Reason, not Will

     Ladies and gentlemen: I've just been to an excellent talk by Russell Hittinger, professor of Catholic Studies at the University of Tulsa.  Hittinger's principal area of scholarship is the natural law, as formulated by Thomas Aquinas, and then as it shows up in subsequent theories of government in the west.  According to Thomas, human law is not merely punitive.  It is not a function of the will, whereby the executive enforces order.  It is, rather, our creative and deliberative way of applying the natural law, which is of divine origin, to ourselves, in our place and time.  In our crafting of just laws God allows us to participate in his providential governance of the world.  But that means that law cannot be simply a function of will.  It is a function of right reason, ordering ourselves and our means to the common good -- and that "common good" is not, as the utilitarians made it out to be, the sum total of individual goods, but something that embraces the individuals and their good, while transcending them.  Better still, following Aristotle, Thomas argues that individuals come to their fulfillment as individuals only in the context of this greater, common good.

     Now if Thomas is right, a few corollaries follow.  These might provide for some vigorous discussion:

     1. Voting is a mechanism for securing justice, and the common good.  As such, it should be evaluated as any other mechanism would be.  It is not in itself an object of justice.  It could only be thought so, if law were the expression of will -- for then, to deny to a people the ability to vote would be to deny them the expression of their wills.  But if law is a function of right reason, the vote as such is neither here nor there.  There may be all kinds of ways in which a community may deliberate effectively, and come to a decision regarding what course of action to take.

     2. The justice of a law depends upon its promotion of the common good.  Now the common good, if it is an order embracing all the individuals within it, is not the same thing as a good parceled out.  Consider the analogy of a family.  The little baby in that family does not diminish the amount of love the other children receive from the parents.  Rather, the baby adds a new way in which the parents will love the other children: as the brothers and sisters of this unique child.  The order of the family is made greater and more complex.  The common good is like that; it transcends the compromises made necessary by a fixed amount of goods to be shared (and envied).  The greater the number of souls embraced by the common good, the greater the good.  For we enjoy not only our share in the good, but also the good itself as shared by everyone else.  Your enjoyment of the common good increases my enjoyment.

3. There is a sense in which, for the common good, genuine diversity, which results from genuine inequalities in talent, luck, wisdom, and so on, is better than flat sameness.  Again, the analogy of a family is apropos.  If we were actuated by charity and not envy, would we expect the impossible (and even the undesirable) from our parents, that they should love each of us children the same?  John was the beloved disciple of Jesus -- was that an offense to Peter?  Or does a sense of the common good welcome that difference?

I could add a few more corollaries, but these might be enough for now ....

Comments

[Ethan C.]

As to number 1, the fixation on voting is an error that seems common here in America, and unique to no party or constituency. I think Tony is right that it is an error that descends from the confusion of law with will.

This fixation is rendered ironic by the structure of American lawmaking, in which the vast majority of issues are decided without direct appeal to the "will of the people" through voting. One might even say that the act of voting for representatives, rather than expressing the popular will, instead by its nature effects the removal of one's will from the lawmaking process. By voting someone into office, I have voted myself out of it.

It seems to me that the only form of government that could reasonably claim to embody popular will in its laws (not merely to correspond with it, but to embody it) would be a total direct democracy. Fortunately, most people at all times and places have recognized that such a government would be an impossibility--or, if possible, a monstrosity. Even the theorists of law-as-will do not generally advocate such a thing.

All this to say: people are usually a lot smarter when they're actually doing government than when they're thinking about government.

[DGP]

>>Voting is a mechanism for securing justice, and the common good. As such, it should be evaluated as any other mechanism would be. It is not in itself an object of justice. It could only be thought so, if law were the expression of will -- for then, to deny to a people the ability to vote would be to deny them the expression of their wills. But if law is a function of right reason, the vote as such is neither here nor there. There may be all kinds of ways in which a community may deliberate effectively, and come to a decision regarding what course of action to take.

The other ways of deliberating, however, tend either (a) to presuppose an inequality among the deliberators, or (b) to reward the least reasonable, e.g. holdouts or brinksmen. The American political order requires voting because it long ago drew the inference that men have equal capacities for deliberation from the fact that they are created equal in dignity.

It was understood that man's capacity for deliberation would only become manifest as he was freed from Romish and similar "superstitions." As empirical evidence to the contrary has accumulated over the past century, a few die-hards launched ever more feverish denunciations of religion in the public arena. They seem increasingly implausible, but their commitment to an underlying rational equality in man affords them the illusion that legislation derived (directly or indirectly) by vote is the only just form of governance.

At the other end of the philosophical spectrum, a few reconsider the presuppositions related to human equality. They speculate that some kind of aristocracy, meritocracy, or bureaucracy (e.g., government by judicial fiat) may prove to be more rational than government derived from popular election. This approach -- at least in so far as it might accommodate gradients in ability, reason, virtue, and responsibility -- is probably more consistent with biblical and Catholic sensibilities, but no one has yet developed a practical way to implement this in the post-Enlightenment world.

The Catholic Church in recent centuries has alternated between an absolute vicariate and a caretaker aristocracy. It seems to be working at least as well as any other government. Perhaps, of course, this is due more to the grace of God than the governmental structure. Or perhaps it is the increasingly voluntaristic notion of ecclesial affiliation that pressures RC leaders into decent behavior -- a circumstance not easily transferable to monarchies or aristocracies among nations where citizenship is mandatory.

Most, however, long ago despaired of rational government -- by vote, or otherwise.

[Judy K. Warner]

Too many people rely on the structure of democracy, when our very Founding Fathers made frequent references to God's hand in our nation's founding, making it clear that our system of government would not work in the absence of virtue among the citizens. As our system becomes more dysfunctional, there is increasing emphasis on the structures -- the dates of primaries, the scheduling of debates, the laws about campaign spending -- and less and less talk of the character of citizens needed to make the system successful. In the absence of virtue there can be no good system of government, because those in power by whatever means will not be any more virtuous than the citizens or subjects.

[Judy K. Warner]

I must add, though, that our Founding Fathers understood more than most the need for a structure of government that would operate satisfactorily in the absence of virtue. They expected power to corrupt and so limited the power that any one person in government could wield. They did not foresee (or did they?) that politicians would be able, over the years, to change the structure of government so that now the legislature and the courts are able to rule over almost any area of life they please to, without regard to what the Constitution says, and most of the laws and many of the decisions they make are bad ones. Those rare people in office who are virtuous are unable to have much effect on this problem. Only in the Supreme Court can individual character have a real effect. Even the president is limited.

[Clark Coleman]

At one time, a conservative was one who understood that government was intended to promote the common good through a natural order that slowly evolved within a particular culture, aided by right reason, as Mr. Esolen said in similar words. A liberal was one who thought the purpose of government was to maximize individual liberty, even if such a pursuit occasionally (or often) was destructive to these conservative goals.

Today, a "libertarian" is what a liberal used to be, while a "liberal" is what we used to call a leftist (maximizing equality of results rather than individual liberty), while a "conservative" is generally a confused mixture of liberalism and libertarianism who has numerous specific criticisms of the effects of liberalism and libertarianism. The "conservative" does not recognize that his haphazard mixture of liberalism and criticism of liberalism is incoherent and contradictory. In short, today's "conservative" does not realize that he is not a conservative.

Try this little experiment with anyone you think of as conservative, or who would describe himself as conservative: Ask him to agree or disagree with the proposition that the purpose of government is to protect and maximize individual liberty. My experience is that the majority of self-described "conservatives" will agree with this proposition; I was one for a couple of decades myself. Then ask that person why it is not a logical conclusion that government should allow polygamy, homosexual marriage, and other free acts by "consenting adults."

[Bill R]

Yesterday, the California Second District Appellate Court (alas, that is the Los Angeles area where I live) held that homeschooling by parents who do not hold a state-licensed teaching credential is not permitted by the California Constitution. This will have major repercussions throughout California (and, one would suppose, in the rest of the country). California has apparently determined that the rule of law will here be guided by wrong, not right, reason. The state is determined not only to ensure that our children are educated (a worthy goal), but also to ensure that the state approves of the content of that education.

[Bob]

Horrible news, Bill. I live in California, and I've been thinking about what we're going to do about our daughter's education when she's that age. I don't have more than an associate degree (did a year in an English program and then realized that literary theory is poison), but I'd wager I'm more intelligent and better educated than most of the robots turned out be our university mills. So--I haven't got a credential but I can't teach my child at home, even though I'd do a better job of teaching her than the rubber-stamped, cookie-cutter state teacher? Gee. . .there's no conspiracy to indoctrinate our children here. No way. . .

[Bob]

haha and a typo takes me down a notch! "by our university mills" not "be."

[Judy K. Warner]

Here come more refugees from California. Can this be appealed, Bill?

[Bill R]

"Can this be appealed, Bill?"

Most certainly. And it will be.

The father of the homeschooled child was quoted as saying that if the Supreme Court upholds this, he's leaving California. I can't blame him. But if this is a trend, he may have to move a lot.

[Ethan C.]

Missouri has good homeschooling laws. May I suggest emigration? :)

On the other hand, if certification really is so easy to get that any doofus can teach, why not just pony up for the degree, and then do as you please? It could, of course, be a first step to more draconian regulations, in which case it might be best to get out while the getting's good. Are there continuous education requirements to retain certification? If so, then my plan would fail. Time to move!

...or, if I may be cynical for a moment, change your name to something Hispanic-sounding and threaten to sue for discrimination if anyone tries to enforce the law. I'll call that one the "house divided" strategy. :)

[Bill R]

Ethan, I don't know all the requirements for certification, but I know it's not a simple process. My daughter is certified and teaches high school English, so I know it's a highly regulated and complex process in this state. Your average stay-at-home parent isn't going to be certified unless he or she is a former public or private school teacher.

[Philip]

Every act that deprives parents of the ability to educate their children as they see best is an offense against God and nature. It is an obstacle and makes parents responsible for a choice: to break the law or send their kids to school with the double-edged sword in their hearts and minds. In an oppresive country, one must learn to be, like God, perverse with the perverse.

This is why God gives men reason and free will. Those are also what democracy is instituted to respect, that people who can be held accountable to law are capable of judging the law. I think aristocratic and monarchical governments poison the well (of law) through the irrational choice of lawmakers, as the ability to make laws and the ability to obey laws are never mutually exclusive.