Last week, we looked at the Articles of Confederation and Perpetual Union (Articles of Confederation), which constituted the first attempt of the colonies to form a common government. We learned that the Articles of Confederation were essentially the creation of a federation of independent states. The difficulty with this federation was that it lacked some essential elements of a strong polity: There was only an inadequate executive and judicial function, meaning there was no way to effectively carry out policy or enforce the failure of the states to meet financial and other obligations. There was no method of taxation, resulting in a state of constant near-bankruptcy. There was no effective way to stop the independent states from engaging in obstructions of interstate commerce. The provisions for the United States of America to conduct foreign affairs were not satisfactory. Finally, there was no way to mount a consistent effective defense establishment, with the result that the new nation was vulnerable to attempts to intervene in its affairs militarily. The result was that in 1786, the first Constitutional Convention was called.

The convention opened on May 25, 1787 in Philadelphia, Pennsylvania. The story of the convention is beyond the scope of this blog, but it merits study by every American. There are many fine studies of the event, the most popular of which is “Miracle in Philadelphia” by Catherine Drinker Bowen. [1] The convention is unique in history for the quality of its leadership and the experience and judgement of its members.

As its initial act, George Washington was elected its presiding officer. Washington did not talk a great deal during the convention but his presence was important. Nearly everyone present knew that whatever form of government was chosen, Washington was its likely first leader. His prestige was such that, even without talking, he influenced events.

One of the delegates, future President James Madison, is of special note. During the course of the convention three basic structure were suggested. Many delegates initially felt that the convention had been called to make amendments to the Articles of Confederation, and that the convention was neither authorized nor was it entitled to suggest the kind of sweeping change the Constitution ultimately embodied.

What is known as the “Virginia Plan” was the first presented and formed the course of the debate. Authored by James Madison of Virginia, this plan provided for three distinct branches of government (legislative, executive, and judicial) with legislative branch divided into both an upper and lower house. Madison arrived well-prepared and with the basic books and materials he felt necessary for the guidance of the convention intellectually. He was the most important drafting force behind the final document. Madison’s notes taken as a journal during the convention are, next to the Federalist Papers, the most important primary source for interpreting the constitution in light of the intent of its framers. [2]

Many smaller and southern states and delegates were unsure of the wisdom of the Virginia Plan.  They initially opposed Madison’s ideas. In response to Madison’s ideas, William Patterson of New Jersey submitted the “New Jersey Plan.” This plan was similar to the Articles of Confederation, with a unicameral legislature would be in which each state had a single vote. In fairness to this plan, it was probably much closer to what those who called the convention intended. Patterson is largely forgotten today, but he was one of the foremost intellectual figures at the convention.

Finally, the “moderate” Virginia plan and the more traditional New Jersey plan functioned to guide the debate towards a compromise, but it was not certain that the compromise would be effective. Alexander Hamilton then proposed “the Hamilton Plan,” which envisioned a much stronger central government along the lines of Great Britain. Under Hamilton’s plan the national government would be supreme and would appoint state governors. There would be a strong national governor with broad executive powers. It was unclear then, and is still unclear today whether Hamilton was serious about the plan or whether its presentation was tactical to push the inevitable compromise towards a stronger central government.

In the end, two delegates from Connecticut, Roger Sherman and Oliver Ellsworth proposed that has become known as “the Connecticut Compromise” or the “Great Compromise,” a way of breaking the deadlock between the larger and smaller states on the issue of legislative representation. This compromise proposed a system of dual representation. There would be a House of Representatives in which each state’s number of seats would be proportional to population. There would also be a Senate in which all states would have the same number of seats. [3] In July 1787, the Great Compromise was adopted by a one-vote margin, clearing the way for the adoption of a final constitution.

Conclusion

The adoption of the constitution is one of the great stories of human history. We were blessed that an unusually capable group of leaders were chosen to address the problems of the Articles of Confederation. Naturally, they were human, and mistakes were made—as they are and always will be made within the boundaries of human history. Nevertheless, they did the best they could and structured a republican democracy that has endured for centuries.

The fact that they were willing to compromise is something needed in our current situation. The “all or nothing” politics of power that has characterized our political system for decades now is not functional and prevents the kind of practical compromise that is needed in many areas, taxation and the deficit being two very important areas. We are in need of wise statesmanship.

[1] Catherine Drinker Bowen: Miracle in Philadelphia: The Constitutional Convention May to September 1787 (New York, NY: Little Brown and Company, 1966). This is a very well-done popular history. For those with a more scholarly bent, there are various others with a more academic tone. I believe her work to be unmatched, however.

[2] These notes are available both online and in printed form. See, “Notes of Debates in the Federal Convention of 1787” https://avalon.law.yale.edu/subject_menus/debcont.asp (Downloaded June 2, 2021). Printed versions are available on amazon.com.

[3] In the end, the Connecticut compromise was amended to base representation in the House on total white population of each state and three-fifths of the black population. This provision of the Constitution is the most debated today and the most criticized. As any close student of the debate knows, it was reluctantly agreed to because without it there could be no agreement and the convention would have failed. Nevertheless, it had predicable unfortunate consequences that took the American Civil War to resolve.

 

The Revolutionary War (April 19, 1775 – September 3, 1783) was a crucible that required the thirteen original colonies to learn to work together. For most of the war, they did do without any formal constitution. The result was that the Continental Army, led by George Washington, was chronically underfunded and the colonies very nearly did not survive the conflict. Beginning with Benjamin Franklin, several attempts were made to create a stable government that would enable the colonies to survive. Only with the adoption of the Constitution of the United States of America in 1789 was the problem of providing a stable government finally solved.

Many Americans do not realize that our current Constitution is not the first the United States of America possessed. A document known as “Articles of Confederation and Perpetual Union” (Articles of Confederation) was the initial written constitution of the United States. It was ratified on March 1, 1781, with the Revolutionary War already five years in duration. [1] The reasons for the delay were many. Each of the colonies already had a government, which government was considered sovereign. The states were reluctant to give up this sovereignty in any meaningful way. This meant that diplomatically any nation in Europe that wanted to recognize the fledgling union theoretically had to reach treaties with thirteen independent states.

As a sovereign state, each state had the sole power of taxation, and the Continental Congress and Army was completely dependent upon the voluntary funding of the several states of any commitments they made. The raising of troops to conduct the conflict was similarly voluntary. This defect was early understood by Washington and other leaders. Equally problematic were the many disputes between the states over land, and the fear of smaller, states that larger states, like Virginia would dominate their neighbors.

The Articles of Confederation

Under Articles of Confederation, the individual states remained sovereign and independent. [2] The United States of America was not really a nation but a “firm league of friendship.” [3] This “league of firm friendship” had certain characteristics in common with the leagues of ancient Greece and Germany,  and was subject to all their defects. [4]

The problem of international diplomacy was “solved,” as Congress was given the power to make treaties and alliances, and maintain armed forces. [5] There was however no means by which these powers could be effectively wielded.

Generally speaking, only Congress could declare war. [6] However, the central government could not levy taxes to assure the effective conduct of a war. This, of course, meant that the problem of the perennial bankruptcy of the federal government was not solved. A case in point were the debts incurred to prosecute the Revolutionary War. [7] They were assumed by the Articles of Confederation, but the Congress could not levy and enforce the taxes necessary to pay them. After the conclusion of the Revolutionary War, this meant that the United States of America was constantly unable to pay the substantial debts it had incurred in prosecuting the war.

The small, new and independent nation with a form of government unlike any of its European trade partners, allies and foes, was under constant threat. Obviously, as the War of 1812 proved, Great Britain had not necessarily given up any colonial ambitions in the New World. France, Spain,  and other European nations might also seek some kind of conquest of the new nation. The inability to tax and support a military establishment meant that the United States of America might be an inviting target for invasion.

Central Defects of the Articles of Confederation

The defects in the Articles of Confederation were many. At the core of the problem was the simple fact that the states retained complete sovereignty, and the federal government lacked the power to be effective. [8] In the end, the former colonies were accustomed to external protection and the resolution of intra-colonial disputes by the British government, and the Articles of Confederation provided no means by which the former colonies could experience the benefits of the effective central government whose protection they had formerly enjoyed.

The only institution of government was the Congress. There was no executive or judiciary. The Articles of Confederation, provided for a “Committee of the States” made up of a representative of each state, which had limited executive authority. [9] There was no effective, permanent, central executive function. Obviously, this made administration and defense nearly impossible. The absence of a judiciary (Congress had some judicial powers) meant that the resolution of disputes was difficult.

Those familiar with Montesquieu and the division of republican government into three separate and independent departments clearly saw the deficiency of this model for a government. It had only a legislative function and lacked the robust executive and judicial functions necessary for a stable polity. The entire scheme was unlikely to withstand any severe test.

The inability to tax meant that the government was weak and unable to act without begging for money, which did not always arrive in a timely manner, if at all.  The problem with the Articles of Confederation was that although Congress had certain powers, it had no real power to exercise or enforce those powers. As Hamilton and Madison were quick to point out, a confederation with responsibilities but no powers to accomplish those responsibilities sort of war was sure to fail. [10] In the end, this led to governmental inefficiency and chaos.

Finally, under the Articles of Confederation there was no means by which the states could be prevented from engaging in economic policies which were injurious to one another and to the general prosperity of the union. There were constant interstate conflicts as states attempted to gain some kind of economic advantage over each other. In addition, there was no central agency that could regulate international commerce to the benefit of all. [11] Congress was unable to protect the freedom of commerce within the nation because it lacked the powers necessary to do so.

By 1787, wise minds recognized that the situation was not tenable. Changes had to be made. Unfortunately, there was no unanimity as to what those changes might be. Many people thought that only slight changes in the Articles of Confederation were needed—changes that could be accomplished by amendment. Others, like Alexander Hamilton, thought the Articles of Confederation fundamentally defective and in need of complete replacement. There were even those who felt that the solution to the problems of the Articles of Confederation was to substitute two or more smaller confederations of like-minded states for the single entity that existed under the Articles of Confederation. [12]

Conclusion

As indicated above, by the eve of the Constitutional Convention of 1787, nearly all the best leadership of the United States of America realized that its current form of government would have to be revised. It was impossible for the new nation to adequately provide for its common defense or to secure the respect and trust of other nations under the current situation. It was for this reason that, in February of 1787, Congress provided for a convention, which originally was to seek ways to amend the existing Articles of Confederation, and from which our current constitution emerged.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved.

[1] See, United States Code: Articles of Confederation – 1777 (1952), hereinafter, “Articles of Confederation.”

[2] Articles of Confederation, Article II. “Each State retains Its sovereignty, freedom and independence, and every power, juris-diction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”

[3] Articles of Confederation, Article III.

[4] The Federalist Papers Clinton Rossiter ed.  (New York, NY: Mentor Books, 1961), No. 18 (Madison and Hamilton). All references to the Federalist Papers are to this edition and will be cited, “Federalist Papers Number, and Author.

[5] Articles of Confederation, Article VI.

[6] Articles of Confederation, Article 4. If actually invaded by a foreign power, staters could conduct wars under the Articles of Confederation.

[7] Articles of Confederation, Article XII.

[8] Federalist Papers, No. 15 (Hamilton).

[9] Articles of Confederation, Article IX.

[10] Federalist Papers, No. 18 (Madison and Hamilton).

[11] Federalist Paper No. 15 (Hamilton)

[12] Several of the Federalist Papers authored by Alexander Hamilton, John Jay, and James Madison are devoted to exposing the obvious flaws of this solution, which would have inevitably resulted in different states and confederacies having differing treaties and alliances, that might easily result in conflict among the states.

As indicated last week, Charles baron de Montesquieu is a significant thinker for understanding the political ideas of the Enlightenment and American democracy. His work Spirit of the Laws is the most quoted philosophical work by the founders, quoted more often than John Locke. [1] His work was important for the development of our notion of limited government and separation of powers. He was also significant because of his understanding of the importance of religion and the development of religious freedom is reflected in our Constitution.

Born in 1687, he was raised a Roman Catholic but married a Protestant Huguenot. Like Burke, his experience of religious intolerance under the Bourbon kings impacted and formed his views on religious liberty. The exact character of his religious faith is the subject of academic discussion, but my view is that he considered himself a Christian, though like many Enlightenment thinkers, he is not consistently committed to any particular theology or interpretation of Christian faith. As a political thinker, his interest in Christian faith is practical and moral.

Virtue and Religion

As indicated last week, Montesquieu believed that a democratic republic must be founded on the virtue of its citizens. Without the kind of virtue that results in love of liberty, no democracy can sustain itself. As a result, moral education and moral formation are essential in the formation and maintenance of a republican government.

The formation of moral character and the ability to restrain immediate desire for the long-term good are fundamental to the Christian religion and to Western culture generally. The theological virtues of faith, hope and love and the cardinal virtues of justice, prudence, fortitude, and temperance lay the core of the historic Catholic notion of virtue in Montesquieu’s day as they do for Christians in our own day. Justice that lies at the basis of all good government; Prudence is necessary for the wise management of public affairs; Fortitude is necessary in times of danger; and Temperance is necessary to restrain the passions.

Religion and the State

Because of its role in the promotion of those virtues required to support a stable government, religion plays and important role in Montesquieu’s thought. Montesquieu recognizes that, as a matter of historical fact, religion has deeply impacted all human civilizations. [2] In the case of Israel (Judaism), Europe (Christianity), the Middle East (Islam), China (Confucianism), and Japan (Shinto), religion can be seen as having an extraordinary impact on society. As his analysis proceeds, Montesquieu shows a familiarity with each of these religions, and the way in which they formed the culture and laws of a society.

As a Christian and citizen of a Christian state, Montesquieu believed that the Christian religion played an important role in the evolution and development of republican democracy and the avoidance of despotism:

The Christian religion is a stranger to mere despotic power. The mildness so frequently recommended in the Gospel is incompatible with the despotic rage with which a prince punishes his subjects, and exercises himself in cruelty. As this religion forbids the plurality of wives, its princes are less confined, less concealed from their subjects, and consequently have more humanity: they are more disposed to be directed by laws, and more capable of perceiving that they cannot do whatever they please. [3]

In Montesquieu’s view, Christianity stamped its character on the social mores and jurisprudence of the West due to its crucial role in creating the distinct characteristics of Western civilization. The “mildness” of the Gospel portrayals of God impacted the willingness of Westerners to obey the state and avoid violent, revolutionary, destructive social behavior. The way in which Christianity in the West incorporated the values on ancient Greece and Rome, contributed to the evolution of republican government in Europe.

In the west today, Christians can best recommend themselves as guardians of republican democracy by urging and demonstrating the virtues of love for the other, tolerance of other views, and abhorrence of violence as a political tool. Christianity is no longer dominant in the West, and Protestantism is no longer dominant in America. We live in a “post-Christian” society. This does not mean what we live in a society where people are not touched by self-giving love and an example of wise and healthy living.

To say that Christians should demonstrate and support traditional Christian values is not to say that other groups should not share their values. As will be seen below, secular humanism functions like a religion for many Westerners today, and it brings with it virtues that are part of the formation and maintenance of the modern state. What is necessary, and hopefully possible, is for secular people and religious people to create a political social space in which all views can be peacefully heard in a common quest for a just and peaceful society.

Love as Guard Against Despotism

One of the most important Christian contributions can be the creation of a “politics of love” in the center of democratic societies. As Montesquieu notes, the centrality of love in Christian thought is conducive to development of a society in which human beings peacefully seek the best for one another. “The Christian Religion, which ordains that men should love each other, would, without doubt, have every nation blest with the best civil, the best political laws, because these, next to religion are the greatest good that men can give and receive.” [4]

By its very nature, Christianity seeks a moderate government that is best created in some form of republican democracy. Thus, “the Christian religion is a stranger to mere despotic power. The mildness so frequently recommended in the Gospels is incompatible with despotic rage with which a prince punishes his subjects and exercises himself with cruelty.” [5] In particular, Montesquieu sees that Protestantism is particularly compatible with a freedom of liberty. [6] In this respect his views are similar to those of Burke.

In a stunning warning that foresees the demonic character of the French Revolution and the violence of revolutionary movements of the 20^th and 21^st Centuries, Montesquieu notes that “Those who forsake religion are apt to forsake civilization and morals, becoming like beasts that bite and devour one another and seek to destroy every chain of restraint that law and society may feel necessary on behavior.” [7] Over and over in the 20^th Century, in Soviet Russia, in Nazi Germany, in Maoist China, in Cambodia and North Korea, we have seen the cruelty and violence into which purely atheistic regimes can descend. Only a politics of love can avoid the recurrence of this kind of prideful violence in Western culture today.

Freedom of Religion

Like nearly every early Enlightenment thinker, Montesquieu defends religious freedom. In his view, penal laws ought to be avoided with respect to religious belief, and the fear associated with the possibility of punishment is not conducive to religious freedom and progress. In particular, Montesquieu opposed the use of law for religious persecution, such as had been found in the case of the Spanish Inquisition. In what I think one of the most moving passages of theSpirit of the Laws, Montesquieu reprints at length a letter from a Jew who was put to death by the Inquisition.  In the letter, this unknown Jew makes a point that in this kind of behavior, Christians were not behaving as their founder, Christ, would have behaved and urged them to behave. [8]

Establishment and Tolerance

Implicit in the arguments that Montesquieu advances is the underlying idea that religious belief cannot be compelled, and even if established, as it was in France and England, other views should be tolerated by the dominant group and their leaders. In the case of France, this meant to Montesquieu that Protestantism should be tolerated even though Catholicism is established. In England, it would mean that Catholicism should be tolerated even if Protestantism is established.

Some readers misread Montesquieu as having no religious preferences, thinking them all equally false. [9] I think that the foregoing discussion shows that this view of his work is mistaken. There can be no doubt that Montesquieu prefers Christianity. However, his views on religion, and his goal as a law-giver and rationalizer compel him to the belief that religious toleration is required from the state.

In the Europe of Montesquieu’s day, Christianity was the dominant religion. In southern Europe, the Roman Catholic Church was dominant. In northern Europe, the Protestant faith had become increasingly dominant. The issue of religious freedom and tolerance was substantially between these two sects and Judaism, which was often persecuted by both. Today, what scholars and writers sometimes call “secular humanism” is the dominant view by many elites in Europe and America, and their tendency is to be hostile to Christian faith in all its forms, since it is the dominant faith in their nations. [10] The call for religious tolerance is most necessary to be heard today by secular elites.

Separation of Church and State

Although Montesquieu is not generally considered important in the formation of the uniquely American doctrine of separation of the church and state, his Spirit of the Laws made an important contribution to developing a way of thinking that encourages such a separation.  In a section called, “Of Laws in Relation to the Order of Things Which They Determine” Montesquieu establishes a principle that “We ought not to decide by divine laws what should be decided by human laws; nor determine by human laws what should be determined by divine law.” [11]

Implicit in this statement is the view that secular society should not legislate on religious matters nor should religious groups be given authority in secular matters. This is for the protection of both parties. Secular law is by its nature subject to change as society changes, while religious laws are permanent. Human laws govern circumstances that are always changing, with the result that many laws that are passed by legislatures and promulgated by the courts are likely to change. We see here a progressive view of society as often in a state of flux, requiring constant adaptation by the magistrate. If you remember the blog on Marcus Aurelius, one of the frequent recognitions of those who are actually in politics is a realization of the inevitability of change. Those who speculate can, like Plato, speculate on creating a perfect, static polity. Those who long bear the burden of magistracy, know better.

Conclusion

Leaving Montesquieu, like leaving Burke, is like leaving an old and dear friend. There is much out of date in his thinking, but there is also much of eternal relevance. In these two short blogs, I have been unable but to scratch the surface of his wisdom. One area I did not have time to cover is the area of taxation and budgeting constraints. One characteristic of a wise and prudent government is the ability to live within a reasonable budget.

The ability to tax is the most powerful element of governmental power, and one susceptible of misuse. A government that is imprudent with its finances is destined for trouble. The French Revolution was brought about by the inability and unwillingness of the Bourbon rulers to discipline their spending and the blatant unfairness of the French tax system. This is a point that should not be lost on contemporary policy makers.

Finally, this blog brings us to the founding of the United States of America and the Constitution. This summer, my intention is to make a slow journey through the Articles of Confederation, the Constitution, and the Bill of Rights. For most of the summer, the only external source that will be referenced is the Federalist Papers, and the weekly posts will be shorter.

As mentioned from the beginning of these blogs, the Founders were well-educated in the Judeo-Christian, Greco-Roman, Medieval Catholic, Protestant, and Enlightenment writers. At a moment in history, the influence of all the writers we have looked at thus far, from Plato to Burke, came together in a moment of synthesis as our system of government was formed. That formation is not the end of the story, but it the original defining moment in the story of the development of the government we enjoy today. It is worth spending time understanding the structure of our government and the initial modifications that were made in order to achieve ratification of the document. For now, we have come to a place to rest a bit as summer begins.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] In preparing this blog, I have used the Great Books version of Spirit of the laws. All quotes are from, Baron de Montesquieu, “Spirit of the Laws” in Britannica Great Books, Volume 38 “Montesquieu and Rousseau” Mortimer Adler, ed. (Chicago, Ill: Encyclopedia Britannica, 1952).

[2] Id, 197.

[3] Id, 201.

[4] Id, 200.

[5] Id, 201

[6] Id.

[7] Id, 200

[8] Id, at 212-213.

[9] I read several such views in preparing this blog. It is not really possible to read Spirit of the Laws without Enlightenment prejudices and not conclude that while Montesquieu has doctrinal doubts about all that the Roman Catholic Church teaches, and is suspicious of, and hostile to, all forms of extremism, he is sympathetic to Christianity and supportive of its generally positive impact on society.

[10] Interestingly, in France in particular, it is the Muslim faith that suffers the most opposition from the secular state, which has seen it possible and thought it wise to prohibit the Burka (a women’s dress) and to prohibit the wearing of certain religious garb, which constitutes a suppression of Islam. In America, an increasingly hostile secular left has taken to suggesting that Christians should not be allowed in politics, etc.

[11] Id, 214.

Baron de Montesquieu is one of the most interesting thinkers who influenced the founders of our nation. He was highly thought of by both Jefferson and Madison, among others. Through Madison and others, his work influenced the final form of our Constitution. He also represents an important writer of the Enlightenment, and perhaps the most important and representative continental political philosopher. From the perspective of these blogs, reading Montesquieu is important for another reason: He, like Rousseau, represents a synthesis of the emerging modern and Classical and Renaissance ways of thinking. [1] He is both representative of a new way of thinking and, at the same time, a continuation of a way of thinking characteristic of Western political thought from Greece to Rousseau—something needed in our day as well.

Montesquieu, whose full name was Charles-Louis de Secondat, Baron de La Brède et de Montesquieu, was born January 19, 1689, one year after the Glorious Revolution in England and 100 years before the beginning of the French Revolution. [2] He was from a noble family, and inherited a large estate, which he managed for a time. He was educated as a lawyer, and was for a time the chief administrative and judicial officer of Bordeaux, a position that allowed him ample time to reflect upon the law. Like many Enlightenment thinkers, Montesquieu was interested in natural science.

In 1724, Montesquieu published a successful political novel, “Parisian Letters.” This event changed his life, as he transitioned from a magistrate to being an intellectual figure. Montesquieu travelled widely in Europe, and while visiting Great Britain became an admirer of the British parliamentary system. In 1731, he began his masterpiece, the “Spirit of the Laws,” which he completed in 1748. Both the Parisian Letters and Spirit of the Laws are political and social commentaries and both defend freedom against despotism.

Spirit of the Laws

Spirit of the Laws is without doubt one of the most important and influential books of political philosophy in Western history. [3] In it, Montesquieu systematically sets out his legal philosophy in a work filled with references to laws and legal systems of history. The book is dense with examples from Greek, Roman, French, British, and other legal systems. He attempts, as he says at the beginning, to not follow his prejudices, but the “nature of things,” following the inner connections between laws that connects a law as a singular human achievement. [4]

Montesquieu as a Natural Law Thinker. There is a good deal of debate over whether and to what degree Montesquieu is a Natural Law thinker. The mere appeal to law as “an inquiry into the nature of things” indicates that, in some way, he is. Montesquieu, however, rejected Hobbes dreary form of Natural Law and his “war of all against all” theory. Instead, Montesquieu sees human beings as essentially social, desirous of human interaction and society. The growth of law and society is, therefore, a natural development of human nature and potential. This nature differs from people to people, climate to climate, practical situation to practical situation. Nevertheless, “Before laws were made there were relations of possible justice.” [5] Before the emergence of specific, positive laws of a people, there are laws of nature that take their content from the “fame and nature” of the human person. [6]

Positive Law according to Montesquieu. Every concrete human society forms specific, positive laws to organize social life and provide a legal structure for measuring out justice and resolving disputes. This positive law, though based upon fundamental notions of justice, varies according to the conditions of the people who organize a legal system and create its laws. Geographic, climatological, economic, social, and other factors function in such a way that no two societies will have the same positive laws nor do differences between them indicate than any particular system is unjust. Thus, … “the government most conformable to nature is that which best agrees with the humour and disposition of the people in whose favor it is established.” [7]

Forms of Governments. Just as the laws of a particular society will differ from other societies, there are different forms of government by which societies are organized. For Montesquieu, the forms are basically three: Monarchies, Republican Democracies, and Despotisms. Throughout his works, Montesquieu exhibits a dislike of despotism, which is the rule of one person according to his or her own whims. Monarchies are the rule of one, but this rule is moderated by the nobility and citizens of the nation, each with their own sphere of liberty and influence. Republics are representative governments, governments in which the people chose representatives. [8] Montesquieu goes into great detail in describing the characteristics of each form of government. For the purpose of this essay, we will concentrate on that form most important for Americans: representative, democratic, republican government.

Principles of Republican Government. In a republican form of government, either the people as a whole or, more frequently, their elected representatives possess the supreme power to legislate and organize the government. In order to maintain this order, virtue is required and virtue is the fundamental principle of republican government, for “in a popular state, one more spring is necessary, namely virtue.” [9] Obviously, if virtue is central, then education and character formation are of supreme importance for maintaining a republican form of government, where the whole power of education is required to form a citizen capable of self-rule. [10]

Here it is that our educational system most clearly fails. It is not enough that children learn facts and figures, citizens must love the nation in order for a republic to sustain itself:

This virtue may be defined as the love of the laws and of our country. As such love requires a constant preference of public to private interest, it is the source of all private virtues, for they are nothing more than that preference itself. This love is peculiar to democracies. In these alone the government is entrusted to private citizens. Now a government is like everything else: to preserve it we must love it. [11]

It is a defect in contemporary education that it concentrates to an unhealthy degree upon the defects of our democracy and fails to educate our youth in its fundamental principles, historic successes, and gradual improvements. This is true in public and many private schools alike. It is particularly present in those universities that form future leaders. Too often young people leave institutions of higher learning alienated from our republican institutions and unable and unwilling to appreciate its achievements. This is an area in which a healthy balance needs to be restored.

Goal of Legislation in Republican Democracies. In order to create a coherent body of law, there must be an animating principle of legislation. In the case of republican democracies, the animating principle must be the achievement of greater equality. In the case of 16^th Century France, this liberty could only be achieved by restricting the wealth and power of the nobility and king. [12] In contemporary America, the use of antitrust laws, incentives for employee ownership of corporations and private businesses, and the removal of barriers that render small businesses unable to compete, and inheritance taxes are just a few of the ways that economic liberty and equality can be maintained. As to social liberties, in a well-formed republic certain civil rights are maintained to allow the full exercise by citizens of their gifts and talents.

This principle of equality is not, however, absolute in republics. There can be an excess of equality. “The principle of democracy is corrupted not only when the spirit of equality is extinct, but likewise when they fall into a spirit of extreme equality, and when each citizen would fain be upon a level with those he has chosen to command him.” [13] True equality is not some abstract “extreme equality” that ignores differences of attainment, gifts, and effort. [14]

Moderation and Balance of Powers. Moderation is essential for liberty to exist. “Political liberty is to be found only in moderate governments.” [15] Unfortunately, moderation is difficult to achieve because it is in the nature of human leaders to press their quest for power as far as possible. In one of his most perspicuous passages, Montesquieu notes that:

Whenever we observe in any age or government the different bodies of state endeavoring to increase their authority, and to take particular advantages of each other, we should be often mistaken were we to consider their encroachments as an evident mark of their corruption. Through a fatality inseparable from human nature, moderation in great men is rare: and it is always much easier to push on force in the direction in which it moves than to stop its movement, so in the superior class of people, it is less difficult, perhaps to find men virtuous than extremely prudent. The human mind feels such an exquisite pleasure in the exercise of power: even those who are lovers of virtue are so excessively fond of themselves that there is no man so happy as not still to have reason to doubt his honest intentions;…. [16]

Based upon this observation concerning human nature, it is easy to see that it is inherently dangerous for the legislative, judicial and executive functions to be combined:

“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty. . . . Again, there is no liberty if the judiciary power is not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control: for the judge would then be the legislature. Were it joined with the executive power the judge might behave with violence and oppression.”[17]

The solution is to separate and make these functions both independent and mutually inter-dependent, so that one power cannot overcome the others. This pattern of thinking was influential in the way in which the U.S. Constitution separates and divides power among the legislative, executive, and judicial branches of government.

In my view, the greatest danger to our system of government relates to the way in which the growth of a bureaucratic state with immense administrative agencies has created a fourth center of government that often acts as legislator (issuing regulations), judge (interpreting and enforcing regulations) and executive (administering and issuing orders under regulations). The balance of powers upon which republican democracy rely are largely absent in dealing with this vast, only partially accountable bureaucracy. When we get to De Tocqueville and his Democracy in America, we will take a look at the first person to perceive the threat of bureaucracy to democratic government.

Conclusion

As mentioned at the beginning, Montesquieu was an important thinker for the writers of the United States Constitution. He was quoted more frequently than any other writer by the founders as they explained what they had done and why. The Spirit of the Laws is not just important for the form of the Constitution, for the founders also understood his views on war and peace, on taxation, and on a number of other issues that impacted the form of the document. His views and concerns are of value even today—and it is too bad that more of our leaders do not read and ponder his thought.

I had intended to spend only one week on Montesquieu, but next week I intend to write a shorter blog dealing with religion and the state.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] As I have observed in prior writings, the term post-modern is really a place-holder as a name for an emerging era in human history. All “post-modern” means is “after-modern.” The term does not describe a new and emerging world view. Many prominent “post-modern” thinkers seem to me to be really “end game-modernity,” that is following modernity to its logical, and ultimately destructive, conclusion. Having attempted to construct human life and understanding on a fully naturalistic, materialistic, hyper-individualistic model, since Nietzsche modernity has been degenerating into nihilism. In some respects, I think of modernity as a kind of human adolescence: Having discovered its full range of intellectual, scientific, and technological powers, modernity rebelled against tradition and often common sense. The next era may be something like the “mature-era,” as a post-adolescent modernity begins to recover a deeper sense of community with the past.

[2] This brief review of Montesquieu’s life and work is dependent upon, among other works, “Baron de Montesquieu, Charles-Louis de Secondat,” Stanford Encyclopedia of Philosophy (downloaded May 17, 2021).

[3] In preparing this blog, I have used the Great Books version of Spirit of the laws. All quotes are from, Baron de Montesquieu, “Spirit of the Laws” in Britannica Great Books, volume 38 “Montesquieu and Rousseau” Mortimer Adler Ed. (Chicago, I’ll: Encyclopedia Britannica, 1952).

[4] Id, at xxi, 1.

[5] Id.

[6] Id, at 2.

[7] Id, at 3.

[8] Id, at 4.

[9] Id, at 9.

[10] Id, at15.

[11] Id.

[12] Id, at 19-20.

[13] Id, at 51.

[14] Id, at 52.

[15] Id, at 69.

[16] Id, at 250.

[17] Id, at 70.

This is the last of my blogs on Edmund Burke (for the time being). I feel like it is a sad goodbye to a good and respected friend. By the time of the French Revolution, Burke (1729-1797) was close to the end of his public career and life. In this last years, he conducted a one-person crusade against the French Revolution and those in England who wished to emulate the excesses of the French. In particular, Burke wrote against the lack of respect for past human achievements, disregard of human rights, lack of respect for persons, violence, foolish self-seeking, and revolt against religion that too often animated French revolutionaries. In so doing, he finalized his views on politics in a way that has been profoundly useful and important in subsequent times, including our own.

French Revolution (1789-1799)

In August 1789, a “Declaration of the Rights of Man and of the Citizen” was adopted by the National Assembly of France. Historically the national assembly of France (the “Estate General”) was composed of representatives of all the citizenry of France, which were divided into three estates, the nobility, the clergy, and the remainder of the people. As a practical matter, average French-persons were massively underrepresented. [1]  In 1789, the first Estate General since 1614, a gathering of all three of the Estates of France, was called by the French king, Louis XVI, to address a financial crisis into which France had been plunged by financial mismanagement, foreign adventures, domestic overspending, and support for the American Revolution. [2]

In June 1789, the Third Estate  alone declared itself the “National Assembly” and events began taking a revolutionary turn. The ancient privileges of the crown, the nobility, and the clergy of France were now certain to be modified, or as matters turned out, eliminated altogether. In the end, the French Revolution was a massive, violent failure, ending in the dictatorship of Napoleon Bonaparte.

The French revolutionary experiment began optimistically. The king and nobility knew that there needed to be, would have to be, substantial modifications of their system of government for the nation to recover from the disaster into which mismanagement had led it. Many of the nobility, some of whom would later be executed during the Reign of Terror (1793-1795), agreed and supported needed change. Many of the more moderate adherents of the revolution desired to model the French Revolution after the American Revolution, which had established a stable constitutional state. Others desired to see a system of limited monarchy, similar to that in Great Britain. However, there were serious differences between both the British Glorious Revolution of 1688 and the American Revolution of 1776. These differences ultimately caused the French Revolution to take a tragic turn. [3]

The leadership of the British and American revolution, though impacted by the Enlightenment, were substantially unaffected by the anti-religious and radical sentiment that emboldened the French Revolution. In the case of Britain, the Glorious Revolution was intended to preserve and secure the rights of the people and Protestant character of the state. As to the American revolution, protection of religious freedom generally was one goal of the revolution. In both the cases, the propertied classes, nobility (in England), and business interests were represented and had influence over events. Finally, the moderate political views of British thinkers guided the Glorious and American Revolutions, whereas more radical ideas of Rousseau, Voltaire, and others guided the French Revolution.

Burke’s Response

A year or so after the French Revolution began, Burke published his “Reflections on the Revolution in France” [4]This was before the reign of Terror and the worst excesses of the revolution, which Burke foresaw and partially wrote his response to the way in which the French were managing their revolution to avoid. By the end of the century, Burke’s views were seen as both accurate and prophetic.

Failure to Keep Public Faith. In Burke’s view, the French Revolution resulted from the various “estates,” that is the people that made up all the citizens of France, failing to keep faith with one another in matters of importance. In so doing, the government of France reached a point of revolution:

The constituted parts of a state are obligated to hold their public faith with each other, and with all those who derive any serious interest under their engagements, as much as the whole state is bound to keep its faith with the separate communities: otherwise competence and power would soon be confounded, and no law would be left but the will of a prevailing power. [5]

In Burke’s view, the government, the nobility, the clergy, and the people owed reciprocal duties to one another. It was, for example, a breach of public trust for the nobility, clergy, and crown to saddle the Third Estate with a tax burden they could not meet and condemn the majority of the people to poverty. This was not just a violation of the social compact (though it was), it was also a violation of natural law and exposed France to revolution. In the end, all that was left was power, which in the case of the French fell into incompetent, corrupt, radical and violent hands. [6] This duty was a duty both of those whose mismanagement provoked the revolution and those who were conducting it.

A Fixed Rule of Change. According to Burke, in the case of France, there was no “fixed rule of change,” that is to say there was no way the Third Estate could effectively express their grievances and effect a peaceful change of government. By the time of the Glorious Revolution in England, the British people had endured the Cromwellian Revolution, the Restoration of the Stewart Dynasty, the substitution of James I for Charles II, and the Glorious Revolution itself. In the process, Parliament had both gained power and sustained social order. By 1688, no one wanted to return to the violence of prior periods, and so an orderly change in the state was accomplished. During the American Revolution, there was a strong desire to maintain the historic rights of British citizens for the American people. There was no such order available in the French Revolution. The result was that the Third Estate grabbed all power, and all the institutions of society were subjected to radical, violent, and in the end, failed change.

A Sense of Inheritance. In what I take to be one of the most important and pertinent arguments of Reflections on the Revolution in France, Burke argues that the British and American revolutions could be distinguished from that in France by the absence of a sense of continuity and inheritance:

The Revolution (of 1688) was made to preserve our ancient indisputable laws and liberties, and that ancient constitution of government which is our only security for law and liberty. If you are desirous of knowing the spirit of our constitution, and the policy that predominated in that great period which secured it to this hour, pray look in our histories, in our records, in our acts of Parliament and journals of Parliament…. We wished at the period of the Revolution, and do now wish, to derive all we possess as an inheritance from our forefathers. [7]

This notion that the institutions of a stable government that protects the rights and property of its citizens are “an inheritance” is an important aspect of Burke’s organic view of government. He believed that a wise constitutional order works after the “order of nature,” like a parent bequeathing an inheritance to a child. Thus, a sound constitutional order is an inheritance from those who established that order. This inheritance is to be received, built upon and improved by subsequent generations.  Burke’s notion of an “order of nature” is consonant with the view that human history is a kind of evolving process, in which each generation receives the benefits of civilization and passes that inheritance on in either better or worse, but certainly different, condition that it was received. [8]

Failure of the French to Build on Historical Foundations. In his emphasis on “inheritance” Burke reveals his sense of stewardship of the past, and the notion that the past, both good and bad, limits and directs the activities of a wise statesperson. In the case of France, Burke was well aware that the French Constitution and social order was in disorder. Nevertheless, there was an order, and that order was capable of being  peacefully altered to protect the interests of the people of France. In order to do this, Burke felt it would have been wise to build on the existing foundations rather than tear apart the social order in its entirety. In failing to do this, the National Assembly had been guilty of great foolishness and unleashed a great suffering on the French people. [9] History has generally judged Burke correct in his views. [10]

Reliance on “Metaphysical Speculation” as Opposed to Practical Experience. Underlying Burke’s critique of the French Revolution is his pragmatism and instinctive distrust of what he termed “metaphysical speculations,” which in the case of the French Revolution involved a dramatic shift in society led by people with only an abstract idea of where they were leading the state based upon the speculation of social theorists, like Rousseau with little or no experience in government and politics. Burke spends a great deal of time in Reflections on the Revolution in France outlining the lack of experience, wisdom, and attainments in those who made up the French National Assembly of Revolutionary France. In his view, the clergy and nobility chosen were not of the best leadership, and the assembly was too much led by lawyers with little or no magisterial experience. [11]

In Burke’s view, legislative bodies should be made up of persons of an established position in life, attainments, property, well-educated and with fixed experience and habits that would enable them to serve the state and its citizens well. This is an aspect of Burke’s thought that could be important to our own day. We do have age requirements for public office in most areas, but qualifications are a different matter. As a matter of choice, voters need to ponder the life experience and qualifications that they feel public servants at every level should have. I would only state that political experience may not be the only relevant kind of experience to be considered as necessary.

Opposition to Religion and Historic Morals. Finally, Burke saw the anti-religious and sometimes immoral foundation of the radical French Revolution as symptomatic of its rejection of a kind of humility that sees human institutions as subject to a higher power, which created and sustains the universe, and therefore, at least indirectly human institutions of all kinds. This humility also encourages leaders to see themselves as stewards of the past and the public trust.  Burke saw that social institutions must themselves rest upon the foundation of a sound morality, for everything cannot be made subject to law.

In one of his most impassioned passages, Burke exclaims to the reader:

There is no qualification for government but virtue and wisdom, actual or presumptive. Wherever they are actually found, they have, in whatever state, condition, trade, the passport of Heaven to human place and honor. Woe to the country which would madly and impiously reject the service of the talents, virtues, civil, military, or religious, that are given to grace and to serve it; it would condemn to obscurity everything formed to diffuse the luxury and glory around a state. Woe to the country too, that, passing into the opposite extreme, considers a low education, a mean, contracted view of things, a sordid mercenary occupation as preferable title to command. [12]

We live in a time in which an Enlightenment kind of reasoning is all too common, and rejecting religious faith and morals is a commonplace. Burke believes, and warns us against rejecting the role of religious faith in society and politics. Unlike Burke’s day in England, this warning is against the a priori rejection of any religious group. It is also a call to religious groups to think long and carefully about the service they may make by restraining their energies to a focus on the spiritual and moral condition of society. Woe to the society that rejects the input of religious groups on matters of public importance. Woe also to a religious group that does not undertake its mission in public life without a spirit of service and self-sacrifice.

Conclusion

At this point, we must leave Burke for the time being. I can only urge readers to consider reading the primary source for themselves. His thought is often so complex, and so embedded in a particular historical reality that it is difficult to follow, much less synthesize for a casual reader. His morally-informed pragmatism, his respect for history and for tradition, his belief in natural law embedded in common law, and his distrust of abstract idealism in politics seem to me to be the basic foundations of his thought to be remembered and internalized by interested readers.

Copyright, G. Christopher Scruggs, All Rights Reserved 2021

[1] Historically, franc was made up of three estates, each of which were represented within the Estates‐General. These three orders were the nobility, the clergy, and all other French citizens, known as the “Third Estate.” Ultimately, the Third Estate became the ultimate legislative body, and responsible for the excesses of the revolution.

[2] Under the existing French taxation system, the clergy and the nobility did not pay their fair share of taxes, resulting in a huge burden of taxation falling on the Third Estate, which lacked the economic resources to support the spending of the government of Louis XVI. The luxurious lifestyle of the Bourbon kings, their many wars with England, and their support of the American Revolution, all combined to bankrupt the state.

[3] This is not the place for me to give a full history of the French Revolution or the cultural differences between the Glorious Revolution of 16888 and the American Revolution of 1776. However, in my mind, these differences need to be studied and internalized by contemporary Americans. The current brand of revolutionary ideology being promoted publicly bears an unfortunate resemblance to the French Revolution. Those who wish our nation to adapt to its current issues, need to study the French Revolution and the events leading up to it.

[4] The quotations from this work and from other works of Burke upon which this blog is based are found in Edmund Burke: Selected Writings and Speeches Peter J. Stanis, ed. (Washington, DC: Regency Publications, 1963). Unless otherwise noted, all quotations are from this edition of Burke’s thought.

[5] Id, at 522.

[6] This might serve as a warning to our leaders. There is no doubt but that the spending habits of the US government have resulted in an enormous debt burden that constitutes a failure of the government to keep faith with its people.

[7] Id, at 527. I have added the parenthetical reminder of the date for readers unfamiliar with Burke.

[8] I cannot give this aspect of Burke’s thought all the consideration it deserves, but will return to it later in these blogs as we begin to examine the impact of modern physics and the view of reality that has emerged in what has become known as “process philosophy” on the issue of our current difficulties. Post-modern physics is sympathetic to a vision of reality as an evolving process, with each future state incorporating the past in a process of continuity and change. This view of reality was given prominence by Alfred North Whitehead in his great work, Process and Reality: An Essay in Cosmology (New York, Free Press, 1929). At this point, it is enough to introduce the notion that the citizens of a state inherit a set of existing conditions as an “inheritance,” representing something like an “initial state” and will pass on this “inheritance” with such modifications as they may wisely or foolishly make. The views of Whitehead and his followers are sometimes referred to as a kind of “constructive post-modernism,” that can in a positive way incorporate post-modern thinking. Many weeks from now, we will look at Whitehead as a political thinker.

[9] Id, at 530.

[10] Burke’s reputation as a stateman and thinker were very much enhanced by the fact that as early as 1789 he was able to predict the violent and destructive of the French Revolution and its fundamental causes.

[11] See, Burke, at 554ff.

[12] Id, at 540.

Last week, we looked at the Declaration of Independence, which was in many ways the fruit of the Enlightenment political philosophies of Hobbes, Locke, Rousseau, and others. We saw how Locke, in particular, influenced the Declaration of Independence, which began the Revolutionary War. During the period leading up to and including the Revolutionary War, the British writer and political thinker Edmund Burke was a member of the British Parliament and opposed British colonial policy, which he saw as foolish and self-defeating. He based his opposition on practical, moral, and philosophical grounds, and in so doing crafted an important political philosophy that has continuing importance. [1]

Burke was born in Ireland in 1729. His father was an attorney. He was educated at Trinity College in Dublin, Ireland, and after a short time in London preparing for the bar, became a writer, like Rousseau whom we previously studied and with whom Burke was acquainted. In 1765, Burke became the Private Secretary to the Earl of Rockingham, then leader of the Whig party and was elected to the British Parliament. He served as a member of Parliament for twenty-nine years. During this time, he was especially concerned with the treatment of the American colonies by the British crown, the situation in Ireland (a Catholic nation controlled by Protestant Great Britain), and British policy in India. For all of his political career, Burke was a defender of religious freedom.

When the French Revolution turned radical and violent, Burke was appalled and near the end of his political career. In 1790, he published what has become his most famous work, Reflections on the Revolution in France. In 1794, after a split in the Whig party over the French Revolution, Burke retired from politics. Broken by the early death of his son, Burke died in 1797.

Basic Political Orientation

There has always been a division between admirers and detractors of Burke. Some view him as reactionary. Others view him as essentially a political pragmatist, often using moral arguments as a cover for utilitarian conclusions. Modern political conservatives frequently view him as the intellectual founder of their movement. Fans of Rousseau and of the French Revolution regarded his opposition to that event as unfortunate. Those who opposed religion found his defense of religion wrong-headed, though they often approved of his policies.

In my view, Burke is what we might call a “Classical-Organic” political thinker. Writing to one of his friends early in his career he recommended reading the classics as opposed to the writers of the Enlightenment, a view that underscores his rejection of the abstract theoretical substructure of their thought in favor of a more measured historically guided approach. [2] His political views were strongly impacted by his reading of history and the classics. In addition, his views on politics were impacted by the study of history and the organic growth of institutions and policies. His tendency was to work for organic modification.

In particular, Burke was suspicious of abstract and theoretical approaches to government, approaches characteristic of Enlightenment thinkers both in Britain and on the European continent. In this “Letter to the Sherrifs of the City of Bristol” (1777), he states:

Civil freedom, gentlemen, is not, as many have endeavored to persuade you, a thing that lies hid in the depth of abstruse science. It is a blessing and a benefit, not an abstract speculation; and all the just reasoning that can be upon it is of so coarse a texture, as perfectly to suit the ordinary capacities of those who are to enjoy, and of those who are to defend it. Far from any resemblance to those propositions in geometry and metaphysics, which admit no medium, but must be true or false in all their latitude; social and civil freedom, like all other things in common life, are variously mixed and modified, enjoyed in very different degrees, and shaped into an infinite diversity of forms, according to the temper and circumstances of every community. [3]

In this quote one clearly sees Burke’s rejection of false rationalism in favor of an organic adaptation of policy to the circumstances of a concrete people.

Burke and the American Revolution

I placed Burke in this spot in this series of blogs because of his opposition to the British policy during the American Revolution. His thought forms a bridge between the Declaration of Independence (1776) and the American Constitution (1789), both of which his life and career spanned. It is also appropriate because of his principled opposition to the conduct of the Crown and Government in connection with the Revolutionary War and its causes. History has proven him to be correct in his basic judgements.

Conflicting Duties of Parliament. Burke realized that Parliament was in a difficult situation with respect to the colonies. As the Parliament of Great Britain, it had a duty to act as best profited Great Britain and its citizens. The colonies were a part of an empire, and the natural course of events was to manage that empire for the benefit of the King and those who elected them to Parliament. On the other hand, the citizens of the colonies were also British subjects, and the conduct of Parliament and the King was sometimes not in the best interest of the citizens of British colonies. In particular, the American colonies were large and important, but had no direct representation in Parliament. This had the potential to lead to conflicts of interest and mistreatment of the colonies and their citizens.

Distance and Difference. Burke also recognized that any scheme for governance of the American colonies had to take account of the fact that the American people were accustomed to a high degree of freedom and certain to oppose heavy-handed rule from a Parliament 3,000 miles away. [4] It was simply not possible for the King or Parliament to rule South Carolina in the same way or same degree as it might Bedfordshire. Distance and the cost of government made it simply impossible. As Burke put it, “No contrivance can prevent the effect of this distance in weakening government.” [5]

By the mid-18^th century, the American colonists were used to a high degree of freedom and independence from Great Britain. The colonies had legislatures, and those legislatures were accustomed to raise taxes for local government and had a significant degree of power over the inhabitants of their jurisdictions. As a matter of historical fact and precedent, the colonists had long enjoyed a large degree of freedom. The imposition of laws, and especially tax laws, by Parliament in far-away London was bound to cause problems in America.

Taxation without Representation. Historically, British colonies had always been taxed. However, during the years leading up to the American Revolution, these taxes became more and more burdensome as Britain sought to undergird the costs of their new empire. As to citizens of Great Britain, it had been a guaranteed right of the English since 1689 that they could not be taxed without the consent of Parliament. The fact that the colonists were being taxed without representation in parliament, was noticed by many thinkers, including Burke and Adam Smith, both of which thought that the colonists should not be taxed without some kind of representation, though the mechanism was a matter of dispute and discussion. [6]

The Whigs, during a short time in power repealed the Stamp Tax that was so much hated by the colonies. Unfortunately, once the Whig government fell, the tax was re-imposed. [7] By 1765, the phrase “Taxation without Representation is Tyranny” was heard, often repeated, and deeply believed in the colonies. [8] Burke agreed that that the colonists should have the historic rights of Englishmen to have some kind of say in the levying of their own taxes.

In his “Speech on Moving his Resolutions for Conciliation with the Colonies” of March 22, 1775, Burke remarked:

They took infinite pains to inculcate, as a fundamental principle, that in all monarchies the people must in effect themselves, mediately or immediately, possess the power of granting their own money, or no shadow of liberty could subsist. The colonies draw from you, as with their life-blood, these ideas and principles. Their love of liberty, as with you, fixed and attached on this specific point of taxing. Liberty might be safe, or might be endangered, in twenty other particulars, without their being much pleased or alarmed. Here they felt its pulse; and as they found that beat, they thought themselves sick or sound. [9]

Liberty is more than the right to do what one pleases. It has an economic character, and the right to control the kind and amount of taxes is one of the principle rights of a free people. Burke recognized that the colonies could not continue to be taxed without some say in the taxes they were required to pay.

Colonial Rights to Self-Government. By 1776, the colonies had a long history of self-government. They had state and local governments of varying duties, which governments had considerably more legitimacy in the eyes of the colonists (and considerably more impact on their day-to-day lives) than did a far-away government in London. There were legislatures, a judicial system, executive functions, and other duties performed at state and local levels. When in response to the Boston Tea Party and other revolutionary activities, the Crown attempted to impose direct rule, there was upheaval.

Burke recognized that, whatever might have been done at the beginning of colonial history, it was not possible to impose direct rule without a revolution. He recognized that the cost of such an endeavor would not only be more than the British treasury could endure, but it would be corrosive of the rights of all British citizens to deprive the colonists of their freedom. In this insight, we see the organic and moral basis of his political philosophy: Politics for Burke was a practical art of adapting to the facts of a particular moment in history within an inherited moral framework and tradition. In adapting to that moment, the past history of the situation and its organic development was important, and political morality placed limits on what a wise government might do. In politics, actions must conform to the character and circumstances of the people governed. [10]

Politics as Historical Wisdom

In “Thoughts on the Cause of the Present Discontent” (1770) he writes of a “retrospective wisdom,” meaning the study of history with a view towards practical application in public affairs. [11] In his speeches and writings, he often begins with an historical review of the events which created the present situation, seeking in history practical guidance in the resolution of current problems. He is always seeking a prudent and wise solution to political turmoil.

Burke’s respect for intellectual tradition and inherited wisdom results in his opposition to “abstract speculative political ideas” as a ground of policy, preferring to base policy on history, tradition and practical experience of the past. His rejection is directed towards the thought of Enlightenment thinkers, particularly Rousseau as to the French Revolution and Locke and Hobbes as to British law and policy.

Conclusion

Next week, I will continue looking at the thought of Burke. For this week, I would like to conclude with a few observations about the continued applicability of his thought to our situation in America today.

1. Both of our political parties are inclined, when in power, to follow abstract ideas of policy without due consideration of the circumstances and history of a problem. This has led to many polity failures over the years. We desperately need a wiser, more organic, incremental view of government and the management of political change.
2. Like the early British Empire, the late 20^th and early 21^st century United States of America often fails to calculate the importance of distance, the limits on power, the nature of other cultures, and the cost of military, economic, and other foreign adventures on our domestic freedoms. We cannot impose on other nations our social or economic institutions, nor should we generally try to do so.
3. The role of morality and tradition in politics, a casualty of Enlightenment thinking, needs to be recovered. The notion that there are limits on what a wise and good government can and should do is one too often ignored today.

[1] The major readings on which this blog is based are found in Edmund Burke: Selected Writings and Speeches Peter J. Stanis, ed. (Washington, DC: Regency Publications, 1963). Unless otherwise noted, all quotations are from this edition of Burke’s thought.

[2] Great Thinkers, Edmund Burke, Biography at https://thegreatthinkers.org/burke/biography/ (Downloaded April 27, 2017). In 1746, Burke wrote to a friend, “we are just on the verge of Darkness and one push drives us in … I would therefore advise more to your reading the writings of those who have gone before us than our Contemporaries …” Id.

[3] Selected Writings and Speeches, 243.

[4] Collected Works, prev. cited, at 189, 194.

[5] Id, at 193.

[6] Burkes ideas on this matter were highly complex and evolved during the years of discontent between Britain and the colonies. At times, there was talk of direct representation and some form of indirect representation.

[7] The Stamp Tax was imposed on every document or newspaper printed or used in the colonies. The tax ranged from one shilling a newspaper to ten pounds for a lawyer’s license, everything a colonist needed to was taxed. The income was directed to pay the cost of defending the colonies. The colonist particularly objected to the fact that violation of the taxes would be prosecuted by in Admiralty Courts and not by jury trials in which their fellow citizens would be their judges. History Central, https://www.historycentral.com/Revolt/stamptax.html (Downloaded April 28, 2021).

[8] The history of the use of this term is of itself interesting, for it had roots both in Great Britain and the colonies. The right of representation as to taxes was, as mentioned, felt to be a fundamental right of British subjects.

[9] Id, at 190. Burke’s argument at this point seems to be that, right or wrong, the issue of taxation without representation is one that the colonists were not likely to compromise because of their common views on the subject and the historic rights of British citizens.

[10] Id, at 211.

This week, we reach an important milestone in our look at political philosophy. This blog looks at a seminal document for the United States of America—our Declaration of Independence. The goal is to introduce the political thinking of Thomas Jefferson (and the members of the Continental Congress that enacted the Declaration), revealing how thinkers we have studied up to this point, and the way of thinking that emerged from the Enlightenment political philosophy, impacted the formation of our nation.

Brief History of American Colonization Prior to 1776

 The British began colonizing North America as early as 1606 with the foundation of Jamestown, Virginia by the London Company about 170 years before the Declaration of Independence was signed. The Spanish tried earlier (St. Augustine Florida in 1565) as had the British (Roanoke 1587). By 1776, the British had a large empire in North America extending from the Caribbean Sea to the Artic, an empire that included thirteen colonies in North America stretching from the Gulf of Mexico and Caribbean to the Canadian Border along the Eastern coast of North America. At the time of the American Revolution, the colonies had a combined population of approximately 2,000,000.

Before, during, and after the French and Indian War (1754-1753), the circumstances that led to the American Revolution slowly developed. From their formation, the Thirteen Colonies developed a self-identity as Americans, in addition to seeing themselves as part of the British Empire.  The French and Indian War, which was fought in Europe as well as the United States, left Britain the dominant power in North America with a much-expanded land mass to administer and defend.  The French had lost their colonies in North America, resulting in bad feelings that would enable them to support the American revolutionaries. The British, therefore, watched carefully to thwart any attempt by France to regain control of territory in North America, especially in the French speaking areas of Canada.

The expansion of the British Empire increased the control the British government felt necessary over the colonies, a kind and degree of control that had not previously existed.  In addition, the British were not well-prepared for the responsibilities of administering their new empire, and developing the best strategy for colonial governance took time (and the American Revolution) to evolve. British desire to maintain direct control of the colonies, and especially over economic activity, ultimately resulted in the passage of the Intolerable Acts in1773, which restricted colonial self-government and was the proximate cause of the revolution.  As one author notes, by 1776, the Colonies had become accustomed to a large degree of self-government, and any attempt by the British to take away that self-government was bound to cause problems. [1]

The French, who were vastly outnumbered by the British and Colonial armies, had been supported by the Indians of North America during the French and Indian War (hence the name). In order to placate the tribes and diminish the potential for additional conflict, the Royal Proclamation of 1763 was issued, which restricted colonists from settling west of the Appalachian Mountains. The colonists were not happy at these restrictions—and violated the proclamation during the succeeding years.

Finally, the British incurred a large debt during the French and Indian War, as well as the ongoing expenses of administering a larger empire. As a result, new tax measures were enacted, including the Sugar Act of 1764 and the Stamp Act of 1765. This increased tensions between Great Britain and her North American colonies. Discontentment reached a breaking point with the passage of the Tea Act of 1773, which led to the Boston Tea Party—a direct act of defiance. The British responded by increasing their military presence in North America. Two years later, at the Battle of Lexington and Concord, British soldiers fired on a band of colonists, and the hostilities that resulted in the American revolution began.

Events Leading to the Declaration of Independence

 During the spring of 1776, beginning with North Carolina, the legislatures of the Thirteen Colonies moved towards declaring independence from Great Britain. In May 1775, the Second Continental Congress convened in Philadelphia. Originally, many people hoped for a form of local rule that would enable the Thirteen colonies to remain British subjects. [2] This hope was dashed when King George III issued a proclamation of rebellion in August 1775. In February 1776, Parliament passed the Prohibitory Acts, instituting severe economic sanctions against the colonies. At the same time, the British government took other steps indicating an intent to put down a rebellion by force. A breaking point had been reached.

On June 11, 1776, the Continental Congress appointed a committee authorized to draft a declaration. This committee included John Adams (Massachusetts), Benjamin Franklin (Pennsylvania), Thomas Jefferson (Virginia), Robert Livingston (New York), and Roger Sherman (Connecticut). Thus, the largest and most powerful states as well as both states from the North and the South were included in the committee. In addition, Adams was probably the best-known lawyer in America at the time and Franklin its most famous citizen. Adams was originally offered the job of draftsman, but did not want to take on the responsibility and suggested Jefferson. He did agree to consult with Jefferson as the first draft was created for discussion and approval by the committee. [3] Congress debated and amended the draft over two days beginning in early July. By July 4, 1776, Second Continental Congress had agreed to a Declaration of Independence

Purpose of the Declaration

The Continental Congress was aware that, in the eyes of the British government (to which they were subject), the Declaration of Independence amounted to treason. Indeed, some of the founders were eventually captured and tried for this offense. [4] They were also aware that if they were to receive any recognition in the eyes of other nations, including France, the historical enemy of Britain, they would have to provide compelling reasons for their decision to renounce their status as colonies of Great Britain.

Role of Contract Theory in the Declaration of Independence

We have seen how the Contract Theory of Government, especially as framed by Locke, and the notion that a social covenant might be breached by a ruler justifying revolution, developed in both political philosophy and in the thinking of dominant Christian political leaders in the colonies during the late 17^th and 18^th Centuries. In the Declaration of Independence, we see the implications of Social Contract theory flowering as a source of action.

The Declaration of Independence is largely a statement of the theory and a list of offenses by which it is alleged that King George III had abrogated the social contract by breaching his duties as king. While Jefferson did not consciously quote from Locke in creating this list, he was familiar with his writings and some of the language of the Declaration of Independence is almost a verbatim quotation from Locke. [5] As one author puts it:

Locke says that, once a man enters into the compact by which he surrenders his natural rights to the protection of the body politic, he has not given up his right to return to “the liberty of the state of nature.” There are two happenings, the occurrence of either of which will ipso facto justify such a return: (1) where the government is dissolved by some calamity, or (2) where the government, “by some public acts, cuts him off from being any longer a member of it.” [6]

It was Jefferson’s goal in drafting the Declaration of Independence, and the Continental Congress’ goal in adopting it, to build a case that the public actions of King George III breached the Social Compact to such a degree that the bond of union with Great Britain had been broken beyond repair.

The Community Adopting the Declaration

The Declaration of Independence begins with the following words:

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. [7]

Right at the beginning, it is important to note that the Declaration of Independence did not create the “people” who issued it. According to the authors, the “people” already existed in the form of the Thirteen Colonies bound together by bonds of culture, self-interest, language, history. It is this community that is issuing this declaration and stating their intent to be a free people.

If the Thirteen colonies had not already been bound together as a social community prior to the Declaration of Independence, they could never have found the unity necessary to unanimously adopt it or to prosecute the war that would be necessary to win the independence declared. This is consistent with the continuing observation of this blog: Community comes before a social contract; community is not created by contract, even if it is given form and content by such a contract.

This is an important point that current political and social leaders might ponder. It is not possible to bind together a nation as large as the United States of America—now fifty states, the District of Columbia, Puerto Rico, and other holdings consisting of 350,000,000 people of highly diverse racial, cultural, religious, and economic backgrounds without common values and a deep sense of community (what I have called “Political Love”). Our current national division is symptomatic of the failure of our leaders, political, social, educational, and economic to maintain a sound national unity of relationship founded on common life together. The radical individualism of the Enlightenment project has reached a point in which the necessary social bonds of mutual respect and love are unfortunately dissolving.

The Role of Natural Law in the Declaration of Independence

As indicated earlier, Thomas Jefferson was the principle author of the Declaration, and it is his voice that is most often heard in the document. [8] A student of Locke, as well as trained in the legal tradition of Natural Law thinking, Jefferson was a classic Natural Law thinker, but his natural law thinking had a distinctly Jeffersonian and American twist. Jefferson, unlike Hobbes and Rousseau, believed that natural law placed “rightful limitations” on what political magistrates might do. In particular, no magistrate could usurp rights which were rights of the people. [9] Political power, however extensive, was essentially limited by the natural rights of people to life, liberty, property, and the pursuit of happiness. [10] A political regime which pushes beyond the fundamental limitations of their power can and should be replaced.

In the Declaration of Independence, the Continental Congress put it this way:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, 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 effect their Safety and Happiness. [11]

We have a long way to go in these blogs, and the decline of Natural Law theory and its modern proponents will be examined in detail. At this point, however, I want to observe that American society is unlikely to exit its current decline, with its excessively Hobbesian, “winner take all,” power driven form of politics unless some form of “natural law” thinking can be restored. It seems to me that the fundamentally relational nature of the universe and of human beings, combined with the notion that the capacity to create and seek values inherent in human nature, does provide a basis for a kind of thinking about politics that places limitations on what governments can and should do and which can undergird the human desire for freedom and some right to determine their own political future.

The Rational for Independence

As indicated earlier, for legal as well as political reasons, the Continental Congress felt that it needed to set out as clearly and as persuasively as possible the reasons for their departure from rule by Great Britain. In the declaration, it is put this way:

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government.

The Continental Congress accepted that it was not proper to change a form of government for “light or transient causes,” that is for unimportant or temporary issues of governance. Instead the dissolving the current social and political bonds could only be justified by “a long train of abuses” which were insufferable and amounted to tyranny.

The Declaration of Independence then sets out a long list of offences, including abuses of administrative, executive, judicial, and legislative rights of the colonies, depriving the colonies of their fundamental rights of local rule. Additionally, there is listed a series of military actions, including making British military rule superior to local legislative powers, conducting maritime warfare against the colonies, and incited domestic uprisings. Finally, economically, the British government had passed taxes without the consent of those who would pay them and restricted trade in such a way as to harm the property and economic livelihood of the colonists.

Today in America, we hear much about the need for revolutions from groups on the right and left. On the right, questions about the legality of the last election have been raised and potential restrictions flowing from greater regulation of personal activity, are suggested by some as grounds for a revolution. On the left, one hears calls for revolutionary action on grounds from racism to economic inequality. In the midst of a revolutionary era, we might glean from the Declaration of Independence some principles and hope for the American future:

1.   First, isolated problems with elections or other governmental failings are not grounds for a change in the fundamental character of the government. These sorts of issues fit within the definition of “light or transient causes” mentioned in the Declaration.

2.     Second, unlike the situation facing the Thirteen Colonies in 1776, the American government, in its legislature, courts, and executive branch have shown great willingness to address grievances. We may not always like the way a particular Congress or administration addresses a problem, but they are have done so in the past. One of the complaints registered by the Continental Congress was that repeated attempts to reason with the British Government had yielded no response. [12] This is simply not the case today.

3.     Third, historically, as with slavery, racial injustice, and the economic inequality created by the industrial revolution, the American government has shown a remarkable ability to adapt and make changes, some fundamental, to respond to the needs of citizens. Thus, there is no “long train of abuses and usurpations” of which the Continental Congress complained. [13] In fact, history indicates that our democracy has eventually addressed even the most imbedded social problems.

There is no reason to believe that our system of government is fundamentally unable to adapt to the conflicts and inequalities of today, just as it has reacted and adapted to challenges of the past. The history of our national willingness to confront issues, legislate and change, even our constitutional provisions by amendment should be a source of hope, not despair.

Conclusion

The Second Continental Congress, and in particular the principle draftspersons of the Declaration of Independence, were well versed both in classical political philosophy and in the thinking of the most recent proponents of representative government. They were also practically moderate in their approach to what they knew would be considered treason by the British government. They began a revolution, but they were not revolutionaries. For the most part, they were practical politicians attempting to find a solution to a difficult problem, the nature of which bound thirteen colonies together in a way that would lead to the United States of America, the freedoms we enjoy, and the stable government that we have enjoyed for almost two and a half centuries.

Before closing, I want to mention on last element of the Declaration. The rights it believes all human beings enjoy are those given to them by their “Creator.” It closes with a reference to “the Supreme Judge of the World.” In other words, the writers and signers of the Declaration of Independence believed that they were the creatures bound by some kind of duties and obligations to the Creator. They were politicians acting in human history to impact human institutions, but they felt that they themselves were responsible to a Supreme Judge who had embedded in creation a moral order that impacted the political order. One reason why the American revolution avoided the excess of the French, Russian, and Chinese revolutions has to do with the social consequences of Christian faith and the limits it placed on violence and injustice in the conduct of the Revolution and establishment of the new government. The Guillotine and Gulag were simply impossible under the conditions of Christian political morality present at the time of our founding.

This is not the place for an extensive look at the possible ways in which various religious groups have a common idea of justice as embedded in creation or can productively join in the political project we call “The United States of America”. It is enough to say that various groups do have such views and the potential to gather together in a society based upon more than law and force. Secular people do not have, nor are they willing to grant, a divine foundation for a social order. However, there are many secular voices devoted to the search for truth and a just society. The question is, “Can various religious and secular groups work together in the way the signers of the Declaration of Independence worked together to bring freedom to the New World?” I think that the answer can well be, “Yes.”

As a hint as to how this might be done, I want to return for a moment to the critical realist view that ideals are real in a noetic sense, and are progressively revealed or unfolded to those who seek those ideals as part of a community of inquiry and action. Religious and secular people are on a common quest for a just society. The completion of that task is never complete. It is always before us on one way or another. It transcends our immediate understandings and capacities—and it always will. Nevertheless, we have abundant reason to hope that over time we can improve the condition of our society.

As human history unfolds, we are all seeking this thing we call a “Just social order.” It is not required that we agree as to the precise contents of that order in order to work together in a democratic society. What is required is a willingness to dialogue, to hear all opinions, to debate, and then decide, with the knowledge that there will be another election and another time to revisit any decision if it turns out to be wrong. This requires a sense of community and mutual respect and love among differing people all too often lacking in our society today.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

 

The Rootless Wanderer

In writing these blogs, I try to give some idea of the nature of the person whose philosophy I am reviewing. Last week, I gave a longer introduction to Rousseau; this week, I want to make a few concluding remarks. As a philosopher, Jean-Jacque Rousseau is easy to admire; as a person he is not so easy to admire. He was a wounded and difficult person.

Rousseau never married, yet fathered five children by a common law wife, all of which children he abandoned to an orphanage. [1] He lived with this woman for many years, without bothering to marry her—something both his Catholic and Protestant faiths would prohibit. The fact that he abandoned his children, as he had been abandoned, speaks of the deep wounding of his childhood.

At an early age, he lied about a theft he had committed, condemning the woman he falsely blamed to protect himself to a terrible future. Although he regretted his action, he took no steps to undo his deceit. He was in frequent conflict with friends and foes alike. Both Voltaire and Edmund Burke, two very different men, found Rousseau a difficult person. The trauma of his childhood and youth left an indelible mark on his character. In any case, he is a complex human being.

As indicated last week, Rousseau was a Genevan, and signed his most important works, “Jean-Jacque Rousseau, Citizen of Geneva.” Yet, he was never really at home in Geneva or anywhere else. He gave up his citizenship twice during his lifetime. His life was one of physical and intellectual wandering. His later years were marked by mental illness, conflict with others, and financial and other difficulties. In the end, his life was a public success, but a personal failure. He was a wanderer, physically, intellectually, and morally, all his life. Nevertheless, the more one reads him, the greater his status as a thinker becomes, even if, like me, one is not fully attracted to his philosophy.

The Social Contract

Inequality and the Social Contract. Like Hobbes and Locke, Rousseau bases his political philosophy on the notion of a social contract that establishes a polity. Hobbes, as we have seen, based his notion of a social contract on the need to avoid the “endless war of everyone against everyone else.” Locke bases his theory of the social contract upon the social nature of the human person. Rousseau bases his theory on the inequality of human persons and the need of those in power, and at the peak of existing social structures, to secure their position. [2] This is the part of Rousseau’s philosophy most directly responsible for modern revolutionary theory.

For Rousseau, the creation of private property and privilege was bound to lead to wars, social tension, and social evils. Those with status easily saw this as a threat and reacted by proposing a social contract. Thus, he says:

“With this end in mind, after having shown his neighbors the horror of a situation that armed them all against each other and made their possessions as burdensome as their needs, and in which no one could find safety in either poverty or wealth, he easily invented specious reasons to lead them to his goal. ‘Let us unite,’ he says to them, ‘in order to protect the weak from the oppressions, restrain the ambitious, and assure everyone of possessing what belongs to them.’” [3]

The result of this artifice, was an institutionalization of the power of those with property and position. In other words, for Rousseau the beginning of political society was a deception, a crime, and a mistake. Obviously, it is hard to create a coherently optimistic view of human society if, in the end, human society is, and always has been, a mistake and con by the powerful against the weak.

In this series, I try to maintain a sympathetic dialogue with the writers of the past, recognizing that in every social situation, good people have tried to improve society as best they knew how. The recent tendency to critique past thinkers and actors because they did not create a perfect world is one of the things these blogs are intended to critique and change: There is no perfect society, and no thinker is capable of providing an unblemished blueprint for one. In this case, one can appreciate the great inequality that plagued French society of Rousseau’s day (and indeed our own). Nevertheless, it is difficult to see Rousseau’s analysis as completely satisfactory.

Likely as not, human society was in the first instance created by any form of compact, but imposed by the strong or simply evolved as an extension of the human family as larger groups emerged. History is a long, tragic story of the human race’s search for justice and a just social order. No group of people has ever been able to endure without a political organization, and some organization is generally better than none at all. In this argument, Rousseau the literary provocateur has overstated his case.

One of the implications of Rousseau’s notion of the unfortunate beginning of society is a kind of revolutionary hopelessness. If human society was a mistake from the inception, then it is hard to see a way forward that does not include the destruction of human society. In this respect, he was a forerunner of what has emerged in the Cancel Culture movement and the infinite number of groups that critique Western Society and its roots.

The Free Individual. Rousseau begins his “On the Social Contract” with one of the most famous lines in philosophical history: “Man is born free, and everywhere he is in chains.” [4] As catchy is the phrase may be, it is one of the least accurate in literary and philosophical history. Rousseau might easily and more accurately on his own analysis have said, “The human race was born in slavery, but every so often achieves some degree of freedom.” Historically, it would have been more accurate and would point more clearly to the precarious nature of freedom, which is created and maintained only with great difficulty.

One characteristic that Rousseau, Locke and Hobbes have in common is the atomistic reliance on the individual abstracted from preexisting social ties as the foundation of society. This is, of course, also historically inaccurate. In my view, it is also philosophically the wrong place to begin. Because human beings emerge from a society (families, schools, etc.) we must see individuals and human social structure as “emergent phenomenon” and dependent upon the societies from which they emerge. To paraphrase Rousseau: Human beings are born in society, and develop individuality and secure freedom only as they interact with the persons in that society.” When the members of a society grant individuals the ability to develop themselves, such people find a unique personhood that is to be cherished by that society to the extent possible.

As indicated throughout this series of blogs, there has never been a “state of nature” separate from some form of social institutions, from the crudest family of savages to the most complex modern societies. Throughout human history, most societies have lacked significant institutional or personal freedom. We, in the modern West, are a unique development, and one that needs to be preserved. To attempt to continue to fit political philosophy into the structure of social contract theory, as useful as it has been, is to force facts to fit a theory instead of creating a theory that fits the facts.

The General Will

The Subjective Move. Rousseau is the originator of the notion of a “General Will” expressed by the voters in a democratic society. Many people think of it as his foundational achievement as a social and political philosopher. If the idea of a Social Contract provides a vehicle to construct a society of atomized individuals, the General Will as a political idea is an answer to the question the mechanism that can form a society based on the Social Contract.

While ancient writers focused on ideas like “The General Good” or “Public Peace” (transcendent public goods built into the nature of human society), Rousseau develops a notion of a “General Will” of the people. Right at the beginning one sees the individualistic and power-focused nature of modernity. The General Will is not something outside of the human person society seeks, it is something inside of the human condition to be imposed. As a “General Will” of the people, it has embedded within it a lack of limitations. This movement is the foundation of the modern tendency towards tyranny on a large scale. [5] A more humble place to start might be to consider that General Will and General Good as something we are seeking as a polity, but which our human finitude and self-centeredness makes impossible to fully achieve.

Freedom and the General Will. Rousseau was aware of the problem with an unrestricted General Will and tries as best he can to find a reasonable way in which freedom can be protected. He recognizes that the basic problem of the General Will is to provide for a social cohesion while maintaining some idea of personal freedom. [6] The problem is that the social contract as conceived of by at least Hobbes and Rousseau, requires that the individual grants all personal rights (“whole and entire” to freedom and property to the state, and receives back in return his or her rights to share in the public good. [7] This results in a union of persons, “as perfect as possible.” [8]

At this point it is important to highlight another weakness in the modern project for social organization: having reduced human society to atomized units (individuals) who are united not by social bonds of love but by “contract,” the union is one of force imposed by power—the power of the majority. The idea of balance of powers and limited government are the inevitable result of this movement, since the power is by its very nature absolute and susceptible of abuse.

In Rousseau’s view, the act of giving one’s self to the whole amounts to giving one’s self to no one. [9] Thus, Rousseau says:

“Finally, in giving himself to all, each person gives himself to no one.  And, since there is no associate over whom he does not acquire the same right that he would grant others over himself, he gains the equivalent of everything he loses, along with a greater amount of force to preserve what he has. If, therefore, one eliminates from the social contract everything which is not essential to one once finds that it is reduceable to the following terms. Each of us places his person and all his power in common under the supreme direction of the general will; and as once, we receive each member as an indivisible part of the whole. “ [10]

A close analysis of the foregoing quotation shows the difficulty with Rousseau’s project. It is not coherent to say that people can both give themselves to an idealized “whole” and not give oneself to anyone. It assumes that the “whole” will have the same interests as the “one” and respect the rights and humanity of the one, which human experience shows to be unlikely. The experience of humanity with dictatorships of left and right, from the French revolution to contemporary societies, shows that this is not the case.

In every totalitarian, communistic or oligarchic state, whoever is in control has abused those who are part of the “indivisible whole” they lead. The problem is easily identified by the use of terms like “force and power.” Force and power do not give space for personal freedom, love and respect for the human individual does. Secondly, a sovereign of unlimited power, is almost certainly going to abuse that power, unless human nature changes dramatically from what the unvaried experience of the human race throughout history shows to be likely.

In my view, all this intellectual confusion flows from a mechanical view of nature, of human nature and human society combined with an inaccurate view of human nature. The way out is not a better social compact theory (a view that will be finally defended when, if ever, these blogs reach Rawls and contemporary society), but a merger of social contract theory into a more organic and human view of society that sees human relationship and human sociability as the fundamental foundation of society, upon which any “social compact” rests.

Secondly, as I think Rousseau would agree, the notion of a “General Will” is simply incoherent in modern, large, bureaucratic nation states. His theory was formed with small, socially bonded, racially homogenous, religiously Christian, Geneva in mind. Modern multi-cultural societies are much too complex for any such notion to be a useful guide to political life and leadership. The General Will is too easily seen as the “Will of the Majority,” something easily manipulated by revolutionaries and oligarchs in every age. Despite Rousseau’s attempts to distinguish the two, political parties and politicians are inclined to view themselves and their policy preferences as embodying the General Will, which is one of the causes of so much of the policy incoherence of our society.

Calvin and Rousseau

Before concluding, I want to reflect on Calvin in the light of Rousseau. The historical counterpoint of Calvin and Rousseau is important in order to apprehend the difficulty of attempts of some to create a “Christian America” on a Calvinist basis. By the time of Rousseau, only 200 years after Calvin, intellectuals in Europe had reacted against the narrow confines of the intellectual system that Calvin and his followers created. The modern secular world was in the process of emerging, with its materialism, blind faith in human progress, and rejection of tradition and traditional religious faith. Attempts to create a “Christian America” are likely to experience a similar fate even if they were successful (which I think highly unlikely). In fact, we may be experiencing such a reaction today in the United States.  One of Newton’s laws of physics states that “Every action is likely to provoke an equal opposite reaction.” In my experience, this is true in families, the church, local and national politics, and life in general. Even if a “Christian America” could be created or recreated (depending on your view), it would be reacted against within a short time and forgotten in only a slightly longer period of time. The best course for Christians, and followers of Calvin (which I have been most of my adult life), is to focus upon serving with wisdom and love the society we are in and that society that is emerging, remembering that “the Son of man came to serve, not to be served” (Mark 20:28), and that Christians are called to “take up their crosses” and follow their master (Matthew 16:24).

Conclusion

In these two short blogs, I have been only able to scratch the surface of the depth of Rousseau’s thought. As mentioned before, I think of Rousseau as less of a modern thinker as a kind of late Renaissance thinker trying to defend ideals of classical society in the face of the theories of Locke and especially Hobbes. I think that he would be appalled by the use of his ideas by French and modern revolutionaries. A true and just appraisal of this thought would require much time and a much better mind than I possess. For the purposes of this series of blogs, it is important to see his notion of the General Will and the Social Compact as both continuous with Hobbes and Locke and exploratory of the implications and difficulties in their work.

I cannot be sure, but I think that Rousseau would agree with most of what I have said in this blog. If I am correct in my basic analysis of Rousseau as fundamentally a classic and Renaissance thinker, reacting against the excesses of the Enlightenment, then he  too would see where the Enlightenment project has led, the dead end it has reached, and the need for a more human and organic political theory—one that incorporates notions of social contract and the necessity of governments to seek to serve the will and desires of those they lead, while avoiding the focus on will and power to which the Enlightenment project was so susceptible.

Finally, I may return to Rousseau. In Part 3 of the Social Contract he much modifies the more extreme implications of what he earlier says. In addition, my time in this blog as not allowed me to talk about his ideas on the subject of war and of political economy, which I would like to explore sometime in the future.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] See, Jean-Jacques Rousseau, at Britannica.com,  https://www.britannica.com/biography/Jean-Jacques-Rousseau, downloaded March 24, 2021 which I have relied upon for some of this biography.

[2] “Discourse on Inequality” in Jean-Jacque Rousseau: The Basic Writings 2^nd ed. Trans and Edited by Donald A. Cross (Indianapolis, IN: Hackett Press), 78.  All citations in this blog are from this edition of Rousseau’s work.

[3] Id, at 79.

[4] “On the Social Contract” in Jean-Jacque Rousseau: The Basic Writings 2^nd ed. Trans and Edited by Donald A. Cross (Indianapolis, IN: Hackett Press), 136.

[5] I am not entirely happy with this statement of the situation. Certainly, there is an objective aspect to the General Will, if such a think exists. It is, however, dependent upon the subjective wills of the people rather than being something rationally and ideally objective as, for example, Plato and the classic tradition would have thought. In any case, the notion of a General Will of the people has led, and is inclined to lead, to over-reaching by people in power who may consider that they are the embodiment of the General Will.

[6] On the Social Contract, 164.

[7] Id.

[8] Id.

[9] Id.

[10] Id. I have underlined force and power. The italics are in the original.

Jean-Jacque Rousseau, a native of Geneva Switzerland, spent a large portion of his adult life in France and deeply influenced French thinking and European and American thinkers generally. He is often referred to as the “Philosopher of the French Revolution,” which many scholars feel results from a misreading of his work by French revolutionaries. It is possible that even revolutionaries today misread his work and intentions. Rousseau seems to me to be a bridge between the Classical, Renaissance Heritage of Western Culture and the Modern World. Although he writes during the Enlightenment (1685-1815), in my view he is not fully an Enlightenment thinker. His work is often a critique of the Enlightenment optimism concerning the powers of human reason. As such, Rousseau is the intellectual father of the Romantic Movement. He rejects the over-estimation of the powers of human reason and the myth of progress characteristic of the Enlightenment and of Western Culture for the past several hundred years. His influence continues to this day, for we live in a politically romantic age, with all of its irrational revolutionary potential, given legitimacy in part by his work.

Early Biography

Rousseau was born in June 1712. His mother died when he was young, and his father deserted the family, abandoning his child. As an orphan with little or no prospects, he was apprenticed to an engraver and mistreated by his master. He fled Geneva at age 16. In this second phase of his life, he converted to Catholicism, forfeiting his citizenship in Geneva, a Protestant city. He drifted around the neighborhood of France and Italy, was a servant, and then returned to Switzerland, where he became the lover of a wealthy woman.

Around age thirty, Rousseau arrived in Paris, becoming one of the young intellectuals (called “Philosophes”) who were the center of the intellectual life of the city. Around thirty-seven, he had an inspiration that modern progress was a corrupting influence over people rather than a help. Out of this experience he wrote his First Discourse, in which he argues against the theory of human progress and for a theory that civilization has been corrupting on the human race. This idealization of primitive man is the first important characteristic of his writing.

Return to Geneva and Its Place in His Writing

In 1754, Rousseau returned to Geneva after a long absence, “reconverted” to the Calvinist faith of his mother, and began another phase of his life and work. Geneva was an essential part of his life and works, despite the fact that, in faith and practice, Rousseau drifted from an orthodox Calvinism for which the city was known. Although he lived outside of Geneva most of his life, his most important works bear the inscription “Jean-Jacque Rousseau, Citizen of Geneva.” This connection with Geneva is important for understanding his thought.

Geneva marks the place he called home, and a place he idolized. He published his Discourse on Inequality in1754, which many believe to be his finest work. In the beginning of his “Discourse on Inequality,” which he dedicates to The Republic of Geneva, he says the following:

If I had had to choose my birthplace, I would have chosen a society of a size limited by the extent of human capacity, that is limited by the possibility of being well governed, and where, with each being equipped perform his task, no one would have been forced to delegate to others the functions with which he is charged; a state where, with   all private individuals being known to one another, neither the obscure maneuvers of vice nor the modesty of virtue could be hidden from the notice and the judgment of the public, and where the pleasant habit of seeing and knowing one another turned love of homeland into love of citizens rather than into the laws of the land. [1]

This aspect of Rousseau’s character and thought is important. A part of his romanticism was a love of the organic and small. He could see that large, impersonal governments, far from local communities might be less human and less effective. This is a part of this thought continued in the late modern era through works like Small Is Beautiful: Economics as if People Mattered. [2] This ideal of a more personal and organic society is a part of the New Agrarian movement in America and the movement of people to smaller cities. In larger communities, it manifests itself as a concern for neighborhoods as essential to metropolitan health.

Final Paris Period

In 1762, Rousseau returned to Paris to recover his friendships there and find a place where he could continue to work. However, he was now alienated both from his fellow philosophes, and their belief in Enlightenment, the inevitability of human progress, and attacks on religion. Although not himself fully-orthodox, he felt the attacks on religion were harmful to society, particularly to Geneva, because of attacks on Calvinism by intellectuals. Unable to feel at home, he left Paris, living on the estate of a wealthy friend. During this phase, he completed The Social Contract, (1763), which I will look at next.

Final Years and Mental Illness

Alienating his former supporters, he fled again into exile, renounced his citizenship in Geneva, and spent the rest of his life moving around, living for a time in England, but never finding the place of where he could find a home. He degenerated into mental illness from which he suffered the reminder of his life. During his final period, he wrote his Confessions, named after St. Augustine’s work of the same name, and other autobiographical works. His literary output is overwhelming: essays, books, novels, articles and the like.

He died in July of 1778, at the age of sixty-four.

Rousseau and Religious Faith

Rousseau conducted a life-time spiritual pilgrimage, that led from his parent’s Protestantism, to Roman Catholicism, back to Protestantism, to flirting with a form of Deism, to a quasi-unitarianism, back to some kind of orthodoxy, and perhaps at the end of his life to a kind of Romantic Pietism. What can be said for certain is that Rousseau should not be read as anti-religious or anti-Christian. In fact, his break with his fellow Parisian intellectuals was partially based on his rejection of this feature of Enlightenment thought. Rousseau respects religion, has faith in God, and seeks in his life and work to be some kind of Christian.

In the end, Rousseau was impacted by the skepticism of his age, but unwilling to sever his ties with Christian faith. His Romanticism led him to a kind of intuitive faith, one based upon an intuition or feeling of the divine. In this way, he is the forerunner of Friedrich Schleiermacher and a version of Christianity based upon feeling. [3] In this sense, Rousseau is a sympathetic figure for post-modern people seeking to form a faith under the conditions of our culture, which stands at the end of the culture the Enlightenment created.

Rousseau and the Myth of Progress

Unlike the majority of Enlightenment thinkers, Rousseau is critical of the idea of human progress, and especially the inevitability of human progress based on human reason. Rousseau believes civilization is as much the cause of the human problem as it is the solution. In his “Discourse on the Science and the Arts, he says:

“Almighty God, you who hold minds in your hands, deliver us from the enlightenment and deadly arts of our fathers and give us back to ignorance, innocence, and poverty—the only goods that can bring about our happiness and that are precious in your sight.” [4]

For Rousseau, all the supposed progress of the sciences and arts has added little to actual human happiness, but instead corrupted morals, and the purity of the original human condition. [5]

One sees in Rousseau the inevitable reaction against the excessive idealization of mind and human reason that is fundamental to the Enlightenment view of human nature. Rousseau sees the need to appreciate the intuitive and pre-rational aspects of human life. In so doing, however, he often overstates his case. This series of blogs, which adopts a view I call “Sophio-Agapic” is inclined to see the need to avoid the modern separation of mind and matter, of the intellect and emotion and adopt a position intentionally different from that promoted by the severance of mind and matter in modern thought.

Rousseau and Human Nature

This leads us directly to Rousseau’s theory of human nature. If there is any single doctrine (other than double predestination) for which Calvinism is known, it may be its strong, Augustinian Doctrine of the Fall. Rousseau is often cited for the reverse view: that human beings are basically “good.” While this simplistic summary is partially correct, it ignores the complexity of Rousseau’s analysis of human nature. It might be better to say that according to Rousseau human beings are by nature morally neutral, but that the impact of heredity, family life, human history, culture, and the like infect all human beings with what religious people call sin. Human civilization is the history of the infection of the human character with the defects Christians call “sin.”

This view has something in common with a more orthodox Calvinist view that sees human beings as made in the image of God, but captured by sin from birth. Both Calvin and Rousseau tend to miss the impact of human finitude and anxiety concerning the future that impacts human selfishness. This kind of analysis of sin awaited the 19^th and 20^thCenturies to come to full bloom.

Next week, we will look at Rousseau’s Social Contract Theory, and in so doing we will return to his theory of human nature, which impacts his political theology in a major way. Suffice it to say that Rousseau understands that it is nearly impossible at this late stage of history to know the precise nature of our first forbearers. Thus, he says:

“For it is no light undertaking to separate what is original from what is artificial in the present nature of man, and to have a proper understanding of a state that no longer exists, that perhaps never existed, that probably never will exist, and yet without which it is necessary to have accurate notions to judge properly our present state. [6]

In this brief sentence, there is illuminated, not just the defect in Rousseau’s idea of a basic State of Nature of human beings, but the defect of all such endeavors: We cannot know by human reason alone what the “State of Nature” might have been. The Bible gives Christians a revelation and interpretation of the nature of human beings older than almost any we possess, and it sees human beings as flawed.

Interpreters, theological and philosophical, have attempted endless explanations. In the end, we are left with the idea that human nature today is what it as always been: noble but inclined towards self-centered, self-interested, and self-destructive behavior damaging to the self and others. It seems to me that political philosophy cannot and should not begin with some supposed “state of nature” but with the human animal as we experience it day by day. Instead it must begin with the long history of human political organization as we can understand it. I will return to this again next week, for any “Social Compact” theory of government must either suggest a “State of Nature” or as in Rawls, some neutral state that allows the social compact to be instituted.

Rousseau and Human Society

Having briefly understood Rousseau’s view of human nature (basically good, but corrupted by civilization), we are in a position to understand and critique his idea of human society and origins of inequality. This is important for it informs his view of the Social Contract, for if he is wrong in his views of human nature and the human inequality, then his views on the Social Contract are suspect.

One might say that for Rousseau, human history and the evolution of human society is a mistake. Human beings once lived in a state of nature, without property or worries, in a state of perfect equality. This natural state did not endure, for “In becoming habituated to the ways of a society and a slave he becomes weak, fearful, and servile; his soft and effeminate lifestyle completes the enervation of both his strength and his courage.” [7]

The Discourse on Inequality begins with a long interpretation of human history based upon the idea that human beings in a state of nature were superior beasts, stronger and wiser than any of their natural enemies, existing in a state of perfect equality. One commentator says all that needs to be said:

In the Discourse on the Origin of Inequality, dating from 1754, Rousseau gives a philosophy of history, resting on a condensed account of the development of the human race, and the whole essay is saturated with that passionate hatred of inequality which may not unfairly be regarded as the dominant feature of his character. It is almost unnecessary to say that for Rousseau’s history there is not the faintest shadow of a particle of evidence. [8]

Indeed, a reader cannot be but struck by the naïve understanding of Rousseau of the condition of primitive peoples.

According to Rousseau, the degeneration of the human race to its current state began with the institution of private property, which began the development of human society. The first person, who having enclosed a plot of land, took it into his head to say, ‘This is mine,’ and having found people simple enough to believe him was the true founder of civil society.’” [9] Here we see the beginning of the modern communist and socialist movement. Rather than seeing private property as an engine of the development of human culture and civilization, it sees private property as a mistake to be corrected.

From this point, Rousseau constructs an “imaginary history” of the decline of the human race from its original equality to its present inequality. Human society bred an understanding of differences, of the difference between the strong and the weak, the intelligent and the not so intelligent, the talented and the not so talented. Human pride then took over and took advantage of the differences that were now seen among human beings until the current state of inequality took over. [10] Once this understanding of the differences among human beings was fully integrated into the human psyche and society, the result was certain. Thus, Rousseau says:

With things having reached this point, it is easy to imagine the rest. I will not stop to describe the successive invention of the arts, the progress of languages, the testing and use of talents, the inequality of fortunes, the use or abuse of wealth, now all the details that follow these and that everyone can easily supply. [11]

Political Consequences of Inequality

The result of the inevitable progress of civilization was an increase in inequality. This inequality is economic, social, legal and political. The growth of wealth enabled an increasing difference in economic circumstances. The growth of social institutions gave advantage to those with the intelligence and social skills to prosper. The growth of courts of law and the need for social arbitration increased the ability of the rich to get advantage over the poor. Inequality of power, allowed increasing distinctions between those in power and those out of power, with those with power increasing their social advantage.

Rousseau describes this process as follows:

Such was … the origin of a society and laws, which gave new fetters to the weak and new forces to the rich, irretrievably destroyed natural liberty, established forever the law of property and of inequality, changed adroit usurpation into an irrevocable right, and for the profit of a few ambitious men henceforth subjected the entire human race to labor, servitude, and misery. [12]

 Here one sees clearly the implications of Rousseau’s original decision to see human beings as originally equal, with inequality a development of society. This, however, seems to me to the opposite of the truth. A more likely and historically defensible opinion would be to see the original situation of the human race as one in which physical size, strength, and the like assured the rule of the “fittest,” with protection of the weak, the less intelligent, and others as a development of civilization—and particularly of Christian civilization, which rejected much of the pagan ethic.

Conclusion

Rousseau is complex. His dislike of inequality is visceral, perhaps a result of his early poverty and struggle to achieve financial security and social prominence. For this we can admire his views, and learn from them to ameliorate the worst consequences of inequality. However, his analysis makes human society not an achievement but a mistake, which is not the most logical conclusion to draw from human history. Instead of seeing human history as a long series of errors ending in bondage, it might be more accurate to see human history as a long journey from bondage to a precarious freedom. This will be the subject of the next blog.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] “Letter to the Republic of Geneva” in Jean-Jacque Rousseau: The Basic Writings 2^nd ed. Trans and Edited by Donald A. Cross (Indianapolis, IN: Hackett Press), 31.  All citations in this blog are from this edition of Rousseau’s work.

[2] E.F. Shumacher, Small Is Beautiful: Economics as if People Mattered (Vancouver, BC: Hartley and Marks, 1973). There are many other aspects of modern and post-modern thought that are impacted by Rousseau. In many ways, he anticipates the postmodern critique of modernity, which is another reason that it is difficult to call him an “Enlightenment figure” without qualification.

[3] Schleiermacher developed a complex theology, including a political theology, in response to the Enlightenment critique of Christianity and was influenced by, and representative of, the Romantic movement. His theology continues to have impact in some circles, where his impact is as great as any historical thinker. His basic idea is that human beings are by nature religious, and have a religious intuition or feeling that is fundamental, a feeling of absolute dependency.

[4] Rousseau, Discourse on Science and the Arts, at 33.

[5] Id.

[6] Rousseau, Discourse on Inequality, at 40.

[7] Rousseau, Discourse on Inequality, at 51.

[8] Alexander Gray, Mises Daily Articles, “Rousseau’s Form of Socialism” (September 22, 2009), reprinted from The Socialist Tradition, Moses to Lenin London, ENG: Longmans, Green & Co., 1946), https://mises.org/library/rousseaus-form-socialism, downloaded April 3, 2021.

[9] Rousseau, Discourse on Inequality, at 69.

[10] Id, at 70-76.

[11] Id, at 70-71.

[12] Id, at 79.

One thing this series of blogs has tried to do is put into historical perspective the actions and views of the various writers. In the case of Calvin, the situation in which he wrote profoundly impacted his views on a number of issues.

To begin with, Calvin was raised in, and left in danger because of his religious views, the France of his day—an absolute Roman Catholic monarchy. France, Spain, and most of the rest of Europe were ruled by monarchs of one form or another. Above all these monarchs, there was an entity known as the Holy Roman Empire, a weak and eventually to disappear “High Kingship.” [1] Even in Calvin’s day, the empire was a weak. Nevertheless, in the time of Calvin, the Holy Roman Emperor was the protector of the Roman Catholic faith and hostile to the Reformation and reformers. Luther, Calvin and others were from time to time in personal danger from the Catholic princes of Europe and the Holy Roman Emperor.

Second, having left France, Calvin ended up in Switzerland, which like Germany was divided up into both Catholic and Protestant areas. The threat of persecution was a real possibility, since the political winds could easily change. As a citizen of Geneva, Calvin lived near France, and thus had to consider the potential for a French invasion. Geneva was open to the Reformation, but this openness was not a sure thing for most of Calvin’s time there.

Third, Calvin was familiar with the dangers associated with the Radical Reformation. In Germany and Switzerland, the Reformation, begun as an attempt to purify the church not to radically change it. However, in some cases the Reformation took a different, more dangerous, and sometimes violent turn. Radical violence was sometimes fomented by an expectation of an early end to history and return of Christ. Sometimes, it involved a resistance against all earthly authority. Often, it involved unbalanced leaders who lacked practical wisdom or theological training and who led their adherents into error. In Germany the princes of combined to forcibly put down some radical reformers and many people died. Calvin, like Luther before him, was appalled by the Radical Reformers, which contributed to his lack of sympathy for Michael Servetus and his unitarian brand of reform. In any case, this political theology is formed by this history.

Christians and the Courts

In Calvin’s day, as in our own, there were misunderstanding as to whether, and to what extent, Christians can or should avail themselves of secular courts of law. According to Calvin, Christians are entitled to use the courts of law, and indeed ought to do so in order to prevent the evil of private vengeance. It is not appropriate, therefore, for a Christian to quote Paul’s instructions to the Corinthians to avoid a litigious spirit and of suing one another without restraint as forbidding their use of public courts where appropriate (4.20.21). Once again, Calvin places his emphasis on love, reminding readers that whatever Christians do they must do in love, and anything done apart from love is suspect from a Christian perspective (4.20.19). It would never be appropriate for a Christian to use the courts to secure vengeance or an unjust result.

As to civil matters, Christians clearly are not acting properly if they do not submit a valid claim to the decision of the courts, for to do otherwise is to invite private vengeance and violence. The same is true of criminal matters. So long as a litigant is motivated by the desire for justice and not by a desire for revenge or resentment over a private injury, there is nothing to forbid Christians (or anyone else) from availing themselves of the judicial system (4.20.19). Thus, Christian, like everyone else, may defend their rights in a court of law, so long as the defense of their rights is done without rancor, passion, a desire for revenge, malice or other improper motive (4.20.19).

Thus, the act of defending justice and seeking equity is blameless and should not be prohibited to Christians or others; however, Christians do have a special duty to behave in the proper manner:

For this must be a set principle for all Christians: That a lawsuit however just, can never be rightly prosecuted by any man, unless he treats his adversary with the same love and good will as if the business under controversy were already amicably settled and composed (4.20.18).

The fact that such a spirit is largely absent from litigants in Calvin’s day as in our own does not detract from the desirability of just and orderly behavior by those who use the court system, and especially by Christians.

According to Calvin, a willingness to submit to public judicial process is not contrary to Christ’s in junction to “turn the other cheek.” Christians ought to bear with slanders and injustice, forgiving others for malice and deceit and a variety of wrongs, displaying that spiritual composure that identifies a follower of Christ (4.20.20). This characteristic of Christians does not, however, prevent them from defending rights and property:

Yet, this equity and moderateness of their minds will not prevent them from using the help of the magistrate in preserving their own possessions, while maintaining friendliness toward their enemies; or zealous for public welfare, from demanding the punishment of a guilty and pestilent man, who, they know, can be changed only by death (4.20.20).

Duty of Obedience to Rulers

The first duty of citizens is to honor the office of those appointed by human agents and God to exercise public authority, including legislatures, magistrates, and courts of law (4.20.22). It is important, Calvin believes, for Christians to remember that public officials are not merely a necessary evil, but an accommodation of grace by God to the human need of leadership and governance. From the duty to honor their follows a duty of obedience to those with magisterial authority:

From this also something else follows: that, with hearts inclined to reverence their rulers, the subjects should prove their obedience toward them, whether by obeying their proclamations, or by paying taxes, or by undertaking public offices and burdens which pertain to the common defense, or by executing any other command of theirs (4.20.23).

Where a Christian believes a ruler has acted mistakenly, and their ordinances require some kind of amendment, they should not raise a tumult or create trouble, but work diligently to resolve the problem peacefully and within the law (4.20.23). Here we see a beginning of Calvin’s attitude towards any kind of resistance. In the first instance, Christians should work in love within whatever political system they find themselves to resolve public wrongs without violence.

The duty of Christians to obey laws does not pertain only to laws passed by just and righteous rulers, but also to rulers who do not act wisely or with justice towards those they lead (4.20.24). According to Calvin, it is the example of nearly all ages of human history that rulers have acted without care, lazily, corruptly, and without compassion draining the people of their money and livelihoods (4.20.24). While such magistrates are a disgrace to the offices they hold, Christians are to give such rulers the dignity and respect the authority of the offices they hold (4.20.25). Here we see a second principle of obedience: Even bad rulers hold their offices from God and are due the respect of their office (Exodus 22:28; Ecclesiastes 10:20; Romans 13:1-7).

Beyond corrupt, lazy, and incompetent rulers, there are also wicked rulers, which God periodically allows to gain power and oppress their people (4.20.25). They too are to be obeyed:

But if we look to God’s Word, it will lead us further. We are not only subject to the authority of princes who perform their office uprightly and faithfully as they ought, but also to the authority of all who, by whatever means, have got control of affairs even though they perform not a whit of the prince’s office (4.20.25).

 Christians are subject such underserving princes just as they are subject to those who are deserving of the honor of their office (4.20.25). From time to time such rulers are raised up to punish public wickedness or otherwise accomplish the purposes of God, and the Bible is full of examples, from Pharaoh to Nebuchadnezzar. Christians are to obey bad rulers just as they obey good rulers (4.20.26). Nebuchadnezzar is used by Calvin as a case in point of a foolish, vain, violent, and unwise ruler whom God placed over the Jewish people, and through Daniel was used by God for his purposes and to display his glory (4.20.26-27).

This is the final, and perhaps most controversial, of Calvin’s points. Clearly, one thing that Christians should consider is whether a bad ruler is a judgement of God to which the church must submit in humility and endure. Second, it is not always wise or possible to resist a ruler, a situation with which Calvin was familiar. In our day, we are accustomed to democratic freedoms and may not be as sympathetic as we should be with Christian groups who have had to submit to wicked rulers to survive. Overt resistance is not always either wise or possible.

Resistance Against Edicts that Violate Conscience and Duty to God

As the preceding clearly reveals, Calvin was extremely reluctant to justify disobedience to established rulers. He was familiar with the damage the Radical Reformation had done in Germany and the way in which even well-meaning radical reformers had damaged the cause of the Reformation in fruitless revolt against authorities. Nevertheless, at the end of the Institutes Calvin does find some room for disobedience under the caption “Obedience to man must not become disobedience to God” (4.20.32). Obedience to earthly rulers must not be such that it leads to disobedience to God, for public officials are subject to God and own obedience to God. Where Christ has spoken, “he alone must be heard” (4.20.32).

Clearly, in this passage, Calvin has in mind the kind of passive resistance that the early church demonstrated, when Christians sometimes refused to deny Christ and paid for their refusal with their lives. He has in mind the resistance that figures in Scripture demonstrated, particularly the resistance Jesus demonstrated before the Sanhedrin and Pilate, a resistance that did not revolt against authority but instead accepted the injustice of authority in faithfulness to God.

This view of a right to resist flows from the commandment of love. Christians are commanded to love their neighbor has themselves, but prior to that commandment is the command to love God with all their heart, soul, mind, and strength (Matthew 22:35-40; Mark 12:28-34; Luke 10:27a). The love of God takes precedence over any earthly love, and so where the two loves become estranged, the Christian must choose the love of God and accept the consequences.

From Resistance to a Right of Revolution

The right of passive resistance was as far as Calvin himself would go in his direct writings, but his followers would look at the implications of listening to Christ alone and reach different conclusions. Other thinkers influenced by his theology, as well as the contract theory of law, reached conclusion the conclusion that there might be a right to revolt against magistrates who abused or neglected their responsibilities as leaders.

In the first place, Calvinism itself originated in the free states of Switzerland and spread most easily to free states. In such a situation, the idea that the citizens had duties to magistrates led easily to the reverse idea: Rulers had duties to their subjects. Secondly, within a short period of time, the notion of society being formed by a social contract between governments and their subjects became popular, as did “covenant theology,” which is a direct outgrowth of Calvinism.

The idea of a social contract has implicit within it the idea that the rulers and subjects are each bound by the contract. While Hobbes and others tried to suggest that the social contract could not be voided by subjects, this is not the most natural interpretation of a contract theory. Nearly everyone is directly or indirectly aware that contracts can be broken and if broken, contracts are either void or some kind of redress is due the injured party. The merger between covenant theology and the theory of a social contract was nearly certain to end with some kind of a right of revolution.

Thus, as Calvinism developed, it tended to include within its political ideas the notion that some revolutions were in fact necessary and permitted to Christians. It is not likely that Calvin himself would have agreed given his restraint as to such a right in the Institutes. [2] His emphasis on the Christian duty of love would have mitigated against such a result. The Christian duty to love is not dependent upon whether and to what extent the beloved is worthy.

Whatever the exact historical details, by the time of the American revolution, most Americans believed that there was a right of revolution and that King George III had violated the social contract by his policies towards the colonies. The Declaration of Independence is filled with reasons its writers believed justified the American Revolution because of the wrongs inflicted by the British king. While Calvin himself is not the direct source of this view, the development of his theology, particularly in England, laid some of the groundwork for the political view that rulers who abused their powers can be overthrown.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] The Holy Roman Empire officially terminated on August 6, 1806, when the last emperor, Francis II of the House of Habsburg-Lorraine,  abdicated his throne and released his subjects from any further obligation.

[2] Almost every student of Calvin sooner or later hears a professor speak the words, “Calvin was not always as much a Calvinist as his followers.” This is often true.

The last blog introduced Calvin as a political thinker and dealt with the powers and responsibilities of the magistrate in public life. For Calvin, the magistrate is the embodiment of the laws of a polity, and is the active element that ensures its active success (4.20.14). ^[1] If the magistrate is the embodiment of a polity, its laws are the sinews, the glue that holds a political unit together. Magistrates have a duty to enact just laws, and citizens a duty of obedience to those laws, even laws with which they disagree or which are imposed by rulers who act in an immoral and oppressive way. For Calvin, only when laws and rulers interfere with the worship and obedience that Christians owe God does a limited right of passive resistance apply. The duty of obedience and the right of resistance will be dealt with next week. This week, we look at Calvin and the laws of a society. In my view, this is one of the most important blogs I have done because of the essentially relational view of law Calvin takes.

Distinguishing Between Ceremonial, Judicial, and Moral Laws of Israel

In Calvin’s day, as in our own, there were those who believed that the laws of the state ought to mirror the laws instituted by Moses, a view that Calvin regards as false and foolish (4.20.14). In responding to this error, Calvin begins his analysis of law with the commonly recognized distinction between (i) the ceremonial laws of Israel, (ii) its judicial laws, and (iii) the moral law found in the Old and New Testaments. These three aspects of Old Testament law must be carefully distinguished and are differing importance to those interested in human social life. 

The ceremonial law was enacted to create a holy and set-apart people of God. The people of Israel were chosen by God to be different from the surrounding nations. From a Christian perspective, this separation was for the tutelage of the Jewish people as they prepared for the Messiah. The ceremonial law contained the outline of a religious system, involving festivals, and a sacrificial system, appropriate for a stage in human development when sacrifices to the gods was commonly practiced. This ceremonial law was an important preparation for the revelation of Christ, but could be and has been abrogated without loss. 

The moral law stands upon another footing and cannot be abrogated by human beings. The moral law is founded upon the rational nature of human beings created in the image of God and summarized by the Great Commandment, which is given in Mark in the following way: 

“The first of all the commandments is: ‘Hear, O Israel, the Lord our God, the Lord is one.  And you shall love the Lord your God with all your heart, with all your soul, with all your mind, and with all your strength.’ This is the first commandment. And the second, like it, is this: ‘You shall love your neighbor as yourself.’ There is no other commandment greater than these.” (Mark 12:29b-31, NKJV). ^[2]

This commandment of love stands at the root of the moral law and is a perpetual “natural” law designed to provide a structure for all of human life (4.20.15). In the language I have been using in these blogs, the moral law, which is an outgrowth of the law of love, is founded upon the self-giving love and relational wholeness that exists within the Trinity and which is embedded in the nature of creation as a relational whole. We give the name “love” to this relational wholeness that leads to peace (shalom) and human thriving. ^[3] The object of this moral law is to enable human beings to navigate life successfully.

Natural law as “Sophio-Agapic”

In this view, which I term “Sophio-Agapic,” natural law derives from the hidden wisdom through which God created the world and the self-giving love by which God creates and sustains the universe. Because God is wise, there is embedded in God’s creation an order. Because God is essentially relational, the universe reflects at every level a relationality that is foundational and which is reflected in the human capacity for love. ^[4] Implicit in the kind of wise relationality that underlies human society is the notion that humans must have both order and freedom to thrive. It is the search for wise relationships that drives human beings to create systems of law to ensure public peace and order, and it is the desire for loving relationships that drive human beings to freedom-in-relationship. This sophio-agapic relationality is the foundation of what we term “natural law.”

It is important to reflect upon the difference that a relational, sophio-agapic theory of natural law makes to morality and law. Often, natural law theorists focus upon the moral content of natural law (murder is wrong) without proper consideration of the relational foundation of that rule in the desire for human harmony and peace (murder is antithetical to human striving and shalom). A focus on the relational foundation of law in love allows a recognition that all law, including moral law, rests upon something deeper than law itself—on the love and wholeness for which human beings were created. This is an important insight for our society in order for it to exit the period of decay and polarization in which we find ourselves. 

Public Law as Contextual

The moral or natural law is not sufficient to organize any particular society. For there to be social order, there must be a system of public law. The specific laws of Israel were given to them so that they could live together peacefully under the conditions of the ancient world in which they lived. Once again, the judicial law of Israel was not eternal and could be abrogated in order to accommodate a different people and culture (4.20.15). Thus, the specifics of the judicial law of Israel are not binding upon other societies and may be changed to meet different social circumstances as human history unfolds.

Thus, the result of a proper understanding the differences in the ceremonial, moral, and judicial law of Israel is that the nations of the world are free to craft their own laws so long as they are respectful of the law of love that stands beneath and is the foundation of all law. Thus, “…every nation is left free to make such laws as it foresees to be profitable to itself. Yet, these must be in conformity to that perpetual law of love, so that they indeed vary in form by have the same purpose” (4.20.15, emphasis added). This standard of love means that barbarous laws that would give honor to thieves, justify murder, or permit savagery are to be condemned. ^[5] All laws have as their purpose the creation of a just and loving social order.

Because laws are intended to create and maintain the relational wholeness of a particular society, Calvin sees equity, that is the giving of each person and group his or her due, as the foundational way in which love is worked out in any concrete set of laws. Thus, the law of love is the foundation of “natural law,” which is the moral law of God and is engraved on the human conscience (4.20.16). ^[6] This does not require that modern people believe that every single insight of the ancients as to the nature and character of the natural, moral law were in fact correct.

Any law framed so as to create equity is to be approved of irrespective of whether it differs from Jewish public law. This is an important insight, for it allows a progressive understanding of human law throughout human history and the accommodation of the laws of a society to the circumstances of that particular society. 

For example, Calvin notes that, even where societies universally condemn an action, such as stealing, there can be differing penalties for the violation of that law, and the Old Testament penalties are not binding upon any particular society. Thus, some societies treat various crimes more or less seriously and throughout history differing penalties have been thought just for the same crime. This is to be seen as an accommodation of a particular society to its own circumstances (4.20.16).

This view leaves human actors with space within which to adapt their society’s laws to specific economic, geographic, cultural, and other circumstances which differ from time to time and place to place. For Calvin, society is not an entity decreed to have only one set of laws based upon one culture’s reading of the Bible, the revelation of God, and circumstances. Instead, different societies are free to experiment and to create their own laws, subject always to the kind of relational wholeness that would be called “equity” that results in social peace.

To say that societies are free to experiment is not to say that there are no guiding principles to be followed in the search for equity. For example, laws that would be destructive of social peace, of equity among citizens, of the family upon which society rests, of the ability of people to have productive work and earn a living, etc. would all be suspect from this perspective. Underneath all of the possible guiding principles, there is one supreme guiding principle, the law of love, and any law that ignores this guiding principle is suspect. 

Conclusion

I have found Calvin’s insights not only consistent with an older, organic view of society and law, but also consistent with a constructive post-modern view of human nature and society as rationally evolving in accordance with a deep desire for community built into both the universe and human nature itself. This evolution means that each society must adapt and construct itself, hopefully adapting to new conditions under the constraints of the “Law of Love” that sits at the foundation of all human community, from the nuclear family to the modern state.

Every society of whatever kind or nature has a status quo and a set of social relationships that have evolved over time. In enacting new laws, leaders have a need to respect the existing set of social relationships and gradually make changes. This principle of gradual change is important in maintaining the legitimacy of governments and the social support any government needs to survive. One of the unfortunate consequences of the American preoccupation with “nation building” in the Middle East has been a set of policies that initially ignored the existing fundamentally tribal nature of the societies in question. In any situation, there are limits to productive change, however valuable it might be over the long run.

I invite readers to consider whether or not some of the problems of our society stem from the loss of a sense of community bound together by a kind of social love that seeks equity for all citizens, whether of our particular party, race, sex, or social group. In addition, I invite readers to consider whether the difficulty we have in maintaining true freedom of expression and development of people and groups is not related to a distinctly modern notion that “might makes right” and that history is merely the unfolding of the search of social groups for power. If love sits at the foundation of society, then this view is surely incorrect.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

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^[1] Calvin, John. Institutes of the Christian Religion Volumes 1 & 2, ed. John McNeill. trans. Ford Lewis Battles (Philadelphia, PA: Westminster Press, 1960). All quotations are from this version of the Institutes in the form: book.chapter.section).

^[2] The Great Commandment is found in all three of the synoptic Gospels, Matthew 22:35–40, Mark 12:28–34, and Luke 10:27. It is implicit in the “new commandment” that John records, “To love one another” (John 15:9-12).

^[3] In prior blogs, I have distinguished self-giving love, erotic or desire-based love the brotherly love of siblings and friends, affection of neighbors and loved ones, and political love that binds a culture together. All these loves are derivative of the transcendent, self-giving love of God.

^[4] See, John Zizioulas, Being as Communion (Crestwood, NY: SVS Press, 1985) for an orthodox look at relationality as constitutive of persons.

^[5] This is an area within which Christians and non-Christians may see substantial disagreement. For Calvin, laws protecting marriage, etc. reflect the law of love. One might presume that laws forbidding practices like abortion might have been included in this catalogue of laws that violate the command of love. While not minimizing the extent of debate about this foundation of law in love, I think that Calvin has made a valuable contribution to public debate by considering that all laws should work to cement the social bonds of a society in relational wholeness and peace.

^[6]  I term use the term “Sophio-Agapic,” to describe that relational wholeness that finds its completion in God and in the transcendent justice towards which human beings strive. As indicated in the main text, this “sophio-agapic” relationality is the foundation of what we term “natural law.” Sophia refers to the wisdom of God, and agape to the self-giving love of God.

Readers who know that I am a Presbyterian pastor may have wondered why I skipped Calvin during our chronological look at political theology from Augustine through Luther. At the time, I did not know what to say. Frankly, after dealing with Luther, I needed a break from a theological look at political philosophy. Since we are now at the time to look at Jean-Jacque Rousseau, also a Genevan, it occurred to me that this is a good time to look at Calvin as a political theologian and practitioner. Therefore, for the next two weeks, I am going to look at John Calvin as a political thinker. ^[1]

John Calvin

John Calvin (1509-1564), was a Frenchman who spent most of his professional life in Switzerland, deeply influencing both the Reformed areas of Switzerland and the thinking of intellectuals all over Europe. His major work, Institutes of the Christian Religion was first published in 1536, and was revised and enlarged until shortly before his death. ^[2] Originally trained as a lawyer, Calvin became a Protestant in 1530. Forced to flee France, he ended up in Geneva, Switzerland, where he remained for the rest of his life, except for a short time of exile. He never became a priest or ordained cleric.

Upon his return from exile in 1541, Calvin embarked upon an amazing career, preaching, teaching, educating pastors from all over Europe (including the founder of the Presbyterian form of government, John Knox), instituting reform of the doctrine and practice of the Genevan churches, and reforming the life and morals of the city. During his lifetime, he reorganized the doctrine and liturgy of the Genevan church, wrote the Genevan Catechism, created a psalter and wrote hymns, wrote commentaries of most of the Bible, and created a school in Geneva that influenced all of Europe. While never a political leader of Geneva, he influenced the leadership of the city in many ways. 

Consistent with the idea that actions invoke reactions, Calvin faced substantial opposition to his ideas. A group referred to as the “Libertines,” consisting of some of the wealthiest families in Geneva, opposed his moral and political innovations. This opposition, sometimes in the majority, continued for most of Calvin’s ministry.

The most famous and difficult of Calvin’s political involvements in Geneva relates to the conviction and death of Michael Servetus, a unitarian thinker condemned to death by the consistory of Geneva. Scholars differ as to whether and how seriously Calvin was involved in the death, but it is clear that he accepted the conviction and condemnation to burning at the stake. (It is important to note that the conviction of Servetus for heresy was sought not just be Genevans and Protestants, but also by Roman Catholics because of his denial of several important doctrines of the faith, most importantly, the Trinity.) This event was consistent with the practice of the day, but today we would find it horrific that a person would be executed for his religious views, however obnoxious.

In 1558, Calvin became ill with a fever that weakened him and began in a decline that ended with his death in 1564. He did not want to die before completing the last edition of the Institutes of the Christian Religion, which he finished in 1559. He died on May 27, 1564, at the age of 59. At his own request, he was buried in an unmarked grave.

Outline of Calvin’s Political Thought

Calvin’s training was as a lawyer, and his first book was on the Roman legal thinker, Seneca. He was well read in the classics, as well as being a Biblical scholar and theologian. His classical training is evident in his views on politics. Calvin was not primarily a political theologian, but a biblical expositor and systematic theologian. It is clear, however, that Calvin was familiar with and approved the classic notion of separation of powers, and mixed government in which the common people and the aristocracy both received some kind of protections. 

Two Kingdoms. Calvin, like Martin Luther and other reformers, was a disciple of St. Augustine, and he espouses a version of the Augustine’s “Two Kingdom’s Doctrine,” just as did Luther. ^[3] His first defense of the Two Kingdoms idea is found near the end of his discussion of Christian freedom in order to make clear that the freedom of a Christian does not involve freedom from the supervision of the state. At the end of this section of the Institutes, he says:

Therefore, in order that none of us may stumble on that stone, let us consider that there is a twofold government in man: one aspect is spiritual, whereby the conscience is instructed in piety and in reverencing God; the second is political, whereby man is educated for the duties of humanity and citizenship that must be maintained among men. These are usually called the “spiritual” and “temporal” jurisdiction (not improper terms) by which is meant that the former sort of government pertains to the life of the soul, while the latter has to do with concerns of the present life—not only with food and clothing but with laying down laws whereby man may live is life among other men holily, honorably, and temperately (3.19.15).

This is important for understanding Calvin. Many of his detractors and admirers, left and right accuse Calvin of seeking a “theocracy.” This is an unfortunate charge, inconsistent with his fundamental view that the kingdom of God and the various kingdoms of this world are two different kinds of kingdoms. While Calvin lived before the modern notion of a secular/sacred distinction, he accepted that the rule of any existing social order (the kingdom of this world) was different from the rule of Christ (the kingdom of God). As we shall see, he did not believe that the entirety of the Old Testament law was appropriate for the Geneva of his day, but that laws were to be adapted to the necessities of the time and society in which they are enacted. While the two kingdoms were separate things, they were intertwined, and secular rulers had duties to the church and religious leaders had duties to the state.

Implications of the Fall. Some of the most important political implications of Calvin’s theology flow from his view of human nature. Calvin believed that human beings are fallen and infected with sin. As a result, in the political arena as well as other areas of life, human beings are inevitably tempted to misuse power. Both those in power and those seeking power need limitations on their ability to misuse the rights and powers given them. This is particularly true of inflamed mobs, with which Calvin was familiar. Thus, Calvin was a proponent of the kind of mixed government of checks and balances of the type exemplified in the United States Constitution.

 John Weatherspoon, a member of the Second Continental Congress and delegate to the New Jersey state convention that ratified the Constitution, was a Calvinist, Presbyterian minister and strong proponent of limited government and checks and balances. Through Witherspoon and his own reading, James Madison, the principle author of the Constitution, was also influenced to prefer a limited government with many checks and balances on the people who occupied positions of influence. At least one legal scholar has argued that the Calvinist emphasis on human limitations resulted in an attempt to create a system that would render human sin less likely to result in oppression rather than the illusory attempt to create a new human being less susceptible to sin and oppression. This is an insight that contemporary leaders might ponder.

Forms of Government. As one trained in the classics, Calvin is familiar with the division of governments into monarchies, aristocracies, and democracies. As a citizen of Geneva, he saw the importance of democratic representation, something lacking in his native Franc. Nevertheless, he recognized that the precise nature of government must be adapted to the circumstances of a particular society (4.20.8). In Calvin’s personal view, aristocracy or a government combining elements of aristocracy and democracy are the best forms of government (4.20.8).

Magistrates, Laws and Citizens. Calvin divides his discussion of Civil Government into a discussion of the duties and roles of public officials, public laws, and the citizens. In so doing, he outlines his own views of government (4.20.3). Although the majority of his analysis deals with the powers and responsibilities of magistrates, he has important things to say about laws and the duties of citizens. This week, I will deal with the powers of public officials. Next week, I will deal with law and the duties of citizens.

Magistrates. In Calvin’s view, public officials have their offices as part of a mandate from God for the coordination and ordering of human life (4.20.4). They are God’s representatives and have therefore a duty to steward the powers and responsibilities they have been given and for such stewardship they will be responsible (4.20.5). As stewards, they are to be prudent, gentle, self-controlled, diligent, and benevolent servants of God (4.20.5). As stewards of responsibilities and powers given by God, they are not to ignore the fact that sound government rests upon spiritual and moral foundations that are beyond the power of magistrates to ignore (4.20.9). ^[4]

Magistrates possess the power of coercion and are responsible for its wise and restrained use (4.20.7). In point of fact, public officials cannot perform their important functions without the power of conversion, which must be used wisely, but used nonetheless:

But since they cannot perform this unless they defend good men from the wrongs of the wicked, and give aid and protection to the oppressed, they have also been armed with power with which severely to coerce the open malefactors and criminals by whose wickedness the public peace is troubled or disturbed (4.20.9).

Private citizens cannot object to this power for public officials are responsible for the orderly and just administration of justice and the public peace. (4.20.10).

The power to protect the public peace extends to the power to wage war:

For if power has been given them to preserve the tranquility of their dominions, to restrain the seditious stirrings of restless men, to help those forcibly oppressed, to punish evil deeds—can they use it more opportunely than to check the fury of one how disturbs both the repose of private individuals and the common tranquility of all…? (4.20.11).

Notwithstanding the need for war, magistrates are responsible to wage war in a human and restrained way (4.20.12). In particular, in waging war, leaders must not give way to their passions in such a way as to act unjustly (4.20.12). ^[5] Thus, Calvin says:

But it is the duty of all magistrates here to guard particularly against giving vent to their passions even in the slightest degree. Rather, if they have to punish, let them not be carried away with headlong anger, or be seized with hatred or burn with implacable severity. … Or if they must arm themselves against the enemy, that is, the armed robber, let them not lightly seek occasion to do so; indeed, let them not accept the occasion with offered, unless they are driven to it by extreme necessity (4.20.12).

In reaching this conclusion, Calvin warns that if even pagans (Cicero) knew that war should not be entered into except with a view towards peace, then Christian rulers should use arms as a last resort (4.20.12).

Finally, Calvin deals with the right of public officials to exact taxes and duties to finance public life. While public officials must be prudent and self-controlled, they are still empowered to perform certain important tasks, and as such they must be able to finance them (4.20.13). They should, however, always remember that the public treasury is not their private chest to raid at will, but the treasury of the people for which they are stewards (4.20.13). This does not mean that public officials do not have expenses and outlays that would not be available to private citizens (4.20.13). The magnificence of a government will be reflected in public expenditures. However, when public officials waste the public treasury or live in excessive luxury, they are no longer good stewards of the wealth that has been entrusted to them for the public good. 

Conclusion

As in so many areas, Calvin is a mediator. In theology he sought a middle position between Roman Catholicism of his day and the radical reformers. The same is true in his political theology. He seeks a middle ground between the proponents of the “Radical Reformation” with their idealistic and other-worldly proposals and no reformation of public life at all. His version of the Two Kingdom’s doctrine is less absolute than Luther’s and includes a duty of public officials to improve the lot of citizens. He was inclined to view the church as gradually improving human society in such a way that the church and institutions influenced by the church would gradually bring into being the Kingdom of God. In this sense, he might be termed a “Post-Millennial” political thinker.

Calvin does believe that the Gospel has implications for public life, but does not believe that the freedom Christians enjoy in their spiritual relationship with God extends to an unworkable freedom from legitimate government. Next week, we will look at the role of law in public life and then at the duties of citizens to obey legitimate government and explore the way in which Calvin’s ideas also legitimate opposition to tyranny.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

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^[1] For readers who would like a deep dive into Calvin as a Political theologian, Matthew J. Tuninga, Calvin’s Political Theology and the Public Engagement of the Church: Christ’s Two Kingdoms (Cambridge, UK: Cambridge University Press, 2017).

^[2] Calvin, John. Institutes of the Christian Religion Volumes 1 & 2, ed. John McNeill. trans. Ford Lewis Battles (Philadelphia, PA: Westminster Press, 1960). All quotations are from this version of the Institutes in the form: book.chapter.section).

^[3] The legal scholar is Marc Hamilton. See, “The Calvinist Roots of American Social Order: Calvin, Witherspoon, and Madison” in The Journal of the Witherspoon Institute (April 13, 2017), downloaded March 7, 2021, at https://www.thepublicdiscourse.com/2017/04/19116/.

^[4] One of the most important gifts of Calvinism was an insistence found in Calvin and his interpreters that sound government rested on a foundation of personal morality. By the time of the American Revolution, via the preaching of pastors influenced by Calvin, it had become common place to believe that any democracy fundamentally rests on the virtue and morality of the citizens of the nation. Once again, contemporary Americans might ponder this insight.

^[5] I have written elsewhere of the what might be called, “Just War Pacifism,” which I find in other religious traditions, for example Taoism. The idea, which Calvin seems to accept is that, while war is a permanent feature of human experience, it is also an evil to be avoided if at all possible. See, G. Christopher Scruggs, Centered Living/Centered Leading: The Way of Light and Love rev. ed. (Cordova, TN: Booksurge, 2016).

Last week, I posted a blog on humility in leadership. This week, I want to explore another area of leadership–what modern physics might teach us. One of factors that underlies the struggles we face in many areas, including leadership, discipleship, and government has to do with the fundamental outlooks on reality that sit behind many of our social and institutional problems.

From Machine to Organism

What is sometimes called the Newtonian world view encourages a view of the world and human beings as essentially machines. There is force and there is matter. Originally, the founders of this world view placed God, in whom they believed, in the position of a Transcendental Watch Maker. God designed the watch. Then, God built the watch. God then left the watch to run itself. Famously, one of the proponents of the world view indicated that if he could no the position of every particle in the universe and the forces on it, the future could be mathematically calculated. No one believes this is true any more.

A Quantum world view encourages us to the the world as more like an organism than a machine. At a fundamental level, the world does not seem to consist of matter and energy. Matter is a form of energy. Even more mysteriously, fundamental particles seem to be ripples on a quantum field. There is both freedom and uncertainty in the emerging world view on both a fundamental level (quantum uncertainty) and everyday level (chaos theory).

Like and organism, the world is constantly changing and evolving: In other words, it is not at all like a watch that is designed once and for all,  built and then runs until it breaks. Instead the world  is constantly evolving in a creative process.

God, on this view, is no distant Divine Architect. God is a loving and wise participant in the ongoing process of an evolving universe. We are not fixed and determined creatures either. Human beings and human society are constantly changing over the course of our lives.

From Determinism to Freedom

As mentioned earlier, the world of Newton was a material world held together by forces. While the everyday world we observe and inhabit does have these kinds of qualities, and the impact of power and force cannot be underestimated in human organizations, underneath this world is a vast world of potentiality and freedom. It is also not “material” in any sense of the word. There is both freedom and order built into the universe. The world, human beings, and human organizations are characterized by both a level of determinism and of freedom. (Or, as I like to put it, I cannot be a professional basketball player, but I can get into shape and play a reasonable game of golf!). We do not have complete freedom in how to organize our lives or our social systems, but we do have freedom.

In addition, this freedom and immateriality that characterizes the subatomic world also characterizes our minds, which seem to operate something like a “quantum computer.” Moreover, the laws of mathematics and physics encourage us to understand that their is “noetic” world of mathematics and physical laws that exist outside of our minds and can be discovered and used by human beings. It is only a short jump from this notion to the notion that the world somehow prefers beauty, truth, goodness, justice and love. We live in a world that has ideal, moral, aesthetic, and ethical potential just as we live in a world with physical potential.

Application to Leadership

I have only a cursory understanding of quantum physics and of the other matters that I have briefly described above, but as a pastor and leader, I have tried to read some of the literature and adapt my teaching and leading to what a lay-person, with no real technical understanding can learn from those with such talents who write for lay-persons.

One night alone in my office pondering a particularly difficult and unpleasant decision, I wrote down the following as a way of guiding my thoughts:

1. Every leader of an existing organization inherits the organization in an “initial state.” That initial state is comprised of every decision and action taken in the history of that organization and the complex organization that has emerged from that past. The entire past of an organization, the actualized facts of its prior existence, both create opportunities and limitations. Wise leaders do not make decisions or take actions radically unconnected to the past history and tradition of the organization. This is the “Principle of Evolutionary Historicity.”
2. Past actions and decisions have consequences and provide both opportunities and restrictions on the future, and therefore, on what kind of decisions can or should be made. A wise leader attempts to understand as much of the past as possible, and especially that past which directly or indirectly opens up or limits the potential future. Even in a new organization, there are limits on the future and on the decisions and actions leaders can prudently  take. Humble and wise leaders do not attempt the impossible.  This is the “Principle of Organizational Opportunities and Limits.”
3. A leader’s decisions or actions are not the only factors controlling the future of an organization. Organizations exist within a complex and interrelated political, social, and economic environment. All decisions and actions by all of the participants in any such complex system impact the future state of an organization or the impact  of an action. The decisions of others in the organization, leaders of related organizations, and a multitude of others can and will impact the future. These factors often dictate the most prudent future route for the organization, and counsel against radical action. This is the “Principle of Opportunities and Limits.”
4. The future state of an organization involves chance (multiple possible futures and unforeseen events), necessity (those things that are structurally certain or nearly certain to happen), and the relational wholeness the leader intends to achieve (the goal of the leader). Because trhe future is and will be impacted by events over which a leader and organization have little or no control, things over which leaders have control, and the quality of our intentions and actions, there is always uncertainty in decision-making. This is the “Principle of Determinacy and Indeterminacy.”
5. The potential for organizational wholeness and health is the area in which leaders can make the biggest impact in the organizations they lead. Good leaders inject wisdom, self-giving love (Agape), and peace (Shalom) into the organizations they lead. This is the “Principle of Positive Energy.”  There is a reverse possibility. Leaders that do not care for all participants and act unwisely and unlovingly, causing conflict and chaos inject negative energy into the organization causing decline This is the “Principle of Negative Energy.”
6. Almost inevitably there are many potential outcomes to a decision or action (i.e., more than one potential future state of the organization). Seldom is there only one positive final state. Often there are many potential positive and negative outcomes. A good leader evaluates as many potential outcomes as possible before choosing a course of action. Of all possible outcomes, good leaders choose that outcome that has the greatest potential to maximize the adaptation of the organization to its environment over the relevant time period. This is the “Principle of Realistic Maximization.”
7. As indicated above, good leaders inject positive energy (physical, mental, emotional, moral, and spiritual) into an organization as they make decisions, deploy resources, and guide the organization into the future. Positive energy is injected by the decisions made among available options, the character of the leader, and the actions taken. Wise leaders love the organization they lead, care deeply about all the persons and stakeholders of the organization, and wisely seek to see that the health of the organization as a whole is enhanced by any decision or action. Bad leaders can inject negative energy into the organization, which always results in future problems. IN making choices, good leaders choose to encourage factors that are positive for the group. This might be called the “Principle of Leadership Energy Prehension.” [1]
8. Good leaders also identify and reject negative factors within and without the organization in making decisions. What is rejected as a potential action, decision, or future is just as important as what is decided and done. One duty of a leader is to minimize future negative factors in making any decision. This might be called the “Principle of Negative Leadership Prehension.”
9. Because each new state of an organization will ultimately degenerate, leaders must constantly inject positive energy, in the form of wise and loving actions and decisions, into the organization in order to prevent decay. This means that leaders must maintain their own level of positive energy, and place limitations on their activities in order to assure that they can continue to function positively. Wise leaders retire from leadership when they can no longer do this. This is the “Principle of Positive Energy Reserve and Limits.”
10. In order to function positively, leaders need to learn to meditate about problems bringing into consciousness as many of the decisions, facts, relationships, personalities, historic traditions, past actions, systematic responses, and other factors in the organization’s history as possible. One technique is to create a “Mental Matrix” of all the people, organizations, and social systems impacted by a decision or action to. Be taken and the likely response of other actors to the decision or action. This is the “Principle of Meditative Matrix Decision-making.”

Why Think About This?

At the very beginning of the series of blogs I have been writing on political philosophy and theology, I quoted a physicist on the proposition that many if not most people in positions of authority in the church, in private organizations, in government, and in business hold to an outdated world view that underestimates the inter-relatedness of things and the impact of human decisions. He ends saying,

As a consequence of this widely disseminated misinformation, “well informed” officials, administrators, legislators, judges, educators, and medical professionals who guide the development of our society are encouraged to shape our lives in ways predicated on known-to-be-false premises about “nature and nature’s laws”. [2]

I am convinced that the author is correct in these views. In this blog I have tried to seek a means by which leaders can productively use the insights of postmodern science to improve  decision- making and encourage leaders to a better form of decision-making. In the political sphere, which I have been examining recently, leaders need to adopt a strategy for leading our nation that avoids both the polarization and materialistic bias of many current leaders and policies. A more humble, historically and systematic sensitivity would go a long way towards improving both our political climate and the quality of decision-making by our leaders.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] I have used the term “prehension” from the philosophy of Alfred North Whitehead instead of “decoherence” which is he actual term for the creation of a final state of a quantum system. My reason has to do with clarity. Whitehead uses the term “prehension” for the way in which an actual occasion incorporates or rejects potential influences in the emergence of an occasion. I think this is clearer. See, A. N. Whitehead, Process and Reality (New York, NY: Free Press, 1978).

[2] Henry P. Stapp, “Whitehead, James, and the Ontology of Quantum Theory” Mind & Matter Vol. 5(1) (2007 imprint), at 85.

 

 

The blogs for the prior two weeks covered the thinking of John Locke as found in his “Two Treatises on Government”. [1] This week, I am covering his “A Letter Concerning Toleration”. [2] As previously mentioned, both of these contributions to political thought were published after the Glorious Revolution (1688), which brought William, Prince of Orange and his wife, Mary, to the throne in place of James II. The Glorious Revolution marked an end to a period of English political instability, characterized by conflict as Protestants and Catholics vied for power. Most scholars believe A Letter Concerning Toleration was initially composed around 1685, just before the deposing of James II, while Locke was in exile in Holland.

Locke’s thinking is critical for understanding the creation of American political institutions and the emergence of the American ideal of religious liberty. The American Revolution was deeply impacted by his thought and by the European experience of religious persecution and conflict, an experience that formed English and European history. The founders were well aware of the history involved and of the conclusions of the deepest thinkers concerning these problems, chief among which was John Locke.

Prior to the Reformation, Europe was Christian, and Western Europe was Roman Catholic. The early division between the Eastern and Western Churches, had little impact on Europe. In England, the Roman Church and its rites were dominant after the year 1000 or so. Beginning around 1500, this dominance was shattered. Western Europe was divided into Catholics and Protestants. Protestants were divided between Lutherans, Zwinglians, Calvinists, Unitarians, Trinitarians, Anabaptists, and other sects. Not only was there conflict between Protestants and Catholics, there was conflict among the doctrines and practices of many emerging Christian sects. Eventually, Europe was involved in devastating religious conflict.  In England, there was strife between Catholic and Protestant parties, and after Henry VIII declared himself head of the Church of England, there was strife between the established Church and various sects that split away from the Church of England. All over Western Europe, intellectuals were appalled by the violence and bloodshed that resulted from these conflicts.

The Two Spheres

Fundamentally, in A Letter Concerning Toleration, Locke argues that the Church (and by implication all religious institutions) and the State (and by implication all of the institutions of civil government) are two separate types social institutions, with different goals and purposes. Religious institutions are concerned with the ultimate meaning of life, personal salvation, and the worship or lack of worship, of a God. Civil government is concerned with the right ordering of a society to protect persons and property. While these two social powers have some interaction, as to the use of civil power to establish or control religious thought, Locke believes it is not appropriate for the state to interfere with religious affairs or for religious groups to use, or attempt to use, force, legal or otherwise, in achieving their aims. This insight finds its way into the American Constitution in the form of the First Amendment, with its protection of religious liberty.

Limitations on State Power to Establish a Particular Religion

As mentioned earlier, by Locke’s day England had experienced a degree of religious conflict that sometimes worked to deprive some persons of life and property. Initially, Henry VIII separated from the Roman Church and used the power of the state to restrict Roman Catholic influence. When Charles I, a Catholic, ascended to the throne, there was conflict that resulted in the Cromwellian Revolution and the ultimate execution of Charles. When Charles II was restored to the throne, conflict reemerged and only finally terminated with the Glorious Revolution that assured the dominance of the Protestant Church in England. This conflict, however, was not the end of the matter, for the emergence of various “free church sects” and theological divisions within the Church of England meant that the Church of England was tempted to use its political influence as the established church to eliminate what it considered heretical ideas. In Scotland, there was always opposition to repeated attempts to institute an episcopal form of government and to interfere with their Presbyterian forms.

In response to these problems, Locke argued that it is not appropriate for the power of the state to be used to establish or enforce private religious beliefs. Civil government is established for the protection of persons and property, so that individuals can pursue their private interests in peace. Civil government is formed to deal with the external, physical things of life not sacred aspects of life.  Thus, Locke says:

The commonwealth seems to me to be a society of men constituted only for the procuring, preserving, and advancing of their own civil interests, Civil interests I call life, liberty, health, and indolency of body; and the possessions of outward things, such as money, lands, houses, furniture and the like. It is the duty of the civil magistrate, by the impartial execution of equal laws, to secure unto all people in general and to each one of his subjects in particular the just possession of those things belonging to this life. [3]

Here we have a principle that limits the power of the state in matters of religion: In contemporary terms, the state has to do with secular things, with the regulation of civil life for the benefit of a society. The protection of life and property, the defense of persons against aggression, foreign and domestic, and equal protection of non-discriminatory laws are the duties of civil government. As a corollary to this limitation, civil government should not interfere with the private religious beliefs of persons or groups.

In Locke’s terms, responsibility for the cure of souls is not given to secular civil government.[4]  According to Locke, this is true because:

1. Such power over the human was never given by God to civil authorities;
2. The only power that the state possesses is exterior, physical force (the power of law and the sword), which is not effective to create true, effectual, inward, private belief; and
3. The powers and penalties of the civil estate cannot, for these reasons save human souls or advance any true form of religion.

As is often true with Locke, these arguments combine a Christian theological and a secular philosophical set of arguments.

The Religious Duty of Toleration

Religious groups are (or at least should be) private, voluntary societies formed for the worship of God. Thus, Locke states:

A Church, then, I take to be a voluntary society of men, joining themselves together of their own accord for the public worship of God in such manner as they judge acceptable to him, and effectual for the salvation of their souls. I say it is a free and voluntary society. [5]

The importance of the word “voluntary should not be overlooked. Throughout human history very few people considered religion “voluntary. Parents, local chieftains, kings, and emperors normally regulated religions within their boundaries. With few exceptions, the choice of the dominant religion was that of the ruler, and only in a few cases did these rulers feel that religious toleration was necessary or desirable. Locke’s view is, therefore, revolutionary. Religion should be a matter of private choice.

There are important implications of this notion of the church as a private, voluntary society formed by human beings for their own private religious edification:

1. Just as the state should not abuse its civil power to establish (or de-establish) a religion, no religious group should seek to use civil power to promote the primacy or rights of their group.
2. Because there will always be differences of opinion among various religious groups and sub-groups concerning matters of worship, faith, and practice, no religious group should be able to use the power of the state to assure their victory in such matters nor should the state interfere with matters of worship or belief.
3. People, therefore, must be free of state interference to choose for themselves which group to belong to and what religious views to hold. [6]

Just as the state must refrain from interfering with religious groups by the use of civil power, so also religious groups should tolerate other groups and refrain from attempting to use civil power to forward their religious group. The powers of religious groups are purely private and ecclesiastical and do not include any resort to civil power.

This duty of toleration goes beyond mere passive tolerance.  Locke believes that religious groups have a positive duty of toleration of other groups and of restraint from seeking to harness state power to secure their beliefs. This is true for the following reasons:

1. No church is bound to retain any person within its society who does not believe and adopt its beliefs and practices and so has no need for civil power to maintain its own beliefs and practices. In addition, no private person has any right to complain of another person’s or group’s faith or practice. This extends to pagans and persons of different religions. In other words, religion is a private matter.
2. Different religious groups should tolerate each other just as they are tolerated. Thus, Locke says, “… peace, equity, and friendship are always to be observed by particular churches in the same manner as private persons, without any pretense of superiority or jurisdiction over one another.” [7] This kind of forbearance is difficult to achieve because all religious groups conceive that their doctrine and practices are correct. In Christian terms, there is a natural tendency for each group to consider themselves orthodox and others in some way heretical. The only way to maintain social peace in his kind of situation is to deprive any group of the power and opportunity to persecute any other group. Where there is no such power, the virtue of toleration will be present. [8] This is the genesis and genius of American freedom of religion.
3. Finally, in what I think is the finest passage of A Letter Concerning Toleration, Locke concludes that religious leaders have a positive duty and obligation not just to maintain toleration but to preach and work for toleration:

It is not enough that ecclesiastical men abstain from violence and rapine and all manner of persecution. He that pretends to be a successor of the apostles, and takes upon him the office of teaching, is obligated to admonish his hearers of the duties of peace and goodwill towards all men, as well as towards the erroneous as the orthodox: towards those that differ with them in faith and worship as well as towards those that agree with them therein. [9]

Locke concludes this argument warning religious leaders that they will be held accountable by the Prince of Peace for their words and actions in this area of toleration.

The Civil Duty of Toleration

When Locke says that civil authorities are not to interfere with religion, he does not mean that there are no civil duties with respect to toleration. Civil authorities are to work from a recognition that their powers and duties are purely civil in nature, given to them for the sole purpose of creating social peace and providing for the general welfare. This has implications for the conduct of public affairs:

1. Civil magistrates should not interfere with religious worship and belief and should resist any attempt by religious groups to secure advantages due to a partnership with public powers. Civil wisdom gives government no insight into religious faith or its proper forms, and therefore civil authorities are incompetent to make such decisions.
2. Civil authorities cannot and should not interfere with religious matters under the guise of supporting the decisions of religious authorities as to religious matters, since such authorities sometimes err and are, in any case, often self-seeking.
3. Finally, and back to a constant argument Locke makes: force is not an appropriate way to decide private matters of conscience. Even if the magistrate is correct in his or her judgement, even if the ecclesiastical authority upon which the magistrate bases his or her action is correct, force is not an appropriate way to resolve matters of private conscience. [10]

While civil authorities should not become involved in either external forms of worship or internal matters of belief, they do have continuing functions that impact religious matters and may and do restrain religious activity:

1. Civil authorities may make laws that prohibit certain otherwise religious activities. For example, if a group wished to institute child sacrifice as a private religious rite, authorities prohibit such behavior generally and may continue to do so, even if a religious group is impacted. This restriction has been important in areas such as bigamy and the use of illegal drugs in worship.
2. Civil authorities may make laws to protect society that indirectly impact religious groups. Most recently, for example, states have restricted religious groups as well as secular groups in the ways they can meet as a result of Covid19. [11]
3. In the exercise of its rights and duties to protect and promote the public welfare, however, the state must be diligent not to unduly or subversively interfere with the rights of religious groups to worship. [12] Thus, laws and policies designed to harm worship should be avoided. Recent decisions by some states to open up bars and other places of entertainment but cause churches to remain closed are good examples of violations of this restriction.
4. Finally, the protections of religious toleration have limitations for Locke, some of which we would not consider valid today. Atheists and those who would under the guise of religious freedom secure religious domination are not protected or would be religious groups formed for the purposes of overthrowing the state or preventing the state from achieving the purposes for which a commonwealth is formed—the protection of persons and property.

Conclusion

As has often been the case with these blogs, the complexity of Locke’s A Letter Concerning Toleration and its importance for American democracy goes beyond the power of a short summary like this one. It requires some thought to adjust some of Locke’s thinking to a religiously plural society such as ours. It takes a willingness to recognize that secularism is itself a kind of religion and it must abide by the same restrictions as do Christians, Jews, Muslims, Hindu’s, and others in the advancement of their “religious” views. Nevertheless, A Letter Concerning Toleration remains a fundamental document of both interest and learning when it comes to understanding the past, present, and most desirable future of American thought.

One of the reasons that I began this series of blogs was to defend the role of religion in American public life. This endeavor requires an understanding of both the opportunities and limitations on religious groups, and importantly the duty of tolerance among religious groups, including groups that deny the importance and validity of religious faith and practice. This is the first stop in a long journey in the development of a way of defending religious toleration in contemporary society.

A clue to the way in which the argument may unfold is the role of what I have called “political love” in public life. Toleration is a fundamentally negative concept, meaning that toleration allows without wishing the best for those of other beliefs. The Christian view, taking love as the fundamental character of God that believers are to emulate requires of Christians not just toleration but positive love for those who faith and practices differ from ours.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] John Locke, Two Treatises of Government Revised Critical Ed. (New York, NY: Mentor Press/Cambridge Press, 1960, 1963), 376.

[2] John Locke, A Letter Concerning Toleration tr. William Popple (1689, republished 2014). All quotations are from this edition.

[3] Id, at 8.

[4] Id.

[5] Id, at 11. I have taken liberty with this quotation to clarify the grammar for the modern reader, it goes without saying that this insight of Locke is monumental and undercuts any kind of state-established religion.

[6] I have summarized arguments Loke makes throughout A Letter Concerning Toleration. See for example, Locke, at 8-19, 42.

[7] Id, at 17.

[8] Id, at 19.

[9] Id, at 21.

[10] Id, at 25-29.

[11] Id, 30-36.

[12] Id, at 36.

There is no notion more fundamental to American constitutionalism than the notion of a “Social Compact,” and there is no thinker more fundamental to the American notion than John Locke. The ideal of a Social Compact as fundamental to human society has, as we saw, roots in Greco-Roman thinking. It also has roots in Judeo-Christian thinking as well, for the people of Israel believed that their very existence as a nation depended upon a “Covenant” made by them with God at Mount Sinai, wherein they had promised loyalty and faithfulness to God, and God had adopted them as his people and promised them a land of their own. This notion of “Covenant” as fundamental to the people of God was picked up by the Reformers, and an entire theology of Covenant was developed, especially in England. [1] In any case, Locke almost certainly knew of this movement, and his political thought is infused with references to Christian themes and Biblical insight, of which the covenant of God with the People of Israel is one. [2] Hobbes and Locke develop the religious idea of a people formed by covenant into the secular notion of a people formed by compact.

What is a Social Compact?

For Locke, a government is formed when a group of human beings, by mutual consent, form together a government which binds them together as a political society and obligates them to submit to the legitimate rule of the society. [3] As mentioned last week, for Hobbes, Locke, and their intellectual followers, governments are formed by essentially free and “governmentless” individuals who are in a “State of Nature,” out of which the covenant to come and form a common government.  This consent can be either tacit, by in fact submitting to and receiving the benefits of the government so formed, or actual, by formal agreement to the government so formed. Locke does not think that this consent needs to be of all the members of the society, but only by the majority of those forming the society. [4] Once formed, such a government is binding until properly altered.

I have previously noted my problems with the idea of a “state of nature,” which in the work of contemporary thinkers, like Rawls, becomes an “original state.” In Rawls this original state has become a purely hypothetical state, once again a conceptual device unsupported by history but necessary to continue one particular theory of democracy. In my view, a more evolutionary, process-oriented defense of the notion of a “Social Compact” is both necessary and possible.

Locke’s Response to Human History

Last week, I mentioned that the most common defect noted in Locke’s theory was the absence of historical evidence. Locke is aware of this argument and gives much attention to responding to this criticism. His first response is that due to the absence of historical information about the earliest state of human nature and the formation of human society, it is not surprising that we have no such evidence. He then gives supposed examples from history, including examples purportedly existing in America among the American Indians. Locke knew of the American Indian tribes, and new of the arguments that they existed in a “state of nature,” lacking the supposed civilization of Europe. [5] We know better that the Indians of North and South America had well-developed societies including both tribal and monarchical forms. In retrospect, this argument looks almost chauvinistic.

This is not the only argument Locke makes from history. He also uses the formation of the Spartan government as an example. [6] Once again, in Locke’s day this particular appeal to history might have force, but the long history of the Greek city states and the gradual evolution of each of their system of government is known to us; and, there was not, in fact, a time when they were without governments as far back into human history as we can look. To the extent that Athens or Sparta give examples of a “Social Compact,” that social compact was a matter of gradual evolution of their institutions and not an act of a people leaving a “State of Nature” by social agreement.

These arguments, which might have had some force in Locke’s day, have been substantially eroded by historical and archeological evidence of the existence of human societies around the world far into prehistory, and such evidence as we have supports the claim that human beings have always been organized into political communities. This would come as no surprise to Locke, for he understands that human beings are social by nature, and that sociability would have always drawn them into some form of society.

It is important to recognize that Locke wrote before Darwin and the gradual growth of understanding of human beings and human societies as resulting from a long process of evolution from more primitive to more advanced forms. The progress of human society from the ancient world, to the Greco-Roman World, to the Medieval World, to the Modern World, and now the slowly evolving Post-Modern World, reflects a slow evolving of institutions having long periods of gestation in human history. This evolutionary approach has the benefit of “fitting the facts” of human history and making sense of why it is the nascent ideas, such as the ideas of republican democracy were invented, fell into dormancy, were resurrected, and became driving forces in the Modern era.

Locke’s Appeal to Reason

In the end, Locke makes an appeal to reason to justify his theory of social compact, but as we shall see, in so doing, he makes a case for another and more “scientific” approach to social compact theory. Here is how he begins his second analysis:

“But to conclude, Reason being plainly on our side that Men are naturally free, and the Examples of History showing that the Governments of the World that were begun in Peace, had their beginning laid on the foundation of the Consent of the People; there can be little room for doubt, either where the right is, or what has been the Practice of Mankind, about the first erecting of Governments.” [7]

Locke goes on to affirm that as far back as one can look in history, the most common form of government is the rule of a single individual. [8] This rule of a single individual has its roots in both the family and the long tradition of parental authority and in the practical impulse of the need for unified command in times of danger. Locke concludes this section with an observation that is important. Locke concluded that whether societies were formed out of families by gradual evolution, with each generation tacitly approving of the leadership, or in response to the need for a military leader, in each case the government existed to promote the public good. [9]

If I were to rephrase Locke, my conclusion would look something like this:

But to conclude, an analysis of history shows that human society gradually evolved out of the human family, to small family groups, to tribal groups, to small urban societies, and by a slow process to the enormous societies that populate the world today. History shows that this history involves an historic preference for the rule of one or a few, but the gradual emergence of democracies patterned in some fashion after Greek Athens and Rome. At most the earliest governments were formed by tacit consent, but the preference gradually arose for larger political groupings for this consent to in some way be actual. Today, even dictators find it necessary to give their regimes legitimacy by holding periodic elections, even if they are hardly free, open, or honest.

This analysis fits the facts that Locke presents and the facts of history as we understand it.

What one can say is that in the West, where the Christian notion of the individual being made in the image of God was strong, the notion that every person had value, and there existed an historic notion of the creation of societies by compact (or covenant), there gradually evolved in the Reformation, Renaissance, and Modern era a strong feeling that societies should be organized around the consent of the people governed.

Locke’s Notion of Governmental Limitations

Unlike Hobbes, who sees no limitations to the rights and powers of a sovereign, Locke is no totalitarian. From the very beginning, Locke believes that “no body was ever instituted … but for the public Good and Safety….” [10] Locke recovers the classic notion that political bodies are formed for the public good, to achieve public human ends, and have no other purpose for existence. As such, there are and ought to be limitations on the power of the state.

Locke’s notion of the limitations of government and its duties gives some clues as to when its dissolution might be justified. For Locke, one of the chief duties of government is the protection of Life, Liberty, and Property. When a government no longer protects the lives of its citizens, their freedoms to earn a living and conduct their lives with as much freedom as possible, and what property they have required, it has ceased to perform the functions for which it was formed and gives it legitimacy.

Locke believes that the right to property is fundamental to human society. In the beginning every man has property in his own person. [11] Governments are responsible to protect that property we have in our own life and being. As human beings labor and create, they have a right to the property that they have created, whether it be physical or intellectual. [12] No government can be legitimate which does not protect the life and property of its citizens.

Locke’s Notion of Constitutional Government

Locke advocates a separation of powers. In particular, Locke believes that there needs to be an independent and supreme legislative power. This is the fundamental characteristic of every commonwealth.  [13] In the end, for Locke, the people rule and the Social Compact is fundamentally executed by the legislative power.

Unlike Hobbes, Locke understands that it is not desirable for one facet of government to dominate without checks and balances. [14] The state needs a strong executive, especially to deal with international conflict. The executive must have the power necessary to protect the common good. [15] This is true because legislatures cannot foresee all the possible dangers to society. [16] Locke, like contemporary theorists, believes that the Executive power must have such prerogative power as enables it to react to unforeseen dangers.

This power of prerogative is both necessary and dangerous, as recent American history reveals. The great expansion of the Administrative state during the last century, the creation and existence of secret agencies designed to protect the people against terror and other foes raise issues of judgement that must be faced.

The Dissolution of the State

It might be noted that Locke lived through a turbulent period of English history. The memory of the revolutions of recent years, culminating in the Glorious Revolution discussed in the last blog, was recent and vivid. He had lived to see established governments replaced, and new that there was no necessary finality in governments. Governments that no longer were instruments of the public good and public safety were to be replaced.

Locke understands that to say that governments are formed by consent, actual or tacit, involves the potential for their dissolution. In speaking of the dissolution of governments, he sets out a distinction that I believe is important for American society today: a distinction between societies and polities. Societies are the product of human culture through generations. Thus, there is an American society that could survive the end of American democracy. There is a Chinese society that could survive the end of the current regime. There is a European society that could survive the dissolution of the European Union. However, the reverse is not true. Political organizations evolve out of a given society, and the dissolution of that society, with its given social mores and values, necessitates the dissolution of a government. “…where the Society is dissolved, the Government cannot remain, that belongs to the impossible….” [17] This is an important idea to get firmly fixed in our minds: Where a society dissolves, the government of that society cannot remain. This is not to say that the existing government will not fight to remain-it will. But, the fight is doomed over the years, because the foundation upon which the government was formed and rests no longer exists. In the end, the people are the judge of whether the Social Compact has been broken and a change in government is necessary.

Conclusion

The condition of American culture gives reason to ponder deeply the ideas of Locke. English democracy evolved out of the fertile ground of English society, including the religious presuppositions. We live in a world much different than that of Locke, or the Founders of our nation. This requires a consideration of the need to solidify the social bonds of our society and moderate its dissolution in endless political conflict. It also gives us reason to ponder how to overcome the inequalities of our society and to see that all Americans have the benefits of the creation and ownership of the results of their labor.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] See, Donald S. Lutz, The Origins of American Constitutionalism (Baton Rouge, LA:  Louisiana State U Press, 1988), 43 and Lynn D. Wardle, “The Constitution as Covenant” (BYU Studies copyright 1987), downloaded February 7, 2021, https://byustudies.byu.edu/article/the-constitution-as-covenant/

[2] See, Nathan Guy, Finding Locke’s God: The Theological Basis of John Locke’s Political Thought

(London, ENG: Bloomsbury Press, 2020).

[3] [3] John Locke, Two Treatises of Government Revised Critical Ed. (New York, NY: Mentor Press/Cambridge Press, 1960, 1963), 376. All quotations are from this edition.

[4] Id, at 376.

[5] Id, at 379.

[6] Id, at 379.

[7] Id, at 380.

[8] Id, 380-386.

[9] Id, at 386.

[10] Id, at 386.

[11] Id, at 328.

[12] Id, at 329-331.

[13] Id, at 401.

[14] Id, at 403.

[15] Id, at 424-425.

[16] Id.

[17] Id, at 455.