Christian civilization, church and state, common law, constitutionalism, culture, equality, freedom, law, natural rights, politics, revolution, rights, royal mechanism

What’s Different about America

America was born in the midst of a tumultuous period in European history, at a time when the entire social order was being shaken and transformed.

A fundamental shift took place in institutions, mores, ways of thinking. Europe shifted from divine right and divine revelation to human right and human reason.

It was a shift that characterized all aspects of culture and society, but was especially felt in law and politics. Europe went from an understanding of law based on divinely-given principles, issued both in the Bible and in nature, to principles derived from nature without regard for or appeal to any higher, even divine, authority. All was open to reason, and all needed to be confirmed by reason. Reason became the ultimate arbiter.

This is the main characteristic of the Age of the Enlightenment, stretching from the late 17th to the end of the 18th centuries.

In law, the basis shifted from divine right to natural rights. This came about in response to the wars of religion in the 16th and 17th centuries. The dismay and weariness prompted by these wars prompted a desire to establish society on a non-sectarian basis, beyond religion and its discontents. This meant that the appeal to divine law, and to a natural law expressive of divine law, had to be revised. A new appeal was made, this time to human nature as the standard and guideline for law. The result was natural rights.

The Dutchman Hugo Grotius pioneered this new approach. It hinged on reestablishing law and order on a shared, mutually acceptable basis, one on which all people of whatever creed might agree. This meant that value judgements needed to be set aside for the greater good, for value judgements are subjective and dependent upon faith commitment.

But what criterion of law did not entail value judgements?

To answer this, Grotius had recourse to the great Western moral and legal tradition and its doctrine of justice. In this tradition, there were two forms of justice that needed to be attended to. This understanding was a legacy of Aristotle. Hereby two forms of justice are delineated, not one; each of them entail different administrations. The one form of justice is called commutative, the other distributive.

Commutative justice focuses on things; distributive justice on persons. Commutative justice concerns the exchange of things and demands equality in the exchange, without regard to the parties to the exchange – rich or poor, male or female, farmer or city-dweller. Commutative justice is blind; the person is irrelevant; what is important is that the things involved in any transaction be equal. As such, commutative justice regulates property rights, contract rights, various forms of indebtedness.

Distributive justice, on the other hand, focuses precisely on the persons involved, attributes status, and determines merit based on status. Thus, in the family, different statuses accrue to fathers, to mothers, to children. In work situations, different statuses accrue to workers, management, and owners. Churches allocated different statuses in terms of office. Civil government has its own hierarchies of civil servants, politicians, police officers, members of the military, etc. each with their own rank, status, and entitlement.

What should be realized is that these two forms of justice function in terms of two different forms of association. Commutative justice functions in terms of equals who stand in contractual, hence ephemeral, relationship; distributive justice functions in terms of equals or unequals, who stand in a more enduring, less voluntary relationship. In other words, commutative justice functions outside of a group or between groups, while distributive justice functions within a group.

A further difference is the method of administration. Commutative justice functions in terms of mutual agreement between parties. If there is a dispute, it is adjudicated by a third party, the courts. Distributive justice functions in terms of the continual direction of a head, the group’s leadership, which establishes and maintains the relations between the members. As such, commutative justice is “bottom-up,” distributive justice “top-down.”

It should be apparent that these two forms of justice are quite different one from another. That means, among other things, that whenever we speak of justice, we need to understand which justice it is we are talking about.

Now then, back to Grotius. Grotius hit upon a solution to the conundrum of how to establish peace among the warring factions of Europe. His idea was to take commutative justice and turn it into a framework for establishing social order. Commutative justice would serve as the sole standard of civil law and political relation. Because it did not judge people, but only judged things or actions, it could serve as the standard beyond faith commitment. For its part, distributive justice would be relegated to the sphere of morality. It would not be used as a standard by which to administer civil justice, for it entailed value judgements, it discriminated between persons in terms of subjective criteria. Objectivity could be established without recourse to a higher law regarding right or wrong, simply by focusing on commutative justice and its elements – property, contract, pledge.

This was a revolutionary approach and it led to a new understanding of the social order. All of a sudden, the individual was understood to be the primary actor in society, apart from any allegiances or memberships. All that mattered was his action in terms of property, contract, pledge. As a result, the social order itself came to be seen as the result of contract, undertaken primarily for the preservation of property. John Locke is perhaps the best-known proponent of this understanding of the social order, which came to be known as the social contract.

Propitiously, while all this was happening, North America was being inhabited by colonists, many of whom were fleeing the strife and struggle of a continent torn by religious warfare. The new philosophy of the social contract came over in the same ships, and shaped the mentality of the colonists, so much so that it helped to justify a war of independence from the mother country. The Spirit of 1776 is precisely that of the rights of the individual within the framework of commutative justice. These were now formulated as the right to life, liberty, and the pursuit of happiness.

America is thus a product of this period of history, and the revolution by which it gained its independence stamped this indelibly into its character. In fact, its revolution sealed a divergence from Europe that became clear relatively quickly, when Europe underwent its own revolution, beginning in France.

The same philosophy of the rights of man served to justify the French Revolution, but the application turned out to be quite different. This was due to the divergent form of society. The same philosophy evolved into quite a different order, on the basis of widely divergent circumstances.

America inherited a tradition of liberty rooted in the English common law. Centuries of development of rights and liberties stamped the colonies and stamped the character of the American citizen. Add to this the independent character required to flourish in a frontier environment. This made for a creature of rugged individualism, used to providing for himself and jealous to defend the liberty involved in self-reliance, averse to interference from outside, especially from civil government. The American Revolution was all about defending this independence, and its expression in representative government, against the encroachments of ever-expanding British colonial administration. Americans were not out take anything from Britain; rather, they were insistent on preserving what they already had, and on guaranteeing the right to expand it, regardless of the interests of the mother country – and the merchants who were behind whose interests.

Things were quite different in Europe, in particular in France. There, the name of the game was privilege. Monarchies had prospered precisely by handing out privileges, which was a major source of income. The sale of offices was rampant, and the purchasers used those offices to exploit the commoners. The sale of titles engendered an inflation of statuses and etiquette, by which courtly manners trumped honesty and integrity. It also spawned all manner of resentment: one example is the exemption from taxation, regardless of how wealthy the privileged person was. As such, the tax burden fell on the least privileged, least connected members of society.

This plethora of privilege led to a society divided into groups with conflicting interests and conflicting goals. What held it together? The monarchy. It was the monarchy that dispensed the privileges and the monarchy which favored various groups, tipping the balance one way or another in accordance with its own agenda to maintain its own power. The historian Norbert Elias gave a detailed description of this situation. He called it the “royal mechanism” (see his book Power and Civility, I.VII).

This royal mechanism is what kept the king in power. By favoring now this group, now that, he could keep the various groups of society just enough at odds with one another that they could not combine to defeat him. There was the nobility of the sword (the ancient landed nobility), the nobility of the robe (the wealthy “bourgeoisie” of city and town), and the church, all of whom were decked out with privileges that separated them from each other and from the commoner.

At the same time, the monarchy developed a system of centralized administration which took over the functions that these privileged groups had once performed but were now absolved of. By assuming the administration of all public affairs, the monarchy created dependency upon its administration and eliminated the capacity for various groupings in society to manage their own affairs and cooperate with each other for the greater good. Everyone became dependent upon central government; everyone likewise developed a sense of entitlement of what to expect from central government.

The French Revolution, when it came, did not change this state of affairs; rather, it can be seen as its continuation. Centralized government was the legacy of the Old Regime; it was solidified in Napoleon’s Empire Français, and by this means it was exported to all the nations of Europe, excepting Great Britain.

As such, the mainspring of European political institutions diverged fundamentally from America’s. In America, the motive force was liberty; in Europe, as a reaction to the regime of privilege, it came to be equality.

These two are not correlative; indeed, they are not even compatible, not in the sense that they are intended in these political struggles. De Tocqueville pointed out this struggle among the French as they sought to establish their new regime on the ruins of the old. With regard to motive, “the first, more deeply seated and proceeding from a more remote source, was the violent and inextinguishable hatred of inequality. This passion, born and nurtured in presence of the inequality it abhorred, had long impelled the French with a continuous and irresistible force to raze to their foundations all that remained of the institutions of the Middle Ages, and upon the ground thus cleared to construct a society in which men should be as much alike and their conditions as equal as human nature admits of. The second, of a more recent date and a less tenacious root, led them to desire to live, not only equal but free” (The Old Regime and the French Revolution, II.XX/III.VIII). Equality is the driving force, with freedom attached to it; as such, freedom is adventitious, while equality is essential.

At the period immediately preceding the Revolution of 1789, these two passions were equally sincere and appeared to be equally intense. At the outbreak of the Revolution they met and combined; for a moment they were intimately mingled, they inflamed each other by mutual contact, and kindled at once the whole heart of France…. But when that vigorous generation, which had commenced the Revolution was destroyed or enervated, as commonly happens to any generation which engages in such enterprises—when, following the natural course of events of this nature, the love of freedom had been damped and discouraged by anarchy and popular tyranny, and the bewildered nation began to grope after a master—absolute government found prodigious facilities for recovering and consolidating its authority, and these were easily discovered by the genius of the man [Napoleon Bonaparte] who was to continue the Revolution and to destroy it.

Several times, from the commencement of the Revolution to the present day, the passion of liberty has been seen in France to expire, to revive—and then to expire again, again to revive. Thus will it long be with a passion so inexperienced and ill-directed, so easily discouraged, alarmed, and vanquished; a passion so superficial and so transient. During the whole of this period, the passion for equality has never ceased to occupy that deep-seated place in the hearts of the French people which it was the first to seize: it clings to the feelings they cherish most fondly. Whilst the love of freedom frequently changes its aspect, wanes and waxes, grows or declines with the course of events, that other passion is still the same, ever attracted to the same object with the same obstinate and indiscriminating ardour, ready to make any sacrifice to those who allow it to sate its desires, and ready to furnish every government which will favour and flatter it with the habits, the opinions, and the laws which Despotism requires to enable it to reign” (Old Regime, II.XX/III.VIII).

This newfangled situation led to a new form of political philosophy. Grotius had bequeathed to the Age of Enlightenment a philosophy of law and politics built on the notion of commutative justice. It can be easily seen that such a philosophy makes freedom the essential thing. Now then, it was an obvious further step to take, to devise a political philosophy restoring to honor the form of justice which had been cast to one side. Indeed – distributive justice. And this form of justice could be married to, made the expression of, the kind of equality that lay at the heart of the French Revolution, and which subsequently had been exported across Europe.

And as it turns out, this had already been anticipated.

It is supposed that the destructive theories which are designated in our times by the name of socialism are of recent origin: this, again, is a mistake; these theories are contemporary with the first French school of economists. Whilst they were intent on employing the all-powerful government they had conceived in order to change the form of society, other writers grasped in imagination the same power to subvert its foundations.

In the Code de la Nature, by Morelly, will be found, side by side with the doctrines of the economists on the omnipotence and unlimited rights of the State, several of the political theories which have most alarmed the French nation in these later times, and which are supposed to have been born before our eyes—community of goods, the right to labour, absolute equality of conditions, uniformity in all things, a mechanical regularity in all the movements of individuals, a tyranny to regulate every action of daily life, and the complete absorption of the personality of each member of the community into the whole social body (Old Regime, II.XV/III.III).

This is simply to turn Grotius on his head; and it is an easy thing to see that this is what Marx and the other proponents of the various forms of collectivism have done. They have taken the principles of commutative justice and instead of elevating them, they have demonized them. They have turned property and contract from instruments of liberty into instruments of exploitation and oppression. They have done so in order to clear the way for the untrammeled, universal imposition of a regime of distributive justice. And the new name for this was – social justice.

This is the heart of the European political order, and it is the ideal of the cultured European citizen. As such, capitalism is accepted as a necessary evil, while socialism is viewed as an elevated ideal. Socialism, for the post-French Revolution European, is the shining city on a hill.

How different is the post-Revolution American! For his revolution was of an entirely different order. His city on a hill is not socialism at all, but an order in which equality of opportunity rather than equality of outcome is assured. He realizes that this is the only way to reconcile freedom and equality. The other approach sacrifices freedom to equality, ensconces a distributing/redistributing authority over society, and converts everyone into an isolated, dependent creature, looking to the government to reconcile and integrate social life. It re-establishes the royal mechanism on a new basis, that of divided, balkanized groups of citizens, inflamed against one another, incapable of self-support, incapable of cooperation, only able to cast their crowns before the throne of the Enlightened Ones, the benevolent despots managing the hyper-subjectivist, anarcho-intersectional paradise.

How long can the American city on a hill maintain itself against this onslaught of foreign provenance? The upcoming elections will go a long way to deciding that. If a certain political party retains hegemony, the American city on a hill will continue, at least as an ideal. But the imported version has been steadily gaining ground in the hearts and minds of the citizenry. It is promulgated incessantly in news media, entertainment media, education and academia. It is promoted indefatigably by wealthy billionaires who think nothing of throwing hundreds of millions of dollars into various think tanks, foundations, activist organizations envisioning this alternative city on a hill as if it were the ultimate Nirvana, where enlightened humanity will finally find rest. The corporate world, the civil servants manning the bureaucracies, elected officials up and down the various levels of government, all have this one thing in mind, and they pursue it with a religious fervor that puts other faiths to shame. Celebrities in sports, in film, in television, throw their weight behind it. And a certain other political party is at the vanguard.

God forbid that this ever becomes a reality. For the beautiful dream has always turned into the most insidious nightmare, and indeed it cannot ever be otherwise. For humankind cannot engender its own salvation; that can only come from above. And this explains the zeal to overthrow not just civil but also religious institutions, leaving nothing unsullied. Salvation from above is precisely what must be erased! Écrasez l’infâme!

In the French Revolution, the religious laws having been abolished at the same time that the civil laws were overthrown, the minds of men were entirely upset: they no longer knew either to what to cling, or where to stop; and thus arose a hitherto unknown species of revolutionists, who carried their boldness to a pitch of madness, who were surprised by no novelty and arrested by no scruple, and who never hesitated to put any design whatever into execution. Nor must it be supposed that these new beings have been the isolated and ephemeral creation of a moment, and destined to pass away as that moment passed. They have since formed a race of beings which has perpetuated itself, and spread into all the civilised parts of the world, everywhere preserving the same physiognomy, the same passions, the same character. The present generation found it in the world at its birth: it still remains before our eyes (Old Regime, II.XIV/III.II)

Indeed. Against this “race of beings,” we have the testimony of Lincoln, evoked during a similar time of trial: “We shall nobly save, or meanly lose, the last best hope of earth. Other means may succeed; this could not fail. The way is plain, peaceful, generous, just – a way which, if followed, the world will forever applaud, and God must forever bless.”