Tradition & Law
Today at the Tradition conference, the discussion is about Tradition and the Law. I can’t follow most of this discussion except at a shallow level, because I have no legal training. But it’s a fascinating and challenging discussion to listen in on.
Most of the people at the table are law professors. At one point, the discussion touched on lawyers and the legal profession being a naturally conservative class and phenomenon because it guarantees stability and continuity, since bound by precedent. Change has to therefore be gradual.
A political theorist spoke up and talked about the importance of forms (e.g., those followed by the lawyers) for conveying tradition, especially in democratic societies, which tend to be against formalism. This is true. But his observation made me recall the dialogue Dante has with Folco in Canto IX of Paradiso. Folco tells the pilgrim that the Pope and the Roman Curia care nothing for living by and stewarding the Biblical tradition, and seeking the salvation of souls, but only for money and worldly power. He compares churchmen of Dante’s day unfavorably to Rahab the prostitute (from the Book of Joshua), who hid the two Jewish spies. She is in heaven because she was repentant and her loves were rightly ordered — unlike the Pope and his circle. Here’s an excerpt from Anthony Esolen’s translation; the words are Folco’s:
The “cursed flower” refers to the coin of Florence. Here it symbolizes the corruption of wealth. As I wrote about Canto IX in this space:
The Decretals are canon law; legal commentaries were written in the margins of the books of Decretals. What the poet is saying to us is that the Church has become a massive bureaucracy that cares wholly about maintaining correct form, and manipulating it for the wealth of the Pope and the cardinals, and nothing about the substance of the faith, as revealed in the Gospels and in the Church Fathers. More to the point, given the role of the Roman church in civil life in Dante’s day, to be an expert in canon law, says John Ciardi, “could make a shyster’s fortune.” The Pope and the Curia, Dante says, are Pharisees — whitewashed sepulchres who prostitute themselves and Holy Church to money and power, while an actual prostitute who risked her own life to serve the Lord receives her reward in Paradise.
The reason I bring Dante up in this context has to do with Jaroslav Pelikan’s distinctions (mentioned yesterday) between icon and idol. An symbolizes a thing beyond itself, but in truth only refers us back to itself. An icon, by contrast, both symbolizes a thing beyond itself and points us to that thing. In the Dante passage, the Pope and the cardinals have, in Folco’s judgment (= the poet Dante’s), come to see the Church as something that exists for itself, and is there to be used by its leaders for worldly gain. The canon law in this corrupt situation is not a means to achieve justice, but something to be manipulated for the sake of gaining power and wealth (which are basically the same thing). As a result, the Pope and the cardinals cut themselves off from Christian memory and tradition (that is, the events in the Gospels, the revelations, on which our faith is based), and make it hard for the Church to do what it is supposed to do: be the ordinary means of salvation for humanity.
What does this have to do with secular law? This, I think: the law brings itself into disrepute when it ceases to be an icon of justice, but rather an idol — that is, a thing that exists for itself. And if it is an idol, then it is a thing to be manipulated to achieve worldly ends. The result will be social disorder.
Does this describe the law in our time? I can’t say for sure, but I’m inclined to say yes. At least it’s a question worth asking. Now, the law is (generally) not crassly used for enrichment of the powerful, as you might think. That’s not my claim. My claim is this:
- All law, aside from procedural and administrative law, is legislated morality. It embodies a particular view of the Good, of transcendent moral order.
- The Christian moral order — or, if you like, the Judeo-Christian tradition as revealed in the Bible — has generally been the basis for our laws in the American tradition.
- But this is no longer the case, not really. Our society has lost a genuinely Christian view of moral order. That’s not to say that the moral order is anti-Christian, necessarily, only that the extent to which it reflects a Christian view is incidental, given that contemporary American culture, especially elite legal culture, has severed itself cleanly from its base in Christian morality and metaphysics. For better or for worse, this is the reality we’re living out.
- Therefore, absent a transcendent basis for our laws, the law ceases to be something that attempts to mirror the divine order (that is, the law doesn’t point to a reality beyond itself), but rather becomes merely about manipulating things to achieve ends we choose.
This does not mean, I hasten to say, that the makers and interpreters of the law will use it to enrich themselves and hoard power. To the contrary, I would say that principled liberals are not cynical in the way Dante accused Boniface VIII of being. They genuinely believe they are pursuing the Good. The problem from a traditional Christian point of view is that the telos, the ultimate Good they are pursuing, is expanding individual autonomy, the sovereignty of the individual.
One law professor, explaining this point to me during a break, said that he teaches a case in which a court had to decide what to do with frozen embryos a divorcing couple had conceived and stored during happier times. The verdict established the principle that individuals have a right to sell their embryos. The professor said that the core of the jurisprudence here was based entirely on individual autonomy. He mentioned one student who rejected any system of legal reasoning that would fail to guarantee same-sex marriage. The professor said this kind of thing is common among law students today. They’re not bad kids at all, he said; their moral imaginations have been formed by a culture that worships individual autonomy. We should not be surprised, then, that young lawyers and lawyers in training regard the law as an instrument to compel social progress, by their definition.
Later, in the group discussion, another professor said that part of the radical nature of the Obergefell decision is how it excludes an entire category of argument from the judicial process — specifically, Judeo-Christian arguments for how Creation works. Again, you, reader, may believe that is a very good thing. I expect that most of you do. But from a Christian point of view, this is extremely problematic, and problematic in a way that many contemporary Christians don’t understand.
It’s like this. For orthodox Christians, Christianity is not simply a construal, that is, a complex set of opinions about how the world should be ordered. It is a revelation of how the world really is ordered. For example, to say that God created man and woman in His image is not simply a poetic expression. It is a poetic expression that embodies a profound anthropological and theological truth. Any laws based on a contrary point of view is false, literally. And if those laws end up justifying practices (e.g., trade in human embryos) it might be evil.
Yesterday at the Tradition conference, a participant brought up Tocqueville’s position that liberal democracy depends on religion to form the character of the people, so that they are capable of self-rule.
Madison Adams, by the way, said this too, famously holding that our Constitution is only suitable for “a moral and religious people.” Absent this, the unbridled passions of men would tear through our constitutional order “like a whale through a net.”
Anyway, the participant said that liberalism is not producing the kinds of people it needs to perpetuate itself. This point is explored at length by Patrick Deneen in this essay. Excerpts:
Liberalism began with the explicit assertion, and has continued to claim, that it merely describes our political, social, and private decision-making. Yet implicitly it was constituted as a constructive or normative project: What it presented as a description of human voluntarism in fact had to displace a very different form of human self-understanding and long-standing experience. In effect, liberal theory sought to educate people to think differently about themselves and their relationships. Liberalism often claims neutrality about the choices people make in liberal society; it is the defender of “Right,” not of any particular conception of the “Good.”
Yet it is not neutral about the basis on which people make their decisions. In the same way that courses in economics claiming merely to describe human beings as utility-maximizing individual actors in fact influence students to act more selfishly, so liberalism teaches a people to hedge commitments and adopt flexible relationships and bonds. Not only are all political and economic relationships fungible and subject to constant redefinition, but so are all relationships—to place, to neighborhood, to nation, to family, and to religion. Liberalism tends to encourage loose connections.
The second revolution, and the second anthropological assumption that constitutes liberalism, is less visibly political. Premodern political thought—ancient and medieval, particularly that informed by an Aristotelian understanding of natural science—understood the human creature to be part of a comprehensive natural order. Man was understood to have a telos, a fixed end, given by nature and unalterable. Human nature was continuous with the order of the natural world, and so humanity was required to conform both to its own nature as well as, in a broader sense, to the natural order of which human beings were a part. Human beings could freely act against their own nature and the natural order, but such actions deformed them and harmed the good of human beings and the world. Aristotle’s Ethics and Aquinas’ Summa Theologica are alike efforts to delineate the limits that nature—thus, natural law—places upon human beings, and each seeks to educate man about how best to live within those limits, through the practice of virtues, in order to achieve a condition of human flourishing.
Liberal philosophy rejected this requirement of human self-limitation. It first displaced the idea of a natural order to which humanity is subject and thereafter the very notion of human nature itself. Liberalism inaugurated a transformation in the natural and human sciences, premised on the transformation of the view of human nature and on humanity’s relationship to the natural world.
If my analysis is fundamentally accurate, liberalism’s endgame is unsustainable in every respect: It cannot perpetually enforce order upon a collection of autonomous individuals increasingly shorn of constitutive social norms, nor can it continually provide endless material growth in a world of limits. We can either elect a future of self-limitation born of the practice and experience of self-governance in local communities, or we can back slowly but inexorably into a future in which extreme license invites extreme oppression.
The ancient claim that man is by nature a political animal and must in and through the exercise and practice of virtue learned in communities achieve a form of local and communal self-limitation—a condition properly understood as liberty—cannot be denied forever without cost. Currently we lament and attempt to treat the numerous social, economic, and political symptoms of liberalism’s idea of liberty but not the deeper sources of those symptoms deriving from the underlying pathology of liberalism’s philosophic commitments.
If Deneen is right — and I believe he is — liberal democracy in this radically individualist, post-Christian culture will eventually devolve into tyranny because it cannot do otherwise. It is baked in the cake. Commenter Rob G., on yesterday’s Tradition conference post, said:
This tendency is exactly why Dostoevsky has Shigalyev say “Proceeding from unlimited freedom, I end with unlimited despotism.” Radical individualism cannot help but eventually become some form of tyranny.
That’s from the novel Demons. Philosopher John Gray comments:
[Dostoevsky] was particularly scornful of the ideas he found in St Petersburg when he returned from his decade of Siberian exile. The new generation of Russian intellectuals was gripped by European theories and philosophies. French materialism, German humanism and English utilitarianism were melded together into a peculiarly Russian combination that came to be called “nihilism”.
We tend to think of a nihilist as someone who believes in nothing, but the Russian nihilists of the 1860s were very different. They were fervent believers in science, who wanted to destroy the religious and moral traditions that had guided humankind in the past in order that a new and better world could come into being. There are plenty of people who believe something similar today.
Dostoyevsky’s novel contains a lesson that reaches far beyond Russia. Early English translations bore the title The Possessed – a misreading of a Russian word more accurately rendered as Demons. But the earlier title may have been closer to Dostoyevsky’s intentions. Though at times he is merciless in his portrayal of them, it isn’t the revolutionaries who are demons. It’s the ideas to which the revolutionaries are enslaved.
Dostoyevsky thought the flaw at the heart of Russian nihilism was atheism, but you needn’t share his view on this point to see that when he writes of the demonic power of ideas he has fastened on a genuine human disorder. Nor do you need to approve of Dostoyevsky’s political outlook, which was a mystical version of nationalism deeply stained with xenophobia.
What Dostoyevsky diagnosed — and at times suffered from himself — was the tendency to think of ideas as being somehow more real than actual human beings. It would be a mistake to imagine that we haven’t also fallen into this sort of delusional thinking.
In contemporary America, we are nihilistic in the sense Dostoevsky meant, according to John Gray. The core idea of the Enlightenment — that humans are not bound by religion, tradition, or any obligations not self-chosen — is, in the Dostoevskian sense, demonic. This is not going to end well.
There was some talk at the table about how difficult it is to get students even to think beyond individual autonomy. (It sounds like trying to get theology students in a medieval cathedral school to think beyond the concept of God’s existence.) One professor said it’s likely that the best thing we can do at this point is to educate our children in the kind of moral realism that is the antidote to the false religion of our time. We have no guarantees of success, but the resistance that Tradition must put up depends on culture — or rather, counterculture. You know where I’m going with this, so I’ll stop now.
What a great conference this was, and how important and relevant to our time. These conversations, these alliances, these networks — they all need to be happening now, and expanding. We are going to need each other in the years to come.