On Politics Part Four — The Paradox of Law
When all the men in a tribe or neighborhood or region combine in their efforts to drive off raids and pirates and interlopers, the natural confusion which would otherwise result requires that they follow a single sovereign power as leader, and the natural depravity of man predicts that the sovereign be tempted to exploit the loyalty of his followers for the advantage of himself, his clan, his favorites, his gods and his greeds.
This then is the central paradox of law and the central task of politics: to arrange the laws so that the sovereign is strong enough to protect the innocent from criminals and invaders, but at the same time to restrict or restrain the sovereign to protect the innocent from him.
One of the greatest improvements in the art of the law was the medieval conception of common law, and the subordination of the sovereign power to it. This was alien indeed to the ancient conception of the law as the instrument of imperial or patrician power, or of laws of city state founded by demigods, whom to disobey was not just treason but blasphemy. We cannot pause to examine at what point these ancient and cruder conceptions of law re-entered Western history, but I will venture my personal opinion that the attempts of the Enlightenment thinkers to subordinate the sovereign power to the law were attempts to restore a division between civic and religious authority that the Fall of Rome introduced, and Reformation obliterated. When the King of England declared himself the supreme head of the Church, he assumed a power which even the Caesars of Byzantium never assumed, the authority to overturn general Church councils, and His Majesty decreed dissent from the religious belief and practice of the established national church to be treason against the state.
That the most thorough and well-spoken advocate for totalitarianism, Mr Thomas Hobbes, was a typical voice of the Sixteenth Century but could not have written such one-sided advocacy in the Thirteenth implies not that totalitarianism is the logical outgrowth of the art of law, but instead implies that the Thirteenth was more civilized, at least in this area, than the Sixteenth.
No doubt other writers will select other periods in history during which their favorite improvements in the art of law came to light. No matter. This personal opinion above is extraneous to the necessity of the argument. All we need establish for this essay is the point that the art of law is directed to a certain end, that is, toward love of life, the love of the good life, and love of family life.
Mr Hobbes lays out a case admirable, even startling, in its clarity to show that loyalty to the sovereign power is utterly necessary to uphold civilization if men are to act on their love of life, and their desire to avoid violent death at the hands of others. He does not lay out the case by what means the sovereign shall be impeded from abusing his powers and overstepping his authority, because Mr Hobbes does not recognize any source of authority aside from the consent of the governed, whether that consent be free or coerced (a distinction he argues is meaningless). And all logical thinkers would accede to Mr Hobbes’ argument if his axiom were correct, that the only passion in man is love of life and the concomitant urge to avoid violence at the hands of others. Nonetheless, reason and common experience say otherwise. The learned Aristotle observes that men gather into civilization for the sake of maintaining their lives, but maintain civilization for the sake of the good life.
The city is more than the military barracks, despite the protests of Plato to the contrary, or the bold attempts of the Spartans to reduce the organic complexity of civilization to a rigorous and frightful machine of Spartan (if one may use the word) simplicity. Again, that the passion of men for the amenities of civilized life is one of the main passions inclining us toward loyalty to civilization I believe to be so unexceptional a statement that I offer no defense for it.
The reader is invited to consult his own heart for testimony: if you prefer civilization to barbarism, is or is not one of the reasons for the preference that you crave and admire such things as regular meals, coin money, paved roads, printed books, brick chimneys, and hot and cold running water, not to mention the decorations and fine arts and liberal arts with which civic life is adorned? That you are reading this essay at all, dear reader, shows at least some taste or preference for speculations in abstract matters to which the liberal arts cultivate the mind.
The main amenity which civilization offers is the liberty and large opportunity for man or woman to perform any acts beyond those of slave labor and military service. Totalitarian nations in both modern and ancient times are most noteworthy for their lack of civilized arts and sciences, so much so that it is a main policy of tyrants to command such arts and sciences to appear to flourish, with the irregular result that to the degree and in those areas where advances in arts and science can be made by command, there is some progress, otherwise none. We do not study the poets and playwrights of ancient Sparta because, after a certain period in time, there were none. Likewise the technical and artistic achievements of Soviet and Chinese peoples are limited to areas, like a space program, which admit of the discipline and procedure of the military, or to artistic work with propagandistic merit. The film ALEXANDER NEVSKY comes to mind. It is akin to listing the advances in Astronomy or Mathematics of Islamic scholars after the Reconquest of Spain: one can find few or none.
To secure this amenity of civilization called liberty, the paramount legal principle must be maintained that each man have his private and enforceable right to the fruits of his labor, and the right freely to alien himself of property or labor upon such conditions as they shall mutually agree with any other free man. The first is the sacredness of property, and the second is the sanctity of contracts.
These two are the main bulwarks against the overreach of tyranny of the sovereign power. While liberty of person, the free ability to come and go, or liberty of speech or press or association are of titanic significance in the attempt by the art of law to restrict the sovereign power from tyranny, without the right to property and the sanctity of contracts, all other rights and liberties are meaningless. This, for the simple reason that if the sovereign can deprive a subject of his land and personal goods and stock and substance, and break the bonds of contract by which the subject offers and receives goods and services from others, then the sovereign can in effect deprive the subject of life and liberty.
Greater than the amenities of civilization, the arts and sciences, which civic life gives man the leisure and liberty to pursue, is the sacrament of marriage.
Marriage is the heart of civilization, so much so that even science fiction writers are hard pressed to imagine how any race could organize itself into anything but a riot of tyranny or anarchy without the family unit. The majority of civilizations for the majority of time adopted a polygamous organization, where kings and nobles kept wives and concubines, and freely divorced wives no longer pleasing or suitable to them.
It was an admitted improvement when the Prophet Mahound limited the faithful devotees among the pagans of Arabia to four wives; a greater improvement was the abolition of the cruel practice of divorce in Christendom; and the limitation to a single wife among the Europeans generally. The adoption of polygamy among the Mormons was a degeneration back to a more primitive state of the law (whether justified by the harsh persecutions they suffered or no, I leave to wiser heads to debate); likewise was the re-introduction of the pagan custom divorce among the heretic kings of the Reformation; but the sharpest degradation was the introduction of no-fault divorce at the beginning of the period of the current dark age in which we live: the dissolution of any penalty for seduction, bigamy, adultery, bastardy or unnatural sexual acts either legal or informal soon followed.
The debate about whether or not to redefine marriage is a final (and ultimately meaningless) step at the bottom of a long descending staircase down which, like a drunk, our civilization has already headlong toppled.
Once the final step is taken, Western civilization shall have at last arrived at point even lower than the base and natural passions of man living in the primordial anarchy Mr Hobbes calls the ‘State of Nature’. Namely, at the last step, marriage shall be a compact for the rendering of services of a sexual nature to exist only for so long as both parties shall agree, and it shall neither be exclusive, nor identify paternity, nor establish a family unit. Indeed, the institution of Marriage once redefined shall not be used for any other reason than as a celebration of unchaste and unnatural sexual passions, or as an excuse to penalize those institutions as bigots, and those individuals as pariahs, who refuse to aid and abet and celebrate the new and meaningless form of the sacrament. The sole result will be to make real marriage more difficult to obtain, as the habits of chastity are discouraged in the population, and such marriages will be defiant and solitary rather than supported by the community. The number of people approving or disapproving of particular sexual acts or orientations will not necessarily change.
However, I call it meaningless because even if the current debate is resolved in favor of retaining the natural definition of marriage, nonetheless the creation of no-fault divorce at law, and the creation of a widespread social acceptance of fornication, seduction, adultery and bastardy would nonetheless eventually lead to this last step of reducing marriage to a formal contract, albeit by another route.
There are perhaps other ways to pursue happiness aside from pursuing a happy marriage, but if so, we need not long tarry to contemplate them. They fall under religious pursuits or spiritual disciplines, of which human marriage is a type or subset, or they fall under careers, vocations, avocations, callings and hobbies.
It ill behooves the dignity of this essay to admit that civilization exists so that Jones can collect stamps, rare coins, or superhero comic books, or Smith can go backpacking or sky-diving or ballroom dancing, and yet to the degree that all these pastimes are harmless to others and entertaining to Jones, or even enriching, we can rightly emblazon them on the escutcheon of civilization and that great principle for which law and order stands. Jack Ketch leans on his axe and Tommy Atkins polishes his saber, always ready to behead felons or charge foes, so that Jones may be left in peace to collect stamps and Smith can tramp the woods.
And yet neither will this essay forbear to insist upon the far more weighty point that Jack Ketch and Tommy Aktins, the headsman and the soldier-boy, stand ready to unleash blood and slaughter upon the enemies of civilization so that Mr and Mrs Smith can be lawfully married, and no one shall say nay if Mrs Smith says ‘I do’ without any fear that Jones shall arrive one day to carry off the bride claiming her as his own, or carry off her children.
That is the main point of civilization, and that is why we all tolerate its discontents. It is far more important in the pursuit of happiness for a man to know which bride is his and which child is his and to know to which bride he now and until death belongs than to know which stamp collection is his.
To Part Five
About John C Wright
John C. Wright is a practicing philosopher, a retired attorney, newspaperman, and newspaper editor, and a published author of science fiction. Once a Houyhnhnm, he was expelled from the august ranks of purely rational beings when he fell in love; but retains an honorary title.
