system. Yet, according to Moore, different proponents of this relational view can have very different understandings of the nonlegal truths. Moore identifies four possibilities:

  1. Moral realists who hold that the nonlegal propositions to which law must relate really exist independently of both (1) what people think them to be (mind-independent) and (2) human conventions (convention-independent) regardless of whether those truths both exist naturally and are known naturally (or through some suprasensible faculty).
  2. Naturalist moral realists who hold that the nonlegal propositions to which law must relate really exist, are mind- and convention independent, and exist in the natural world and can be known by a natural power or faculty.
  3. A particular species of naturalist who holds that “a universal and discrete human nature” determines the content of the nonlegal moral truths to which legal propositions must relate.
  4. Religious tradition-grounded naturalists who hold that the “(human) mind- and convention-independent” nonlegal truths to which legal propositions must relate “depend on the natural fact of divine command.”136

I will argue that one can fully comprehend the essence of law (speculative knowledge) and have greater success in reaching good (meaning true) judgments about what human laws ought to contain (practical knowledge) only from a perspective that combines both the third and fourth categories. A jurist who accepts both the real, naturally existing moral truths and their ontological origin in and revelation by the mind of God will attain greater speculative and practical knowledge of law than one who approaches jurisprudence from one of the other limited perspectives. Classical antiquity demonstrates that philosophers and jurists such as Aristotle, Plato, and Cicero accepted a natural law philosophy and jurisprudence and had significant success in acquiring speculative and practical knowledge of the law. Yet, their advocacy for natural law was inchoate because they could not clearly articulate the attributes of its divine origin. Their work, despite its greatness in some areas, clearly contains conclusions about the content of natural law that are, in light of Christian revelation, strikingly false. Aristotle’s claim that slavery is a natural and good state for some is only one example. Augustine, Gratian, and Aquinas surpassed the achievements of the ancients because they had recourse to the fuller source of knowledge in revelation.

A critical difference between natural law jurisprudence undertaken from one of the first three perspectives (listed above) alone and the combination of the third and fourth is the same difference that John L. Hill identifies between Greek philosophy and Christian philosophy. The former “tries to explain the world by giving us a pattern, whereas Christianity gives us a Person.”137 The revelation of the three divine persons within God makes philosophy, and hence law, personal rather than merely conceptual. Classical natural law jurisprudence makes law personal in contrast not only to the jurisprudence of Hart and Raz but also to that of Moore and Finnis.

Notwithstanding this and other differences, one can certainly be persuaded to accept and practice aspects of natural law jurisprudence without necessarily accepting the theological commitments of the fourth category, and fruitful conversation and dialectic can occur among scholars coming from all four perspectives. Yet, the fourth perspective offers the most complete and successful approach to solving the epistemological problems inherent in unaided natural law jurisprudence. Although intelligent conversation is possible and fruitful among those coming from all four categories, the benefits to be gained from accepting the commitments of the fourth category should not be ignored and left out of the discussion simply for the sake of gaining wider acceptance for natural law jurisprudence. Since all of those who argue from the first three categories lack the ultimate metaphysical foundation for law (and all of reality), they can only reach a certain extent of knowledge. Those who tend to try to appeal to positivists (or other non–natural law jurists) by arguing exclusively from the first three metaphysical positions do a disservice to, and ultimately undermine the deep metaphysical grounding of, natural law jurisprudence. Ignoring or downplaying the metaphysical foundations ultimately leads to their dismissal. As Jonathan Crowe has observed, the result is that, for Finnis, law does not really have an ontology; it is merely a hermeneutic to explain and justify normative social practices.138

A deeper consideration of eternal, natural, divine, and human law is necessary to fully understand what is lost by abandoning this fourth type of natural law jurisprudence. The metaphysical and theological claims of the natural law tradition are ultimately the most unique contribution it can bring to jurisprudence and should therefore not be left out of the discussion.

115.          Gratian, DecretumD.1 (my translation of humanum genus duobus regitur, naturali uidelicet iure et moribus.)

116.          Ibid., D.1, C.1; my translation of omnes leges aut diuinae sunt, aut humanae. Diuinae natura, humanae moribus constant, ideoque he discrepant, quoniam aliae aliis gentibus placent. §1. Fas lex diuina est: ius lex humana. Transire per agrum alienum, fas est, ius non est.

117.          Huguccio Pisanus, Summa Decretorum, in Monumenta Iuris Canonici Series A: Corpus Glossatorum, vol. 6, ed. Oldřich Přerovský (Biblioteca Apostolica Vaticana, 2006), 13 (glossing naturali uidelicet iure as id est diuino); see also Huguccio, Derivationes, quoted in Stephan Kuttner, The History of Ideas and Doctrines of

Canon Law in the Middle Ages (London: Variorum Reprints, 1980), V, 99. Drawing a similar parallel between positive justice and natural justice, which he calls fas, Huguccio claims that iustitia positiva has been made by man whereas naturalis justitia is extended from the effects of nature.

118.          Huguccio, Summa Decretorum, 14: Quo nomine comprehenditur quodlibet ius humanum, id est ab homine inuentum.

119.          Gratian, The Treatise on Laws (Decretum DD. 1– 20), vol. 2, trans. Augustine Thompson and James Gordley (Washington, DC: Catholic University of America Press, 1993), Ordinary Gloss to D.1.

120.          See Charlton T. Lewis et al., A Latin Dictionary: Founded on Andrews’ Edition of Freund’s Latin Dictionary (Oxford: Clarendon, 1879) (defining fasas “belonging to the religious language, the dictates of religion, divine law; opposed to jus, or human law”). The following are examples of the use of the word in the Bible: audiebant autem eum usque ad hoc verbum et levaverunt vocem suam dicentes tolle de terra eiusmodi non enim fas est eum vivere (Acts 22:22, Vulg.)—“And they heard him until this word, and then lifted up their voice, saying: Away with such an one from the earth; for it is not fit that he should live” (Acts 22:22, DV); contigit autem et septem fratres cum matre adprehensos conpelli a rege contra fas ad carnes porcinas flagris et taureis cruciatos” (2 Macc. 7:1, Vulg.)—“It came to pass also, that seven brethren, together with their mother, were apprehended, and compelled by the king to eat swine’s flesh against the law, for which end they were tormented with whips and scourges” (2 Macc. 7:1, DV); hii vero qui intus erant confidentes in stabilitate murorum et adparatu alimoniarum remissius agebant maledictis lacessentes Iudam ac blasphemantes et loquentes quae fas non est (2 Macc. 12:14, Vulg.)—“But they that were within it, trusting in the strength of the walls, and the provision of victuals, behaved in a more negligent manner, and provoked Judas with railing and blaspheming, and uttering such words as were not to be spoken” (2 Macc. 12:14, DV).

121.          Huguccio, Summa Decretorum, 20– 21.

122.          See Kenneth Pennington, “Lex Naturalis and Ius Naturale,” The Jurist 68 (2008): 571–7 3.

123.          See Lewis, A Latin Dictionary (jus: “that which is binding or obligatory; that which is binding by its nature, right, justice, duty”).

124.          Justinian, Digest 1.1.11.

125.          Cicero, Letters to Atticus 1.16.6, http://www.thelatinlibrary.com/cicero /att1.shtml#6. Explaining how devastating it is to Rome when corrupt men render a wrong verdict, he says: triginta homines populi Romani levissimos ac nequissimos nummulis acceptis ius ac fas omne delere. The phrase sums up a complete obliteration of all rightness—ius ac fas.

126.          Justinian, Digest 1.1.10.2 (my translation of iuris prudentia est divinarum atque humanarum rerum notitia, iusti atque iniusti scientia).

127.          Gratian, DecretumD.1, C.1.

128.          Cicero, “On the Laws,” in On the Commonwealth and On the Laws, ed.

James E.G. Zetzel (Cambridge: Cambridge University Press, 1999), 110.

129.          Ibid., 110– 11.

130.          Ibid., 111.

131.          Gratian, DecretumD.1.

132.          See Michael S. Moore, “Good without God,” in Natural Law, Liberalism, and Morality, ed. Robert P. George (Oxford: Clarendon, 2001), 221– 70.

133.          Kai Nielson, “The Myth of Natural Law,” in Law and Philosophy: A Symposium, ed. Sidney Hook (New York: New York University Press, 1964), 129. 134. Ibid., 130.

135.         Michael S. Moore, “Law as a Functional Kind,” in Natural Law Theory: Contemporary Essays, ed. Robert P. George (Oxford: Oxford University Press, 1992), 189– 90.

136.         Ibid., 190– 91.

137.         Hill, After the Natural Law, 55 (paraphrasing G.K. Chesterton). 138. Crowe, “Clarifying the Natural Law Thesis,” 168– 70.

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The Josias Podcast, Episode XX: Eric Voegelin

Continuing a series of reflections on important 20th century critiques of modernity and liberalism that has included episodes on Alasdair MacIntyre’s After Virtue and Leo Strauss’s Natural Right and History, the editors are joined again by Gabriel Sanchez to discuss Eric Voegelin’s The New Science of Politics. They discuss Voegelin’s critique of positivism, the problem of representation, and the thesis that modernity is “gnostic”.

Bibliography

Music: Also sprach Zarathustra, by Richard Strauss.

Header Image: Photograph of a Tree in the Mist, by Pater Edmund

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Introduction to Natural Law Jurisprudence (part 3)

By Professor Brian M. McCall

Adapted from ch. 1 of The Architecture of Law: Rebuilding Law in the Classical Tradition (Notre Dame Press 2018). Part 1 can be found here, part 2 here.

THE COMMON GOOD

The consideration thus far has continually referred to the end or object of human acts. We need to establish a few clarifications. The end or object of human activity is incorporated into the definition of law in the phrase “for the common good.” This part of the definition indicates the purpose of law: it answers the question, “Why does law exist?” Law exists to orient human actions to their common natural end. Law is a rule and measure that directs the human intellect and will toward the object or end that is common to all human beings. Yet, like the false dichotomy between law and morality, the term “common good” can be misunderstood as in opposition to the individual end, the object of the life of an individual human being. Like the false dichotomy between law and morality, we will see that there is no dichotomy between common and individual good: they are parts of the same whole.

Continue reading “Introduction to Natural Law Jurisprudence (part 3)”
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Introduction to Natural Law Jurisprudence (part 2)

By Professor Brian M. McCall

Adapted from ch. 1 of The Architecture of Law: Rebuilding Law in the Classical Tradition (Notre Dame Press 2018). Part 1 can be found here.

THE DEFINITION OF LAW AS A DIALECTIC AMONG REASON, COMMAND, AND CUSTOM

Harold Berman once described three modes of jurisprudence: positivist (will of lawgiver), natural law (expression of moral principles as understood by reason), and historicist (law as a development of custom).26 For Berman, all three are necessary elements of law, as all three are intrinsic to all being. He explains:

Will, reason, memory—these are three interlocking qualities, St. Augustine wrote, in the mind of the triune God, who implanted them in the human psyche when He made man and woman in His own image and likeness. Like the persons of the Trinity itself, St. Augustine wrote, the three are inseparable and yet distinct. He identified will (voluntas) with purpose and choice, reason (intelligentia) with knowledge and understanding, and memory (memoria) with being—that is, the experience of time. . . . Their applicability to law is particularly striking, for law is indeed a product of will, reason, and memory—of politics, morality, and history—all three.27

Continue reading “Introduction to Natural Law Jurisprudence (part 2)”
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Introduction to Natural Law Jurisprudence (part 1)

By Professor Brian M. McCall

Adapted from Chapter 1 of The Architecture of Law: Rebuilding Law in the Classical Tradition (Notre Dame Press 2018).

Summum jus, summa injuria.
The greater the law the higher the injury.1

With these words the great Roman orator Cicero warned against the dangers of an exaggerated exaltation of human law. His words take on a new poignancy in light of much contemporary jurisprudence. Not only have human positive laws grown exponentially in their number and scope, but the dominant theory of legal positivism has exalted the place of human positive law by building an entire system of law upon it alone. Human made law has come to be viewed as self-referential, self-justified, and essentially self-restrained. Classical natural law jurisprudence understood human law to be merely one part within a grand hierarchical edifice of laws. Human-made positive law is the detailed and varied decoration that brings into clearer view the lines, structure, and foundation of a larger legal edifice. This structure is organized and held together by a frame, or universal principles, and erected on a firm ontological foundation.

Continue reading “Introduction to Natural Law Jurisprudence (part 1)”