Junior Ganymede
We endeavor to give satisfaction

On the rule of law

November 11th, 2012 by Vader

I have not had much to say in awhile. There are a number of reasons for this.  

First, the recent election results left me speechless. I am inclined to echo H.L. Mencken; but, since he has already dropped by the Junior Ganymede to deliver a double shot of cynicism with a snark chaser, I will only add this grim consolation: Obama’s pigeons will surely come home to roost. Had Romney been elected, it is possible he would simply have ended up being befouled in Obama’s place.

Second, it seems a rhinovirus slipped past the hermetic seals, and what’s left of my immune system has made me miserable fighting it off. Everyone needs a Department of Defense, but let us not kid ourselves that such are not costly and their activities sometimes a source of discomfort.

Third, His Majesty and I have been on travel the last few days. It seems we have a new employer, famous for his large ears. … No, no, we haven’t gone to work for the White House. Different celebrity with larger ears. Squeaky voice. Only four fingers on each hand — I think that was a sympathy factor in my hiring, though I can’t account for His Majesty’s. Anyway, we were off to visit the new boss, whom we hope will release more balanced accounts of the not very recent and decidedly distant unpleasantness.

As it turns out, my work schedule is now such that I will be making less frequent, but hopefully more thoughtful, posts.


I am only an occasional user of Facebook. That’s mostly because the name “Darth Vader” has been repeatedly co-opted, and the Facebook people refuse to entertain my complaints about the matter. In any case, they call it a social medium because it’s neither rare nor well done. But I have a private moniker I share with a few trusted friends, and I occasionally hear from people I haven’t seen in years.

A couple of old friends have become hard core libertarians. Curiously, both have left the Church. I realize N<3 statistics are not terribly reliable. I believe it’s possible for some brands of mild libertarianism to coexist comfortably with a testimony of the restored Gospel of Jesus Christ. I have even described myself at times as a libertarian-leaning. (Not while His Majesty was in the room, of course; his laugh is famously unpleasant.) But it seems to me that extreme devotion to libertarianism is incompatible with Mormonism. Of course, so is extreme devotion to the Democratic Party — or, for that matter, the Republican Party. I am a bit disillusioned how many of my non-Mormon Republican acquaintances have made quiet post-election comments to the effect that they’re glad it’s over and they can stop pretending they’re enthusiastic about the Mormon. I suspect some future historian will demonstrate that anti-Mormon sentiment played an important role in Romney’s loss, starting perhaps with the relatively low Republican voter turnout in a lot of swing states.

I have been left to reflect on political fanaticism. Russell Kirk argued at length that political fanaticism, or ideology (if you prefer your language a bit less pejorative), is the opposite of conservatism. Of course, Russell Kirk’s definition of conservatism is not universally shared. For one thing, by his definition, movement conservatism isn’t conservative at all — though I am happy to let it be called a movement: It has shown the characteristic tendency to float to the surface and there make a stink.

As political fanatics go, libertarians seem relatively unobjectionable. Their stated goal is to seize the reins of power and then leave everyone alone. I understand the appeal. But one of the distinguishing characteristics of almost all the libertarians I have known is a high regard for their own intelligence. (Whether with justification is an exercise I leave for the student.) It seems to follow that the appeal of libertarianism for a lot of its adherents is that they don’t like to be told what to do by their lessers, which is how they perceive a lot of the laws passed by democracies. To their credit, they’ve chosen a political philosophy that offers to make the same deal in return: In the libertarian utopia, no one will tell anyone what to do except when it is absolutely necessary.

Every political philosophy, whether it be ideological, pragmatic, or empirical in character, can successfully rule only when it rests on popular devotion to a set of core ideas. These may sometimes be articulated to yield intellectual undergirdings to the philosophy, but the devotion itself is always inarticulate. This is not intended as a blanket condemnation of political philosophy. Thomas Sowell has convincingly argued that inarticulate knowledge is actually more vital to the functioning of a complex society than articulate knowledge. (Sowell also devoted an entire chapter of one of his books to the failings of intellectuals regarded as an economic class, which is not a coincidence, just an irony.) Part of our current political frustration is that the American people are deeply divided on core principles, making it problematic for any political philosophy to win adequate popular devotion to long sustain its rule.

No one has better summarized the core idea of conservatism better than G.K. Chesterton:

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.”

This paradox rests on the most elementary common sense. The gate or fence did not grow there. It was not set up by somnambulists who built it in their sleep. It is highly improbable that it was put there by escaped lunatics who were for some reason loose in the street. Some person had some reason for thinking it would be a good thing for somebody. And until we know what the reason was, we really cannot judge whether the reason was reasonable. It is extremely probable that we have overlooked some whole aspect of the question, if something set up by human beings like ourselves seems to be entirely meaningless and mysterious. There are reformers who get over this difficulty by assuming that all their fathers were fools; but if that be so, we can only say that folly appears to be a hereditary disease. But the truth is that nobody has any business to destroy a social institution until he has really seen it as an historical institution. If he knows how it arose, and what purposes it was supposed to serve, he may really be able to say that they were bad purposes, that they have since become bad purposes, or that they are purposes which are no longer served. But if he simply stares at the thing as a senseless monstrosity that has somehow sprung up in his path, it is he and not the traditionalist who is suffering from an illusion.

A core idea of conservatism is that there may be good reasons for long-established institutions, which often reflect the distilled wisdom of centuries; that these good reasons may not necessarily be easy to immediately articulate; and that inarticulate knowledge is, as Thomas Sowell pointed out, certainly more extensive and often much more valuable than the relatively small body of articulated knowledge to be found in university libraries.

Sowell likes to point to the free market as an example of inarticulate knowledge in action. He regards the free market as vastly superior to central planning, and an important reason for this is that the market is able to correlate the inarticulate knowledge of millions where central planning must rely on the articulate knowledge of a few. But another example of inarticulate knowledge captured in a social institution is the common law. I am no expert on the history of the common law, nor even in its practical application, as Adam G. is. But I understand that it grew up in the courts of England over centuries, principle by principle, yet was not really articulated until the work of Coke in the 16th century, further expanded by Blackstone in the 18th century.

Rule of law, which has proven such a blessing in much of the West, rests on ideas that show a strong affinity to conservatism. There must be popular devotion to the concept of law for law to be an effective ruler. This in turn requires that there must be an element of the transcendent to the law. If law is a purely human invention, resting solely on the cleverness of a particular group of men at a particular time and place, it’s little more serious than the rules of football. Any group of people coming along later who consider themselves at all clever will wonder why they can’t just set aside the law in pursuit of whatever objectives they consider worthy. In other words, a body of law that is not transcendent is merely an expression of human will, and thus an instrument of the rule of will.

Closely related is the concept of stare decisis. the basis for the common law. When a question comes before a common law court, the court is expected to settle the question the way previous courts settled it. This reflects the view that the law is something transcendent passed down by our forefathers. It also has the practical value of making the law predictable, one of its most important features: One wag has defined law as a set of prophecies of how judges will decide certain kinds of cases. Under the common law philosophy, it is only when there is no precedent that the court is justified in making new law. Such cases ought to become increasingly rare with passage of time. Part of the conservative furor over a great many controversial Supreme Court decisions is that they overturned existing law, or reasoned badly from existing law, then claimed all the majesty and authority of stare decisis to lock down the new precedent. Every time this happens, stare decisis is weakened and the court becomes more politicized. I fear this process is now becoming fully ripe.

The transcendence of law is reflected in the reverence conservatives give to the Constitution. There is a widespread Mormon belief that the Constitution is literally a transcendent document, but it is not a uniquely Mormon belief. Were it otherwise, the Constitution would not retain even as much cachet as it still does.

I have already identified one of the core beliefs of libertarianism, namely, minarchism: the belief that the law should touch on as few matters as possible. This is not necessarily incompatible with conservatism, and, given that certain rights are a venerable part of the common law tradition, I believe it explains the not inconsiderable overlap between conservatism and libertarianism. But I have stated in other venues that I believe libertarianism is fundamentally a movement of the Left; and while I have since softened my views on this, I think there remains a kernel of truth to it.

Conservative-leaning libertarians often justify restricting the scope of human law with a belief in a natural law that endows men with sweeping natural rights. Natural rights theory has not been unpopular with Mormons, who join many of their fellow citizens in identifying God as the author of those rights. Though natural law theory is no longer as popular as in the past, due in part to the decline in overall religious belief, it may well enjoy a future resurgence based on evolutionary psychology. But, if so, it will not form a solid basis for a libertarian philosophy. Evolutionary psychology already tells us that the urge to redistribute is deeply rooted in the human psyche, for example. And who is to say that our repugnance for certain “victiimless” crimes is not also based in evolutionary psychology? If opposition to gay marriage has a basis in evolutionary psychology, then can a natural-rights libertarian continue to press for societal recognition of gay marriage? And, yes; I know that many libertarians take the position that the law should have nothing to say about marriage at all. But it seems to me that that position runs even more afoul of evolutionary psychology.

Another deep core belief in almost all strains of libertarianism is the sanctity of property. Again, this is not entirely incompatible with conservatism, though conservatives seem more willing than libertarians to fund public goods with compulsory taxes. But what is the deep devotional basis for the sanctity of property? Natural law/evolutionary theory seems to provide some basis for it, but we’ve already disposed of evolutionary theory as a basis for libertarianism. Furthermore, I believe there can be no stable popular government without civic virtue, and there can be no civic virtue without a deep devotional basis for contributing some of one’s excess property for the relief of the worthy poor and for the public good. I believe the former is best handled through religious institutions, but the mere existence of a devotion to charity sufficient to cause people to part with their excess property seems incompatible with a deep devotion to the sanctity of property rights. I see in too many libertarians, particularly of the Objectivist strain, a strong element of “I got mine, it’s up to you to get yours.” I think it takes a strong voluntary institution like the Church to reconcile the legal sanctity of property with the moral obligation to charity.

These examples illustrate the central difficulty of extreme libertarianism. There are deep core beliefs, and then there is the body of law that reflects those beliefs. Between the two is metalaw, law regarding law itself: “Congress shall make no law …” “Congress shall have power to enforce this Article through appropriate legislation …” In the United States, metalaw is articulated in the Constitution, which lays down no statutes but defines the process by which statutes are enacted and courts are empowered to enforce them. Libertarianism, to be sustained as a governing philosophy, requires particularly strong metalaw. This in turn requires a particular set of core beliefs that give the metalaw its necessary transcendence. But it is difficult to see where those beliefs will come from. It is particularly difficult to see where those beliefs will come from in the case of my two friends, who have abandoned religion in their pursuit of extreme libertarianism.

I was struck by something in the election returns for one jurisdiction, where I have a number of friends. The vote was roughly 50% Obama, 45% Romney … and 5% Gary Johnson. The role of Johnson’s candidacy, like that of Romney’s Mormonism, in the election outcome is something future historians will work out. But it seems to me that the distinguishing characteristic of Johnson’s campaign that drew in some Republicans was a distaste for an activist foreign policy. I’m not entirely unsympathetic to that, either. And yet… “We got our national security. It’s up to Israel to get hers.”

We should know better by now.

 

Comments (6)
Filed under: Deseret Review | Tags: , , , , ,
November 11th, 2012 19:07:50
6 comments

Bertie
November 11, 2012

“I have already identified one of the core beliefs of libertarianism, namely, minarchism.”

I say, that’s a bit extreme, what? Do they really believe in, ahem, making do with only one? And is it really possible in our enlightened age to find a medical chappie who will, er, make the necessary modifications? Shocking, really.


Jeeves
November 11, 2012

Sir, I believe your concern is unwarranted and that I can put your mind to rest.

The word was “minarchism”, not “monorchism.”

My pleasure, sir.


Adam G.
November 12, 2012

*they call it a social medium because it’s neither rare nor well done.

*Movement conservatism isn’t conservative at all — though I am happy to let it be called a movement: It has shown the characteristic tendency to float to the surface and there make a stink.

Oh, my. When you’re on, you’re on.


J. Max Wilson
November 12, 2012

Great thoughts, Vader. I agree with much of what you are saying.

However, I’m not sure that the term “Natural Law” is properly associated so directly with evolutionary psychology.

Here is an interesting recent article on that topic from the always insightful Public Discourse:

http://www.thepublicdiscourse.com/2012/11/5994/

It discusses the assertion that “natural law is the rule and governance of reason (ordo rationalis) and not of physical nature (ordo naturae).”

I think that this construction is correct. So a deep rooted psychological tendency to redistribute wealth, does not itself amount to Natural Law, because, despite the word “natural” it does not refer to law derived merely from biological reality, but to law derived from Reason.


Vader
November 12, 2012

Adam,

I blush.

I should probably confess at this point that the “medium” snark was stolen almost word for word from an early critic of television. I don’t recall off the top of my head which one, and my quote book is in my other meditation chamber, but it might have been Ernie Kovacs.

Max,

You’re not wrong, but the problem then is why a libertarian who thinks that minarchism is sweet reason itself is right and a socialist who thinks redistribution is sweet reason itself is wrong. Evolutionary psychology offers a (probably false) promise of objectivity in such matters.


Zen
November 12, 2012

If geology is the study of the Creation, evolutionary psychology is the study of the Fall.

Useful to understand, but not a guide in any conventional sense.

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