9076660069

COMMON-LAW CONSERVATISM
COMMON-LAW CONSERVATISM
An Exercise In Paradigm-Shifting
RUBEN ALVARADO
en arch hn o logov
Copyright 2007 Ruben Alvarado isbn-13: 978-90-76660-06-6
www.wordbridge.net
Table of Contents
Foreword ..................................................................... vii Introduction .................................................................. 1 1. Overview ................................................................... 9 2. Common-Law Politics ........................................... 23 3. Common-Law Economics ................................... 39 4. Common-Law Religion ......................................... 65 5. Conclusion .............................................................. 91 Appendix I .................................................................. 95 Appendix II ................................................................. 99 Bibliography .............................................................. 103 Index .......................................................................... 107
Foreword
This book, as the subtitle states, constitutes an exercise in paradigm-shifting. It is a book for thinking conservatives who are willing to dig down and examine the fundamental presuppositions upon which they base their cultural and political philosophy. As such, it is not a leisurely read, nor is it meant to be. It is to be hoped that the reader will persevere in reading the book in its entirety. There may be times when a position is laid out which contradicts the readers own previous understanding. In fact, I would be surprised if that were not to happen. My request is that the reader continue to read the entirety of the book, for it is in its entirety that the book stands or falls: in this case, the whole is greater than the sum of the parts, and every part has a role to play in explaining the whole. The goal remains the same for us all: ordered liberty, liberty under law. Aalten, July 6th, 2007 R.C.A.
Introduction
Fifty-four years ago a young man by the name of Russell Kirk published a book that shook the literary, academic, and political world, not so much for its radical ideas as for its lack of them, and beyond that, for its reassertion of a claim to intellectual standing for a set of ideas known precisely for their rejection of the radical and revolutionary. For a long time conservatism that set of ideas of which he wrote had been in abeyance, if not politically at least intellectually. When such is the case, the outward eventually comes to conform to the inward; indeed, such had gradually yet inevitably come to be the case here, conservatism being all but eliminated from the institutions of public life. In the midst of that decline Kirk himself labeled it a 150-year-long rout1 the young author recaptured the vision of a moral order rooted in tradition, in usage, in historical development, and beyond that with a basis somehow not in the things of Earth but in those of Heaven. Such ideas, as startling as they were antique,2 caught the liberal intelligentsia by surprise. The dangerous thing about this particular book was its relative lucidity: conceivably some readers might understand it; and at that prospect, there shivered the people whom Gordon Chalmers, in those years, called
Russell Kirks The Conservative Mind
1 2
Kirk, The Conservative Mind, p. 5. Kirk, The Conservative Mind, p. iii.
2
Kirks conservatism at odds with modern conservatism
common-law conservatism
The Declaration of Independence as the conservative Magna Carta
the disintegrated liberals.3 Its message reignited a political movement. Conservatism since then has grown from a edgling, loose association of somewhat like-minded citizens to a powerful presence on the political and media scene. But Kirks original vision did not gain a similar foothold. To be sure, conservatism nowadays, at least for the vast majority of those who claim the title, rests on notions of individual liberty, self-reliance, limited government, and belief in God. Kirk, however, went further: in the footsteps of Edmund Burke, whom he (rightly) considered to be the founder of the modern conservative movement, Kirk championed the notion of a social order for which custom, convention, constitution, and prescription are the sources.4 And this was no throwaway phrase for him. Echoes of a prescriptive constitution run throughout the book, which put the emphasis on a Burkean critique of the natural-rights philosophy; this latter, said Kirk echoing Burke, lay at the heart of the radical, revolutionary movements beginning with the French Revolution. Such is not the vision of many a contemporary conservative. Rather, for him (or her) what seems to predominate is a common allegiance to the countrys founding documents, namely the Declaration of Independence and the US Constitution. In particular, the Declarations insistence (We hold these truths to be self-evident) that all men are created equal, that they are endowed by their Creator with certain
3 4
Kirk, The Conservative Mind, p. iii. Kirk, The Conservative Mind, p. iii.
Introduction
unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness is endearing to them; moreover, it is where conservatives hang their hats when it comes to key issues such as rights to life, liberty, and property. For it is in order to secure these rights that Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to eect their Safety and Happiness. The Declaration, then, is the American Magna Carta, the creed of limited government and self-reliance, the bastion to which all conservatives resort in times of political conict and culture war. And it is situated squarely within the natural-rights tradition. The US Constitution contains no such winged language; in fact, it contains no philosophical language at all. Its preamble, while majestic in its way, still contains no statement of principle beyond that of an implied popular sovereignty. Some have seen in this a contradiction with the Declaration, for the one speaks of rst principles, the other knows nothing of them. Although they are sometimes referred to as components of Americas organic law, even so only the Constitution has undisputed binding legal force. Nevertheless, the moral weight of the Declaration is indisputable, and it is its echoes that made Lincolns Gettysburg Address into the second most fa-
The Declaration of Independence provides Americas moral compass
Kirks view of the American Revolution
mous American political statement: Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal. Where did that leave Kirks conservative mind? In a decided quandary: for he spends a good deal of time explaining the American Revolution not in terms of the natural rights which so prominently accompanied its emergence but in terms of the prescriptive rights of Englishmen, to which the colonists were entitled but of which they were being deprived. For: Burke disavowed a great part of the principles of Locke, the ocial philosopher of Whiggism. The theories of Locke were inherited by such diverse legatees as Rousseau in Geneva, Price in the Old Jewry, Fox in St. Stephens, Bentham in his library, and Jeerson at Monticello; but from among the general ideas of that philosopher, conservatism after Burke retained almost nothing but Lockes contention that government originates out of the necessity for protecting property.5 And: By and large, the American Revolution was not an innovating upheaval, but a conservative restoration of colonial prerogatives. Accustomed from their beginnings to selfgovernment, the colonials felt that by inheritance they possessed the rights of Englishmen and by prescription certain rights peculiar to themselves. When a designing king and distant parliament presumed to extend over America powers of taxation and admin-
Kirk, The Conservative Mind, p. 27.
Introduction
istration never before exercised, the colonies rose to vindicate their prescriptive freedom.6 This is to anticipate the argument of chapter 2, and so cannot be explored more deeply; suce it to say that Kirks conservatism here, at the foundations, conicts profoundly with the vast majority comprising the movement which he helped initiate. In this, the conservatives dedication to liberty, ordered liberty, liberty under law, remains unquestioned. What is to be questioned is precisely the rationale. Is the 18th century notion of natural rights as enshrined in these statements truly the only sound basis for securing the liberty conservatives covet? Is it truly the appropriate means to secure the Blessings of Liberty to ourselves and our Posterity, as the preamble of the Constitution puts it? This book will argue that it is not, and in fact it constitutes something of a betrayal of the conservative mind so eloquently brought back to life by Kirk. In fact, it will argue that the notion of natural rights not only has opened the door to a rampant liberalism, but has closed the door to the only truly sound basis for liberty, and beyond that, has blocked even the capacity to grasp the issue involved: that liberty in fact is of an historical, and therefore of an exclusive, character. Which leads to the qualier common-law that I have added to the term conservatism. Common-law conservatism would understand that liberty is not a pre-existing condition to be preserved
Natural rights a sufficient basis to secure liberty?
It is not; rather, it is contributing to the loss of liberty
Liberty and common law
Common law and the culture war
by civil government, to which all are entitled simply by virtue of their existence, but rather a birthright, an inheritance, an heirloom. It is the product of centuries of labor within the context of specically Western civilization.7 Nor was its development any sort of blind process; it was the fruit of the deliberate emphasis on establishing a civilization upon fundamental principles both theological and judicial. Western civilization is Christian civilization, but it is also Roman civilization, which explains why law could be one of the deciding criteria in its denition. The Western emphasis on law, and specically on the notion of a common law, is what underlies the development of its unique heritage of liberty. In the inexorable course of history, this common-law tradition now maintains a precarious existence only in the Anglo-Saxon countries, and even there (witness Great Britains dreary apostasy) it is embattled and endangered. In fact, this struggle is what conservatives instinctively understand to be underlying the political and cultural struggles currently under way between Right and Left in America. Conservatives understand that America stands for something dierent than what is on display in the rest of the world, especially as that rest of the world manifests itself in international organizations such as the United Nations; and
Liberty, Burke knew, had risen through an elaborate and delicate process, and its perpetuation depended upon retaining those habits of thought and action which guided the savage in his slow and weary ascent to the state of civil social man. Kirk, The Conservative Mind, p. 21.
Introduction
that that something dierent needs to be protected and preserved in the face of incessant attacks from a supposedly progressive global intelligentsia. This struggle is not one in which natural rights forms a bulwark against some other philosophy, whether it be utilitarianism or some strain or other of post-modernism. Far from being a bulwark, the philosophy of natural rights is a weak reed at this juncture in history. We need to recover the category of common law in both its dimensions historical growth and universal force. For only then shall we see clearly enough to challenge the hegemony of globalist universal jurisdiction. Until then, we will have to be content with muddling along. This essay, then, picks up where Kirk left o. It too is a criticism of conservative thought, 8 widely divergent though its scope and method might be. Alasdair MacIntyre once wrote that Burke theorized shoddily9 and in this context the same might be said about Kirk: for he never quite gets around to dening what he means by prescription other than that it pertains to something old, something grown, something with historical roots. How is such to be rescued from the clutches of a base reaction or, even worse, a utilitarianism, which justies things not on the basis of absolute value but in terms of the interests they serve? This points to the question of the transcendent, which likewise Kirk never really both-
The imperative of recovering the common law
Picking up where Kirk left off
Kirk, The Conservative Mind, p. 5. Whose Justice? Which Rationality? (Notre Dame, IN: University of Notre Dame Press, 1988), p. 8.
8 9
ers with dening other than referring, in good Anglican fashion perhaps, to vague notions of religiosity. And the role of economics, which for many conservatives serves as a touchstone for determining ones commitment to liberty Kirk is ambivalent here, defending private property but scolding Burke for seeming to have ignored economic inuences spelling death for the eighteenth-century milieu quite so surely as the Social Contract repudiated the eighteenthcentury mind.10 In these areas and perhaps more, I intend with this book, indeed, to pick up where Kirk left o, to answer questions he left unanswered, clear up ambiguities he left behind; to provide conservatism with a defensible intellectual foundation, and more than that, with a platform from which it might successfully take the attack to the enemy. And all of this antiquated though it may sound in the spirit of Christian charity.
10
A General Theory of the Common Law

I will rst provide an integrated exposition of the unique common-law order, a necessity properly to frame the discussion of politics, economics, and religion in subsequent chapters. The common law is a complex phenomenon, having various aspects, each of which conditions and depends on the other aspects; even so, it is a unied entity. It nds expression, rst and foremost, in an overarching law-order, a sort of natural law providing the principles undergirding all positive law-orders. This common, universal law-order does not exist in a vacuum, or as a sort of Platonic idea transcending the legal systems of the nations, but in greater or lesser degree is interwoven into each of them. In this sense the common law is the same thing as what Stahl referred to as the doctrine of law and state.11
The standards of law and the institutions of the state differ across different countries and times and, being the work of man, everywhere and of necessity contain bad as well as good. There is indeed however something higher, something universal, at work in all creations of law and the state, which purposes to be consummated in all of these, the consummation or lack thereof amounting to the superiority or poverty of the same: that inward unchanging essence of law and state. Now jurisprudence is the science of law and state as it exists in a particular time under a particular people. From this stems the requirement for a higher science, having as its object this inner unchanging essence of law and state. It may be called the doctrine of law and state. Stahl,
11
1. Overview
Common law is a complex phenomenon with various aspects It is a universal law finding expression in the law of the nation
10
It stands over sovereignty, not under it
The opposite is civil law
This common law stands above sovereignty and conditions sovereignty. All sovereign polities are called to implement it in the positive legal orders they shape and maintain.12 The opposite of the common law is the civil law, which is formed by absolute law-creating sovereignty, and is the creature of sovereignty. In the common-law order, sovereignty is the servant of the law and exists to implement the law. In the civil-law order, sovereignty is the creator of the law; law exists to implement the will of the sovereign, and in fact is the will of the sovereign.13 There are thus two, polar-opposite forms of -
Principles of Law, p. 1. 12 Common law (lex communis) has been naturally implanted by God in all men. It is commonly called the moral law (lex moralis). In this common law (jus commune) is set forth for all men nothing other than the general theory and practice of love, both for God and for ones neighbor.. Christ set forth two headings of this common law. The first heading pertains to the performance of our duty immediately to God, and the second to what is owed to our neighbor. Proper law (lex propria) is the law that is drawn up and established by the magistrate on the basis of common law (lex communis) and according to the nature, utility, condition, and other special circumstances of his country. It indicates the peculiar way, means, and manner by which this natural equity among men can be upheld, observed, and cultivated in any given commonwealth. Therefore, proper law (jus proprium) is nothing other than the practice of this common natural law (jus naturale) as adapted to a particular polity. It indicates how individual citizens of a given commonwealth are able to seek and attain this natural equity. Whence it is called the servant and handmaiden of common law (jus commune), and a teacher leading us to the observance of common law. Johannes Althusius, Politica, . 19, 20, 22, 30. 13 This is the theme of my book A Common Law: The Law of Nations and Western Civilization.
Overview
11
Common law= limited sovereignty Civil law= absolute sovereignty
sovereignty, corresponding to the two forms of law. Limited sovereignty recognizes a society of pluralistic authority structures, and mediates the relationships between them. Its goal is the formation and promotion of civil society. Absolute sovereignty recognizes no authority structures it does not itself create and control. It strives to create not a society, but an organization. The common law so conceived inspired the law-order developed over the course of centuries by Western Christendom as the corollary of limited sovereignty. It was once shared, in greater or lesser degree, by all Western polities. Especially since the French Revolution, this law-order was superseded on the European continent by the civil law, the product of absolute sovereignty and its lawmaking eort of codication. This has led to the formation of two Western legal traditions, the common-law and the civil-law traditions, the common-law tradition carried on by the Anglo-Saxon countries, the civil-law tradition carried on in the continent, the vehicle being the French Revolution. This development is therefore a product of the th 18 and 19th centuries. Previously, there was a fundamental unity among the legal systems of the AngloSaxon and continental countries of Western Europe, a unity the sight of which has been lost by reading back into history these later developments. Certainly, there were major dierences, but those dierences cannot be used as an excuse to ignore the fundamen-
Common law the basis of the Western legal tradition
Anglo-Saxon law the lone remaining exemplar of common law
12
Seat of common-law sovereignty: the nation
Seat of civil-law sovereignty: world government
Common law integrates independent actors
tal unity.14 As the common law calls for limited sovereignty, it calls for multiple sovereignty. The basis of this order of multiple sovereigns is the nation.15 Nations have the calling to establish positive legal orders, each incorporating the principles of the common law. In so doing, each nation establishes its own branch of the common law, and this national law is thus also its common law. Therefore, there is no contradiction between the universal law-order and national sovereignty. A truly universal law-order in fact requires multiple sovereigns, because only then can it retain the criteria necessary to that universality. A universal sovereign, on the other hand, of necessity subordinates all independent activity to its own will, and cannot abide by any independent authority; it therefore can never submit to an all-encompassing order which it itself does not control and, since it can never subject everything to its will, there will always be unresolved conict, never unanimity. Today this tendency is evident in the quest to establish global jurisdiction for international organizations universal jurisdiction. Such is the fulllment of the civil-law tradition. But the common law, which stands over sover-eignty, conditions it and restricts it to the
This theme calls for a book-length exposition. In the meantime, regarding the relationship of Roman and English law one may consult Bryces Studies in History and Jurisprudence, Leonis Freedom and the Law, McIlwains English Common Law (cf. also his Constitutionalism: Ancient and Modern), for starters. 15 Stahl, Principles of Law, ch. 4: The Popular Character of Law, pp. 79ff.
14
Overview
13
maintenance of an order of freedom and equality for non-sovereign, private entities. It is thus universally integrating. In this law-order, sovereignty serves to implement the principles of universal law in the particular legal order of the nation. The expression of the common law in the life of the nation is the regime of private law. Private law is the law of liberty and equality. In it, legal persons are equals; with it, there is no respect of persons. It does not subordinate legal persons to a higher order or purpose, but allows them to pursue their own purposes; it integrates these persons as equals, coordinating them over against each other rather than subordinating the one to the other or treating them as subordinates of a greater whole. It thus strives not for an order of monolithic organization but one of a plurality of associations. In a common-law society, there are therefore a plethora of legal persons associations, and individuals through associations pursuing independent goals, coordinated in terms of the integrating private law. Each of these associations in turn has an internal order governed by the principle of distributive justice, in which distributions are made rather than transactions, in which the members are apportioned shares and responsibilities, rights and duties, in accordance with the administrative will. These associations are both private and public, ranging from the family to corporations, clubs, foundations, and then also to public communities such as towns, cities, and states. They all are governed by internal laws. Outwardly, they are coordinated and integrated with other associations in terms of private
Private law is the expression of common law within the nation
Internal dimension of associations = distributive justice
External dimension of associations = commutative justice
14
Mutuality of distributive and commutative justice
Closer examination of justice Ulpian
Aristotle
Transaction versus command Thing versus person
law. The common law qua private law integrates these activities in terms of the principle of commutative justice. It is of the utmost importance to realize both the dierence between distributive and commutative justice, and the mutuality thereof. The besetting sin of left and right in the modern age has been to subordinate and even subsume the one principle to the other, leading to collectivism on the one hand and individualism on the other. The concept of justice is fundamental here, and requires closer attention. The classic denition is rendering to each his due, ensuring that what one has coming to him, one actually receives. The Roman jurist Ulpians celebrated denition is: Iustitia est constans et perpetua voluntas ius suum cuique tribuens (Justice is the constant and perpetual will to render to each his due) but this would seem to dene the just will rather than justice in itself. Aristotle went further, rst making the important point that justice always concerns outward dealings with others rather than internal states of mind or mood justice therefore always involves relations. He then took the decisive step of dividing justice into the two forms of distributive and commutative. Distributive justice is exercised in the distribution of honor, wealth, and the other divisible assets of the community, which may be allotted among its members in equal or unequal shares. Commutative justice, on the other hand, supplies a corrective principle in private transactions. The important thing to notice here is that
Overview
15
commutative justice is transactional justice. It is no respecter of persons; it strives to abstract the thing from the person and focus simply on the justice involved in the transaction at hand. Distributive justice, on the other hand, does not concern transactions but commands: it is realized when the command takes the person into account in an appropriate manner, looking to the need or merit of the various actors. Commutative justice concerns the thing; distributive justice concerns the person. Yet Aristotles distinction does not quite get to the bottom of the issue. Which is, that what really is being distinguished here is two dimensions of association, one internal, the other external. As H.B. Acton pointed out,16 distributive justice requires a distributing agency to be set over the persons involved in the distribution. So the parties are subordinate to a higher decision-making authority. In commutative justice, the parties are coordinated over against each other in independence, are equal rather than being subordinated in terms of a higher relation. Thus distributive justice pertains to internal order, order within a particular organization; commutative justice pertains to external order, order between organizations. This understanding corrects the impression given by an exclusive emphasis on the principle of methodological individualism. For there is no isolated individual standing over against society, in all his autonomous glory. There is rather the citizen, whose functioning within the associationalism of the
Definitive distinction: external versus internal
Citizenship as function of pluralistic association
16
The Morals of Markets and Related Essays, p. 103.
16
Spontaneous growth of common-law order
common-law order makes it go. The individuals relationships are mediated, precisely through the associations of which society is composed. The citizen is the natural individual taking on the guises provided by the various associations of which he forms part. The key to properly-functioning citizenship is responsible membership in the various associations, some of which are natural and/or obligatory. One such example is the family, into which all are born. Another is the state, of which all are members (citizenship strictly speaking), with rights and responsibilities corresponding to that membership. For an association to remain healthy, its members must recognize its authority over them, recognize their place in it, and pursue the shared interest of that association. In the state association, that shared interest is the common good. Since the sovereign does not impose the law but receives it, the common law in its guise of external private law is not imposed but rather issues forth, precisely as a function of the relations of the dierentiated society. It results from the interaction of the independent loci of authority which are allowed to arise when sovereignty is exercised as oversight rather than command. This common law therefore grows with society; it expands as society dierentiates. A primitive society lacks much in the way of a common law because most relations are internal to the associations of which it is composed; these associations are monolithic. It is therefore no accident that primitive societies stand in isolation and have diculty in maintaining open communica-
Overview
17
tions with the outside world. They have little concept of a universal law governing such relations. Directly, the common law governs the relations between associations, and between individuals to the degree that they act as legal persons outside of the boundaries of any particular association. Within associations it governs relations only indirectly, that is, to the degree that internal aairs impinge on the functioning of the common-law order. For example, contracts establishing arrangements contrary to the institutions of the universal common law (e.g., polygamy, same-sex marriage) are impermissible. Being a function of commutative justice, these relations are of the order of transactions. Since associations pursue independent goals, they do not attempt to subordinate other associations, but only to obtain from those other associations resources which they might need the better to attain their own goals. These transactions can take on numerous forms, and can have numerous objects; they can however be summarized in the term obligation commitments to performance. Although there are two basic forms of obligation, contract and tort (Aristotle characterized these as voluntary and involuntary, respectively), contract is its example par excellence.17 Contract establishes a commitment to some duty or performance. Contracts mainly involve the transfer either of goods or of services. In the case of goods, either a sale or some form of lease is contemplated; in the case of
Common law only indirectly impinges on internal law of associations
Common law as law of transactions
The core of transaction: obligation and contract
17
Stahl, Private Law, p. 100.
18
Private property as function of obligation
Common law develops through process of adjudication, issuing in rights
services, a commitment to do something or abstain from doing something. Such obligation calls the concept of private property into existence. Private property only comes about in connection with these relations between legal persons. The contracts which arrange for a transfer of goods require the concept of property as a presupposition. Property, in turn, presupposes the existence of entities outside the owning group. The concept of property has no signicance within the holding community, only outside of it for everything within is held in common or in trust and is subject to the regime of distribution rather than exchange. Further, property is all the goods and services at the disposal of the group, thus not only material things but also the human capital, the capacities of members capable of being put to protable use and in demand on the part of those outside. All of these can be leveraged. In the chapter on common-law economics this will be explored more thoroughly. The common law as external private law develops in terms of these inter-group arrangements, reciprocally inuencing their development and being inuenced by it. The point of contact of this development is the judiciary, the adjudicative branch of government. This is one of the main instruments through which sovereignty aects the social order. By rendering decisions in cases of dispute, the judiciary establishes and conrms valid forms of relation, and of the components of relation. These jural relations as they are sometimes known are rights,
Overview
19
involving both the legal persons (individuals and associations) and the legal objects (goods and services). The common law as a universe of burgeoning rights thus develops in the service of a spontaneous order. It facilitates relations between groups by bringing to bear the legal institutions which can mediate those relations. These institutions include property, contract, tort or delict, due process of law, legal personality. They are not imposed, but rather grow out of custom as sanctioned by the courts. However, they are implicit in the logic of the common law. Such relations will always be conducted through such legal institutions, wherever such relations arise. In this process, the courts are determined by precedent and thus follow a given trajectory, although such determination is not rigid; they are guided forward by the inner logic of the common law as entailed in its capacity as a universal, integrating legal order showing itself no respecter of persons. Here the common law reveals itself as general equity. Therefore, courts operating in terms of custom and equity as so dened act, in the issuing of decisions, as determinators of value, of the norms by which society is ruled. They do so not by prescribing a law but by providing an interpretation which then gives to law and custom its boundaries and indicates its path forward into the future. Decisions and precedents are the framework through which the common law takes shape in a particular society. The values of society are therefore fundamentally inuenced by the decisions issued by the courts. The legal system takes shape upon this basis, and legislation, if it is to maintain the legal order of the
Common law brings universal institutions to bear on individual situations
Common law, equity, valuation
Valuation as social function spontaneous not imposed
20
Social valuation occurs at the margin
Comprehensive formula of the common law
common law, must respect this legal system and build upon it. In the civil-law approach, legislation becomes omnipotent and takes it upon itself to replace this customary order. In so doing it interrupts the continuity of a society with its past and introduces an articiality and an uprootedness which has a thoroughly pernicious eect on societal mores. This is the process by which, in a common-law order, valuation takes place which is valid across the society. Valuation occurs through a process in which an appeal is made to sovereign (or the sovereigns representative) to adjudicate on a point of uncertainty. It is this decision which is decisive because it then becomes binding on society at large; it becomes law. And the law, as Stahl has noted, is the primary, most immediate ethical measure for the actions of men;18 as such, it has a ripple eect throughout society, inuencing its very moral ber, for better or for worse. We can therefore establish as the fundamental principle of the common-law order the following formula: the sovereign conrmation, under the leading of justice and in line with precedent, of (external) social value, in response to request, at the margin. This process implements and generates the integrating universal value structure upon which civilization rests, which is the common law. The common law therefore brings down the higher law, which is Gods will for human society, into the life of the nation by means of the instrumentality of sovereignty, which through a pro-
18
Stahl, Principles of Law, p. 39.
Overview
21
cess of spontaneous ordering overseen by the state generates the pluralist, dierentiated, associationalist order characterized by liberty under law, and upheld by individuals dedicated to the citizen ideal.
2. Common-Law Politics
As noted in the introduction above, contemporary American conservatism is ruled by the idea of natural rights as incorporated in the Declaration of Independence. In contemporary debate, reference is made to the natural right of life, the natural right of liberty, the natural right to pursue happiness, which, as the Declaration of Independence states, is the reason for which governments were instituted, and the reason why government should not make any laws infringing on such rights. I should like to refer to this manner of thinking as State of Nature Conservatism. For its roots lie in the social contract, state of nature approach to deriving the origin of government, as originally developed in the 17th century by Hugo Grotius and, with some modications, John Locke. It is important to realize the background to the development of this school of thought. As far as Grotius is concerned, that backdrop was the wars of religion rstly, the 80 Years War between Spain and the Netherlands, then the 30 Years War in Germany. Grotius was concerned to discover the basis for the authority of government, for sovereignty, apart from divine right. The wars of religion, he was convinced, had made this venerable basis untenable, for divine right required acknowledgment of a particular religion, and thus precluded adherents of various faiths from living together in peace.
Governments instituted to secure rights
This is state of nature conservatism
Quest for neutral basis of government, beyond religion
24
Grotius: contract precedes property, sovereignty
Locke: property precedes contract, sovereignty
Seemingly adequate justification for limited government
Grotius felt he had discovered a more secure basis on the purely human plane of contract. Law, he stated, was the expression of strict justice, and thus the stu of contract and property. And here, contract is even prior to property, for property itself, the division of the goods of the earth, was the result of human agreement. And governments were formed in like manner, by a primordial agreement through which sovereignty was formed by the delegation and in fact alienation of the right of the sword which each individual has from nature. Locke adapted Grotius basic approach but changed it in signicant ways. Firstly, he made property to be dependent not upon an hypothetical agreement but simply upon a natural right derived from each individuals own labor. That which an individual appropriated or created by his own labor was by the law of nature his own (see page 42 below). Thus, property cannot be undone by agreement. Furthermore, governments were formed by the delegation of the power of the sword, but this delegation did not entail alienation. Every man retained the right of resistance, retained the right to bear arms, and in fact the governments power of the sword is simply derivative of this primordial right. This line of reasoning would seem to provide the citizen with a solid rationale for insisting on limited government and on the necessity for government to consult with its citizens and ensure that the laws it passes and enforces correspond with the will of the citizenry. Furthermore, that these laws serve to protect these basic natural rights which in fact, at
Common-Law Politics
25
least in the Lockean approach as continued by the Declaration of Independence, stand even beyond the reach of the will of the people, are inalienable and sacrosanct, by virtue of being established by God, whose will is prior to the will of any man, individual or collective. There is a y in the ointment, however, at least for those who do not believe in human autonomy but in the primacy of Gods will and law, not only for ones private aairs but also for human life in society. And it is this: the philosophy of natural rights makes human nature into the source of law, with Gods will only coming into the picture as being the source of that human nature. The keystone of the religious conception of natural rights is then the biblical doctrine of mans being created in the image of God. This image of God entails a range of obligations on the part of government. The key at this point is interpretation. What comprises the range of obligations the government is charged to uphold? The doctrine opens a Pandoras box of conicting opinion and chaos precisely where settled legal foundations are required. If natural rights are the source of law, then laws ultimately are subject to the philosophical opinion of the court. It is precisely at this point that Stahl directed his major criticism of this school of thought. The application of natural law in the courtroom is impermissible legally, is contrary to justice. Every man has the right not to be subjected to any other norm than those which are established as the objective order of the common life, which are sanctioned by the ruling
Makes human nature into basis of law
This is no stable basis for law
26
Human nature should be taken into account, but properly Concept of subjective right
authorities, as the norms of positive law.19 Naturalrights doctrine gives the judge a blank check regarding his interpretation of the law, allowing him to strike down any law he believes contradicts natural rights. The rule of natural law is therefore in truth only the establishment of the arbitrariness of every opinion regarding the common public order, it is the establishment of the war of all against all.20 The attempt to integrate the concept of human nature into the philosophy of law is praiseworthy, but it must be done properly. The history of the development of the philosophy of natural rights demonstrates this. Jurists and theologians early on realized the importance of anthropology to legal philosophy, and developed the idea of subjective right, which explores the role of the human subject in the formation of law. Stahls summary formulation of the concept is worth quoting precisely for its conciseness:21
Accordingly, law in the subjective sense is the ethical power which a man has over against others in the sphere allotted to him by the legal order, by virtue of that order. Its essence is not merely the negative of allowance or the intransitive of freedom, but the positive and transitive of ethical power against others. Law in the subjective sense, e.g., the right of men due him in all his life positions, constructs, in
Stahl, Principles of Law, p. 37. Stahl, Principles of Law, p. 38. 21 Stahl, Principles of Law, pp. 99-101.
19 20
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that it is his own power inhering in him, a true center about which the entire external world (things, actions of others, etc.) is related as controlled object, and in accordance with which the content of legal norms is often determined. It is therefore a secondary principle of the legal order alongside the primary and absolute principle: the purpose (JX8@H) of life relations. As secondary principle, however, it is always based upon this latter. Its own content and range is originally and essentially derived from, and the coherence of all the rights of all men lies in, this objective higher principle.
27
There is therefore a law-conditioning principle inherent in human nature, rooted in mans being created in the image of God, stemming from his capacity to reason and choose, his capacity for ethical activity. It calls for a sphere of activity to be established on his behalf within the legal order and protected by that legal order. The specic content of that sphere is more closely determined by the legal order in accordance with the institutions of law (marriage, family, property, etc.). Therefore, that a sphere of inuence is called for regarding each individual human being is what is put forward in the doctrine of subjective right; but the specic content of that sphere is the province of positive law, to be determined in terms of the various factors of the human condition. Now then, the Christian confesses a peculiar understanding of the human condition, one which is anthropological although cosmological as well: the human condition as fallen, corrupted, sinful. This factor is of decisive importance to the development
Subjective right establishes the principle of personality in law
Specific content is determined by positive law not nature
Christian understanding of human nature
28
Golden Age in Roman law
of a legal order. Roman jurists, following in the footsteps of Stoic philosophers, postulated an original golden age in which all men were equal, all men were free, in which there was no war, no subjection, and no private property, no meum et tuum, mine and thine. This was the age of the natural law. But there then came the age of the jus gentium (law of nations), which brought all of these things into being. This is how Justinians Institutes (Book I, Title II, . 2) states the matter:
The Law of Nations is common to the entire human race, for all nations have established for themselves certain regulations exacted by custom and human necessity. For wars have arisen, and captivity and slavery, which are contrary to natural law, have followed as a result, as, according to natural law, all men were originally born free; and from this law nearly all contracts, such as purchase, sale, hire, partnership, deposit, loan, and innumerable others have been derived.
Institutions of civil society corrupted original innocence
Christian view: mans fall into sin is the root of corruption in society
The Romans therefore understood that a break had occurred at some point in primordial history, a break in which an age of innocence was followed by the age of division, subjection, property, slavery the various institutions of civilization as then understood. And it would seem from the above quotation that they attributed that break precisely to these institutions, anticipating Rousseaus argument. The Christians knew better. The corruption in the world was cause by mans fall into sin, by primordial disobedience to God. The consequences
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were clear, at least to Augustine, the patron saint of Western civilization, and Western theology in his train. The fall into sin was what had given rise to the subjection of man to man, both as punishment for sin and as a restraint on sins eects. Therefore the prior concept was not liberty, but authority: the recognition thereof, and the proper exercise thereof. Hence medieval society knew little of abstract liberty, but rather of liberties: gradual, and graduated, release from the baseline condition of subjection, resulting in the typical hierarchical order progressing from serf to king.
The right of the fully free was, in the middle ages, at bottom essentially the same as the right of the partly free, whereas in antiquity freeman and slave stood in sharpest contrast to each other, the one a person, the other a thing. In the middle ages both were persons, and the rights of both had a similar legal structure. Each possessed a concrete bundle of rights, with corresponding duties. Dierences were largely quantitative. The unfree lived under the most widely varying laws, but even the lowest had some rights and were not at their lords arbitrary disposal. Though bound to the soil, the villein had a claim to his land and could not be separated from it; frequently he had the right only to be judged by his fellow-villeins; and he could only be called upon to do a xed amount of labour in the elds. Similarly, those who were unfree but not bound to the soil were only liable for limited dues in money and labour. It is characteristic of medieval freedom that it is frequently mentioned in relation to men who were in law either unfree or only partly free; it is common to nd the rights
30
of ministeriales, censuales, or cerocensuales described as libertates.22
Feudalism as rudimentary form of liberty
Sovereignty the vehicle for realizing liberty
In such soil sprouted the constitution of liberty. Feudalism provided the grounding in authority that incipient Western nations needed to progress in liberty. Only in this manner could mans basic corruption and sinfulness be kept in check, allowing the development of subjective right, the ever-expanding sphere of inuence which each individual possesses as a potentiality to be actualized. The actualization of this potentiality into the concrete shape of legal personality, legal capacity, citizenship, was the work of sovereignty. Kingship, in which sovereignty found expression, is what enabled feudal society to move forward into a proper property-based, common-law social order. This is obvious in a country like England, where the kings authority for the most part was above dispute, and where his writ ran right across the isle. Matters were dierent in the Holy Roman Empire, where the emperor was relatively powerless to impose his writ at all. But this conrms rather than obviates the thesis proposed here. With the burgeoning associationalism of Italy and the other member regions of the Holy Roman Empire, the towns, the centers of that associationalism, came to the emperor for legitimization, and it was his approval, his grant of rights, immunities, privileges, and charters, which created the public-legal framework of authority which could support a complexifying, dierentiating social order.
22
Tellenbach, Church, State, and Christian Society, p. 19.
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31
Roman law supplied the material for generating private law
Roman law facilitated this transformation. It lled in the gaps inevitably left where a propertybased society with its emphasis on individualism emerges in the midst of a feudal society with its collectivism. Essentially, the collectives were shrinking while the individuals were multiplying, resulting in the formation of new forms of association to accommodate the otherwise free-oating individuals. The manors themselves were being transformed from a system of servile to one of freehold, or at least copyhold, tenure, their monolithic introversion being broken up and replaced through an openness to an integrating, interdependency-shaping world. Roman law helped shape the institutions of private law regarding external relations between these associations; indigenous law maintained and developed the shape of the associations internally (see further, page 85 below). The legal order itself, developing through the interplay of courts, sovereigns, and jurists with their burgeoning commentaries, became something unique in the unity it displayed in the midst of diversity. This Ius Commune was formed out of the various materials of the Western legal tradition, dominated by the utriumque ius, the one-and-the-other Roman and canon law, the degree students of law obtained at the culmination of their studies, but also including indigenous customary law, feudal law, manorial law, municipal law, territorial law, admiralty law, and the Law Merchant. This law has been greatly misunderstood. Its role has been seen chiey as a subsidiary form of positive law, and therefore its importance has been
Formation of the Western legal tradition
Common law as general equity of Western legal systems
32
Custom and prescription
de-emphasized, in tandem with the tendency to deemphasize the importance of the Holy Roman Empire simply because the lack of direct political power on the part of the Emperor, along with the obvious datum that most of the countries in Europe were independent. But this is to misconstrue its role, which was never to provide a direct, positive legal order, but to provide an atmosphere, a way of thinking, a form of general equity akin to Stahls doctrine of law to be used to assist in the formation of positive law.23 This common law entered the life of the nations comprising Western civilization, pressing forward to inspire positive legal orders incorporating the universal integrating principles of law, wherein private law strings the beads of an expanding associationalism, allowing for the growth of diversied society of communities, for unity in diversity. The twin poles of this growth were custom and prescription, custom regarding law and prescription regarding rights. The objective order of law developed primarily through custom, thus spontaneously via the courts; the subjective order of rights developed through the mechanism of prescription, whereby the liberties accrued through the passage of time are passed on from generation to generation, in similar fashion to property itself, for having once been attained, such liberties could not be removed again without cause, even if the original title deed were
This is the point Manlio Bellomo makes in his important book The Common Legal Past of Europe, 1000-1800.
23
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no longer available for that is the signicance of prescription, to provide security of property in the absence of title, thus rather as a result of continuous possession. This body of rights and liberties developed historically, and came to be viewed as an inheritance. This can be seen clearly in England, in particular in the 17th century struggles between constitutionalism and absolutism. Christopher Brooke, a leading member of the House of Commons in the early 17th century, put it this way: We hold our privileges by prescription and prescription is inheritance.24 William Penn (1644-1718) placed great stock in this ancient constitution. The rights of Englishmen were a great good: Above all Kingdoms under Heaven, it is Englands Felicity to have her Constitution so impartially Just and Free, as there cannot well be any Thing more remote from Arbitrariness, and Zealous of preserving the Laws, by which its Rights are maintained.25 Basic to this constitution are fundamental laws, of which the rst part is the general principles of the common law of nations,26 the secCorinne C. Weston, England: Ancient Constitution and Common Law, in The Cambridge History of Political Thought: 14501700, p. 377. 25 Englands Present Interest Considered, in The Political Writings of William Penn, p. 26. 26 the Corner-Stones of Humane Structure, the Basis of Reasonable Societies, without which all would run into Heaps and Confusion; to wit, Honest [sic rca] vivere, Alterum non laedere, jus suum cuique tribuere, that is, To live honestly, not to hurt another, and to give every one their Right, (Excellent Principles, and common to all Nations). Englands Present Interest Considered, in The Political Writings of William Penn, p. 26.
24
Rights and liberties as inheritance
English ancient constitution
34
ond the rights of Englishmen:

But those Rights and Priviledges, which I call English, and which are the proper Birth-Right of Englishmen, and may be reduced to these Three. I. An Ownership, and Undisturbed Possession: That what they have, is Rightly theirs, and no Bodys else. II. A Voting of every Law that is made, whereby that Ownership or Propriety may be maintained. III. An Inuence upon, and a Real Share in that Judicatory Power that must apply every such Law, which is the Ancient Necessary and Laudable Use of Juries: If not found among the Britains, to be sure Practised by the Saxons, and continued through the Normans to this very Day. That these have been the Ancient and Undoubted Rights of Englishmen, as Three great Roots, under whose Spacious Branches the English People have been wont to shelter themselves against the Storms of Arbitrary Government, I shall endeavour to prove.27
The historical accuracy of Penns treatment is a matter for debate, but that is a secondary matter compared to the fact that such an ancient constitution had in fact developed historically, and was in fact what he claimed it was. English rights and liberties were precisely those which established the citizen in his liberty and property, which enabled him to function in the common-law social order, the order of private law. The constitution, the public legal order, existed to maintain and support this private legal or-
Englands Present Interest Considered, in The Political Writings of William Penn, pp. 26-27.
27
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English liberties carried to America
This ancient constitution was brought over by the Englishmen who founded the New World colonies of Virginia, Massachusetts Bay, and those which followed. Americans were Englishmen, endowed with the rights thereto accruing, and the English common law was the law of the land on both sides of the Atlantic. This understanding was reected in the rst of the American revolutionary documents, the Resolutions of the Stamp Act Congress of 1765, which declared That his majestys subjects in these colonies, owe the same allegiance to the crown of Great Britain, that is owing from his subjects born within the realm, and all due subordination to that august body, the parliament of Great Britain, and, concurrently, That his majestys liege subjects in these colonies are entitled to all the inherent rights and privileges of his natural born subjects within the kingdom of Great Britain. Only 11 years later, however, the matter was entirely dierent. For in the Declaration of Independence, the actions of that monarch were declared to be in violation of the inalienable rights of man; they had as their object the establishment of an absolute tyranny over the states. No mention was made of the rights of Englishmen.28 The leaven of natural rights had permeated the American colonies, just as it had permeated all of Western civilization. Historical rights had given way to natural rights. On the continent, legal philosophy was being con-
Declaration of Independence abandons idea of inheritance
28
Perry, Sources of Our Liberties, p. 318
36
Burke salvages English liberties from a similar fate
American versus French natural rights
ducted entirely in this key. England, too, had undergone that inuence, but its common law had not been subjected to the codication eorts the legal systems of the continent had been. The inherent conict between historic and natural-rights doctrines had slumbered there beneath the surface. It took the outbreak of the French Revolution and Edmund Burkes celebrated response (published as Reections on the Revolution in France) to burst the bubble of harmony. From this point on, the conict between historic and natural rights was out in the open for all to see. In the Declaration of Independence, natural rights likewise provided the legitimation of the novus ordo seclorum known as the United States of America, but in an entirely dierent manner than with the French Revolution. The American revolutionaries were not interested in overthrowing the received order; they were interested, rather, in maintaining their received institutions, customs, and laws in the face of an overweening British monarchy and parliament. But undeniably there was more to the American revolutionary movement than prescriptive rights. The natural-rights-based theory originating in Grotius had here borne signicant fruit: Many of the Revolutionary patriots believed with Thomas Dickinson that liberties do not result from charters; charters rather are in the nature of declarations of pre-existing rights.29 Yet, although both the American and the French Revolution partook of the elixir of in-
29
Haines, The Revival of Natural Law Concepts, ch. II, sec. 2.
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37
alienable natural rights, the underlying constitutions which they established are of a fundamentally dierent sort. Post-revolutionary France had put paid to its feudal past; America, on the other hand, had carried out a conservative counter-revolution.30 And so matters stand, at bottom, to this day. The American Revolution and its ideological progeny established a common-law regime upon the basis of natural rights. That inherently unstable mix has led to the interminable conicts between judiciary and legislature, indeed judiciary and the Constitution itself. On the continent, the Revolution led to the essential overthrow of historic institutions and the impoverishment of law through the establishment of Jacobin institutions of representation and bureaucracy and incessant eorts at the codication of law. It has led to the situation today in which two traditions stand against each other, each claiming to represent Western civilization, indeed world order: the common-law tradition, headed by the United States, and the civil-law tradition, headed by the European Union. Having detailed this opposition in a previous book,31 I refer the reader to that work for more information in this regard. The conict between these two traditions has taken place mainly at the level of economics, which conveniently is the topic of the next chapter.
Natural-rights approach leads to judicial activism
Codification
30 31
Rushdoony, This Independent Republic, p. 21. A Common Law.
3. Common-Law Economics
In the last chapter, we characterized contemporary conservatism as State of Nature Conservatism. That holds true for politics; it also holds true for economics. Contemporary conservatism is fundamentally awed here in the same way that it is in political theory. For there exists an economic counterpart to natural-rights theory, and it is saddled with the same core problem-set. It seeks a reality behind the purported facade of convention of civil society, private law, and sovereignty in the same way that natural-rights doctrine seeks to dissociate civil authority from life, liberty, and property. The propensity of which I speak was denitively enshrined by Adam Smith in his epochmaking work, An Inquiry into the Nature and Causes of the Wealth of Nations.32 Smith sought to establish a new paradigm at the heart of the budding science of economics, in order to counter the inuence of mercantile thought which to that point had dominated public opinion and government policy. Smiths target was the ostensible mercantilist equation of wealth and money. As he understood it, mercantilism pursued national wealth by accumulating money in the form of bullion; this was behind
State of nature economics
Adam Smith the founder
Smith ostensibly was attacking mercantilism
Is it entirely coincidental that The Wealth of Nations was published in the same year, 1776, as the Declaration of Independence?
32
40
Smiths actual goal: introduce the state of nature into economic theory
False dichotomy #1: primacy of consumption over production
the age-old restrictions on the exportation of gold and silver, and led to the pursuit of a favorable balance of trade, in which exports exceed imports, thus keeping gold and silver in-country. Smith disputed this equation of wealth and money. In his view, the wealth of nations consisted not in money but in actual productive capacity, the ability to produce goods and services. His goal was to establish the primacy of free trade as a principle of international relations, but in order to do so he delivered a hostage to fortune. For, like the natural-rights theorists who sought to refound rights and liberties on a basis beyond convention, Smith sought to refound free trade on the state of nature. As we shall see, this would provide Karl Marx, and collectivists after him, with the basis for their own critique of capitalism. With this theoretical basis, Smith posited false dichotomies which at best confuse the issue. Firstly, in order to combat the alleged mercantilist position to favor the producer over the consumer, he asserted the primacy of consumption over production.
Consumption is the sole end and purpose of all production; and the interest of the producer ought to be attended to only so far as it may be necessary for promoting that of the consumer. The maxim is so perfectly self-evident that it would be absurd to attempt to prove it. But in the mercantile system the interest of the consumer is almost constantly sacriced to that of the producer; and it seems to consider production, and not consumption, as the ultimate end
Common-Law Economics
and object of all industry and commerce.33
41
But the whole notion of favoring one of these over the other is chimerical. For consumption and production are two sides of the same relation, and they each depend equally on the other: one cannot consume without rst producing (or someone producing for him). Jean-Baptiste Say expressed the idea succinctly in what is known as Says Law: supply creates its own demand. Which is to say, supply, or production, and demand, or consumption, are two sides of one and the same equation. This truncation has beset economics ever since. It has led to the focus on distribution, and the eciency thereof through the market process, while relegating production to the status of production function, as a sort of black box, taken for granted. Smiths emphasis on the division of labor being limited by the extent of the market is an expression of this xation. The size of the market certainly is an important aspect, but only one aspect, in determining the division of labor. One false dichotomy leads to another, to wit, Smiths denition of wealth in which he opposes money to goods. Here again, Smith is attacking an alleged mercantilist falsehood, the equation of wealth and money, to which he opposes productive labor resulting in goods as the true content of a nations wealth.
Chimerical dichotomy; Says Law
Emphasis on consumption has beset economics ever since
False dichotomy #2: is wealth money or is it goods?
Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, Book IV, ch. 8, para. 49.
33
42
The real price of every thing, what every thing really costs to the man who wants to acquire it, is the toil and trouble of acquiring it. What every thing is really worth to the man who has acquired it, and who wants to dispose of it or exchange it for something else, is the toil and trouble which it can save to himself, and which it can impose upon other people. What is bought with money or with goods is purchased by labour, as much as what we acquire by the toil of our own body. That money or those goods indeed save us this toil. They contain the value of a certain quantity of labour which we exchange for what is supposed at the time to contain the value of an equal quantity. Labour was the rst price, the original purchase-money that was paid for all things. It was not by gold or by silver, but by labour, that all the wealth of the world was originally purchased; and its value, to those who possess it, and who want to exchange it for some new productions, is precisely equal to the quantity of labour which it can enable them to purchase or command.34
Money as veil over underlying material reality
Roots of classical economics in Locke
Money is merely representative of the underlying reality, which in Smiths view is the labor expended in the production process. Labor is the source of the value we attribute to marketable goods, and wealth is the sum total of such goods. Smith here followed John Locke, who attributed, as we have seen, the origin of property to labor. Locke did so because in his view labor was ultimately the source of economic value.
Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, Book I, ch. 5, para. 2. Emphasis added.
34
[S]upposing the world given, as it was, to the children of men in common, we see how labour could make men distinct titles to several parcels of it, for their private uses; wherein there could be no doubt of right, no room for quarrel. Nor is it so strange, as perhaps before consideration it may appear, that the property of labour should be able to over-balance the community of land: for it is labour indeed that put the dierence of value on every thing.35
43
Here again, Smith is simply adapting the Lockean state of nature understanding of civil society to economics. Money is something added to the economic process in order to facilitate it, but it is by no means essential to it: barter could just as well take place, albeit certainly with attendant inconvenience. Excepting Say, the labor theory of value was shared by all the classical economists including Karl Marx, who in fact derived his critique of capitalism precisely by assuming it. Essentially, since labor is the source of all value, capitalists in their accumulation of prot were appropriating surplus value which by right accrued to the laborers. Marxism would eliminate this inequity by eliminating the capitalist, so creating the workers paradise. In response, a new school of economic thought arose, the so-called neoclassical school, which while sharing Smiths conviction of the importance of free trade to the wealth of nations parted
Labor theory of value and Marxism
Response of neoclassical school
Locke, Two Treatises of Government, Of Civil Government, vol. II, chap. v, . 39-40.
35
44
Subjective theory of value
Neoclassical economics shares Smiths focus on goods
Bhm-Bawerks decision for state of nature economics
ways with him with regard to the doctrine of economic value. The neoclassicists substituted the principle of marginal utility for that of labor as the basis of economic value. That is, they exchanged the objective approach, in which value is considered to inhere in labor, for the subjective approach, in which the appraisal of economic actors is made the source of value. The meaning goods have for us, which we call value, is merely transferred. Originally, only need-satisfactions have a meaning for us, in that the maintenance of our life and our welfare depends on them; as a logical consequence, however, we transfer this meaning to those goods the disposition over which we are conscious of being dependent upon for the satisfaction of these needs.36 Value is rooted in the satisfaction a good yields, not in the labor used to produce that good. But that is as far as they got. Neoclassicists too shared Smiths conviction regarding the primacy of consumption and ecient distribution via the market as the subject matter of economics. For them as well, money was a superuous albeit useful addendum; true economic science involved getting behind the veil of money to the real substrate of concrete goods. This agenda became explicit in the work of
Menger, Principles of Economics, ch. 3, . 2b, p. 107. The translation is mine, from the original German text; the Dingwall/Hoselitz translation (James Dingwall and Bert F. Hoselitz, trans., Principles of Economics, New York: The Free Press, 1950; online edition, The Mises Institute, 2004) is simply too imprecise to be of use here.
36
45
Eugen von Bhm-Bawerk, one of the founders of the neoclassic Austrian school of economics. Bhm-Bawerk is interesting in that he penetrated to the very core of the issue, only decisively to turn aside from the appropriate course so as to persist in the error of state of nature economics. The motivation behind Bhms investigation was righteous indignation. Economists had been smuggling a new category into the ranks of economic goods, namely rights and relations (German: Rechte und Verhltnisse), in response to the veritable asset explosion of multiplying forms of credit and goodwill, forms which appeared exponentially to have increased the total wealth. The chief instigator of this revolution in economics was the Scot Henry Dunning Macleod. Drawing upon his experience in the real world of banking and nance, Macleod had come to the conclusion that it was not material goods at all that constituted the subject matter of economics, but the rights to those goods. As Jurisprudence is the Science which treats exclusively about Rights, and not about Things, so Economics is the Science which treats exclusively about the Exchanges of Rights, and not the Exchanges of Things.37 The Western system of private law had led to the multiplication of forms of rights, each exchangeable, each with monetary value in its own right; and for Macleod it was absurd that economists continued to ignore the existence thereof.
The Elements of Economics, v. I, p. 151. Macleod was a great believer in highlighting via boldface print.
37
Rights and relations as economic goods?
Macleod substitutes rights for goods
46
Now the question at issue is no triing one. The property aoat in this country in bills of exchange, bank notes, and bank credits alone, is upwards of 600,000,000, and the question is, Whether this is a real and independent value, or only a myth? All Political Economists, from the days of Turgot, maintain that it is nothing, a mere nonentity, that it is of no more value than the paper it is written on. We, on the contrary, maintain in opposition to the entire body of writers in France and England, from Turgot to Mr. John S. Mill, that it is a real value, that is a separate and independent value over and above, and perfectly distinct from money or commodities, and we have the most perfect conviction that we are right.38
Bhm-Bawerks criticism of Macleod
Macleod was aware that the criticism of his view centered on the charge of double-counting, of asserting the existence of an economic good on the one hand and a separate right to that same good, an IOU of one form or another, as being itself likewise an economic good. Bhm-Bawerk expressed the objection this way: One may summarize the conditions upon which Macleods doctrine is based in the following two statements: 1) When A lends a dollar to B, B possesses in this dollar a corporeal good valued at one dollar. 2) In the right of obligation to the return of the dollar lent, A possesses an immaterial good with a present value likewise approaching a dollar, and which is not identical to the material dol-
38
Elements of Political Economy, pp. 325-326.
47
lar.39 If this is true, says Bhm, then indeed, credit creates new, previously non-existent goods, and the goods-doubling power of credit would truly be a miraculous fact, albeit still a fact.40 But this cannot be; for it is to count the economic good and the right, of which the economic good is an object, as two separate goods. Today there can be no doubt that the chief principle [der Hauptsatz] of this doctrine is erroneous [ein Irrsatz]: the double-counting made here with the credited object and the right directed to this object, or made with obligation and debt, is all too obvious.41 Back in 1858, in his Elements of Political Economy, Macleod had already retorted to criticism similar to that made by Bhm in 1881:
Now, who can deny that the present value of a debt, payable at some future period, is a separate and independent value? It is a marketable commodity, it may be bought and sold like a pound of sugar, and the money that is paid for it does not represent it any more than the money represents any commodity that is exchanged for it. Now, what is a Bill of Exchange? It is nothing but a debt payable three months after date, say; and that debt has a present and separate value, quite independent of the money that will ultimately pay it. Now, when we arm that credit is capital, we mean nothing more than this, that
Macleod responds to charge of double counting
Rechte und Verhltnisse, p. 11. Again, the translation is mine; the Huncke translation (Whether Legal Rights and Relationships are Economic Goods) is imprecise. 40 Rechte und Verhltnisse, p. 11. 41 Rechte und Verhltnisse, p. 10.
39
48
operations take place where one or both sides of the transaction are debts. That sales of goods and services occur, where a promise to pay forms one side of the transaction. A proposition, we presume, which no one in his senses will deny. We make no assertion involving the stupid blunder that the same thing can be in two places at once.42
Imprecision of Macleods language
Apparently, Bhm (and others) had been misreading Macleod, asserting that he counted both the economic good and the right attached to that good as two separate economic goods. This is not what he was doing; rather, he was consistently making the attempt at replacing goods with rights as the material of exchange and thus of economics. But Macleods language sometimes added to the confusion. For example, in the Elements of Economics43 he writes On the Three Species of Wealth or of Economic Quantities. These comprise, rstly, Material or Corporeal Things such as lands, houses, money, corn, timber, cattle, and herds of all sorts, jewelry, minerals, and innumerable things of this nature which can be bought and sold, and whose Value is measured in money. Then comes Immaterial Wealth, including personal services (A person may sell his Labour or Services in many capacities for money, such as a ploughman, an artisan, a carpenter, or as a physician, an advocate, an engineer, an actor, or a soldier: and when he receives a denite sum of money for such Labour or Service its
42 43
Elements of Political Economy, p. 325. Elements of Economics, pp. 138-140.
49
Value is measured in money, as precisely as if it were a material chattel thus, Adam Smiths labor, Says immaterial products of labor and services, Seniors knowledge. Thirdly, Incorporeal Wealth, consisting in vast masses of Property which exist only in the form of abstract Rights, quite separate and severed from any material substances, which can all be bought and sold, and whose Value can be measured in money, exactly like that of any material chattel. Therefore there are three distinct Orders of Quantities which can be bought and sold, or exchanged: and therefore which satisfy the denition of Wealth. Here Macleod lines up things, services, and rights as three dierent forms of wealth, instead of being clear that all three categories are forms of rights. The confusion becomes complete when he enumerates the forms of exchange that may take place:
1. The exchange of a Material thing for a Material thing. Such as so much corn, cattle, or land for so much gold. 2. The exchange of a Material thing for Labour or a Service. As when gold or silver money is given as wages, fees, or salary for services done. 3. The exchange of a Material thing for a Rightas when gold money is given in exchange for the funds, or a Copyright, or Bill of Exchange. 4. The exchange of Labour for Labouras when persons agree to exchange one kind of Labour for another kind of Labour. 5. The exchange of Labour for a Rightas when wages or salaries are paid in bank notes.
Lack of consistency in terminology
50
6. The exchange of one Right for another Rightas when a Banker buys a Bill of exchange, which is a Right, by giving in exchange for it a Credit in his books, which is another Right.44
Only rights are exchanged
Bhm rejects rights in favor of goods
Bhm-Bawerks failure
This is inexcusable. For in the same book, only ten pages further down, Macleod states, as quoted above (p. 45), that it is rights, not things, which are exchanged, and which can be divided into three categories corresponding exactly with the aforementioned list: Corporeal or Material Property or Rights, then Immaterial Property [or rights rca], lastly Incorporeal Property [or rights rca].45 The confusion of putting rights and objects of rights on a line is what led Bhm-Bawerk to launch his criticism. It was not Macleod who fell into his error, though, but others who while professing to see the error of Macleods ways nevertheless persisted in their own.46 For his part, Bhm resolutely stuck with the Smithian doctrine of goods, broadly understood as the products of labor material things and personal services as the substance of exchange, rejecting Macleods rights-based approach absolutely. For this reason Bhm failed in his attempt to develop a satisfactory theory of interest, to which he devoted two massive volumes. He simply could not come up with an original rationale for, as Aristotle
Elements of Economics, p. 141. Elements of Economics, pp. 151-152. 46 cf. Bhm-Bawerk, Whether Legal Rights and Relationships are Economic Goods, pp. 37f.
44 45
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put it, money begetting money, and was forced to make interest a derivative concept, with prot-generating capital goods for him, the true underlying reality somehow being the source of it. Since then, neoclassical economics as a whole has failed to come up with a satisfactory theory explaining either money or interest. This is due to its principled decision to view goods as the proper subject matter of economics, while consigning money, indeed the entire sphere of incorporeal property, to a derivative category, nonessential to theory. Keynes was aware of the problem, and in his own way set out to x it: by turning it on its head. Instead of goods being original and money derivative, he made money to be original and goods to be derivative. Money, which could be created ex nihilo by the government (truly a godlike entity in this regard) could of itself generate productive capacity. Keynes thus advanced a proposition reversing Says Law: to wit, demand creates its own supply. The reality which Macleod perceived was that the universe of rights transforms and multiplies wealth.47 The material substrate of wealth is not the same thing as wealth, and without the panoply of rights through which the material substrate is mediated in an economy, that material substrate is left unproductive, at a subsistence level, at least for the mass of men. This is why tribal and feudal societies anciently, and socialist societies in modern times, could never get farther than a minimal level of proThis is the subject of De Sotos important book, The Mystery of Capital.
47
Neoclassical economics failure
Keynes solution: money before goods
Macleod understood that rights create wealth
52
The propertybased economics of Heinsohn, Steiger, and Stadermann
Distinction between possession and property
ductivity. The reality of the situation has only recently been laid bare, in the work of Gunnar Heinsohn, Otto Steiger, and Hans-Joachim Stadermann.48 Their work demonstrates the truly unique character of the property regime. They show that property is not just there: it is a quality attaching to things only within the legal context, the context of private law. Heinsohn and Steiger for the rst time harness the distinction between possession and property for the benet of economic theory. This legal distinction is unavailable to economists who either are unaware of or who refuse to recognize the fundamental importance of the legal sphere to economics. Possession concerns the actual goods and services, the level of use, while property concerns the invisible layer of titles and obligations enabled by the human will, capable of obligating itself to future performances the basis for the entire regime.
Obligation serves a dual purpose, that of meeting
Heinsohn is a sociologist, Steiger and Stadermann are economists. Their work ought to earn them the Nobel Prize in economics someday. Beyond the works listed in the bibliography, the following should be consulted: first and foremost, the seminal work: Heinsohn and Steiger, Eigentum, Zins und Geld: Ungelste Rtsel der Wirtschaftswissenschaft [Property, Interest, and Money: Unsolved Mysteries of Economic Science], fourth, revised edition. Marburg: Metropolis Verlag, 2006. Furthermore, Stadermann and Steiger, Allgemeine Theorie der Wirtschaft: Band 2, Nominalkonomik [General Theory of Economics: Vol. 2, Nominal Economics], Tbingen: Mohr-Siebeck, 2006; Stadermann, Das Geld der konomen: Ein Versuch ber die Behandlung des Geldes in der Geldtheorie [The Economists Money: An Essay Regarding the Treatment of Money in Monetary Theory], Tbingen: Mohr Siebeck, 2002.
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needs for which things are not appropriate (services, works) but beyond that securing for the future things themselves, by means of the human will. The signicance of obligation is not so much to make possible services or the communication of things this can be achieved by mere factual performance but much rather that security of the future exist, partly by making possible a present performance or communication without damage and hazard, and partly through which the future possession of an object is secured in a manner often not aorded even by continuous possession.49
53
This distinction is what Marx and others were groping after in their distinction between use-value and exchange-value. In terms of the common-law order as described in the rst chapter of this book, the distinction pertains to the internal and the external dimensions, respectively, of the associations comprising the society. Use the possession dimension is group-internal, while obligation the property dimension is group-external. The distinction is fundamental. The one involves the exploitation of the good or service; the other, the capacity, as it were, to exploit the exploitation, by means of pledge upon which credit is based, above and beyond the exploitation of the good. Economically, therefore, property is the result when obligation is added to possession (possession + obligation = property): obligation being the capacity to promise, which in turn leads to the capacity to burden, to encumber, to collateralize property, which
49
Use-value versus exchange-value
Property is possession plus obligation
Stahl, Private Law, p. 95. Emphasis added.
54
Concept of property premium
Money the heart of the property regime
enables the receipt of credit while retaining possession, and thus use, of the property involved. All other functions of property are already contained in possession. Therefore, in the property regime the object of property can be retained, and so exploited, while also collateralized for credit. This having ones cake and eating it too is what enabled the explosion of wealth lauded by Macleod and so inexplicable to Bhm-Bawerk whose response, in principle, was of the same ilk as Aristotles to the idea of interest. Behind this capacity for wealth generation is a phenomenon which Heinsohn and Steiger have labeled property premium: a non-physical yield of security which accrues from property as long as it is unencumbered and not economically activated. The premium allows proprietors to enter credit contracts, and is a measure of the potential of individuals to become creditors and debtors.50 It is precisely the establishment of a regime of secured possession, of ownership against all the world, through the umbrella of sovereignty and the instrumentality of private law, which generates this property premium, this non-physical yield of security. The cornerstone of the entire property regime is money, which is liquidity the means for discharging debts. The system runs on credit and debt and the settlement of agreements establishing those credit-debt relations; such settlement is realized through the institution of money. Money therefore is anyHeinsohn and Steiger, The Property Theory of Interest and Money, in What Is Money?, p. 82.
50
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thing but adventitious. Without it, economic activity cannot advance beyond the most primitive stage. Money is issued by a property owner against his property. Money itself is therefore a claim against his property. The holder of money may redeem it for that property. This is what maintains the value of that money. Further, it is an anonymized claim, which means that although the issuer is named, the recipient is not: that money may pass from hand to hand and be used by any holder, unlike e.g. a check, which can only be cashed by the recipient named on it. Why would anyone issue money in the rst place? For the money, of course. Because by doing so, the issuer transforms the property premium in his property into interest; he can charge interest for the money he issues. The recipient of the money the debtor promises to repay the sum borrowed plus interest. Furthermore, in order to receive credit he encumbers his property as collateral for the sum received. This too is a giving up of property premium, albeit for a dierent end, not to earn interest but to gain liquidity the fabled liquidity preference while keeping control of the property concerned.
[Property premium] entails the capacity of a creditor to issue anonymized claims against his property, which we will call money. By creating such titles the creditor encumbers his property, or blocks his or her freedom over it for the time of the loan contract. The property premium also entails the capacity of a debtor to borrow these titles by pledging other claimstitles to his
What money is
Rationale for money issue
Property premium is transformed into interest, liquidity
56
propertyas collateral, thereby also encumbering property. In both cases, goods and resources are neither transferred nor touched. Creditors and debtors continue to acquire the returns of the material yield due to the possessional rights to their resources. Credit operations, thus, never interfere with the physical use of resources, but only deal with titles to property.51
The secret of capitalist economic growth
Valuation stems from the issue of money
This is the core of the property regime, and the engine of economic growth. The metamorphosis of property premium into a charge of interest owed by a debtor in every credit contract is at the root of capitalisms envied accumulation and technical progress in the same manner as the non-metamorphosis is at the root of its deplorable crises.52 Valuation as a market function is part and parcel of this same money-issuing, credit-generating process. Valuation is not rst attained through the process of buying and selling, but through the process of encumbering, collateralizing, and issuing money in credit contracts. This is because credit contracts, not sales contracts, are original; sales contracts follow after.
Property titles are always transferred in creditor-debtor contracts in which both creditor and debtor are proprietors. These contracts are divided into mere credit contracts and sales contracts. In the former, claims to property are transferred but
Heinsohn, and Steiger, The Property Theory of Interest and Money, in What Is Money?, p. 82. 52 Heinsohn and Steiger, Property Titles as the Clue to a Successful Transformation, in Verpflichtungskonomik, p. 210.
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not claims to possession, rights to the physical use of goods or resources. In the latter, claims to property are transferred uno actu with claims to possession. Sales contracts are always subordinated to the credit contracts whose fullment they serve.53
57
The issue itself forms the original valuation, for money is issued in terms of the value of the collateral. The property put up as collateral receives its valuation in the credit contract through which money is obtained. Valuation being inherent in the issue of money, it is not dependent on the previous valuation of any commodity but instead is the source of the valuation of commodities. Contemporary goods-based economic theory, viewing money as the most marketable commodity (Carl Mengers formulation), usually views the precious metals, preeminently gold, as the standard by which to value everything else. But this is to put the cart before the horse; and, viewing things from this angle it is easy to understand Stadermann and Steigers impatience:
Hundreds of years of value theory tradition make it dicult to understand that investigation into the origin of the value of economic goods is not a scientic question. Economic science has diculty divesting itself of that medieval insistence on investigating the substance of things in order, in the manner of natural science since the Enlightenment, to pass over to investigating the
Value not inherent in any goods
Heinsohn and Steiger, The Property Theory of Interest and Money, in What Is Money?, p. 82.
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relations between economic phenomena. For this it requires no classical or neoclassical value mysticism. The value of economic goods is measured in dierentiable money units in no other way than temperature is in various degree scales. Establishing a currency unit is an act just like establishing the Celsius scale for the measurement of temperature. Why the temperature dierence between two aggregate conditions of water is divisible in one hundred equal intervals cannot be answered scientically. Not only three but a thousand, yea innumerable foundations were possible for measuring temperature; it is only convention that made use of the decimal system of 100 sections for the scale.54
Issue of money assumed by the sovereign
The value of things is not inherent in certain things in order to serve as the basis for the valuation of everything else. Valuation is a matter of convention and agreement: it is an aair of common-law functionality. In the early stage of the property economy, money is issued by private entities, property owners able to issue a valid currency to meet the need for liquidity. Soon sovereign entities assume the role of issuers of money, and the rationale for doing so is eminently a common-law rationale, for at bottom money creation is valuation conrmed by the sovereign in response to demand,55 either by courts upholding contracts in the case of private issue or by itself issuing money, by proxy, through a central bank on a
Stadermann and Steiger, Schulkonomik, p. 15. Recall the comprehensive formula of the common-law order, p. 20 above.
54 55
59
State money as corruption of sovereign issue
property basis.56 The sovereign originally took over the role of coinage from private credit banks. Once coin existed, governments of ancient city states tried to make a gain seigniorage by monopolizing the mints and paying their debts with state coins.57 But they often confused the issue by succumbing to the temptation of resorting to state money (in which the state creates money for itself in exchange for its own IOUs) rather than sticking to the discipline of property-backed money. Modern central banks when properly run are based on the basic principle of property-backed money. Contrary to popular belief, itself fueled by Keynesian dicta that the state can and ought simply create money ex nihilo,58 central banks only issue money against marketable assets, both by buying them and by accepting them as collateral against repayment. They form the cornerstone of the modern
Central banks as vehicles of property-based issue of money
State money (fiat currency see note 47 below) is a perversion of this principle, not an expression of it. 57 Heinsohn and Steiger, The Property Theory of Interest and Money, in What is Money?, p. 86. 58 The concept of state money has led Keynes to recommend government printing money to finance public expenditure against unemployment. The concept has also survived in mainstream monetary economics where money is defined as a public debt. This view reflects periods in the history of monetary systems in which governments frequently circumvented the labourious process of pledging good securities for the issue of money, by allowing non-marketable state debt to be transformed into money proper. However, such an issue of money has more often than not disturbed, and sometimes even destroyed, money systems. Heinsohn and Steiger, The Property Theory of Interest and Money, in What is Money?, p. 87.
56
60
Threefold property basis for money issue by central banks
Various forms of assets accepted by central banks
Various kinds of purchase regimes
Federal Reserve compared to Eurosystem
two-tiered banking system, in which central banks deal only with commercial banks, who in turn deal with the borrowing public. In this system, there is a threefold basis for the issue of money. Firstly, there is the property of the end user put up as collateral when borrowing from the commercial bank. Secondly, there are the securities collateralized by the commercial bank to receive funds from the central bank. Thirdly, there are the assets purchased by the central bank in exchange for its banknotes, constituting its reserves. Each of these asset levels must comprise marketable securities, so as to maintain the value of the currency. They cannot be mere government IOUs, unless these themselves are marketable as well. There is some dierence in philosophy among central banks as to the sort of assets they will accept, both in purchase and as collateral. Figure 1 gives a comparison of central banks, showing the divergence in assets, with some heavily skewed toward gold, international reserves, and other foreign assets, and others skewed toward government loans. Additionally, the method of purchase diers. The US Federal Reserve overwhelmingly makes outright purchases, mainly of Treasury securities; the Eurosystem among others makes extensive use of repurchase agreements, in which it purchases securities on the agreement of reselling them at a set price at a xed date in the near future; it also purchases a range of securities, both domestic and foreign debt as well as non-government bonds. A comparison of the balance sheets of the
61
Eurosystem (assets; Fig. 2) and the Federal Reserve (Fig. 3) is instructive in this regard. The divergences are striking: the Eurosystem holds 16 times more gold instruments than the Fed, making up about 15% of its holdings; foreign reserves make up some 16% of Eurosystem holdings, versus zero for the Fed; repurchase agreements make up 39% of its holdings, versus some 5% for the Fed; and government debt holdings amount to a mere 3%, versus some 90% of Fed holdings. Through it all, however, the basic principles of property-backed issue remain the same; and the spread of this form of central banking as opposed to state-money systems has been relentless, forming one of the true success stories of the past 25 years or so. The property-based economy appears to be the logical result of progress in civilization, from tribal to feudal to capitalist society. How then to explain the tremendous drawing power of the alternative form of social order, itself viewed by its proponents as the progressive solution to the problematic situation brought into the world by capitalism? For from the perspective of the property-based economy, the collectivist alternative is merely another form of command-based society of the same ilk as feudalism, based in possession rather than property. The solution to this conundrum can only be sought at the level of the spirit, for it is a spiritual problem, requiring a spiritual solution. We turn, then, to the topic of common-law religion.
Notwithstanding, central banks adhere to property-based issue
Rejection of property-based economics rooted in religion
62
Figure 1: Major assets of select central banks (percentage of total assets). From Report on Currency and Finance 2004-2005, published by the Reserve Bank of India, p. 244.
63
Figure 2: Assets, Eurosystem consolidated balance sheet, ECB Annual Report 2006, published by the European Central Bank, p. 218.
64
Figure 3: Federal Reserve balance sheet, from the 93rd Annual Report, 2006, published by the Federal Reserve, p. 322.
4. Common-Law Religion
As discussed above, the founder of state of nature politics, Hugo Grotius, was motivated by the desire to move beyond religion, specically Christianity of one form or another, as the basis for legitimating sovereignty. Sovereignty had to be grounded in something other than a common religious confession, and he felt he had found that grounding in the very institutions of private law: property and contract. These could serve not merely as institutions at the service of society but as institutions creating society. The root of these institutions is the concept of subjective right, which entails a specic conception of human nature, viz., one in which human being are seen as ends, not means, and as centers of judicial spheres of inuence from which their worlds are ordered (see the discussion on page 26 above). However, the doctrine of subjective right, as Stahl rightly noted, is only a secondary principle of legal formation. It is subordinate to the primary principle of objective law. But Grotius and his followers, including John Locke, turned this hierarchy on its head, making the objective legal order the consequence of subjective right. By making this secondary principle into the primary overarching principle of law and order, and in fact the source of sovereignty, the natural-rights philosophers in fact reversed one of the pillars of
State of nature: ostensible flight from religious confession
Subjective right...
...a secondary principle
Improperly made into the primary principle
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Corollary: optimistic view of human nature
Revelation of the autonomous individual
Christian civilization: the understanding that man was fallen, and that the institutions of society did not derive from him but were instituted over and around him, to hedge him in, as it were, in so doing to provide, in order and in authority, the basis for a sound, healthy, viable liberty. Hence the Augustinian view of the depravity of human nature was tossed overboard in favor of the optimistic view thereof,59 wherein man, if not perfectible (although the perfectibility of man became a popular corollary for many), at least was capable of establishing proper institutions by his own device, by consulting his own nature. The state of nature was not distinguished by being corrupt, but by being sub-optimal; man came together in society voluntarily society is not pre-existing and he did so, according to Grotius, because of a drive toward sociability, a need for companionship and for the benets of cooperation. When, however, remarks Stahl, Thomasius replaced the drive toward sociability with the drive toward happiness, by which the individual of necessity becomes isolated, the last remnant of an objective legal principle was eliminated.60 As a result, natural-rights philosophy gave birth to the atomistic individual as the source of authority and sovereignty and law. The 18th century was characterized by Gierke61 as an arid age as far as associationalism is concerned, for all the political
59 Both Grotius and Locke dissented from the Augustinian doctrine of original sin. 60 Stahl, Principles of Law, p. 27. 61 Natural Law and the Theory of Society 1500-1800.
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theories were of this sort, individualistic and contractual, leaving no room for the autonomous standing of associational life in any form. Every form of association became voluntary, and the principle of voluntarism had to be assumed and then buttressed with other additional conceptions in order to sustain such institutions as the family, the state, the nation, all of which assume participation prior to consent. The philosophy left no room for pre-existing authority. The counterpart to this focus on subjective right as the source of authority and law was a truncated notion of justice. Now the common law this universal, integrating law is itself the expression of strict justice. Grotius saw this clearly in describing strict justice as the justice involved in property and obligation Aristotles commutative justice. By contrast, he categorized distributive justice as justice in the broad sense because unable to be enforced in law. For this reason, it was not justice at all, but mere morality. Now Grotius was on to something here. The distinction between the strict justice expressed in private law and the broad justice which is distributive justice is a valid one. Properly understood, this distinction is one between law-orders, the laworder of common law, c.q. private law as external law, and the internal law of each individual organization or association, which is governed by the principle of distributive justice. Grotius achievement was vitiated by the fatal decision to eliminate distributive justice from any consideration in law, thus destroying the notion of given authority structures. Distributive justice would return, but through the back door, as it were, destroying by deforming the received common
Grotius elimination of distributive justice
68 law.
Result: the social question
Poverty blamed on institutions of civil society
This back door was what came to be known as the social question. The focus on property and contract as the be-all-and-end-all of social order called forth a backlash in which property itself came under scrutiny as being problem rather than solution. This already had become clear in the period of the French Revolution, in the 1796 conspiracy led by Franois-Nol Babeuf to replace the Directory with a regime installing common property. It was also the driving force behind William Godwins Enquiry Concerning Political Justice (rst edition 1793) proclaiming the perfectibility of man precisely through the elimination of institutions such as property. And, of course, Jean-Jacques Rousseau (The rst man who enclosed a plot of ground and thought of saying, This is mine, and found others stupid enough to believe him, was the true founder of civil society62) was the font et origo hereof. The social question, of course, concerned not the creation of wealth but its distribution. That wealth was distributed unequally, that was evident to all; and that this unequal distribution was likewise inequitable, was the conviction of many, increasingly many. Given the ebbing conviction that human misery might have some link to human depravity something any Augustinian Christian would have been quick to point out another root of the problem had to be discovered, and it was promptly found
Rousseau, Discourse on Inequality, in The Basic Political Writings, trans. Donald A. Cress (Indianapolis, Indiana: Hackett Publishing Company, 1987), p. 127.
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Common-Law Religion
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in property and the other institutions of civil society. Godwin, for example, attributed almost all the vices and misery that are seen in civil society to human institutions. Political regulations, and the established administration of property, are with him the fruitful sources of all evil, the hotbeds of all the crimes that degrade mankind.63 That an Augustinian voice was not entirely missing in the debates of the age is evident from the continuation of the just-cited quotation: But the truth is, that though human institutions appear to be the obvious and obtrusive causes of much mischief to mankind; yet, in reality, they are light and supercial, they are mere feathers that oat on the surface, in comparison with those deeper seated causes of impurity that corrupt the springs, and render turbid the whole stream of human life. But, equally, that such a voice would garner mainly scorn and obloquy is evidence of the prejudice of the modern age, down through our day. For the writer was Thomas Robert Malthus; and if anyone has been vilied, or at the very least gravely misconstrued after all, economics was supposedly dubbed the dismal science by Thomas Carlyle in response to Malthus treatment thereof 64 it is he, the contriver of
Malthus provides the Augustinian counterpoint
Malthus, An Essay on the Principle of Population, chap. 10, paragraph 4. 64 The truth of the matter is, although Carlyle did refer to Malthus treatment as mournful dreary, stolid, dismal, without hope for this world or the next, he did not refer to it as the dismal science. For details see Robert Dixon, The Origin of the Term Dismal Science to Describe Economics, available on the World Wide Web at http://www.economics.unimelb.edu.au/
63
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Root of poverty in corrupt human nature
so-called Malthusianism, an epithet which speaks more of the prejudice of his opponents than for his own position. Malthus dared to point out that the source of the misery in the world was not institutions but human nature itself. Human beings, led by passions and desires, have this inveterate propensity to engage in counterproductive behavior; and to believe that reason could counteract that propensity was a pipe dream.
The cravings of hunger, the love of liquor, the desire of possessing a beautiful woman, will urge men to actions, of the fatal consequences of which, to the general interests of society, they are perfectly well convinced, even at the very time they commit them. Remove their bodily cravings, and they would not hesitate a moment in determining against such actions. Ask them their opinion of the same conduct in another person, and they would immediately reprobate it.65
Misinterpretation of Malthus
The specic manifestation of this propensity occurs in population growth. Now Malthus has been impugned and misrepresented regarding Malthusianism ever since he rst put forward the argument. But what was his argument? It is often represented in simplistic terms: 1) human beings are capable of reproducing at an exponential rate; 2) the means of subsistence can only be increased at an
TLdevelopment/econochat/Dixonecon00.html. 65 Malthus, An Essay on the Principle of Population, chap. 13, paragraph 3.
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arithmetic rate; 3) therefore, population growth will always outstrip the means of subsistence. But this is not precisely what Malthus said; and it certainly is not what he was getting at. What he said was that population growth, if left unchecked, would multiply at an exponential rate, thus outstripping the means of subsistence. But, one way or another, population growth is checked. It is a matter either of implementing desirable checks, or being left to the mercy of undesirable checks, such as war, famine, and pestilence. And the whole point of Malthus argument was to respond to Godwins critique of civil society as being the source of societys problems. For Malthus point was precisely to defend the institutions of civil society, specically the family and private property, as desirable checks on what otherwise would be a miserable existence.
It seems highly probable, therefore, that an administration of property, not very dierent from that which prevails in civilized States at present, would be established, as the best, though inadequate, remedy, for the evils which were pressing on the society.66 The institution of marriage, or at least, of some express or implied obligation on every man to support his own children, seems to be the natural result of these reasonings in a community under
Civil institutions mitigate this corruption
Malthus, An Essay on the Principle of Population, chap. 10, paragraph 24.

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the diculties that we have supposed.67
Ultimate solution: morality
But even given these institutions, a moral check is required above and beyond them. And this is the point to which Malthus argument was really leading: the need to convince young people not to marry before they could aord to support a family. Because marriage, family, and property are no nal solution, only indispensable means thereto.
When these two fundamental laws of society, the security of property, and the institution of marriage, were once established, inequality of conditions must necessarily follow. Those who were born after the division of property, would come into a world already possessed. If their parents, from having too large a family, could not give them sucient for their support, what are they to do in a world where every thing is appropriated?68
Citizenship the necessary counterpart to institutions
And here Malthus laid his nger on the core of the issue. Institutions were important, extremely important, but they could not provide an ultimate solution. That solution lay simply in the inculcation of the concept of citizenship as explained in the overview chapter of this book (see pp. 15f. above). Ultimately, the solution comes in the form of personal accountability, of each individual making decisions and taking responsibility for those decisions. There
Malthus, An Essay on the Principle of Population, chap. 10, paragraph 26. 68 Malthus, An Essay on the Principle of Population, chap. 10, paragraph 29.
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could be no alleviation of the problem of poverty outside of this acceptance of personal accountability; but the notion that the root of the problem lies in institutions apart from personal accountability works precisely to perpetuate the problem. This brings us back to the social question, which at bottom is not a question at all, but the inevitable result when society refuses to recognize the intrinsically moral character of the problem. Western societies faced then, and the global community faces today, the problem of an explosion of poverty wherein the population of the working class was expanding beyond the capacity of the labor market to employ it and for which inadequate infrastructure was in place to support the weight of numbers. The social question is the result when the real question the question of character and morals is left unanswered, and the resort is made to political solutions. Case in point: Englands poor laws ostensibly were introduced in order to stem the tide of poverty, but they had only made the problem worse. It is a subject often started in conversation and mentioned always as a matter of great surprise, Malthus observed, that notwithstanding the immense sum that is annually collected for the poor in England, there is still so much distress among them. Some think that the money must be embezzled; others that the church-wardens and overseers consume the greater part of it in dinners. All agree that somehow or other it must be very ill-managed. In short the fact, that nearly three millions are collected annually for the poor and yet that their distresses are not removed, is
The social question begs the question
Poor laws exacerbate the problem
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the subject of continual astonishment.69 For Malthus, however, the problem was straightforward. The more money spent in such a manner to alleviate the condition of the poor, the more the problem would spread. And for good reason:
I feel no doubt whatever that the parish laws of England have contributed to raise the price of provisions, and to lower the real price of labour. They have therefore contributed to impoverish that class of people whose only possession is their labour. It is also dicult to suppose that they have not powerfully contributed to generate that carelessness, and want of frugality observable among the poor, so contrary to the disposition frequently to be remarked among petty tradesmen and small farmers. The labouring poor, to use a vulgar expression, seem always to live from hand to mouth. Their present wants employ their whole attention, and they seldom think of the future. Even when they have an opportunity of saving they seldom exercise it; but all that is beyond their present necessities goes, generally speaking, to the ale-house. The poor-laws of England may therefore be said to diminish both the power and the will to save, among the common people, and thus to weaken one of the strongest incentives to sobriety and industry, and consequently to happiness.70
Far from being part of the solution, the poor laws
Malthus, An Essay on the Principle of Population, chap. 5, paragraph 3. 70 Malthus, An Essay on the Principle of Population, chap. 5, paragraph 14.
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were part of the problem. For by providing support to poor families, these laws were simply encouraging their multiplication, thus leading to the Malthusian scenario. Of course, this message was as ill-received as were the rest of Malthus conclusions. The age simply did not want to hear of responsibility and accountability, much less of human depravity. But Malthus message found fertile soil in the imagination of the remarkable Thomas Chalmers, the noteworthy Scottish divine who translated Malthus conclusions into an apology for the Christian state. Chalmers rejection of the welfare-state approach to poverty was decisive: Pauperism in so far as sustained on the principle that each man, simply because he exists, holds a right on other men or on society for existence, is a thing not to be regulated but destroyed.71 Nothing regarding this matter could be accomplished if its essentially moral character was not recognized. And coerced charity, the charity of law, only made the matter intractable. In the nal chapter of his treatise on political economy, Chalmers sums up the results of his discussion to that point:
We have laboured to demonstrate the futility of every expedient, which a mere political economy can suggest for the permanent well-being of a community. At best, they but tend to enlarge the absolute wealth of a country, without enlarging the relative comfort of the people who live in it.
Thomas Chalmers
Rejection of legal right to poor relief
The inadequacy of political economy
71
Chalmers, Problems of Poverty, p. 202.
76
They may conduct to a larger, but not, on that account, to a happier society. They may tell on the condition of families, during those brief and evanescent seasons, when the population is somewhat in rear of the wealth; but, on the moment that this distance is overtaken, there will be the same straitness and discomfort as before. There may be gleams of prosperity during the uctuations, or the few short and successive stretches of enlargement which are yet in reserve for us. But all around, and in every possible direction, there is a besetting limit, which the mighty tide of an advancing population tends to over-pass, and which, being impassible, throws the tide back again upon general society; charged, as it were, with a distress and a disorder that are extensively felt throughout the old countries of the civilized world.72
Character, not science, provides the solution
Political economy alone is insucient to rectify the situation. Character is the key. The high road, then, to a stable suciency and comfort among the people, is through the medium of their character; and this eectuated by other lessons altogether than those of political economy. Economic science, though a ne thing in its proper place, is powerless to eect a change here. It is lessons of a moral nature which are needed.
The moving force, that is to advance the general multitude to a better and higher condition than they now occupy, will not be brought to bear upon them by the demonstrations, however just, of any theory; and, in fact, the right impulse, and
72
Chalmers, On Political Economy, pp. 420-421.
Common-Law Religion
the right habit, have often been exemplied, and by large classes of peasantry, before the theory of population was ever heard of. It is so in Norway; and, most assuredly, without any inoculation of principle from the school of Malthus. It was so in Scotland, long before the promulgation of his doctrines. In both countries, they realized, in practice, what, in system and philosophy, they did not understand. A moral and intelligent peasantry, imbued with a taste for the respectabilities of life, mixing prudence and foresight with every great practical step in the history of their doings, holding it discreditable to enter upon marriage without the likelihood of provision for a family such a peasantry have more than once been exhibited in the annals of world, and may be made to re-appear.73
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The fountain of such character is Christianity, which, in its zeal to realize a heavenly harvest of souls for eternity, preaches a doctrine which in its secondary eects produces precisely the sort of character which alleviates the problems signaled by political economy but left unsolved by it. It is forgotten, that a warm and earnest Christianity, was the animating spirit of all our peculiar institutions, for generations after they were framed; and that, wanting this, they can no more perform the function of moralizing the people, than skeletons can perform the function or put forth the faculties of living men. And it has been the public schools as part of the church establishment which have imbued the populace with these salutary doctrines. The scholastic is incorpoChalmers, On Political Economy, p. 422.
Christianity the source of character, salutary institutions
73
78
Obstinacy of the political class
rated with the ecclesiastical system of Scotland; and that, not for the purposes of intolerance and exclusion, but for the purpose of sanctifying education, and plying the boyhood of our land with the lessons of the Bible. The scholarship of mere letters, might, to a certain extent have diused intelligence amongst the people; but, it is mainly to the presence and power of the religious ingredient, that the moral greatness of our peasantry is owing.74 The social question could not be eectively answered through the mechanical means of political measures; yet this was the course men of inuence were determined to take. It would seem to argue a growing sense of desperation among our public men, that their schemes of patriotism and philanthropy are so thickening of late upon us; while, but a semblance of relief, or, at the best, a short-lived respite will be all the result of them. A fools errand; for it is by the ecacy of moral means, working a moral transformation, and by that alone, that our deliverance will be eected; and little do the mere advocates of retrenchment, and colonization, and public works, and poor-laws, and other merely political expedients for the melioration of the people little do they know, how utterly powerless all these enterprises are, while the Christianity of the land is unprovided for, and its Christian institutions are left inoperative, from the want of zealous and energetic labourers to ll them.75
74 75
Chalmers, On Political Economy, p. 434. Chalmers, On Political Economy, pp. 438-439.
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Antipathy to living Christianity
And this opposition to allotting to Christianity its proper role in society is likely attributable to deeper motives than mere ignorance. We fear, that with many [politicians and political economists], it may be distaste and antipathy. For they cannot abide a living faith. There is a certain style of Christianity, a lifeless, inert, and meagre style of it, which is tolerated in general society. But when it comes to be Christianity in earnest, the Christianity that speaketh urgently and importunately to the consciences of men, the uncompromising Christianity that enjoins the holiness of the New Testament in all its spirituality and extent, and asserts the doctrine of the New Testament in all its depth and all its peculiarity; such a Christianity has been very generally denounced as fanaticism; and its faithful evangelical expounders, have very generally had a stigma axed to them, and been outcasts from the patronage of the state. From a spiritual standpoint, this is of course deplorable; but even from a prudential standpoint it is unwise. For this is the only Christianity that will either attract or moralize the population; and that, not because of its deceitful adaptation to vulgar prejudices, but, because of its truly divine adaptation to the actual workings of the human mind, and the felt necessities of human nature. If the political leadership insists on excising Christianity from its proper role in social life, it will call down a judgement upon the nation. While this enmity to the truth as it is in Jesus operates in the hearts of our rulers, it is perhaps a vain expectation, that the civil and political importance of its being sounded forth from the pulpits of our land shall come to be recognised by them.
80
Antipathy of entitlement mentality to the Gospel
Confusion of justice and mercy
On this subject, they may have been struck with judicial blindness; and ere Christianity shall manifest its power to regenerate our social condition, and overspread the land with prosperous and contented families; perhaps it will rst vindicate itself on our ungodly nation, in the utter dissolution of an economy which disowns it, in the vengeance of some fearful overthrow.76 One thing was certain: no progress was possible if the charity of law, the coercion of a misnamed charity, was allowed to take root. And here Chalmers writes a passage so prophetic of the future of Christianity that I include it in its entirety as an appendix.77 At its root was precisely confusion willful confusion regarding the very nature of justice. We have long thought that by a legal provision for indigence, two principles of our moral nature have been confounded, which are radically distinct from each other. These two principles are humanity and justice, whereof the latter is the only proper object of legislation which, by attempting the enforcement of the former, has overstepped altogether its own rightful boundaries.78 This confusion regarding justice had led to the situation in which the alleviation of poverty is accomplished not through charity or self-help, but as a matter of right by which one simply may claim the shortfall from society at large.
Chalmers, On Political Economy, pp. 439-440. See Appendix I, p. 95. 78 Problems of Poverty, p. 201.
76 77
Common-Law Religion
Whatever the calls be, which the poverty of a human being may have on the compassion of his fellows it has no claims whatever upon their justice. The confusion of these two virtues in the ethical system will tend to actual confusion and disorder, when introduced in the laws and administrations of human society. The proper remedy, or remedy of nature, for the wretchedness of the few, is the kindness of the many. But when the heterogeneous imagination of a right is introduced in to this department of human aairs, and the imagination is sanctioned by the laws of the country, then one of two things must follow Either an indenite encroachment on property, so as ultimately to reduce to a sort of agrarian level of all the families of the land; or, if to postpone this consequence a rigid dispensation be adopted, the disappointment of a people who have been taught to feel themselves aggrieved, the innumerable heart-burnings which law itself has conjured up, and no administration of that law, however skilful, can appease.79
81
This confusion was made possible by the very natural-rights paradigm that was once seen as the means to supersede narrow confessional politics. Hugo Grotius delivered his own hostage to fortune when he eliminated distributive justice from consideration in law. By doing so, he made subjective right to be the source of law and social order; he made the individual primary; but he also in principle eliminated the associations and institutions in society which relied not on consent but on givenness. The safety net provided by institutions such as the family and
79
Precipitated by Grotius elimination of distributive justice
Problems of Poverty, pp. 202-203.
82
Grotius corrupted the received tradition of justice
Judicial theology
the church (witness Chalmers stellar work in the parishes in which he was active) was destroyed from without by state institutions assuming their roles and from within by its very members refusing to acknowledge these structures and their roles within them. For the classical liberal apotheosis of strict (read: commutative) justice leads to individualism and to the dialectical opposition of an apotheosized distributive justice in the form of collectivism. From the beginning it was not so. Western civilization, drawing upon the resources provided by Augustinian, Latin Christianity, had engendered a social order based equally on both the two principles of justice, commutative and distributive, strict and broad, or, if you will, external and internal. Historically, the system of two forms of justice was rst developed by medieval theologians, chiey Thomas Aquinas. It remained a mainstay of moral theology and therefore ethics into the 17th century, serving as the source of treatments such as Johannes Althusius Politica before the natural-law philosophers beginning with Grotius began their frontal attack upon it in the name of natural rights. What is unique about Christianity and this is the key is likewise what it is that enabled this conceptualization and in fact the common-law system to develop as it did. What sets Western Christianity apart and in fact enabled the growth of the common law is judicial theology. Such theology, anticipated by Augustine, was given explicit, albeit provisional, shape by
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Anselm, Archbishop of Canterbury.80 In his dialogue Cur Deus Homo, Why God Became Man, Anselm laid out the structure of justice in such a way as to explain the existence of mercy as well. In Christ, God became man, and He became man in order to satisfy, through His atoning work on the cross, both the claim of justice and the claim of mercy, by both paying for mans sins and by extending that payment to man so as to redeem him to restored relationship with God the Father. The justice which was satised on the cross is strict justice, the justice of quid pro quo, which no one can escape, it being grounded in the very nature of God. As jurists have realized for a long time, the rigorous pursuit of this justice is impossible in the human condition, for it is insupportable: hence the sayings Let there be justice, though the world perish [Fiat justitia, pereat mundi] and Highest justice, highest injury [Summum jus, summum injuria]. Through the atonement, however, this justice has been made amenable to human administration, its rigor being oset through the ministry of mercy: the ministry of the atoning work of the Messiah, extended through the church. Hence in history the administration of strict justice was enabled and fomented precisely by the Western Roman church, which understood justice
Administration of justice enabled by the atonement of Christ
Atonement mediated by the church
See Stahls discussion of justice and the atonement in . 56-59, Volume II, Book I of his Philosophy of Law, a translation of which is scheduled for publication in 2008. Stahl takes Anselms discussion of the atonement forward; the following discussion is based on his seminal statement.
80
84
Development of Western order
Resort to Roman law
and law81 because it understood justice and mercy. By means of its canon law, both as model and as counterpart, the church established a working framework of jurisdictions which, although not awless by any means, put the state back on its feet and enabled the growth of the common law as has been described in this book.82 Within this framework of jurisdictions, the church reserved to itself the ministry of mercy, while calling upon the state to take upon itself the ministry of justice. Within the context of church and state understood as exercising distinct jurisdictions, the distinctive associationalism of Western civilization developed. Communes were formed which in turn became cities; and various forms of association in the service of various individual goals business, educational, vocational ourished. This could happen precisely because of the existence of an integrating, universal order enabling the existence of a pluralism of associations, in which associationalism was allowed for by the method of sovereign conrmation of spontaneous organization and arrangement. In turn, the distinctive Ius Commune developed as the jurists expression of this universal order although the reality constantly outstripped the theoretical accommodation thereof. This explains the burgeoning interest in the Justinianian corpus right at the time in which the
81 The first title of Justinians Digest was entitled De Iustitia et Iure (Of Justice and Law), and, in its train, many treatises of moral theology were likewise so entitled. 82 Berman, Law and Revolution, is must reading in this regard.
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West was experiencing its renaissance of culture. Why was Roman law resorted to in order to develop this common law? Because, as Stahl has written, Roman law realized the principles of strict justice, separating them out from morality and politics,83 in this way complementing the existing customary law, which itself was not simply jettisoned but supplemented in the areas in which it was lacking precisely those institutions of external private law.84 So then, atonement made possible the administration of strict justice by the state, whereby the state restricts its activity primarily to the administration of this justice; and the church enabled it to do so; the church, which, recognizing the extent of the atonement, established its ministry of mercy in the midst of the social order, in so doing calling the state to its proper role as yeou gar diakonov estin ekdikov eiv orghn tw to kakon prassonti, the minister of God, a revenger to execute wrath upon him that doeth evil (Romans 13:4). To some this may same a grave overstatement. Surely the state can be called upon to administer justice in this manner without any appeal to the atoning work of Christ is this not the conviction of all who
83 This is not to say that it did so infallibly. Stahl argues that Roman law provided the indispensable factual parameters for positive law (the nature of the case) but not justice itself. This is because it did not recognize its counterpart, the internal laworders of the associations being coordinated. This led to its onesidedness, as Stahl describes. See the Principles of Law, appendix. 84 Stahl, Principles of Law, appendix: The Value of Roman Law; furthermore, Dankwardts important discussion, Nationalkonomisch-civilistische Studin [Studies in Economics and Roman Law], pp. 28ff.
The state as minister of God to execute wrath
Overstating the case?
86
No atonement, no justice
Human need for atonement
Requirement of public atonement
call for the wall of separation between church and state, who place their hope in the promise of the neutral state? But this is precisely what is wrong with such neutral theories of the state, and the role of religion in society. Justice cannot be achieved until atonement is achieved: ancient societies perceived this, and made sacrice plant, animal, even human an integral part of their public life. Modern man thinks he has escaped this necessity, relegating religion to the private sphere, secularizing the public square. This is pure self-deception. For human beings both individually and collectively have the overriding need to correct what is wrong in existence. Man is hereby proven to be incurably religious. This pursuit the pursuit of perfect justice, of once and for all dealing in a decisive manner with the injustice in the world takes hold of him because underneath he feels the existential need to correct the underlying wrong, the root problem, in human life. That mans condition is a broken one, all are agreed. Hence this pursuit which is the drive for full atonement. It takes place not simply at the level of the individual soul, in all manner of psychological dysfunctions, but at the level of common life, of society; and politics collective, public action becomes its vehicle. Ancient societies instituted the most grotesque rituals fertility rites, bloodstained child immolations, etc. so as to lay the basis for common hu-
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man life.85 But Christianity realized the reality of that which other human societies perversely pursued. For Christ died on the cross, in a public execution, that one man should die for the people, and that the whole nation perish not as the high priest Caiaphas unwittingly prophesied (John 11:51), providing a full, common, public atonement (the crucixion a public display [edeigmatisen en parrhsia] of Christs triumph: Colossians 2:15). In this the quest for perfect justice is exposed as another manifestation of the attempt to immanentize the eschaton, to use Voegelins phrase, to realize the Day of Judgement here on earth by human hands. For Christ, Whom the heaven must receive until the times of restitution of all things (Acts 3:21), has removed that necessity, placing it in heaven where it belongs, until that time. The atonement realized through Christ on the cross is satisfactio, the perfect payment for the sins committed by man. But it goes deeper than that. For underlying sins is sin the mysterious power which has man in its grip and which makes it impossible for him to please God. The sins had to be paid for, but the power of sin had also to be broken. This is the full meaning of atonement. This cosmic, trans-historical deed transcends every eort to punish sin and eradicate guilt in this world. Therefore, it is this atonement which made possible the legal order of
85 Heinsohn has brought this reality to light in his enlightening book Der Erschaffung der Gtter: Das Opfer als Ursprung der Religion [The Creation of the Gods: Sacrifice as the Origin of Religion]. Although his conclusions are to this author unacceptable, his argument that sacrifice laid the foundations for civilization is welltaken.
Common law made possible by common atonement
88
Common law issues forth from the house of God to the nations
Justice cannot be maintained without atonement
The contortions of Western civilization apart from recognition of atonement
the common law, for it itself is the common, universal atonement, accomplished once and for all. This universal atonement is administered to the world through the ministry of mercy, exercised rstly through the ministry of Word and Sacrament. Through this ministry the church makes felt its jurisdiction; and in so doing it makes room for the jurisdiction of the state, and for the jurisdictions of a pluralistic social order. And many people shall go and say, Come ye, and let us go up to the mountain of the Lord, to the house of the God of Jacob; and he will teach us of his ways, and we will walk in his paths: for out of Zion shall go forth the law, and the word of the Lord from Jerusalem (Micah 4:2). That law is the common law, rooted in common atonement, resulting in the positive legal orders of the community of free nations. Where this atonement is not acknowledged, justice itself merges into atonement and cannot be distinguished from it. That is when atonement is sought through the administration of justice, rather than being received, thus setting the stage for the administration thereof. Justice rests on atonement and cannot exist apart from it. Justice receives its full depth and breadth in human life when it ows from mercy as expressed in the atonement, not when it is severed therefrom, for then commences the ultimate confusion of justice and mercy, of law and grace, wherein the one consumes the other. It matters not which consumes which, the end result is the same. The modern political apostasy began with the French Revolution Ni Dieu ni matre which,
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interestingly enough, chronologically accompanied the rise of the modern welfare state. Both were the fruit of the new philosophy of man whereby the individual becomes the source of law, the institutions of civil society the adventitious outworking, a shell to be shucked o at will. The result is the entitlement mentality, against which Thomas Chalmers expostulated with true righteous anger. It is also the warped mentality which has given us political correctness the religious zeal to silence all conicting opinions in the name of freedom of expression. The zeal of the Left can only be seen against the background of the loss of religion in public life; for its zeal is the zeal of the religious fanatic, aiming through the vehicle of the state and politics to achieve perfect justice and full atonement. How else can one explain the consuming desire to silence opposition and in fact eliminate it, which has characterized all collectivist movements? The National Socialists under Adolph Hitler certainly were not the only ones to practice this; in fact, in Germany they managed to triumph over socialists and communists pursuing equally vile ends through equally vile practices; it was merely a form of survival of the collectivist ttest. Josef Stalin, Mao Tse Tung, Fidel Castro, Saddam Hussein all pursuing total power by root-and-branch elimination of the opposition, all equally feted by the Left. For it is power they are after, power which is required by their religion, a religion which requires total sacrice, through which alone the coveted atonement can be attained. And so this discussion returns to state of na-
Tolerance can only exist where atonement is accepted, not pursued
Admonition to modern conservatives
90
ture conservative. For it is you, who once went by the name of Whig, who in later times became a classical liberal, and who now have become a conservative, who paved the way for this monstrosity of a Moloch religious totalitarianism such as confronts civilization today in either its left-wing or its Islamic variants (which, by the way, explains the anity of these two movements rhetoric). You did this by hamstringing Christianity, removing it and the church from the public square, either in the name of a vague civil religion or in the name of a will-o-thewisp neutrality. Study the history there is perdy underlying your incessant attacks on the churchs role in public life, which by now has been repaid by the totalitarian movement which liberalism since became. In this, the judicial blindness prophesied by Chalmers has received its deserved reward.
5. Conclusion
There is no pre-existing condition of liberty in a state of nature. There is rather a baseline condition of subjection, from which no human society is exempt. Liberty is achieved through a laborious process of, to use Burkes phrase, progress in virtue, and it is gained within the context of limited sovereignty and private law, the two pillars of the common law. The institutions of civil society are the foundations of liberty; strip them away, and civilization collapses back upon itself. Liberty is not natural, it is articial. This does not mean it is somehow unnatural, for it is the product of centuries of growth. It is a garden plant, not a weed; it does not just grow, but must be nurtured. The body of liberty which has undergone this growth process is a composition of liberties, the content of Burkes prescriptive constitution. It is not a body of pre-existing rights that governments are established to maintain, and that are restored in the overthrow of a corrupt government. In fact, those rights cannot have developed but through the instrumentality of sovereignty. They are therefore creatures of positive law. In this context, Stahls strictures against natural law in favor of positive law are well taken.86
Subjection not liberty the basic condition of man
Liberty the product of historical growth within the context of law and sovereignty
Stahl, Principles of Law, Chap. 2, Positive Law, Natural Law, Revealed Law.
86
92
Culture war is going international
War over sovereignty: the next front in the culture war
This points up the next front in the culture war in which we are engaged. The culture war is now being extended beyond the boundaries of individual nations. It is becoming a transnational aair because civil rights, the creatures of positive law, are now being held out to human beings as such (not to mention animals, plants indeed, what is next?); this constitutes an implicit claim to universal sovereignty on the part of the purported rights-recognizer, and a declaration of war on national sovereignty. The transnational dimension has always been in evidence to one degree or another, ever since the French Revolution set nation against nation and kingdom against kingdom in a war of rst principles. At one level, the Cold War was certainly fought as a culture war. And now with the advent of the War on Terror against militant Islam, the elements of the culture war are coming into full view; for the antagonists in the culture war, the conservative Right and the progressive Left, are extending their struggle into this arena.87 The next front in the culture war is the struggle for sovereignty. It has already begun in the attempt to establish the principle of universal jurisdicNot that it absolutely had to be this way. The Left could have joined with the Right in a united front against militant Islam; that at least was not ideologically ruled out. The Lefts decision to politicize this war was made out of a calculation that it could better pursue a culture war against the Right Wing of its own nation than a real war against a foreign threat. It even appears as if the Left is enlisting militant Islam as an ally, or at least a useful idiot in the spirit of the enemy of my enemy is my friend in its pursuit of triumph over its ideological opponents. The question is, who is the true idiot in this case?
87
Conclusion
93
tion as the basis for international relations. It is evident in the incessant attempts to establish global control over energy resources in the name of threats such as global warming. It is evident in the struggle over immigration reform, not only in the US but in Europe as well; for many of the proponents of the legalization of illegal immigration justify their position on the basis of an alleged prior human right.88 It is evident in the ongoing criticism of the treatment of Islamic terrorist combatants as prisoners of war a status they do not even rate in terms of the Geneva Conventions for the critics demand the same range of civil rights for these jihadists as are accorded to US citizens by the Constitution: another example of running human rights into civil rights. Sovereignty, law, and rights are indissolubly connected. The common law does not contradict sovereignty, it establishes it. And it establishes it at the level of the nation, its proper seat by divine right. Real rights ow from this; they are derivative, not original. It is on these principles that conservatives must take their stand. And not only American conservatives, but all those throughout the world who can understand and subscribe to them. Conservatives of the world, unite!
The principles upon which true conservatism must take its stand
Thus, in the time-honored fashion of the natural-rights paradigm, positive civil rights accruing to citizens are implicitly read back into a state of nature, from whence they can be reclaimed on illegals behalf. See Stahls critique of such strategy: Principles of Law, pp. 105ff.
88
Appendix I
This excerpt from Thomas Chalmers On Political Economy speaks volumes about the roots of the secularization of society precisely in the instrumentality of the welfare state. The entitlement mentality it fosters is fundamentally at odds with the Christian faith and the character that faith fosters. To wit 5. But we must here remark, that, for the purpose of a general economic improvement, to be brought about by the means of Christian education, a gradual abolition of the compulsory provision for indigence, which now obtains in England, and hangs menacingly over Ireland, seems to us indispensable. We can anticipate no rise of wages, no elevation in the state and suciency of the working classes, from any eorts to instruct and Christianize them, however strenuous, if the pauperism and the education are to go on contemporaneously. We, in the rst place, feel quite assured, from the moral inuences of this public charity, that it operates as a dead weight on the ministrations of the clergymen, aud stands most grievously in the way of their success. But, in the second place, however vigorous and eective his exertions may be, at the most, and while the present system of poors laws continues, we shall have two distinct populations, each marked by opposite extremes of character. The clergyman, on the one hand, may reclaim hundreds to principle and
Chalmers prescient critique of the welfare state
Entitlement mentality at war with Christian virtue
Undermines efforts at proper instruction
96
Will lead to vanguard of entitled sufficiency
This class will corrupt the manners of the populace at large
Nevertheless, its existence invincibly protected by law
sobriety who shall form a wholesome and better class of peasantry. But the parish vestry, on the other, remains an attractive nucleus, around which there will gather and settle, in every little district of the land, a depraved and improvident class, whom the temptation of this legal charity has called into being, and who will bid inveterate deance to all the moral energy which might be brought to bear upon them. The very presence of such a class even though but a fraction of the community, will, with their reckless habits, depress and overbear the general condition of labourers. A very few supernumeraries, we have seen, will suce for this eect. So that whether the temptation to improvidence operates on all the people, or only on part of them, still that redundancy is generated which tells so adversely on the general rate of wages, and so on the comfort and circumstances of the population at large. Education will make head against mendicity. It will make head against poverty in any other form than that xed aud legalized, and invested with the challenging, as its right at the bar of justice, which should have been left to the willing sympathies of nature. But shielded and encouraged as it is in the parishes of England, it will stand its ground, against every attempt to dislodge it from those innumerable fastnesses which it now occupies; and in spite of every counteractive, whether by the Christian or literary education of the people, will it remain an incubus on the prosperity and comfort of the lower orders (On Political Economy, pp. 429-432). Can a better or more prophetic summary of
Irreconcilable conflict between Christianity and the welfare state
Appendix I
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the deleterious eects of the welfare state upon Christianity be imagined? Pauperism, or the entitlement mentality, has worked to undermine the church ever since it was introduced. And this is how it went about its work: by calling the poor away from sobriety and restraint to depravity and improvidence, from there gradually overbearing the entire population. Proper education, education in virtue, can overcome poverty but not pauperism. It is a telling statistic that the churchs role in society, even its relative number of adherents, has plummeted during the entire regime of the welfare state. The entitlement mentality is at war with the Christian faith. The two are irreconcilable. It is not that the working classes have been turned into a group of criminals or some such thing that is the problem: it is the mentality whereby the government is looked to in the way God used to be looked to: it is, in a word, idolatry.
Appendix II
The major objection to the common-law system as put forward here has been that it makes liberty the creature of sovereignty, that in it the rights and liberties enjoyed by the citizens are the gifts of the sovereign and can therefore be revoked at will by the sovereign. Now it is not to be denied that this common-law system emphasizes the role of positive law and civil institutions as the pillars of liberty, rather than allotting supposed pre-existing rights that role. The corollary to this system of positive law and rights is not an absolute law-creating sovereignty. As has been repeatedly emphasized, the corollary to this form of civil liberty is limited sovereignty, a sovereignty which discovers the law rather than creates it. This does not mean that it also discovers pre-existing rights. Rights are the creatures of law, and not the other way around. What the common-law system does is call the sovereign to recognize the legitimate grounds for positive civil and political rights, as described in the doctrine of subjective right (see pp. 26, 65 above). The specic content of those rights, the actual concrete shape subjective right takes in a specic legal context, cannot be determined beforehand but must be delineated in an ongoing process against the background of both the goal of liberty and the baseline of sin and its corollary, subjection. Rights must be derived within the context of existing positive law, not pre-existing natural law.
Main objection: rights the gift of the sovereign
100
Western liberty acquired not natural
France the paradigm case for absolutism, England for liberty
That this process is what actually took place in the history of Western civilization cannot be gainsaid. The process by which feudal liberties and privileges were translated into constitutions, assemblies, and bills of rights is a complicated one that I cannot recapitulate here. The general outline is however clear. Charters of rights and liberties were granted by the sovereign in ever-expanding fashion, rst in the shape of feudal bonds (vassalage, grounding manorial bonds), later to cities and towns, merchants, universities, in fact all manner of legal persons, individual and corporate alike. Adherence to these charters was guaranteed with every new accession to the throne, in the form of the coronation oath. Conicts between crown and subject with regard to chartered liberties were part and parcel of this process. But with the new doctrine of sovereignty propagated chiey by Jean Bodin in the 16th century, itself prompted by the wars of religion, and thus as a manner of creating an earthly institution above being questioned by subjects so as to maintain the peace, this notion of chartered liberties to be maintained over against the state began to be undercut in favor of the doctrine of absolute sovereignty, in which such liberties are seen as privileges granted at the kings pleasure. It is easiest to see this process taking place in France, at least with regard to the privileges of the nobility as counterweight to the might of the crown; the same conict, but with a dierent outcome, was fought out in 17th century England, with the end result that the rights of Englishmen became estab-
Appendix II
101
lished in the Declaration of Right of 1689. Elsewhere in Europe this conict was fought out in varying degrees of conclusiveness, with French absolutism and English liberty forming the two poles. It is at this point that the doctrine of natural rights asserted itself, for it sprang into being and was pressed into service by both sides (Hobbes also asserted the doctrine of a primeval state of nature, though he put it to a fundamentally dierent use). It therefore could be used to justify absolutism just as well as liberty; and Grotius Law of War and Peace was criticized precisely because it could be made to serve the despot as well as the republican. Nor was the natural-rights doctrine necessary to the cause of liberty. John Lockes Two Treatises of Government forms an instructive example here. By no means did it form the denitive justication for Englands Glorious Revolution, as was once condently asserted; in fact, it was not even published until after that revolution had occurred. That revolution was conducted on the grounds of the chartered rights of Englishmen over against the perjured, oath-breaking king; its goal was to re-establish those rights through the accession to the throne of a monarch willing to submit to a regime in which the law, not the king, was supreme. Of course, the 18th century came to be ruled by the doctrine of natural rights, and had a great impact on the codication eorts (e.g., the Prussian civil code) which then got under way. In terms of constitutions, however, it did not begin to bear its own fruit until the revolutions of the late 18th century, in America and in France, against diverging
Natural rights came along after the fact
102
No liberty apart from sovereignty
backgrounds and for diverging ends. The bottom line is, natural-rights doctrine was developed and applied after the fact to the institutions of liberty that were produced without it and had no need of it, until of course they were stripped of their original legitimacy grounded in divine right. There is no pre-existing liberty for which a sovereign is set up, so as to guarantee it. Sovereignty is the climate within which liberty can grow; outside of that sphere, there is no liberty, there is anarchy, where might makes right.
Bibliography
Acton, H.B. The Morals of Markets and Related Essays. Indianapolis: Liberty Fund, 1993. Althusius, Johannes. Politica. An Abridged Translation of Politics Methodically Set Forth and Illustrated with Sacred and Profane Examples, ed. and trans. Frederick S. Carney. Foreword by Daniel J. Elazar. Indianapolis: Liberty Fund, 1995. Alvarado, Ruben. A Common Law: The Law of Nations and Western Civilization. Aalten: Pietas Press, 1999. Bellomo, Manlio. The Common Legal Past of Europe 1000-1800. Trans. Lydia G. Cochrane. Washington, DC: The Catholic University Press of America, 1995. Berman, Harold. Law and Revolution: the Formation of the Western Legal Tradition. Cambridge, MA: Harvard University Press, 1983. Bhm-Bawerk, Eugen von. Rechte und Verhltnisse vom Standpunkte der volkswirthschaftlichen Gterlehre: Kritische Studie [Rights and Relations from the Standpoint of the Goods Doctrine of Economics]. Innsbruck: Verlag der Wagnerschen Universitts-Buchhandlung, 1881. Bhm-Bawerk, Eugen von. Whether Legal Rights and Relationships are Economic Goods, trans. George D. Huncke, in Shorter Classics of Eugen von Bhm-Bawerk, Vol. 1. South Holland, IL: Libertarian Press, 1962. Bryce, James Viscount. Studies in History and Jurisprudence. Oxford: Clarendon Press, 1901. Chalmers, Thomas. On Political Economy, In Connexion With the Moral State and Moral Prospects of Society. Glasgow: William Collins, 1832. Chalmers, Thomas. Problems of Poverty: Selections from the Economic and Social Writings of Thomas Chalmers D.D., arr. Henry Hunter. London et al.: Thomas Nelson & Sons, n.d. Dankwardt, H. Nationalkonomisch-civilistische Studin [Studies in Economics and Roman Law]. Leipzig and Heidelberg:
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Index
30 Years War .................... 23 80 Years War .................... 23 A Common Law .......... 10, 16, 37, 103 absolute sovereignty ....... 10, 11, 100 Acton, H.B. ............... 15, 103 Acts, Book of .................... 87 Althusius, Johannes . 10, 103 American Revolution .. 4, 37 Anglo-Saxon ................. 6, 11 Anselm ................................ 83 Cur Deus Homo .. 83 Aquinas, Thomas .............. 82 Aristotle ................. 14, 17, 50 assets ......... 14, 59, 60, 62, 63 associationalism ... 15, 30, 32, 66, 84 atonement .............. 83, 85-89 Augustine .................... 29, 82 Augustinian view of human nature 66, 68, 69, 82 authority .. 11, 12, 15, 16, 23, 29, 30, 39, 66, 67 Babeuf, Franois-Nol .... 68 balance of trade ................ 40 Bellomo, Manlio ....... 32, 103 Bodin, Jean ...................... 100 Bhm-Bawerk, Euren von 44-48, 50, 54, 103 Brooke, Christopher ......... 33 Bryce, James Viscount ..... 12 bullion ................................. 39 Burke, Edmund ..... 2, 4, 6, 8, 35, 36, 104 Caiaphas ............................. 87 capitalism 40, 43, 56, 61, 105 Carlyle, Thomas ................ 69 Castro, Fidel ....................... 89 central banking ..... 58, 60, 63 Chalmers, Thomas . 1, 75-78, 80, 89, 90, 103 charity of law ..................... 75 Christ, Jesus .... 10, 83, 85, 87 Christian civilization .... 6, 66 Christian state .................... 75 Christianity ...... 65, 77-80, 82, 87, 90, 96, 97 church ....... 30, 73, 77, 82-86, 88, 90, 97, 106 Roman ................ 83 church and state ......... 84, 86 separation of ..... 86 citizen ........ 15, 16, 21, 24, 34 citizen ideal ........................ 21 citizenship ....... 15, 16, 30, 72 civil religion ........................ 90 classical liberal ...... 82, 89, 90 codication .. 11, 36, 37, 101 Cold War ............................ 92 collateral .......... 55-57, 59, 60
108
Cur Deus Homo .................. 83 custom .................... 19, 28, 32 Dankwardt, H. .......... 85, 103 De Soto, Hernando ........... 51 debt ................... 47, 54, 59-61 Declaration ofIndependence 2, 3, 23, 25, 35, 36 depravity of man . 66, 68, 75, 97 Dickinson, Thomas ......... 36 Digest of Justinian ............. 84 divine right ......... 23, 93, 102 doctrine of law and state ... 9 economics .... 7, 9, 18, 37, 39, 41-45, 48, 50-52, 59, 61, 69, 85, 103-105 Austrian ............ 45 classical . 42, 43, 58 neoclassical ...... 43, 44, 51, 58 property-based 52. energy, control of ............. 93 England .... 30, 33, 46, 73, 74, 95, 96, 100 English .......... 12, 33-35, 101, 105 entitlement mentality ...... 80, 89, 95, 97 equity ............... 10, 19, 31, 32 Europe ......... 11, 32, 93, 101, 103 European Central Bank .. 63
collectivism ............ 14, 31, 82 collectivist alternative ...... 61 Colossians, Book of ......... 87 commercial bank .............. 60 common good .................. 16 common law . 5, 6, 9-13, 1518, 20, 23, 30, 34, 37, 39, 53, 58, 61, 65, 82, 99 common-law order ..... 9, 10, 15-17, 20, 53, 58 common-law rationale ..... 58 common-law religion 61, 65. conservatism ..... 1, 2, 4, 5, 8, 23, 39, 93 state of nature .. 23 conservative mind ........... 1. conservative movement 2, 92 conservatives ............ vii, 2, 3, 5, 6, 8, 89-90, 93 Constitution, US ...... 2, 3, 5, 37, 93 ancient .............. 33-35 consumption ........ 40, 41, 44 contract ...... 8, 17, 19, 23, 24, 55-57, 65, 68 credit ..... 54, 56, 57 sales ............. 56, 57 courts ............... 19, 31, 32, 58 credit .... 45, 47, 50, 53-57, 59 culture war ................. 3, 6, 92
Index
European Union .............. 37 Eurosystem ........... 60, 61, 63 exchange value .................. 53 Fall of man .................. 28, 29 Federal Reserve .......... 60, 64 feudalism ..................... 30, 61 free trade ..................... 40, 43 French Revolution ...... 2, 11, 36, 68, 88, 92 Geneva Conventions ........ 93 Germany ..................... 23, 89 Gettysburg Address ........... 3 Gierke, Otto von ..... 66, 104 global warming .................. 93 God ...... 2, 10, 25, 27, 28, 83, 85, 87, 88, 97 Godwin, William ........ 68, 69 gold .... 39, 40, 42, 49, 57, 60, 61 Golden Age ....................... 28 goods . 17, 18, 24, 40-42, 44, 45, 47, 48, 50-52, 5658, 103 goods-based economic theory ...... 57 goodwill ............................. 45 grace ................................... 88 Great Britain ...................... 35 Grotius, Hugo .... 23, 24, 36, 65-67, 81, 82 Heinsohn, Gunnar .... 52, 54, 56, 57, 59, 87, 104 Hitler, Adolph .................. 89 Holy Roman Empire . 30, 32
109
House of Commons, English 33 human nature .............. 25-27, 65, 66, 70 immigration ...................... 93 individualism ........ 14, 15, 31, 82 Institutes of Justinian . 28, 104 interest ........ 50-52, 54-57, 59 Islam .................................... 92 Ius Commune ................. 31, 84 Jesus Christ ........................ 79 John, Book of .................... 87 judicial blindness ........ 80, 90 jurisprudence ......... 9, 12, 45, 103 jus gentium ............................ 28 justice .... 7, 13-15, 17, 20, 24, 25, 67, 68, 80-89, 96 broad ........... 67, 82 commutative 13-15, 17, 67, 82 distributive .. 13-15, 67, 81, 82 strict . 24, 67, 83, 85 Justinian ..................... 28, 104 Digest .................. 84 Institutes .............. 28 Justinianian corpus ........... 84 Keynes, J.M. ................ 51, 59 Kirk, Russell ..................... 1. kingship .............................. 30 labor ..... 6, 24, 41-44, 49, 50,
110
99, 100, 105 liberty ........ vii, 2-6, 8, 13, 20, 23, 29, 30, 34, 39, 66, 91, 99, 101-105 limited government .. 2, 3, 24 Lincoln, Abraham .............. 3 liquidity ................. 54, 55, 58 liquidity preference .......... 55 Locke, John ..... 4, 23, 24, 42, 43, 65, 66, 104 Macleod, H.D. ...... 45-51, 54, 104, 105 Magna Carta ........................ 3 Malthus, Thomas ........ 69-74, 77, 105 Malthusian ......................... 75 Malthusianism ................... 69 Mao Tse Tung ................... 89 marginal utility .................. 44 Marx, Karl ............ 40, 43, 53 McIlwain, C.H. ................. 12 mendicity ........................... 96 Menger, Carl ............. 44, 105 mercantilism ..................... 39 mercantilist ................... 39-41 mercy .......... 71, 80, 83-85, 88 Micah, Book of ................. 88 Mill, John Stuart ............... 46 Moloch ............................... 90 money ........ 29, 39-44, 46-49, 51, 52, 5461, 73, 74, 104 nations .... 6, 9, 10, 28, 30, 32,
73 labor theory of value .. 41-43 Latin Christianity .............. 82 law .... vii, 3, 5-7, 9-20, 23-37, 39, 41, 45, 51-54, 58, 61, 65-68, 75, 80-85, 87-89, 9193, 99, 101, 103106 admiralty ............ 31 canon ........... 31, 84 civil ...... 10, 11, 104 customary .... 31, 85 English .............. 12 manorial ............ 31 municipal ........... 31 natural ..... 9, 10, 25, 26, 28, 36, 66, 91, 99, 104 positive ......... 9, 26, 27, 31, 32, 85, 91, 92, 99 prescriptive ... 4, 36 private .. 13., 31., 34, 39, 45, 52-54, 65, 67, 85, 91 Roman ........ 12, 28, 31, 84, 85 Law Merchant ................... 31 legal philosophy .......... 26, 35 Leoni, Bruno ..................... 12 liberties ..... 29, 32-36, 40, 91,
Index
33, 39-43, 88, 92, 103, 105 Netherlands, the ....... 23, 105 neutral state ....................... 86 neutrality ............................ 90 New Testament ................ 79 Norway ............................... 77 obligation ...... 17, 18, 46, 47, 52, 53, 67, 71 organic law ........................... 3 pauperism .............. 75, 95, 97 Penn, William ..... 33, 34, 105 poor laws ..................... 73, 74 possession ...... 33, 34, 52-54, 57, 61, 74 post-modernism .................. 7 prescription ....... 4, 32, 33, 36 production .................... 40-42 property ... 3, 4, 8, 18, 19, 24, 27, 28, 3032, 34, 39, 42, 43, 46, 49-61, 65, 67-69, 71, 72, 81, 104 property premium ....... 54-56 property-backed currency 59, 61 property-based economy 61 religion ....... 9, 23, 61, 65, 86, 87, 89, 90, 100, 104 Reserve Bank of India ...... 62 reserves, central bank 60, 61
111
Resolutions of the Stamp Act Congress 35 rights ... 2-5, 7, 13, 16, 18, 19, 23-27, 29, 30, 32-37, 39, 40, 45, 47, 49-51, 56, 57, 65, 66, 81, 82, 91-93, 99103, 105 historical ............ 35 natural ........ 4, 5, 7, 23-26, 35-37, 82, 101 prescriptive ... 4, 36 Roman church ................... 83 Roman civilization .............. 6 Roman law ................. 31, 85 Rousseau, J. J. .......... 4, 28, 68 Rushdoony, R. J. ....... 37, 105 sacrice ......... 86, 87, 89, 104 Saddam Hussein ................ 89 Say, J.B. ................... 41, 43, 49 Says Law ...................... 41, 51 Scotland ....................... 77, 78 seigniorage ........................ 59 silver ....................... 40, 42, 49 slavery ................................ 28 Smith, Adam ....... 39-43, 105 social contract ............... 8, 23 social question ...... 68, 73, 78 sovereignty ....... 3, 10-13, 16, 18, 20, 23, 24, 30, 39, 54, 65, 66,
112
Ulpian ................................. 14 United Nations ................... 6 United States 36, 37, 93, 105 universal jurisdiction ... 7, 12, 93 use value ............................ 53 utilitarianism ...................... 7 utriumque ius ....................... 31 valuation .......... 19, 20, 56-58 value ...... 7, 19, 20, 42-49, 53, 55, 57, 58, 60, 85 labor theory . 41-43 subjective theory 44 value theory ....................... 57 Voegelin, Eric ................... 87 voluntarism ........................ 67 War on Terror ................... 92 wars of religion ......... 23, 100 wealth ....... 14, 39-43, 45, 48, 49, 51, 54, 68, 75, 76, 105 welfare state ..... 75, 89, 95-97 Western civilization ..... 6, 10, 29, 32, 35, 37, 82, 84, 88, 100, 103 Weston, C. C. ............ 33, 106 Whig ................................... 89 Word and Sacrament ....... 88
91-93, 99, 100, 102 absolute ............ 11 limited ........ 10-12, 91, 99 multiple ............ 12 Spain .................................. 23 Stadermann, H.J. . 52, 57, 58, 105 Stahl, F.J. ................ 9, 12, 17, 20, 25, 26, 53, 65, 66, 83, 85, 91, 105 Stalin, Josef ........................ 89 state money ...................... 59 state of nature ..... 23, 39, 40, 43-45, 65, 66, 91, 93, 101 state of nature economics 39, 44, 45 state of nature politics ..... 65 Steiger, Otto ... 52, 54, 56-59, 104, 105 Stoic philosophers ............ 28 subjection ....... 28, 29, 91, 99 subjective right .... 26, 27, 30, 65, 67, 81, 99 Tellenbach, Gert ....... 30, 106 Thomasius, C. ................... 66 tort ................................ 17, 19 Treasury securities ............ 60 Turgot, A.R.J. .................... 46

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COMMON-LAW CONSERVATISM

Copyright 2007 Ruben Alvarado isbn-13: 978-90-76660-06-6

Kirk, The Conservative Mind, p. 5. Kirk, The Conservative Mind, p. iii.

The Declaration of Independence as the conservative Magna Carta

The Declaration of Independence provides Americas moral compass

Kirks view of the American Revolution

Kirk, The Conservative Mind, p. 27.

Natural rights a sufficient basis to secure liberty?

It is not; rather, it is contributing to the loss of liberty

Liberty and common law

Kirk, The Conservative Mind, p. 72.

Common law and the culture war

The imperative of recovering the common law

Picking up where Kirk left off

Kirk, The Conservative Mind, p. 21.

A General Theory of the Common Law

The opposite is civil law

Common law the basis of the Western legal tradition

Anglo-Saxon law the lone remaining exemplar of common law

Seat of civil-law sovereignty: world government

Common law integrates independent actors

Private law is the expression of common law within the nation

Internal dimension of associations = distributive justice

External dimension of associations = commutative justice

Mutuality of distributive and commutative justice

Closer examination of justice Ulpian

Transaction versus command Thing versus person

Definitive distinction: external versus internal

Citizenship as function of pluralistic association

The Morals of Markets and Related Essays, p. 103.

Spontaneous growth of common-law order

Common law only indirectly impinges on internal law of associations

Common law as law of transactions

The core of transaction: obligation and contract

Stahl, Private Law, p. 100.

Private property as function of obligation

Common law develops through process of adjudication, issuing in rights

Common law brings universal institutions to bear on individual situations

Common law, equity, valuation

Valuation as social function spontaneous not imposed

Social valuation occurs at the margin

Comprehensive formula of the common law

Stahl, Principles of Law, p. 39.

This is state of nature conservatism

Quest for neutral basis of government, beyond religion

Locke: property precedes contract, sovereignty

Seemingly adequate justification for limited government

Makes human nature into basis of law

This is no stable basis for law

Subjective right establishes the principle of personality in law

Specific content is determined by positive law not nature

Christian understanding of human nature

Institutions of civil society corrupted original innocence

Feudalism as rudimentary form of liberty

Sovereignty the vehicle for realizing liberty

Tellenbach, Church, State, and Christian Society, p. 19.

Formation of the Western legal tradition

Common law as general equity of Western legal systems

Custom and prescription

Rights and liberties as inheritance

English ancient constitution

ond the rights of Englishmen:

Common-Law Politics der.