The Sacred Public Square

Ruben Alvarado

Copyright ©1993 Ruben Alvarado

This edition published 2013 on commonlawreview.com


Part I: The Abandonment of the Gentleman’s Agreement

 

The attack on liberal democracy proceeds apace even at the hour of its apparent triumph. Its principles once again seem indefensible. Its creed – individual greed. It’s every man, or woman, for him- or herself in a scramble to survive. What’s mine is mine; forget the rest. It has no public spirit, no consideration for the poor or the weak and less-fortunate.

But now an alternative form of society beckons to modern man. It offers mankind the hope of oneness, of community, of sharing, of the healing of wounds, the breakdown of barriers, of wholeness. It is the political philosophy of community, which will supersede the game of possessive individualism and unrestrained economic growth.

For community is a dream in which everyone is assured of receiving his due, materially, spiritually, socially. Community means that no one need ever again be lonely, nor suffer material want, nor worry about the money to pay the bills. Community means that people can cease fighting with each other and instead help each other with their burdens. It means the strong will put the weak back onto their feet, not pin them to the ground and hold them there. Wrongs will be forgiven, not avenged; slights, forgotten; and the soul healed from the wounds and bitterness of conflict.

Community could never be achieved under the regime of liberal democracy, because hearts are set on material things, and on competition for material things; for acquisition of property, and preservation of property. This soulless system calls not upon the good, the virtuous, the just, but rather upon the agreement to disagree about everything of real importance, in order to concentrate upon base interests, wants, ambitions.

And indeed, the hallmark of liberal democracy is to reduce the common ground of society to those material aspects and elements of a civilization which are mundane at best and fundamentally corrupt at worst. Televisions, VCRs, cars, refrigerators, microwave ovens, toasters, vacuum cleaners – these are the substance of our social contract.

But is not life more than bread, the body more than clothing? Are things all we are concerned with in our common life, as citizens of communities and nations? Isn’t there more to life in society than an agreement to keep one’s hands off what belongs to someone else?

There are those who, in responding to these questions in the negative, have built an industry on “exposing” as many of the injustices (real or imagined) of liberal democracy. In so doing, they satisfy a deep psychological urge: to shake up those corpulent, complacent little burghers, so smug and satisfied in their apparent prosperity. Then there are those who decry the laxity and moral corruption liberal society allows and even seems to positively nurture. To the left, this society continually violates the canons of social justice; to the right, it continually undermines civic virtue.[1]

Nevertheless, for better or worse we are all active participants in, yea beneficiaries of, liberal democracy. During this time of post-socialism, post-Berlin Wall, post-Cold War reckoning of balance sheets, most if not nearly all of us give grudging approval to what this system does seem capable of providing: a distribution and balance of wealth superior to that ever attained by any civilization in history.[2] It does not fill the emptiness in our hearts, but it does fill our bellies.

But there is a more fundamental reason for the success of liberal democracy. Economic efficiency in itself does not explain this society’s success. Even given its marvelous economic performance, liberal democracy would not succeed if there were not an even more basic criterion upon which to ground its legitimacy. Liberal democracy, in fact, satisfies basic criteria of justice, apart from any consideration of efficiency. Which is why its critics have failed to overthrow it. Despite incessant attacks from both right and left during the 300 or so years of its existence, it stands bloodied but unbowed – in J.G.A. Pocock’s words, “a tormented but oddly triumphant entity”[3] – because its critics have not recognized the true secret of its success: the focus of the role of the state on the administration of commutative justice.

The legitimacy of liberal democracy therefore hinges on its peculiar implementation of justice, even more than efficiency. As shall be shown, though, considerations of justice not only explain its success, but expose it’s Achilles’s heel. Inquiry lays bare the perilous situation awaiting us if we do not recognize the character of the issues involved; it also points to the way beyond modern society’s present stalemate. Truly, Western civilization, and the world with it, is poised toward progress or collapse.

The concept of commutative justice was first put forward by Aristotle, also the first philosopher to discuss the concept of justice in a detailed and systematic manner. Aristotle distinguished commutative justice from distributive justice. Commutative justice Aristotle called contractual justice: it ensured that buying and selling were done on the basis of equality – i.e. that the value of the exchanged items were really equal. This principle of equality was also the basis for restitution, which he also included under commutative justice. Restitution demanded that infractions of law be punished according to the nature of the crime, with the penalty equalling, and so “commuting”, the damage done by the crime. So commutative justice is equalizing justice, ensuring that where the principle of equality applies, it is adhered to.

But not all justice had to do with equality. Aristotle recognized another category of justice, distributive justice, which concerned what one was due in regard to a certain status one might possess. Thus, a father is due honor not due a child, because a father is greater than a child in certain respects, such as his authority. Distributive justice would demand that the father, among other things, receive consideration in law in those things which are peculiar to his fatherhood; in this instance, that he be recognized as having authority over his child possessed by no one else. To accord him this position is to do justice to him in terms of his status. Thus, distributive justice accords rights in terms of special, distinguishing characteristics, not in accordance with a general principle of equality.

Although this approach to the concept of justice was not introduced to the West until the thirteenth century, the ground had been prepared for this reintroduction by the development of the concept of jurisdiction. Jurisdiction evolved in mediæval society as multiple loci of authority took root, splitting society into a multiplicity of groupings. Authority came to be restricted, and assigned in terms of hierarchy as well as function. The basic separation was that of Church and State; this separation proved the driving force behind the differentiation of the remainder of society.

Underlying the separation of Church and State was the distinction between the sacred and the secular. Contrary to popular opinion, mediæval society was not conceived as a unitary society. Much rather, it was based on the fundamental Augustinian separation: the division between the spiritual society and the natural society, the eternal community and the temporal community, the City of God and the City of Man. In Augustine’s approach, the City of God existed in the City of Man – earthly human society – but was not of the City of Man. These two societies had two different ends; the spiritual society sojourned in the midst of the natural society, but had a supernatural and eternal destiny. The natural society would perish; the spiritual society would live forever with God.

What this meant was that earthly life was denied ultimacy. The spiritual, eternal end of man relativized all of his earthly activity. This relativization found expression through the institutional church, which claimed authority over man’s eternal destiny. The state was demoted to the role of overseeing temporal matters.

Along these lines jurisdiction was realized in practice. For the church to have jurisdiction of spiritual affairs meant that spiritual affairs had to be defined, and the same held true for the state. The limitation of the state’s jurisdiction to temporal affairs relativized the state’s competence: the state could not usurp supremacy over all of life. The state could no longer act as an end in itself. Its jurisdiction over temporal matters meant that it would have to establish and maintain a framework of laws expressive of principles of justice lying beyond its power.

The fruitfulness of this “division of powers” was realized in the collaboration of the two powers in defining and administering justice. For the kind of justice which the state needed to enforce needed to be defined, and the church stood tall to ensure that the justice which was enforced was justice in correspondence with God’s will. The felicity of such an arrangement is evident, for if the executor of justice also defines justice, it cannot be held to account by anyone or anything outside of itself. For the state to exercise the ministry of justice while the church is recognized as the source of the principles of justice is to ensure a constitutional arrangement in which power is fundamentally and conclusively constrained – both horizontally and vertically.

Thomas Aquinas buttressed this arrangement by introducing the Aristotelian analysis of justice. As a doctor of the church, Thomas was concerned precisely with defining justice to provide a standard by which the civil magistrate could properly conduct his ministry. In appropriating Aristotle’s conception, though, Thomas also worked a fundamental reorientation to that conception in accordance with Christendom’s Augustinian jurisdictional framework.[4]

For Aristotle’s view of justice was conceived within a pre-redemption context: that of the polis, the ancient Greek city-state. The polis was the be-all and end-all of earthly existence, while earthly existence was the be-all and end-all of human existence itself. Life extended to the physical and temporal borders of the polis, and no farther. This community, being absolute, constituted the boundaries and framework of justice.

The whole, therefore, was greater than the parts; in importance, the collective superseded the individual. As far as justice was concerned, therefore, Aristotle’s version of commutative justice tended to be swallowed up in distributive justice. That is, commutative justice, which defined relations between individuals, took second place to distributive justice, by which individuals were accorded status and benefits in terms of the community. The “community” held all the cards. Distributive justice depended upon the community’s judgement as to who was worthy of the privileges and benefits which it had to distribute. Distributive justice established reward in terms of status, and the decision as to who was “worthy” was left up to the community, i.e. the powers that be within the community whose decisions could not be gainsaid.

Contractual give-and-take, the validity of activities whose roots lie in the freedom of choice between private actors, was thus accorded secondary status. Among other things, this deadened commercial life. Dooyeweerd summed up Aristotle’s approach thusly:

The whole Aristotelian conception of commutative justice has its background in his aversion to commercial trade and interest. In his opinion the latter threaten the virtue of the community, because they are to be viewed as unnatural methods of enrichment and are not primarily directed to mutual and equal service, which is a communal duty. Interest (tokos ) cannot rightly arise from money, because the latter, being inanimate, is not able to beget (tokouein ). And commercial trade which has its aim in profit making is unworthy of a citizen since it stimulates the striving for wealth as an end in itself, whereas wealth can only be a means to the fulfillment of the task of the good citizen.[5]

When the community both defines and administers justice, inter-individual justice, and thus individual freedom, is inevitably shortchanged. The group becomes all-embracing. Essential to the proper administration of justice, then, was the realization that justice cannot be both defined and administered by the same community, for the community then becomes an end in itself and orders all things in terms of its own ultimacy. In order to obtain the proper relation between distributive and commutative justice, the monopoly of the community needed to be broken.

To achieve this, Thomas insisted that the church must establish the basic criteria of justice. Justice is a virtue, indeed the chief of the virtues; its fulfillment, therefore, is an issue of virtue and of morality, and to that degree therefore falls under the jurisdiction of the church. For the church must oversee the affairs of men to ensure that their supernatural end is promoted, and that spiritual corruption is mitigated; injustice is sin, and cannot be abided, as it cuts men off from fulfilling their supernatural end of beatitude with God. The church, therefore, has to hold rulers accountable to a standard of justice consistent with the justice of God.

The state exists to promote and further the common good of the society over which it is set. The essence of that mandate is the administration of justice, in terms of law which corresponds with the law of God. Divine justice stands over and defines earthly justice. The concepts of distributive and commutative justice receive definition in terms of the divine law-order as expressed in the Bible and the teachings of the church, the basic standard being the Ten Commandments.

The entry of the church into the lives of pagan nations broke the monopoly of the community over the lives of individuals and released commutative justice from subordination to distributive justice. The doctrine of the atonement showed the centrality of the principle of retribution, a commutative concept, to the Biblical concept of justice. If even God Himself could not simply do away with sin, but had to actually pay that penalty through the death of His Son, then surely an immutable principle of justice was put forward here which man must honor in his own administration of justice. Anselm was the theologian who first fully appreciated the significance of the atonement as the foundational demonstration of justice; the Anselmian doctrine was basic to the church’s view of justice.[6]

The freeing-up of commutative justice from distributional value-judgments became especially visible in laws regarding economic behavior. In general, and as a matter of basic principle, the market for Thomas became the determinant of value for exchanged goods or services, and the market also determined wage levels. Justice here was achieved by adhering to the common estimation as arrived at in the marketplace, not by fixing prices and wages by decree (although the possibility and legitimacy of such action, in certain circumstances, was not ruled out). Private property and trade fell under the auspices of commutative rather than distributive justice.[7]

Thomas’s outworking of justice, expounded in the second section of the second book of his Summa Theologica, spawned a tradition of moral theology in which basic criteria of justice were developed and applied to the elements of evolving Western civilization. One of the most comprehensive treatments of justice within Thomist tradition was put forward in the sixteenth century by the Spanish Dominican theologian Domingo de Soto in his work De Iustitia et Iure (Of Justice and Law).[8] De Soto grounded his discussion of justice on the distinction between distributive and commutative justice. His discussion of commutative justice began as follows:

Before beginning the treatment of the second kind of justice, which is opposite to distributive justice – i.e. commutative justice – it is necessary to speak concerning the two things which serve as its basis: first, of the ownership [dominium ] of things, and thereafter of restitution. In truth, ownership of things and their division is the basis and foundation of all contracts, pacts and agreements of which commutative justice is concerned. It follows that all vices which oppose this virtue are violations and abuses of ownership and property of things. Therefore such injustices and trespasses must be compensated by way of restitution.[9]

The restriction of property and restitution to commutative justice is clear. Distributive justice therefore has nothing to do with redistributing private property; it is limited to administering those honors and emoluments which the state might bequeath, as well as goods held in common by the people and administered as a trust by the state.

The application of these principles of commutative justice to jurisprudence was the work of another Spaniard, the jurist and protege of Domingo de Soto, Fernando Vazquez de Menchaca (d. 1569). Vazquez brought together Thomist moral philosophy, Roman-legal jurisprudence, and European customary law in a ground-breaking synthesis which put the juridical doctrine of subjective rights on center stage. In so doing, Vazquez brought the concept of commutative justice to full expression. In Vazquez’s system, subjective rights were based upon the criteria of distributive justice and served to give it concrete expression. Vazquez also took a crucial step further: he defined these rights, jura, as property, dominia, thus bringing rights within the purview of commutative justice. Vazquez harnessed the complementarity of distributive and commutative justice for jurisprudence.

Vazquez applied the Thomist conception of the nature of man, as made in the image of God, to legal theory. By virtue of his being made in God’s image, man possessed dominium, dominion, as an inherent aspect of his nature. The command to pursue dominion, made by God in Genesis ch. 1, was thus a command to live out the image of God.[10] It was also the way in which man expressed his freedom. Freedom is gained through the exercise of dominion. The freedom of the will is the dominion of Spirit over flesh, the subjection of the passions to reason. Dominion and freedom therefore are correlative expressions of the image of God. Man exercises dominion as a proper expression of his freedom. True freedom is dominion carried out in obedience to God’s will.

One of the ways in which this freedom/dominion principle became concrete was through the institution of private property. Man expressed dominion through taking possession of parts of the creation; when he worked those parts, he added value to them. The sum of his works made up culture. His works were his property; the division of property was essential to human culture, indeed to human survival.[11]

But with the Fall of man, men began to envy their neighbors and then to usurp their goods. Warfare was the result. This brought another form of dominium – that of man over man – to offset the inability of men to restrain their appetites. God subjected men to the coercive authority of other men both as punishment for sin and to mitigate the effects of sin.

The dominus-servus, lordship/subjection relationship, so alien to man’s original state, found institutional expression in the state. Given the reason for its institution – to restrain man’s attacks on his fellow man – its primary purpose lay in the preservation of the institution of private property, since the root cause of warfare was envy.

The state, therefore, did not exist as an end in itself. Vazquez was perhaps the sixteenth century’s most vociferous exponent of restrictions on state power. The state could only act where it had just cause to act; its laws must not only not contradict the principles of justice (lex permissiva ), they must be direct expressions of that justice (lex praeceptiva ). “No human law is legally binding if it is unjust.” In such a case, the civil magistrate was required, not just admonished, to set aside the law in favor of justice.[12]

As for Vazquez the state existed to preserve legitimate property rights, its right to interfere with or revoke property rights was severely restricted. Such interference or revocation could only be justified in the case of public necessity narrowly defined, and needed always to be accompanied by just compensation.

Vazquez’s conception of the fundamental importance of property rights was a direct development of both the Thomist philosophical and the Bartolist Roman-legal traditions. Where he innovated was in attributing the status of dominium, of property, to all specific legal positions held by citizens. As a result, rights were vested with the same protections and privileges as property in the strict sense. The state existed to establish citizens in their acquired rights. Thus, not only did the state exist in the interest of property owners in the narrow sense, but also in the interest of property-owners in the broad sense: all rights-bearing citizens were protected in their “property” by the state. The general principles of distributive justice were hereby translated into the specific terms administrable through commutative justice.

In Vazquez’s system, the full recognition of both man’s status as a being created in the image of God and fallen away from God comes to fruition. Man’s dominion is the expression of this image; dominion is also placed over man, to mitigate his rebellion. Man’s exercise of dominion is greatly restricted by the establishment of institutionalized dominium of man over man – the state – yet dominion remains an essential aspect of his nature, a potential waiting to be actualized. Within the framework of the rule of law and progress in the virtues, his dominion-potential can be actualized; this actualization finds expression in rights granted by the state, which once granted were irrevocable. One could not ask for a more summary and comprehensive description of the core of Western constitutionalism.[13]

In getting from an Aristotelian to a Thomist concept of justice, one should take notice of the change which was wrought in pushing back the hegemony of the state and freeing the private sector from state tyranny. The establishment of jurisdiction, and chiefly a spiritual jurisdiction along Christian lines, created the room for unprecedented political freedom. But even though much greater individual freedom was on offer here than could ever have been hoped for in Aristotle’s polis, this freedom was bought with a price: agreement as to the moral, philosophical, and theological foundations of the state. That agreement was brokered, not by the state, but by the church. If the church should ever fall down on the job, then the state would be freed to again make up its own standard of justice. Such would be devastating to the social order of Christendom.

Such, we know, also came to pass. With the miserable failure of the Roman church to fulfill the promise of this ministry, and consequentially the unstoppable rise of absolute monarchy, a return was made to the ancient polis, only this time one more akin to Rome than Athens. The age of the imperial nation-state superseded the age of faith. Little wonder that revived forms of Aristotelianism were applied to bolster the authority of the king along the lines of Aristotle’s original formulation of justice.[14]The scholastic conception of justice was by and large rejected, because of its theocratic nature.

The crowning blow to mediæval Christendom, the Thirty Years’ War (1618-1648) seemed to have brought an end to civilization itself. Quite definitely the Europe of unity and community was no more; and everyone knew it. The chief cause of conflict? Religion. No one agreed anymore to the primacy of Rome. And even less could they agree upon a replacement. But common submission to the teachings of the Roman church had been the basis for the civilization of Christendom. What could take the place of that?

One of the towering intellectual figures in that age of devastation, the Dutch jurist and statesman Hugo Grotius, was hard at work on a solution. How could the peace be restored which had vanished along with disintegration of the mediæval world? Grotius hit upon the answer. What was dividing the peoples and nations was the inability to agree upon revealed religion. Some substitute common ground had to be found to replace it. But what kind of bond could be found which could unite people who did not share first principles? Well, people had come to share a broad common ground with respect to the kind of earthly existence they were after. Protection in their liberty and property, the right to commerce and to travel, the right to do business and live their own lives. A framework of laws in which people would be protected in these rights could be sufficient to bond them together in a society. The criteria of commutative justice could serve to regulate the affairs of state, if everyone agreed that the purpose of the state was not to impose one particular vision of the good on its citizens, but simply to respect differences of opinion here and agree only to act when one citizen’s rights are violated by another. And since the category of distributive justice is dependent upon the kind of subjective value-judgments to which agreement cannot be found, that category would have to be eliminated from the purview of the state.

Along these lines, Grotius elaborated the theory which would became the basis of liberal democracy. Its principles are enunciated in his The Right of War and Peace, first published in 1625, at the height of the Thirty Years’ War.[15] The heart of his argument lay in the denial of the category of distributive justice as the standard of public justice, and the elevation of commutative justice to a position of exclusivity. Justice itself simply meant respect for another’s rights.

Grotius was heavily dependent upon Vazquez for his system, both positively and negatively.[16] His approach to civil law – rights on center-stage, defined as property – was taken from Vazquez. But contrary to Vazquez and the entire Thomist tradition, rights for Grotius were held by individuals a priori, outside the state, and so were not created by or given by the state. Rather, there had existed a pre-civil condition, called the “state of nature,” in which men had the right to avenge the infringement of their rights, even to inflict the penalty of death on the violator. Each individual was the equivalent of a sovereign in international law: each could act as judge in his own cause. With the formation of the state, that right of administering justice was transferred to the state. Other rights need not be, however, and in fact the only reason the state was formed was to provide a better means to achieve such an administration of justice. The rights which needed defending needed undergo no change at all in the switch to civil society. Grotius thus reversed the relationship between distributive and commutative justice put forward by Aristotle. Commutative justice had now swallowed up distributive justice.

This approach, which elevated the sovereignty of the individual to a decisive position in jurisprudence, was new with Grotius. Grotius took Vazquez’s doctrine of rights and turned it into a metaphysical first principle. Vazquez had never attributed sovereignty to the individual; the state of nature in that sense was Grotius’s innovation. For Vazquez, as for the Thomist tradition, nearly all rights were civil rights, expressions of principles of justice within the framework of a constitutional state-order.[17] Grotius’s approach constituted the foundation for what would become modern democracy – natural rights.

It should be clear from the previous discussion that liberal democracy derived its basis from the theocracy which preceded it. It took one-half of its concept of justice, and left the other half behind.

It is here that liberalism delivered a hostage to fortune. Basic to the liberal order was what would later come to be termed the “bourgeois” family, the nuclear family of husband, wife, and children, crucial to which are the authority of the husband and the right to pass down property to children. The authority of the husband meant inequality between husband and wife, which meant inequality between men and women. That was self-evident principle #1 which would come up for reevaluation. Inheritance meant property rights, and it meant the accumulation of wealth, passed down to future generations which were thereby “privileged” with respect to those who were not so fortunate as to have prosperous forebears. Self-evident principle #2 which would lose such status rather quickly.

Now these foundations of the liberal order were presupposed. They did not in fact have any theoretical legitimacy within the system. For in denying the category of distributive justice, liberalism denied the validity of any institution or authority with legitimacy based in status, whose origins could not be traced to a contractual basis. All authority required an act of positive will to be legitimate. Each individual, remember, was a juridical sovereign.

Natural rights were the expression of that sovereignty, and were to protect the institutions of liberalism. But in fact, rights proved to work directly against those institutions. As soon as the tacit agreement as to the pillars of liberal society evaporated, war would commence, with rights as the weapon of choice among the antagonists.

The hollowness of Grotius’ solution becomes apparent when the nature of rights is considered. To make rights the criteria of justice is to beg the question of what justice is supposed to accomplish. Rights in themselves affirm nothing but the power of one person to something, at the expense of someone else. Rights are exclusive. One’s rights will infringe another’s. That is the very nature of a right. In themselves, therefore, rights do nothing to mediate relationships between human beings. They only do so when they are expressions of principles of justice which do mediate those relationships. Rights only serve to specify in concrete terms the broader demands of justice and law.

In the heyday of liberalism, rights could serve as the subject matter of justice because everyone implicitly agreed upon their content. But with the evaporation of that common standard, rights became the subject of controversy and weapons for the achievement of aims directly opposed to the original liberal program. The direct offspring of natural rights – human rights – became the vehicle for the reentrance of the category of distributive justice on the juridical stage. Human rights reintroduced subjective value-judgments, status judgments, as to what a person is entitled apart from any considerations of contract.

The doctrine of natural rights left a peculiar vacuum at the heart of civil society which liberal democracy was never able to fill. The category of distributive justice cannot be gotten rid of. For as history continues to demonstrate, civil society is as incurably religious as are the individuals of which it is composed; and it expresses its religious belief in its concept of justice, in particular, in the way it conceives and relates distributive to commutative justice. The very existence of an integral, answerable version of commutative justice depends upon a concept of distributive justice: the two are related as sides of the same coin. Value determinations are essential to maintain the viability of commutative justice, because judgments concerning rights and contracts rest upon a framework of understandings within which contract can operate. It is not enough to base all considerations of justice upon the bare idea of pacta sunt servanda, “agreements must be kept,” as Grotius naïvely assumed. That is pure formalism. It is the content that matters, and content is supplied by the notion of justice as a criterion of value, of commitment, of faith.

The category of distributive justice has returned to the public square, even while democracy claims to function in terms of the principle of neutrality. This should come as no surprise. That it is fueling a political process which Alasdair MacIntyre has termed “civil war carried on by other means”[18] should also come as no surprise. Contemporary society is at war with itself, using the juridical weapons of warfare shaped during the mediæval period. This war is a war over first principles, just as in the time of the wars of religion. It is being conducted in the name of rights: the right to work vs. the right to the cheapest, most efficiently produced goods; women’s rights vs. the right to life; children’s rights vs. parents’ rights; freedom of religion vs. freedom from religion. Rights have become tools, weapons, clubs, to be wielded by the politically most vociferous, most influential, most survivable in the Darwinian sense.

A religious crusade is being conducted under the camouflage of rights, the kind of crusade which liberal democracy was supposed to have averted. Considerations of merit, of status, of moral value and religion are taking center stage in public life, the public square, which was supposed to be kept free of such “divisive” considerations. Society’s very foundations are being swept away in a flood of deeply religious programs and agendas. The gentleman’s agreement to respect each other’s rights has been transformed into a fanaticism of ramming as much of one’s partisan agenda as possible onto the lawbooks, through the legislature, the courts, or simple executive decree. Winner take all. The promise of majoritarianism, fulfilled according to the prophets – Burke, de Tocqueville, Groen van Prinsterer[19] – with the corroborating testimony of José Ortega y Gasset[20]

The root error is to assume that the public square could be kept closed to value judgments. Such a situation is much rather the prelude to barbarism: “barbarism is the absence of standards to which appeal can be made.”[21] As if society could be content in a negative sort of partnership, agreeing to only a bare amount of rules (which, of course, rested on agreement as to a certain standard anyway) regarding private property and liberties, while leaving the community as such without a central belief-structure, an organized religion, an imposed form of public education. A nation, if it is to remain a nation, must establish and maintain a religion! If one is not provided, another will fill the void. If Christianity decides to remove itself from the public arena, another will take its place. If the church is disestablished, other, secular, ideology-driven institutions will take her place. There simply is no escape from this choice.With liberal democracy we can agree that the direct role of the state is a negative one: the administration of commutative justice. In fact, as is evident from the above, it is an idea stolen from Augustinian theocracy by liberal democracy in the first place. That to which we can no longer agree is that such an administration of justice can operate independently of the criteria of distributive justice. The public square is more than the state; public justice is more than commutative justice. The principle of neutrality and majoritarianism as pillars of our public philosophy must be abandoned, because a theological, religious, and moral framework is required to undergird the legal order administered by the state. And the state needs to recognize that higher order, explicitly.The custodian of that higher-law framework is the church – or it will be some other priesthood. We therefore have to work to reestablish the church in her public ministry. We have to refill the vacuum left when it was disestablished in the first place, to ensure that false alternatives are given no chance at hegemony. We have to clean out the national temple. We must tear down the high places. Our Ahabs must be prophesied against, and our Jezebels must again be cast from their palace windows. Otherwise, the state, losing its moorings, will revert to a perverted kind of distributive justice, allowing it in through the back door, as it were, in its lust to assume total power. And the last state of that union is worse than the first.


Notes

[1] “On the left the charge is one of failure in social humanism: the liberal individual is said to be engrossed in acquisitive activity, and so to detach himself from a politics which he pays to repress those whom acquisitiveness excludes. On the right the charge is one of failure in civic and intellectual humanism: both the acquisitive individual and the wage-earning individual who looks to the state for protection against him are charged with abandonment of politics – by which is meant the heroic moralism of political and philosophical decision, practice, and contemplation.” J.G.A. Pocock, “Authority and Property: The Question of Liberal Origins”, in Virtue, Commerce, and History: Essays on Political Thought and History, Chiefly in the Eighteenth Century (Cambridge, England: Cambridge University Press, 1985), p. 60.

[2] Apart from ancient Israel during such times as after the conquest of the Promised Land under Joshua: “And the Lord gave to Israel all the land which He swore to give to their fathers. And they possessed it, and lived in it. And the Lord gave them rest round about, according to all that He swore to their fathers. And not a man of all their enemies stood before them. Jehovah delivered all their enemies into their hand. Not any good thing which the Lord had spoken to the house of Israel failed. All came to pass.” (Joshua 21:43-45, MKJV).

[3] “Virtues, Rights, and Manners: A Model for Historians of Political Thought,” in Virtue, Commerce, and History, p. 38.

[4] On this point, as well as on this discussion in general, see Alasdair MacIntyre, Whose Justice? Which Rationality? (South Bend, IN: University of Notre Dame Press, 1987). The discerning reader will notice that my argument differs from MacIntyre’s mainly in deriving liberalism’s legitimacy from criteria of justice rather than efficiency.

[5] Herman Dooyeweerd, A New Critique of Theoretical Thought (Jordan Station, Ontario, Canada: Paideia Press Ltd., 1983 [1969]), vol. III, p. 213.

[6] Cf. Harold Berman Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, Mass.: Harvard University Press, 1983), pp. 174ff.

[7] For an introduction to the Thomist approach to justice with regard to economic activity, with special reference to the Spanish school of Salamanca, see Alejandro Chafuen, Christians for Freedom: Late-Scholastic Economics (San Francisco, CA: Ignatius Press, 1986), passim. For a quick survey of the Thomist free-market tradition, see Murray Rothbard, “Late Medieval Origins of Free-Market Economic Thought,” in Gary North, ed., The Journal of Christian Reconstruction: Symposium on Economic Thought, v. II, no. 1, Summer 1975.

[8] Domingo de Soto (d. 1560) was a pupil and colleague of Francisco de Vitoria at the University of Salamanca in the sixteenth century.

[9] De Soto, De Iustitia et Iure, Book IV, Prologue.

[10] On this point, see Peter Leithart’s discussion in his article, “What is the Kingdom of God?” Contra Mundum, No. 5, Fall 1992, p. 7f.

[11] One of Vazquez’s arguments in favor of private property echoes the modern argument of “the tragedy of the commons” natural resources would be reduced to nothing if exploitation were unrestricted, open to all.

[12] Fernandus Vasquius, Controversiae Illustres, I, 29 [[section]] 19; quoted in Ernst Reibstein, Die Anfänge des Neueren Natur- und Völkerrechts: Studien zu den “Controversiae Illustres” des Fernandus Vasquius (1559) (Bern: Verlag Paul Haupt, 1949), p. 90.

[13] I know of no material in English which discusses Vazquez in any detail. My sources for this description are: Ernst Reibstein’s work quoted in n10 above; Reibstein, Johannes Althusius als Fortsetzer der Schule von Salamanca: Untersuchungen zur Ideengeschicthe des Rechstaates und zur altprotestantischen Naturrechtslehre (Karlsruhe: Verlag C.F. Müller, 1955); Kurt Seelmann, Die Lehre des Fenando Vazquez de Menchaca vom Dominium (Köln, et al.: Carl Heymanns Verlag KG, 1979).

ADDITION 2013: This description of the origin of rights can lead to misunderstanding. By “the state” I mean here what Stahl means (The Doctrine of State and the Principles of State Law, pp. 73ff.), the organized political and social community under a regime of sovereignty, i.e., the ruling authority together with the rule of law, hence the “law-state” (Rechtsstaat). By no means do I mean “the government.” The state is much more than the government; in fact, the government can be opposed to, and actively work to, undermine the state, by acting in terms of executive decree rather than law, by refusing to enforce the law, by operating extra-constitutionally, etc. What I do mean is that rights are creatures of law, and positive law at that; therefore, rights cannot be “natural.” But they can be civil rights, being the product of the civil condition (civitas = city).

[14] See H. Dreitzel, Protestantischer Aristotelismus und absoluter Staat; die Politica des H. Arnisaeus, Veroft. d. Inst. f. Europaische Geschichte, Mainz, LV (Wiesbaden, 1970).

[15] The Prologue to this work can be considered the charter of liberal democracy.

[16] For Grotius, Vazquez’s besetting sin was his penchant to subordinate the civil magistrate to strict, and strictly enforceable, criteria of justice. Such Vazquezian positions as the contractual nature of positive law and the concomitant right to resist a ruler who acts above the law were anathema to Grotius. Grotius’s concern was to free the sovereign from any sort of judicial review based on church-defined criteria. He made the individual a juridical sovereign, in order to legitimate the state’s sovereignty in public affairs.

[17] “Individual rights could exist and develop only on the foundation of the general doctrine of natural right and in the climate of constitutional government [klima des Rechtsstaates ].” Reibstein, Die Anfänge, p. 137.

[18] Alasdair MacIntyre, After Virtue (Notre Dame, Indiana: University of Notre Dame Press, 1984), p. 253.

[19] Guillaume Groen van Prinsterer (d. 1876) was a Dutch statesman and the author of Ongeloof en Revolutie (“Unbelief and Revolution”), an incisive analysis of the French Revolution and its implications from a more explicitly theological perspective than was undertaken by Burke or de Tocqueville. An English translation of his magnum opus is now available: Harry van Dyke (translator and editor), Groen van Prinsterer’s Unbelief and Revolution (Jordan Station, Ontario, Canada: Wedge Publishing Foundation, 1989).

[20] No one has described contemporary politics better than Ortega y Gasset. Witness the following: 

Civilization is nothing else than the attempt to reduce force to being the ultima ratio. We are now beginning to realize this with startling clearness, because ‘direct action’ consists in inverting the order and proclaiming violence as prima ratio, or strictly as unica ratio. It is the norm which proposes the annulment of all norms, which suppresses all intermediate process between our purpose and its execution. It is the Magna Carta of barbarism.

All our communal life is coming under this regime in which appeal to ‘indirect’ authority is suppressed. In social relations ‘good manners’ no longer hold sway. Literature as ‘direct action’ appears in the form of insult. The restrictions of sexual relations are reduced.

Restrictions, standards, courtesy, indirect methods, justice, reason! Why were all these invented, why all these complications created? They are all summed up on the word civilization, which, through the underlying notion of civis, the citizen, reveals its real origin. By means of all these there is an attempt to make possible the city, the community, common life. Hence, if we look into all these constituents of civilization just enumerated, we shall find the same common basis. All, in fact, presuppose the radical progressive desire on the part of each individual to take others into consideration. Civilization is before all, the will to live in common. A man is uncivilized, barbarian in the degree in which he does not take others into account. Barbarism is the tendency to disassociation. Accordingly, all barbarous epochs have been times of human scattering, of the pullulation of tiny groups, separate from and hostile to one another.” Revolt of the Masses, pp. 75-76.

How can our barbarians ever attain community?

[21] Ortega y Gasset, Revolt, p. 72.

Part 2: The Reins of the Body Politic