Monday, November 2, 2020

Monstrosity as the Basis for Law

I had tried to be happy by telling myself that man is an animal, like any other which sought its meat from God. But now I really was happy, for I had learnt that man is a monstrosity.

-          Orthodoxy, G.K. Chesterton (ebook)

This book is turning quite Christian, as it must, I suppose, given that through it Chesterton is telling how he came to believe that which he believes.  In this telling, he includes the value and meaning of tradition; it is on this that I will focus.

Much of this is packed into one paragraph, which I will break into several more manageable parts:

The eighteenth-century theories of the social contract have been exposed to much clumsy criticism in our time; in so far as they meant that there is at the back of all historic government an idea of content and co-operation, they were demonstrably right.

This theory was born in the Enlightenment; in short form:

Social contract arguments typically posit that individuals have consented, either explicitly or tacitly, to surrender some of their freedoms and submit to the authority (of the ruler, or to the decision of a majority) in exchange for protection of their remaining rights or maintenance of the social order.

The starting point for most social contract theories is an examination of the human condition absent of any political order (termed the "state of nature" by Thomas Hobbes).

Returning to Chesterton,

But they really were wrong, in so far as they suggested that men had ever aimed at order or ethics directly by a conscious exchange of interests.

This is why the conversation that came to the fore by Jordan Peterson and is being held by people such as Eric and Bret Weinstein, John Vervaeke, Jonathan Pageau, Paul VanderKlay, Ben Shapiro, and the long list of celebrity atheists such as Sam Harris and others, will come to naught.  It is a conversation based on a “conscious exchange of interests,” ignoring the foundation that must underlie order.  More on this shortly.

As to the idea of a social contract, this is not how social order came to be at all:

Morality did not begin by one man saying to another, "I will not hit you if you do not hit me"; there is no trace of such a transaction. There IS a trace of both men having said, "We must not hit each other in the holy place." They gained their morality by guarding their religion.

Man didn’t surrender his freedoms to a ruler in exchange for protection; he worked out his freedoms with his fellow man in the face of an authority above and outside of man’s control.

The history of the Jews is the only early document known to most Englishmen, and the facts can be judged sufficiently from that. The Ten Commandments which have been found substantially common to mankind were merely military commands; a code of regimental orders, issued to protect a certain ark across a certain desert.

But none of the commandments said “protect the ark.”  Instead, the commandments captured (I will not say “established,” as the reality of these “commands” was inherent in the natural order before they were ever carved in stone) behaviors that were necessary for a society to cultivate if it was to protect the ark.

The first table properly set man’s relationship to God – to something higher than himself.  The second table properly set man’s relationship to man – that which is equal to himself.  The commands of the second table could not survive without properly respecting the first table; the order is important.

What was the ark?  Why protect it?  Among many other things, it was that around which the Hebrew society was to be, and remain, ordered.  It was the symbol used to bring focus to this order – the orders offered via the commandments held inside.

Returning to Chesterton:

Anarchy was evil because it endangered the sanctity. And only when they made a holy day for God did they find they had made a holiday for men.

There was no social contract among men that brought order; there was the order brought by following the commands offered by God.  To clean this up a bit for non-believers, consider it a pillar underlying natural law – law discoverable by believer and non-believer alike, law based on a proper understanding of man’s nature.  As natural law was abandoned, we got the monstrosity offered by Rousseau and Hobbes.

I read or heard recently – I don’t remember which, or where, or if I had written about it – something to the effect that of the several possible foundations for law in society, natural law is considered of value by very few in law schools throughout the country and that many find it not worth teaching or reviewing at all.  It sits well below theories of communism, socialism, or other various forms of positive law.  Chesterton has an answer for those in this camp (meaning, unfortunately, almost all trained in law):

An imbecile habit has arisen in modern controversy of saying that such and such a creed can be held in one age but cannot be held in another. Some dogma, we are told, was credible in the twelfth century, but is not credible in the twentieth.

We would not say such things about lions or trees – that what was credible for their behavior a thousand years ago is not valid today.

You might as well say that a certain philosophy can be believed on Mondays, but cannot be believed on Tuesdays. You might as well say of a view of the cosmos that it was suitable to half-past three, but not suitable to half-past four.

And this is where we are – every day, a new letter is added to the alphabet soup of what we must believe.  There is no hope for an ordered society which finds this a sound basis for law:

What a man can believe depends upon his philosophy, not upon the clock or the century. If a man believes in unalterable natural law, he cannot believe in any miracle in any age.

For instance, the miracle that a boy can be a girl, or the miracle of post-conception birth control.

If a man believes in a will behind law, he can believe in any miracle in any age.

See the above two examples.

Therefore in dealing with any historical answer, the point is not whether it was given in our time, but whether it was given in answer to our question.

We face the same question – how to bring order to a society riddled in chaos.  There is an answer to the question, but few look to it.  It doesn’t help that the church – Catholic and otherwise – does little to defend it, and, instead, does much to crush it.

And the more I thought about when and how Christianity had come into the world, the more I felt that it had actually come to answer this question.

It didn’t take long after Aquinas for there to come pushback against his encapsulation of natural law.  Too much Aristotle was one complaint.  The pushback came both through those within the Church and from those who protested the Church during and after the time of the Reformation.  It is quite unfortunate.

Nothing in natural law diminishes or reduces the fundamental tenets of the Christian faith.  As I have written elsewhere, the foundations for natural law can be found in Scripture and, if one so chooses, solely in Scripture.  Chesterton furthers this point: “Christianity was the answer to a riddle….”  The riddle was regarding how to properly order man in this world in a way that he could live in a liberty proper to man.

As Murray Rothbard has offered, natural law is both necessary for our liberty and offers the only philosophical defense against the encroachment of the state.

Conclusion

And my haunting instinct that somehow good was not merely a tool to be used, but a relic to be guarded, like the goods from Crusoe's ship…

We might consider the concept of “property” to be much broader than physical goods.  Perhaps we should guard those traditions that have proven necessary for liberty with the same passion.

…even that had been the wild whisper of something originally wise, for, according to Christianity, we were indeed the survivors of a wreck, the crew of a golden ship that had gone down before the beginning of the world.

And in this is the beginning of understanding.  We have chosen to take law from that which has fallen – a “monstrosity,” as Chesterton calls us.  It is no wonder where this has brought us.

8 comments:

  1. At law school orientation, the contracts law teacher led a discussion. She asked what is the basis of our system of law? I raised my hand and said the Ten Commandments. She sort of laughed at me and then proceeded to say the US Constitution. Ha! And she teaches contracts, which as you know arise from the common law.

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    1. I would be thrilled if they actually just stuck to the Constitution, regardless of the ignorance about its foundations!

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    2. Of course! Not sure if you had the same experience, but in two semesters of Constitutional Law, we actually never read it (much less the much--to me--more foundational state constitution) but spent gobs of time on its penumbras and emanations.

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    3. Eric, it was probably not even on the syllabus. I had the same experience.

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  2. "An imbecile habit has arisen in modern controversy of saying that such and such a creed can be held in one age but cannot be held in another." —Chesterton

    I'll bite.

    Property rights are meaningless to those who do not have an opportunity to acquire property. A quote:

    The median net worth for non-immigrant African-American households in the Greater Boston region is $8, according to “The Color of Wealth in Boston,” a 2015 report by the Federal Reserve Bank of Boston, Duke University, and the New School.

    That's about the cost of a Happy Meal. Here is the source: That was no typo: The median net worth of black Bostonians really is $8

    https://www.bostonglobe.com/metro/2017/12/11/that-was-typo-the-median-net-worth-black-bostonians-really/ze5kxC1jJelx24M3pugFFN/story.html

    This is a link to the Fed study:

    https://www.bostonfed.org/publications/one-time-pubs/color-of-wealth.aspx

    This is a socio-economic caste system. All we're missing is the dots on the foreheads.

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    1. Ahmed, your point is lost on me.

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    2. There are trade-offs between ideals.

      Property rights are an ideal. Equality of opportunity is an ideal. You get more of the latter by giving up some of the former.

      In older times, say in an agrarian society, equality of opportunity was not much of a problem, hence the focus on property rights. As we move into a more digital economy, we get what economists call a "superstar effect", i.e., a winner-take-all economy. Think Jeff Bezos here with his $180 billion net worth, this while kids in Flint are drinking lead-tainted water. Here is a quote about equality of opportunity:

      "Equality of opportunity is a political ideal that is opposed to caste hierarchy but not to hierarchy per se. The background assumption is that a society contains a hierarchy of more and less desirable, superior and inferior positions. Or there may be several such hierarchies. In a caste society, the assignment of individuals to places in the social hierarchy is fixed by birth. The child acquires the social status of his or her parents at least if their union is socially sanctioned. Social mobility may be possible in a caste society, but the process whereby one is admitted to a different level of the hierarchy is open only to some individuals depending on their initial ascriptive social status. In contrast, when equality of opportunity prevails, the assignment of individuals to places in the social hierarchy is determined by some form of competitive process, and all members of society are eligible to compete on equal terms. Different conceptions of equality of opportunity construe this idea of competing on equal terms variously."

      If countries don't address this issue, we'll see more social unrest and calls for socialism.

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    3. But this has nothing to do with the Chesterton quote that you cited.

      Separately, as you have changed the topic: That Bezos is worth $180 billion is a result of the destruction of property rights via government largess, government regulation, and central banking. We need less of the latter to have more of the former.

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