Approaching Authority . . . the Other Way
Around
William Miller, wmiller711@gmail.com, Website: https://www.millerpolitics.com/
Paper
presented to the Eric Voegelin Society at the 2025 APSA Conference in Vancouver
Preliminaries
Since the
emergence of modern philosophy from its classical and medieval origins, the
focus in political philosophy has been largely on the individual and the
question of authority: “What gives you the right to tell me what to do,” and
its correlative, “What gives you the right to burden me with the obligation to
do it?” The ground of authority was often convention—consent, or contract, or
promise—rather than nature or God. Authority was generally studied in its
relation to freedom, and the purpose of the discussions of the “struggle
between Authority and Liberty” has been to understand and explain political
authority in the context of governmental authority versus individual freedom,
the assumption often being that all men are by nature “free.”[1] Consequently, the concepts of authority
were cast in terms of the limits and the proper subjects of authority.
In
this paper I want to examine the relation between authority and its necessary
consequent: obligation. For clarity, a few preliminaries are necessary.
A basic assumption of this paper is
that authority and obligation are closely related. This relation is clearly
implied by Rousseau in The Social Contract:
Force is a physical power, and I fail to
see what moral effect it can have. To yield to force is an act of necessity,
not of will—at the most, an act of prudence. In what sense can it be a duty? .
. . If we must obey perforce, there is no need to obey because we ought; and if
we are not forced to obey, we are under no obligation to do so.[2]
Mere
force is capable of producing obedience but not duty or obligation: only
authority or “legitimate power” or “Right” can create obligation.
There seem to be two principal
subjects of authority: authoritative directives or commands and authoritative
sources of information.[3] In the
following, I focus on the former. In this paper, “authority” is always assumed
to be legitimate authority and is usually expressed by a command: it is
a directive or a normative statement, that one should, ought, or must
do or must not do something. Obedience to the command may or may
not be enforced. “Obedience” is the actual
doing or not doing what you are told to do, regardless of motivation.
On the other hand, “obligation” and its
synonyms “duty” or “responsibility” is more complicated. Every command implies
that one should do what is commanded: obedience is expected. The authoritative
command “obligates” us. But obligation is supposedly experienced by the one
commanded as a feeling or sense or sentiment that one should
obey the directive even if we don’t want to and even if we are not being
coerced to do so. We see this dual nature of obligation in cases where one who
does not want to obey or is not sure he will obey is admonished “you must do
this—it is your duty:” one should want or feel obligated to obey an
authoritative command.
This “sense” of obligation that we
feel, or the “feeling of duty” that accompanies certain actions is difficult to
define. It can be complicated: “wanting” to do our duty though we really do not
“want” to do it. This ineffable “sense” or “feeling” has an emotional
component, but, like the sentiment of respect or the “sense of injustice,” it
is more subtle and complex than mere joy or anger or fear; the sense or feeling
is emotional plus something else. Following C.S. Lewis’s argument below, I
shall refer to such complex emotions as “sentiments.”[4]
The Experience of Authority: Niemeyer, Hume, Cahn, Rodes, and
Lewis
In
Gerhart Niemeyer’s meditation “On Authority and Alienation,” he adduces a list
of authorit-ies grounded in nature, not in convention.[5] It is this
line of argument that I want to explore.
Professor
Niemeyer rejects Hobbes’s—and modern philosophers’—arguments for man’s natural
freedom and man’s natural physical and intellectual equality to others, as well
as Hobbes’s and Rousseau’s assertion that there is no natural authority of one
man over another. Professor Niemeyer argues that people clearly have differences,
i.e., inequalities, from one another and that “the observable inequalities [of
men] are relevant,”—not irrelevant, as Hobbes maintains—“since they result in a
variety of different authorities, each of which has its ordering function in
human life”:
In the
‘impartial practice of life’ are found a few whose speech is heeded and revered
above that of others, because it
strikes others as reflection of truth pertaining to that which is,
or wisdom pertaining to what to do. To such few people belongs what one may
call gnosic authority. Then
there are, still fewer, those persons who lead a life of exemplary quality so outstanding that
many others flock to this person, powerfully attracted.
Here we have charismatic authority.[6]
He goes on to Identify functional authority—recognizing
those “excelling in initiative, competence, and energy”—and traditional
authority—recognizing those who act, speak, and dress “as one should”—as
other distinct “authorities.”
These
authorities are discovered in everyday experience:
What takes place in these instances?
Obviously, there is an experience of something special
and impressive, even something to be imitated. The experience seems to have the
character of an ‘invasion,’ one
might say.[7]
The experience of and the acceptance by one who is
subject to this extraordinary reality “is an ontic subjection, resulting
from a distinction of qualitatively different aspects of being.”[8] From these
experiences Niemeyer concludes that “authority is not something fixed but an event,”
that authority is a relation—authority and obligation spring into existence
simultaneously—and that the event is “not only a recognition but also an
expansion of order.”[9]
Authority
is thus an experiential and an ontological phenomenon. For Niemeyer, it
is the ontological nature of the experience that is most significant. In the
authority-event and the experience of ontic subjection, “there emerges a
distinction between what may be called ‘upper’ and ‘lower’” that Niemeyer
relates to freedom:
One might regret this kind of
division as a reduction of freedom . . . [but it becomes clear] that the experience of various
types of authority [not] merely creates order, but serves freedom, in that the perception, the mirare
of some kind of conduct as an object of admiratio
makes possible distinctions between varieties of potential action, and thus
provides the mental capacity of
choice.[10]
Niemeyer describes this ontic subjection as a
“binding” or being bound, “an awareness of one’s own lower ontic level, and, at
the same time, the desire to ‘be’ higher,” and he labels it ligatio, the
root of the word “obligation.”[11] As will be
seen below, Niemeyer goes on to argue that these personal events are the
foundation of political sovereignty because of the different levels of reality
they reveal and the sentiment of subjection that they evoke.
Note that in the authority events
that Niemeyer lists, the authority figures make no commands, make no overt assertions
of power. There is simply the recognition or apperception of another individual
as an authority to whom one wishes to voluntarily subject some aspect of
himself. There is, we may say, a spontaneous feeling of “respect” as a
response. The authority and the obligation emerge simultaneously from the
experience.
David Hume
If we look to history for others who shared or
presaged Niemeyer’s understanding of authority as an event, the closest I can
find is David Hume. Hume also found the origin of authority not in convention
but in the voluntary subjection of individuals to a leader that they perceived
as superior. In other words, Hume found that authority came into existence when
it elicited a voluntary response of
subjection to one’s leadership—Niemeyer’s ligatio. Authority and
obligation are generated simultaneously. The are not the product of prior
agreement. And, notably, Hume described pre-social existence as full of duties
and obligations, some existing without being triggered by an authority figure.
In his Political Essays, “Of
the Origin of Government” and “Of the Original Contract,” Hume inquires into
the origin of governmental authority and into the two leading theories of
authority at that time: contract theory and divine theory, or the Whig and Tory
theories, as he called them.
In the Origin of Government,
Hume speculates about the origins of political authority and says that the
development of modern government and of stable, governed society was not and could
not have been foreseen or planned:
Government
commences more casually and more imperfectly. It is probable that the first ascendant of one man over multitudes began
during a state of war, where the superiority of
courage and of genius discovers
itself most visibly, where the pernicious effects of disorder are most sensibly felt. . . . The benefit sensibly felt from his influence made it cherished by the people, at least by the
peaceable and well-disposed among them . . . .[12]
If
we can liken “discovering itself most visibly” to “revealing itself most
clearly” and can liken “influence cherished by the people” to “willingly
subjected to by the people,” we have a close approximation of Niemeyer’s
authority event and the appearance of leadership authority or military
authority to add to Niemeyer’s list.
In
the essay Of the Original Contract, Hume again speculates on the origin
of authority:
The chieftain, who had probably acquired
his influence during the continuance of war, ruled more by persuasion than
command, and till he could employ force to reduce the refractory and
disobedient, the society could scarcely be said to have attained a state of
civil government. No compact or agreement, it is evident, was expressly formed
for general submission, an idea far beyond the comprehension of savages. Each
exercise of authority in the chieftain must have been particular and called
forth by the present exigencies of the case. The sensible utility resulting
from his interposition made these exertions become daily more frequent; and
their frequency gradually produced a habitual and, if you please to call it so,
a voluntary and therefore precarious acquiescence in the people.[13]
This
strongly suggests that Hume understood the social unit to originate in a
group’s need for leadership and in their apprehension of fitness for leadership
in one of their own. As discussed below, Hume argued that a happy succession of
events leading the people to a habit of obedience is necessary for the
development of stable, enduring government.
Hume’s theory of the response to
authority is not merely obedience for one reason or another. Political society
must establish officers “to oblige men, however reluctant, to consult their own
real and permanent interests” instead of acting on their licentious impulses.[14] “In a
word, obedience is a new duty which must be invented.”[15] But
men were already obligated by old duties:
All
moral duties may be divided into two kinds. The first are those to which
men are impelled by a natural instinct
or immediate propensity which operates on them, independent of all ideas of obligation and of all views
either to public or private utility. Of this
nature are love of children, gratitude to benefactors, pity to the unfortunate.[16]
The second kind of moral duties
are such as are not supported by any original instinct of nature, but are
performed entirely from a sense of obligation, when we consider the necessities
of human society and the impossibility of supporting it if these duties were
neglected.[17]
Though Hume’s glossary distinguishes
between “obligation” and “duty,” we may consider,
without corrupting his meaning, the first kind of “obligations” as natural
feelings or sentiments of obligation, even in the absence of a figure of
authority, and the second kind of “duties” as teleological or technical directives
for sustaining effective government and political order, whether or not in
response to an explicit command.[18]
The historical and anthropological
reality that Hume assumes of ancient societies is questionable. Failure to
comprehend the complexity of primitive, mytho-poeic communities was evident in
the “state of nature” vignettes of Hobbes, Locke, and Rousseau, as well. Still,
the perception of leadership ability does make sense and fits neatly into
Niemeyer’s catalog of authorities.[19] The
assertion of “natural duties” makes explicit what other writers—Robert Paul Wolff,
for example— merely assume: the existence of an abundance of obligatory
sentiments—“we really should do this”—existing independently of authority,
though they may be activated or triggered by authority.
Edmond Cahn
Edmond Cahn, a lawyer and teacher of
law, seeks a standard of justice with which to evaluate the rightness or
justness of positive law. Justice is understood to be a necessary
characteristic of authority, rightly so-called. Professor Cahn rejects both (1)
the theory of propositional natural law, that is, the attempt to formulate
general principles from which particular decisions can be logically deduced,
and (2) the nominalist theory of legal “positivism,” or “law-as-command,” which
provides no common standard to apply to law’s ultimate principles except perhaps
logic and utility. Professor Cahn proposes an “anthropocentric” jurisprudence,
an approach to law that does not begin with definitions or articulated
postulates of justice. The anthropocentric
approach begins with observable facts of human
behavior that we have herein called “events” or “experiences.”
One aspect of the anthropocentric
approach to law is the “sense of injustice.” Though Cahn rejects the scholastic
or propositional natural law approach to law and justice, he recognizes the
force of grounding law—and justice—upon a natural, not a conventional,
foundation: “The stubborn survival of some sort of faith in natural
justice should point to a nucleus of truth.”[20] “Justice,” a word of “magic
evocations,” should not be deduced from principles, he says, nor generalized
from particular rules and principles, but understood empirically as
experienced.[21]
Thus
we might be left entirely without empirical guidance, were it not for what we
are about to call the sense of
injustice. This sense is clearly and frequently
manifested, it is a familiar and
observable phenomenon. Its incidences show how justice arises and what biologic purposes it serves in human
affairs.[22]
Like Niemeyer’s experience of
authority, Cahn’s experience of injustice involves an external reality and an
individual response that is more than a stimulus-response physical or emotional
reaction. The injustice-event evokes a normative sentiment: “this should not
be” or “something is wrong here.
Where
justice is thought of in the customary manner as an ideal mode or condition,
the human response will be merely
contemplative, and contemplation bakes no loaves. But the response to a real or imagined instance of injustice is
something quite different; it is alive
with movement and warmth in the human organism. For this reason, the name “sense of injustice” seems much to be
preferred. What then would be meant by “justice” in the context of the approach adopted in this book? The answer
would appear to be: not a state, but
a process; not a condition, but an action. [23]
He adduces six examples—we may call
them “events” similar to Niemeyer’s events—of patent injustice.[24]
Cahn argues that the examples display some of the facets of justice, as
“pricked” by the sense of injustice, a general phenomenon of law: “Among its facets
are the demands for equality, desert, human dignity, conscientious
adjudication, confinement of government to its proper functions, and
fulfillment of expectations. These are facets, not categories,” he says. “They
. . . do not exhaust the sense of injustice”—or the substance of justice, we
might add..[25]
Cahn maintains that the sense of
injustice is visceral, natural:
It
denotes that sympathetic reaction of outrage, horror, shock, resentment, and
anger, those affections of the
viscera and abnormal secretions of the adrenals that prepare the human
animal to resist attack. Nature has thus equipped
all men to regard injustice to another
as personal aggression. Through a mysterious and magical empathy
or imaginative interchange, each
projects himself into the shoes of the other . . . in the vigor of self-defense.
Injustice is transmuted into assault . . . .”[26]
But again, though natural, the
reactions are not raw emotions. They are nurtured and perfected by practical
and political wisdom: “The sense of injustice calls for progressive exhibition
of human wisdom.”[27]
What then would be meant by
“justice” in the context of the approach adopted in his book? Presaging Niemeyer’s comment that authority
“is not something fixed but an event,” Cahn says, “‘Justice,’ as we shall use
the term, means the active process of remedying or preventing what would arouse
the sense of injustice.”[28]
It is a dynamic, reforming force within the law.
Robert Rodes
Robert Rodes, also a lawyer and
teacher of law, proceeds from poetry to a philosophic ground for a distinct
approach to legal theory in his much neglected essay, “A Prospectus for a Symbolist
Jurisprudence.”[29]
He wants a philosophy of law that has a sound ontological and epistemological
foundation and that can “furnish an ultimate evaluative criterion for law.”[30]
In pursuit of this philosophic
grounding for jurisprudence, Professor Rodes uses the symbolist technique in
poetry to categorize the possible metaphysical foundations: “nominalism,” “realism,”
and “idealism.”[31]
Rodes takes from symbolist poetry the understanding that particular
“events—things or happenings—can be used as symbols without any accompanying
statement of what they symbolize. This is to say that events have meanings
that the poet can convey merely by presenting the events themselves.”[32]
These events are not cast by the poet as similes, metaphors, or allegories, but
as symbols. They are not accompanied by explanatory comment in the verse.
Rather, they have their meaning independent of the poet. Professor Rodes says,
They
present to the reader events which the author supposes to carry with them the
requisite meaning, the
requisite response. The effectiveness of such poetry argues persuasively that authors who use the
technique are right in supposing the events they set forth to have meanings that may be discerned in the events
themselves without independent
statement by the author.[33]
Rodes
supports the assertion that events may have independent meaning by pointing out
that the poets have limited discretion to assign other meanings to such events.
For instance, consider:
My heart leaps up when I behold
A puddle on the ground . . .
instead of Wordsworth’s
My heart leaps up when I behold
A rainbow in the sky . . . .
Or,
The quality of mercy is not strain’d,
It flasheth as the lightning bolt from heaven . . .
instead of Shakespeare’s
The quality of mercy is not strain’d,
It droppeth as the gentle rain from heaven . . . .[34]
Rodes
comments that “it can scarcely be denied” that the verses he substituted for
the originals “lack the poetic quality of their exemplars.”[35]
The meanings symbolized by the
events that the poet discerns and intends to communicate to us in the events he
describes are not projected upon the events, they are not idiosyncratic or
unique to the poet, they are real—“objective,” we might say—and the meanings
can be apperceived by others. “It is this writer’s conviction that such
experience can be accorded universal validity.” Rodes “states this conviction”
as “the human condition is common to all mankind.”[36] “The act of
cognition in this framework becomes a sharing of human experience, a communion
with other men.”[37]
Rodes explains that by “the human
condition” is not meant “that which is common to all mankind, but the object of
poetic insight, the thing [the poet] shows us momentarily on those rare
occasions when he makes us cry”:
To
say that this is common to mankind is to say that there is something deep and
shared on the basis of which
every man can appeal in some way to every other—cor ad cor loquitur. I have, in other words, not only an experience
of what it is to be myself, but also an experience
of what it is to be a man—an experience of the human condition.[38]
Rodes
says of his conviction that events have meanings, “the acceptance or rejection
of the foregoing principle . . . is the most profound of philosophical
choices.”
Regarding the broader metaphysical
traditions, Rodes rejects jurisprudence based upon nominalism, which does not
acknowledge the meaning of events or an ontological structure of reality, and
thus denies that there is a common human condition. Like Cahn, who also is ultimately seeking the
nature of justice and the grounding of our duties and obligations, Rodes
ultimately rejects “realism” in its scholastic or a priori natural law
form because it denies that events have real meanings, though it does conceive
reality as having a real structure and can be supplemented with the symbolist
epistemology without becoming distorted. Finally, he acknowledges that
“idealism,” supplemented with symbolist epistemology may be acceptable in some
of its forms, but he concludes that realism so supplemented is more correct: it
recognizes the order of being as well as the ability to know meanings in
events.[39]
Rodes also rejects the essentially
nominalist theory that we might call the “historical” school of jurisprudence,
which recognizes that events have real cultural meanings but does not
commit to a real order of being—a cosmological order. In this category of
jurisprudential theory, he places the theory of Edmond Cahn.[40] Though
finding Cahn’s approach “encouraging,” Rodes says Cahn’s sense of injustice is
“exclusively empathetic.” Acceptance of it would require two “qualifications”:
First,
the existence and manifestations of that “sense” can be correlated with other observations of reality into a
connected whole. Second, that “sense” in its particular judgments is responsive to rational persuasion based on other
observations of reality.
Without
these qualifications, the sense of injustice, like other philosophic approaches
that affirm that events have meanings but deny that reality has a definite
structure “leave[s] us no basis for evaluating the movements of the human
heart,” which are not in themselves the ultimate particulars but are themselves
derivative from more fundamental aspects of reality.
I suggest that Rodes’s “events,”
with their “requisite meanings” and “requisite responses,” are experiences of
the same sort as Niemeyer’s “events” of authority and Cahn’s experiences of
injustice. The reality conveyed by Rodes’s events may not always be normative, but
the responses are understood to be parts—requisite parts—of a human experience
or event that is spontaneous or unmediated.[41] All three authors go on to make these events
the ground of significant social and legal conventions, as briefly discussed
below.
Authority and Obligation: The
Validation of the Experience
At this point the elephant in the
room is the question whether these experiences of authority, injustice, and
symbolic meaning of events are true. When someone has one of these experiences,
has he been confronted with a moment of truth—true authority, true injustice,
true meaning? Can one base public authority and law upon these experiences?
In Gerhart Niemeyer’s brief essay,
he does not directly address this question. He simply asserts that “in the
‘impartial practice of life’ are found” individuals whose personal
characteristics evoke the sentiment of obligation. He does not characterize the
individuals who have been so affected.
I believe that we all know of
individuals—perhaps whole crowds of people—who have been extraordinarily
impressed by, even to the point of “worshipping,” individuals like Kurt Cobain
or Vladimir Putin: are these figures representative of true authority—what we
might call people worthy of imitation and ontic subjection? Is there even such
a thing as true authority?
I believe Niemeyer might say even
figures like those mentioned may be authorities. His focus here is not on the
actual worthiness of the idolized individual but on the experienced “upper” and
“lower” levels of reality that such experiences expose regardless of the object
of idolization. At the other extreme, the focus upon such individuals as sources
of authority also leads one to say that, in terms of the intensity of
obligation certain individuals may provoke, and the degree of voluntary
subjection or self-lessness that they inspire, the most powerful individual on
Capitol Hill right now may be the month-old baby lying helpless on the floor of
one of the corridors of power on Capitol Hill because of the overwhelming sense
of obligation and duty the baby evokes. [It is this irony that led me into this
whole inquiry.] This is an unusual conception of authority.
The quality of David Hume’s leader may
not appreciated by all the people, he says, but only “by the peaceable
and well-disposed among them.” This suggests a special qualification of those
experiencing the sentiment of obligation, though successful leadership in war
would seem to be a clearer verification principle than experience of one who is
an authority on personal style and taste.
In Edmond Cahn’s case, he, too, alludes simply
to the “familiar and observable” phenomenon of people responding emotionally to
perceived injustice.[42] But again,
we are all familiar with people who are “hypersensitive” to injustice and find
it most everywhere. Is everyone able to rightly sense injustice?
Cahn sends mixed signals. He suggests
that these events serve a deeper “biologic” purpose than simply expressing
personal taste and dissatisfaction: “Nature has thus equipped all men to
regard injustice to another as personal aggression.”[43] This implies
universality, but Cahn emphatically denies that the sense of injustice is
“universal.”[44]
He suggests that the sense of injustice in some way reflects human wisdom and
demands a “progressive exhibition of
human wisdom,” and since not all of us are wise, this implies another special
qualification to enable people to recognize injustice. This intelligence
qualification seems to undercut Rodes’s criticism that Cahn’s “sense of
injustice” is purely empathetic and non-rational.[45]
For Robert Rodes, the meaning
conveyed by the symbolic events is fundamentally about the human experience and
what it is to be human. The “something deep” that we share with all others that
is occasionally triggered by an invasion launched from a symbolic event, must be perceivable by
those—by all?—with “poetic insight” who are capable of apprehending symbolic
meaning. But we know of many people who may be considered “shallow” or
“insensitive.”
Based on these readings we might question whether such experiences are anything more than idiosyncratic and might ask who, if anyone, is capable of experiences that might evoke “true” or “valid” obligation, insights into justice, or insights into the human soul. I believe that this experiential approach to authority and obligation must be complemented by the “doctrine of objective value” described by C.S. Lewis in The Abolition of Man.
C.S. Lewis
As each of these writers does in his
own way, C.S. Lewis, in The Abolition of Man, attacks the fact-value
dichotomy of modern positivism, which basically maintains that any
characteristic that cannot be quantified is a subjective, irrational “value”
and that values cannot be true or false. In response, Lewis refers to St.
Augustine’s concept of “ordinate love” (ordo amoris) or the principle of
objective value: “the belief that certain attitudes are really true, and others
really false, to the kind of thing the universe is and the kind of things we
are.”[46]
Until
quite modern times all teachers and even all men believed the universe to be
such that certain emotional reactions
on our part could be either congruous or incongruous to it—believed, in fact, that objects did not merely receive,
but could merit, our approval or disapproval,
our reverence or our contempt . . . believed inanimate nature to be such that certain responses could be more ‘just’
or ‘ordinate’ or ‘appropriate’ to it than others.[47]
Thus,
as C.S. Lewis might put it, the heart that leaps upon seeing a puddle or is in
awe of the majestic mosquito is not responding ordinately to the situation. The
idea of ordinate love, of ordinate emotional responses, also presupposes Rodes’s
independent meaning and ordering of the events that we experience. We address
the events on their terms, not ours: their meanings are not projected upon them
by the poet or deduced from pre-conceived notions, but revealed to those who
can perceive them.[48]
Lewis provides some clarity about
the kind of “responses” and thus the nature of the “events” or “experiences”
that each of the other writers are talking about. The reactions to the objects
confronted in each of the examples above are not mere physiological, knee-jerk
reactions, yet they are at base physiological. The reactions are not simple
emotions, like anger or sadness, yet they are emotional.
Lewis calls these reactions
“attitudes,” “emotions,” and “sentiments.” Basing his explanation on Plato’s
conception of the tri-partite soul, Lewis explains that the energy of our human
emotions can and must be guided by reason and practice into “sentiments,” the
core of the thymus or spirited part of the soul. This is the function of
paideia, the education and development of the human being: “a good
education should build some sentiments while destroying others.”[49]
The resulting sentiments are part
emotion and part something else—reason or character, perhaps. Recall that
courage is the “knowledge” of what to fear and what not to fear.
No
emotion is, in itself, a judgment; in that sense all emotions and sentiments
are alogical. But they can be
reasonable or unreasonable as they conform to Reason or fail to conform. The heart never takes the place of the
head: but it can, and should, obey it.”[50]
Those
who have been rightly educated or rightly brought up—Lewis famously describes
them as living within the Tao—respond rightly to the objects we are
discussing: injustices (Cahn), human or natural events (Rodes), and, to our
point today, authorities (Niemeyer).[51] They
cry out against injustices, learn more deeply about the human condition, and
subject themselves to the authority of those truly “above” them.
Lewis and Rodes both address this character,
which they maintain is essential to the nature of man and yet is not found in
every human being. Lewis, as we have seen, makes this character dependent upon paideia
and the temperament of the individual student. “The educational problem is
wholly different according as you stand within or without the Tao.”[52]
For those not rightly brought up, “another little portion of the human heritage
has been taken from them before they were old enough to understand,” thus
reflecting the classical view of nurturing the infant animal being into
a human being.[53]
Rodes
himself makes a similar sharp contrast:
The
acceptance or rejection of the foregoing principle of a common human condition
is the most profound of philosophical
choices; no less than the whole of a man’s experience goes into making it. One can no more argue with a person who
decides for rejection than one can
explain love poetry to a child. One can only say that there is more to life
than such a person has supposed.[54]
To
Lewis’s “human heritage” of right experiences we may compare Rodes’s
“experience of the human condition.”[55] Neither
is a theory or a philosophy; they are fundamental perspectives on life that are
not easily learned.
Authority and Obligation: The
Institutionalization
The legal objective of each
writer—Niemeyer, Hume, Cahn, and Rodes—differs slightly from each other’s. For
Niemeyer, the individual experiences of authority are the foundation for
national sovereignty. For Hume, it is the slightly different experience of voluntarily
subjecting oneself to an active wartime leader who is actively commanding a
people. For Cahn, the sense of injustice constantly corrects and reforms the
law. For Rodes, the symbolization of the meaning of certain events should form
the structure and meaning of certain legal doctrines, as they once did.
Niemeyer and Hume
Niemeyer’s explanation of the
relationship between the human event and its legal instantiation is brief,
perhaps too brief. He says that the ligatio resulting from the
experiences of voluntary subjection to certain individuals will prompt
behaviors that affect the surrounding social order. If others respond
similarly, “it results in a particular and continuing pattern”—"a common ingenium
ligationis” that is shared by the community.[56] From
this “shared awareness of higher being as represented by authoritative persons”
is abstracted “authority as such,” making possible a new experience:
a new type of authority representing not
this or that specific excellence, but the goodness of human life as a whole.
Let us call this authority, belonging to the incumbents of certain public
offices, sovereignty. It, too, has a binding effect, by virtue of which
these incumbents have “power” to elicit general public compliance.
* * *
The personal experiences are still
there, but no longer referred to, in the work of sovereignty. Even in that
personal field, an abstraction occurs, very soon. Authority then appears as a
set of types. Before there can be sovereign authority, even the type must be further abstracted into a
norm. What is essentially a living relationship appears in the norm as
concepts, definitions, verbal generalizations, and, above all, applications in
the form of a command.[57]
In fairness to Niemeyer, this abbreviated
account lacks the concrete detail of examples that might make the evolution of
sovereignty from the personal events of authority more clear, but the
conclusion is clear enough: Niemeyer rooted political authority ultimately in
the personal events.
Hume’s objective in the account I
presented above is the close to Niemeyer’s. Hume is offering an explanation of
the origin of political authority—it is fair to say, of sovereignty. As
you recall, he said that government likely formed when, in the midst of war, an
individual of superior courage and genius is recognized by a people who
“cherish” his leadership, presumably by obeying his commands.
You are familiar, no doubt, with
Hume’s argument that political societies are held together in large part
because of a “habit of obedience” to leaders’ commands, a habit that develops
over time.[58]
The leader’s consolidation of power
was not immediate: he “ruled more by persuasion than command . . . till he
could employ force to reduce the refractory and disobedient.” His particular
exercises of “authority” must have been welcome and therefore more frequent.
“[T]heir frequency gradually produced a habitual and, if you please to call it
so, a voluntary and therefore precarious acquiescence in the people.[59]
Hume speculates that the original
leader’s son, if as talented as his father, might have continued the rule and
consolidated that authority of the line of chieftains. Hume does not provide a
map of the course of development from tribal chief to modern government.
A common problem besets both theories—the problem of scale, or more precisely in Aristotle’s terms, the problem of the nature or principle defining the association.[60] However plausible one might find the initial discovery of authority in a personal experience or event—and personally, I do find the accounts of the experiences by Niemeyer and Hume, as well as by Cahn and Rodes, quite believable—there is still the problem of translating the intensely personal experience of voluntary subjection to a particular individual in a tribal society into an explanation of the impersonal authority and the obligatory force of the contemporary administrative state. Tribal leadership is a much different thing than the government of 300 million people. And, the nature and purpose of the mytho-poeic tribe—its final cause, to cite Aristotle—is significantly different from the nature and purpose of the contemporary polis.
Cahn and Rodes
Cahn’s and Rodes’s objectives are
more modest. Both want to influence existing law, not to explain its essential
authority or provide it with a new foundation. Both claim their reforms spring
from an authoritative source.
Cahn cites several examples of the reforms
of positive law by the courts to effect change consistent with aspects of sensed
injustice. Writing in the mid-forties when the civil rights movement was
inchoate, Cahn cites court decisions and government actions that reflect a
concern for the equality and human dignity aspects of injustice.[61]
Regarding the sensed injustice due
to a failure of desert, he cites the creation of the still-controversial
Nuremberg War Trials, created to bring certain Nazis to justice to receive the
punishment they deserve.[62] The
fact that the black-letter legitimacy of the trials is still contested does not
weigh against the authority of the sense. Cahn cautions that the aspects of the
“active and spontaneous” sense of injustice listed above, though “ethical,” are
not necessarily “right” and certainly not “universal.”[63] It is
“an active, spontaneous source of law, contributing its current to the juridic
stream.”[64]
Robert Rodes’s objective is more
complex. If events have meanings that can be symbolized in verse, in rituals,
in art, in institutions—then it is appropriate for some of those symbols to
inform the law. Rodes adduces the events of marriage, kingship and government,
and criminal law as three legal institutions where the symbolism, and thus the
meaning of the underlying event itself, has gone astray from reality and needs
correction—or restoration.
To use just one of his examples for
explanation, human beings need one another to survive. This is an ontological
truth. There is also a “movement in the human heart,” as Rodes calls it, called
love—love of all reality and of elements of reality, such as individuals of the
opposite sex. The love for one another is symbolized in the actions of taking
care of one another. In Christendom, and some other cultures, the love between
a man and a woman who each want to commit to the other has been symbolized in
the ritual and the law of marriage. In the development of Western culture, the
Church fashioned the symbol of marriage to reflect the greater relations of God
to His creation and Christ to his Church. Such divine love endures: it is
eternal.
Rodes argues that because of the
increasing availability of divorce—and we might include the relatively recent
intrusions into the sanctity of marriage by reducing marriage to the level of a
simple contract and by the law of evidence and legal liability—the original
meaning of the marriage symbol has been damaged. He suggests not a return to
the marriage law of the past, but a present-day option that couples might
choose that would prohibit divorce and thus symbolize their eternal love, or
their aspiration toward eternal love, for one another.
Clearly, Rodes’s project is of
limited scope: it is difficult to see how the law of security transactions,
say, or property tax law could consistently symbolize fundamental human events.
The jurisdiction of the medieval canon law courts which constitutes much of
contemporary family law, however, provides a good idea of the kinds of events
that may be symbolized in ritual and law.
Conclusions
1. Sentiments. Authority is
certainly one trigger of obligation, and, following the main lines of this
paper, such triggering is the principal purpose of authority. But the sentiment
of obligation also exists independently of such authority, and, as we have seen
in the form of the closely-related sense or sentiment of injustice, it may
actually work to cancel the putative “authority” of some government directives.
The nature of obligation as a
“sentiment” also leads to the conclusion that it requires some sort of
development or nurture to fully exist. Obligation, respect, love, grief, schadenfreude—sentiments
such as these are not simple, universal emotions. They are complex fusions of
emotion and reason or character. They do not emerge in us fully-formed at a
certain age in our lives. They are emotions that require, as Lewis and the
classical philosophers explain, habit, experience, and instruction to be formed
into what were once called “fine sentiments.”
Nurture alone is not sufficient,
however: the potential, the emotional potential, must also be present,
as it is in various degrees in different people. To experience them—to feel
obliged, to respect, to love—requires a degree of sensitivity not found in
everyone throughout their lives. Lippmann once said about the acquisition of
character:
That there are limits to education in this sense, we cannot doubt. But
we do not know where they are. There is, that is to say, no clear and certain
boundary between character which is acquired and those more or less uneducable
traits of human nature, evolved during the long ages and transmitted by
inheritance.
Thus, I believe that Niemeyer’s authority-event,
Hume’s recognition of leadership, Cahn’s sense of injustice, and Rodes’s poetic
insight do require a special qualification that observers must possess in some
degree in order for the observers to participate fully in these events. These
events, as Cahn says, are “surely not”
universal events.
3. Questions about “authority.”
Taking authority as an activator though not the creator of “obligation”—the
feeling or sense that we should obey—and also not as the sole cause of
obedience, the term seems an ill-fit for much governmental power in mass
society. The “moments” of authority activating “obligation,” as described by
Niemeyer and Hume, seem to be intense interactions between the authority
figures and their “subjects,” calling forth sentiments of loyalty, imitation,
worship, and self-sacrifice, sentiments often found on the battlefield.
But
many or most of the governmental directives that we daily confront do not
trigger these sentiments. Highway speed limits, income tax rules and deadlines,
zoning regulations, for example, prompt obedience but not obligation—the
feeling that we ought to obey them because of their rightness or because of the
desire of their authors. Such laws prompt obedience because of habit or the
fear of getting caught if we disobey. They are more the “chains” that Rousseau
speaks of than the “what we really want” General Will of government policy.
In the common law we have an old
distinction between laws, usually criminal but also some torts, that prohibit
acts that are malum in se and those that are malum prohibitum—respectively,
acts that are wrong in themselves or “immoral,” such as murder, and acts that
are wrong because government policy declares them wrong, like driving over the
speed limit. The first clearly provoke and should provoke obligation in a
civically virtuous population. To use Rodes’s analysis, mala in se
symbolize the natural evil of such acts; mala prohibita, I suspect, not
so much—no matter how rational and well-thought out they are and no matter how
much we understand the necessity for such regulations on the national level. It
is difficult to imagine speed limits or tax deadlines symbolizing any natural
events, though they do enable the coordination of people toward the attainment
of a common good and thus qualify as authority for Simon.
Yves Simon, in his reply to Arthur Murphy,
argues that since all authority comes from God, and God commands obedience to
civil laws—"render unto Caesar”—that we therefore have a moral obligation
to all laws consistent with the common good:
I emphasized [in Philosophy of
Democratic Government] the genuineness of political authority and the fact
that the governed are bound in conscience to obey their lawful government in
the lawful exercise of its powers.[65]
Locke and Rousseau would take the same
position regarding the natural law and the General Will.
But I think Hume’s demand for
establishing a “habit of obedience” and a “duty of obedience” better explains
the factual situation of mass society.[66] Any
society, but large mass societies in particular, need predictable and reliable
behavior by the populace. Behavior prompted by habit or “second nature” is
essential to its smooth functioning. The strict meaning of “authority” in
relation to obligation that we have been considering does not seem to fit these
malum prohibitum situations as well, just like the “authority” of the
baby on Capitol Hill, unless we dilute all special meaning from the term and
consider authority as synonymous with “government commands.” Simon might
consider the call for obeying malum prohibitum as another of authority’s
many functions, but a response borne entirely from habit can hardly qualify as
one of Niemeyer’s events of authority.
Appendix A
Yves Simon
In
Yves Simon’s General Theory of Authority, published posthumously in
1962, he addresses the concepts of political authority and informational
authority. An earlier statement of his theory of political authority was set
forth in his Philosophy of Democratic Government, the 1950 Walgreen
Lectures.[67]
I do not include Professor Simon’s argument here because though his exposition
of political and theoretical authority assumes appropriate obligation or duty
throughout, the assumption is largely implicit and unexamined. Professor Simon distinguishes
between practical authority, expressed in commands and related to human action,
and theoretical authority, reflected in judgments “whose perfection consists in
conformity to a real state of affairs.”[68] We are
interested here primarily in “practical authority.” In his General Theory
Professor Simon is concerned with the bad reputation of “authority” at the time
he wrote. The reputation is comparable to, and perhaps an earlier manifestation
of, the bad reputation presently accorded to “authoritarian” regimes and
administrations. Simon argues that authority is a necessary element of
political life no matter how democratic or rule-based a government is and no
matter how intelligent and virtuous the population is. He argues that authority
has several different functions to perform both within and without the
political context. In the briefest of descriptions:
Though Simon does not offer an analysis of obligation or the authority-alienation relation in the main body of his text, a later edition includes an appendix in which he responds to a review of his earlier Philosophy of Democratic Government by Arthur Murphy and discusses the “binding of conscience” and other matters.[70]
Simon’s “Theoretical” Authority:
Simon
does not consider abstract, demonstrated and mathematical truths to be “authoritative.”
They typically do not depend on factual circumstances. But “a contemplative and
non-practical attitude toward the particular and the fact” may also yield
theoretical knowledge, and for this the knower must almost always rely upon
testimony of “witnesses.” This testimonial truth is accepted—Simon “would go so
far as to say that yielding to [the witnesses’] testimony is a duty and a
matter of honesty”—as “authoritative.” As the person in authority in a matter
of action is a “leader,” so the person in authority in a matter of
fact-dependent truth is a “witness.” Ibid., 84. To use a personal example, I
have never been to or over a place called the country of Peru, but despite no
first-hand evidence or verification, I totally accept the testimony that I have
heard and read over the years as true and “authoritative.”
“Technical” Authority
Interestingly,
though Simon discusses practical authority, the realm of human action—praxis—and
theoretical authority, the realm of “truth seeking,” he does not discuss
technical authority, the realm of making things—poesis. When we
study or teach Aristotle’s intellectual virtues, we are usually more concerned
to make clear the difference between phronesis and techne than
the core necessity of both: we need to figure out how to do the right
thing in a complicated situation just as we need to figure out how to make
this thing.
Humanity
is awash in a sea of technical norms: the realm of making things, of pursuing
and achieving goals of all sorts, abounds in necessary normative
commands and directives. “If you want to make or get or achieve this, this is
what you gotta do!” All purposive action involves “know how.” Whether we
are getting out of bed to make a cup of coffee or building a battleship or a
drone, we require “know how.” We must know how to get to the kitchen—with
a bad knee, we even have to figure out how to get out of bed!—and to
operate the coffee maker, we must know how to assemble the drone. And
know how—technical knowledge—is made up of directives that we must accept if we
are to achieve our goal. This should be part of a general theory of
authority.
See
also Michael Polanyi on knowing more than we can tell in The Tacit Dimension,
chapter one, “Tacit Knowing,” 5-8. The “knowing how” is what we often “know”
but cannot tell “how.”
Appendix B
Pirsig and Polanyi:
The quality of Rodes’s substitutes, or the lack
thereof, that he confidently presumes—"That these lack the poetic quality
of their exemplars can scarcely be denied”—seems to be another independent
reality or meaning that “scarcely anyone” can fail to immediately perceive. We
may be reminded of philosopher Robert Pirsig’s anecdote in his Zen and the
Art of Motorcycle Maintenance about teaching “quality.”[71] Pirsig
concluded that quality is a reality that people, or most people, know
but cannot define.
Pirsig recounts the experiment of an exasperated college
writing instructor—himself—who decided to teach a semester without telling his
students their grades. In the course of the semester, the question of the quality
of the students’ work came up, and the instructor told the students that they
must be the judge of the quality of their work. When they complained that they
did not know what quality writing is, that he must tell them what quality is,
the instructor presented them with two documents, one well written, one poorly
written, and told the students to judge them. Over ninety percent of the class,
regardless of their own writing ability, chose the well-written paper as the
better written one. And this overwhelming consensus continued in successive testing. Quality is a reality that people, or
most people, know but cannot define.
Michael Polanyi also might say that it seems that “we
know it but can’t tell it.”[72]
Or as Supreme Court Justice Stewart famously said, “I know it when I see it.”[73]
It is immediately perceived, immediately apprehended; it is not a
conditioned response, it is not subject to being figured out,” nor is its
apprehension a result of projecting a concept upon meaningless sense data. We
might say quality is immediately sensed, not deductively concluded from prior
principles: it is a “sense of quality.”
Selected Bibliography
Francis Bradley. Ethical
Studies, 2d ed. (New York: Oxford University Press, 1927).
Edmond Cahn. The Sense of Injustice. (New
York: NYU Press, 1949; Bloomington: Indiana University Press, 1964). Also,
Internet Archive: (https://archive.org/details/senseofinjustice0000edmo/page/12/mode/2up?view=theater)
David Hume. Political
Essays, Library of Liberal Arts edition (Indianapolis: Bobbs-Merrill, 1953).
C.S. Lewis. The Abolition of Man (New York:
Harper Collins, 1971, 1974).
Gerhart Niemeyer. “On Authority and Meditation: A
Meditation,” Review of Politics 93 (Summer 1991): 530-546; reprinted in
Within and Above Ourselves (Wilmington, DE: Intercollegiate Studies
Institute, 1996), and The Loss and Recovery of Truth, (South Bend: St.
Augustine’s Press, 2013).
Robert Pirsig. Zen and the Art of Motorcycle
Maintenance (New York: Bantam Books, 1974, 1984).
Michael Polanyi. “Authority and Conscience,” in Science,
Faith, and Society (Chicago: University of Chicago Press, 1946).
________. Personal Knowledge (Chicago:
University of Chicago Press, 1970).
________. The Tacit Dimension (Chicago:
University of Chicago Press, 1966).
Robert E. Rodes, Jr.. “A Prospectus for a Symbolist
Jurisprudence.” Natural Law Forum Paper 20, 1957. (http://scholarship.law.nd.edu/nd_naturallaw_forum)
________. The Legal Enterprise (South Bend: University of Notre
Dame Press, 1976)
Jean-Jacques Rousseau. The Social Contract and
the Discourses, trans. G.D.F. Cole, Everyman’s Library Edition (New York:
Knopf, 1973).
Yves Simon. A General Theory of Authority
(South Bend: University of Notre Dame Press, 1991).
________. Philosophy of Democratic Government
(South Bend: University of Notre Dame Press, 1993). Walgreen Lectures of 1950.
Robert Paul Wolff. In Defense of Anarchism, Harper Torchbook
edition (New York: Harper and Row, 1970).
[1]
See, for example, Mill: “The struggle between
Liberty and Authority is the most conspicuous feature in the portions of
history with which we are earliest familiar.” On Liberty, chapter one,
¶2. Or Hume’s statement a century earlier: “In all governments there is a
perpetual intestine struggle, between Authority and Liberty, and neither of
them can ever absolutely prevail in the contest.” “On the Origin of
Government,” ¶8, in David Hume’s Political Essays, ed. Charles W. Hendel,
Library of Liberal Arts edition (Indianapolis: Bobbs-Merrill, 1953). Paragraph
numbers refer to the order of paragraphs in the individual essays in this
edition of Hume’s essays. Robert Paul Wolff, In Defense of Anarchism,
Harper Torchbook edition (New York: Harper and Row, 1970, 1976), named chapter
one “The Conflict Between Authority and Autonomy.”
[2]
The Social Contract, in The Social Contract and Discourses,
Everyman’s Library edition (New York: Knopf, 1973, 1993), I.3, “The Right of
the Strongest.” Emphasis added. References are to the book and chapter of the Contract.
[3]
Yves Simon and Michael Polanyi both provide
discussions of the latter. Simon, A General Theory of Authority, and
Polanyi, Science, Faith, and Society. Simon cites Polanyi’s Logic of
Liberty (1951) in his discussion.
[4]
See below, the discussion of “The Experience
of Authority.” C.S. Lewis, The Abolition of Man, hereinafter referred to
as Abolition, (New York: HarperCollins, 1971, 1974), chapter one: “Men
without Chests.”
[5]
“On Authority and Alienation: A Meditation,” The
Review of Politics 53 (Summer 1991): 530-546. Reprinted in Within and
Above Ourselves: Essays in Political Analysis (Wilmington: Intercollegiate
Studies Institute, 1996) and The Loss and Recovery of Truth (South Bend:
St. Augustine’s Press, 2013). Pagination refers to the 1991 edition.
[6]
Ibid., 530-31.
[7]
He points to the similarity of this experience
to the experience of the sacred amidst the profane as described by Mircea
Eliade. See The Sacred and the Profane (New York: Harcourt Brace, 1959).
[8]
Ibid., 531.
[9]
Ibid. Emphasis added.
[10]
Ibid.
[11]
Ibid., 532. Cp. Yves Simon on the “binding of
conscience,” in General Theory of Authority, 165-66.
[12] Ibid., ¶6, 41. Hume goes on to speculate that if the first chieftain’s son were similarly endowed with leadership authority, then rule and authority would become a bit more routine and the roots of sustained government would be more deeply established.
[13]
Ibid., ¶5, 45.
[14] Cp. Rousseau’s General Will versus the Will of All.
[15] Ibid., ¶3, 39-40.
[16] “Of the Original Contract,” ¶33, 54-55.
[17] Ibid., ¶34, 55.
[18]
On “technical authority,” see Appendix A. infra.
[19]
The leader-authority differed from Niemeyer’s
authorities, perhaps, by being more dynamic. The leader might well have been
recognized in the midst of issuing commands and orders to those who responded
to his leadership.
[20] The Sense of Injustice, Midland Book edition (Bloomington: Indiana University Press, 1964; originally published by NYU Press, 1949), 11. (All references are to the later Indiana University reprint.)
[21]
Ibid.,
12-13.
[22] Ibid., 13. If I am not mistaken, Voegelin noted the “sense of injustice,” if not in so many words, in his writings.
[23] Ibid., 13-14.
[24]
Ibid., 14-22. To wit:
A.
Five who
simultaneously committed the same parking violation receiving wildly different
penalties.
B.
Two defendants
convicted on flimsy evidence punished by death only because one is a committed
anarchist.
C.
One convicted
of treasonable utterances penalized surgically.
D.
Patent case on
appeal decided for appellant because of bribed judge.
E.
Ancient
documents burned because they challenge Christianity.
F.
Pioneer
colonists build new colony only to have home government totally bind the
independence of the colony.
[25]
Ibid., 22.
[26]
Ibid., 24. Emphasis added. This suggests the
physiognomic perception discussed by Ernst Cassirer and others.
[27]
Ibid., 32. But there is no guarantee that the
legal system within which the sense of injustice is active is “mov[ing] ever
closer towards relations which would satisfy the demands of the sense of
injustice. There may be such a tropism, but in the available conspectus (legal
history being relatively quite brief) it certainly appears irregular and
spasmodic. . . . [T]he movement of law toward justice will remain a matter of
faith and resolution, rather than scientific fact.” Ibid.
[28]
Ibid., 13-14. Italics added. Compare Oliver
Wendell Holmes’s famous remark on “felt necessities” in The Common Law
(1881): “The felt necessities of the time, the prevalent moral and
political theories, intuitions of public policy, avowed or unconscious, even
the prejudices which judges share with their fellow-men, have had a good deal
more to do than the syllogism in determining the rules by which men should be
governed.”
[29]
“A Prospectus for a Symbolist Jurisprudence,”
(hereinafter “Prospectus”) Notre Dame Natural Law forum, Paper 20 (1957). <http://scholarship.law.nd.edu/nd_naturallaw_forum/20> Pagination follows this
downloaded Natural Law Forum edition.
[30]
Ibid., 92.
[31] Ibid., 90-91.
[32] Ibid., 88. Emphasis added.
[33]
Ibid., 89. Emphasis added.
[34]
Although sometimes, it seems, even great poets
miss the mark as in John Donne’s romantic poem The Flea.
[35]
The apprehension of quality brings to mind
Robert Pirsig’s anecdote in Zen and the Art of Motorcycle Maintenance
(1974), recounted in an appendix to this paper.
[36]
Prospectus, 89. Rodes puts this statement and
the immediately following discussion of the human condition “in the poet’s
terminology,” without naming “the” or “a” poet.
[37]
Ibid., 90, citing Allen Tate, The Man of
Letters in the Modern World.
[38] Ibid. Cp. Henri and H.A. Frankfort, “Myth and Reality,” on communication with animals.
[39]
Ibid., 94-99.
[40]
Ibid., 99-103. His discussion of Cahn is on
101-102. Rodes’s critique comes even though Cahn emphasized the emotional and
the rational components of the sense. See the discussion below on the
validation of the experience.
[41] They also conform to Lewis’s principle of objective
value, discussed below. The degree of conditioning, education, and personal
experience of the individual having the experience must be acknowledged, but it
cannot be eliminated from any human experience and does not account for the
moment of recognition or the moment of mirare in these experiences.
[42]
Cahn asks, “Is the sense of injustice right?”
And he immediately answers, “Certainly not if rightness means conformity to
some absolute and inflexible standard. There is nothing so easy or mechanical
about it. Blended as it is of empathy and reason, its correctness in particular
cases will vary greatly, for how can we know that the intellect has understood
and that projection has comprehended every last relevant factor?” Sense of Injustice,
26.
[43]
Ibid., 24. Emphasis added. Recall also Cahn’s
comments on the visceral and adrenal responses to perceived injustice at note
43, supra. Compare Ernst Cassirer’s and Michael Polanyi’s discussions of physiognomic
responses to human and animal characteristics: they are physiologically hardwired
into our constitution.
[44]
Sense of Injustice, 23: “Are these aspects of justice universal?
Hardly.” There are too many subtle variables to translate every individual case
into black letter law.
[45]
Cahn emphasizes the emotional and rational
elements of the sense of injustice:
In the first place, the sense of
injustice presupposes all the richness and diversity of experience, and all the
skills that develop with an accruing
wisdom. Part of this experience is emotional, a circumstance that lends intimacy and human warmth to the whole. Part
is rational, permitting growth, progression, and cumulation. Together these demonstrate themselves
in consciousness and memory; they are known because they are felt.” Sense of Injustice, 27.
[46] Abolition, 16, 18. “St. Augustine defines
virtue as ordo amoris, the ordinate condition of the affections in which
every object is accorded that kind of degree of love which is appropriate to
it.” Lewis cites St. Augustine’s City of God, xv.22; Aristotle’s Nicomachean
Ethics, 1104b; and Plato’s Republic, 402a, and Laws, 653, as
well as Confucian and Hindu sources.
[47]
Ibid., 14-15. “[T]o call children delightful
or old men venerable is not simply to record a psychological fact about our own
parental or filial emotions at the moment, but to recognize a quality which demands
a certain response from us whether we make it or not.” Ibid., 19.
[48] Prospectus, 89: “It would seem, then, that we must describe the poetic insight as an aptitude for discerning meanings in events, rather than for putting them there.” It should be noted that Rodes cites Lewis’s Allegory of Love in his account of the law of marriage. Prospectus, 108.
[49] Ibid., 14. See also Werner Jaeger on paideia. Paideia, 2d ed., 3 vols. (New York: Oxford University Press, 1967).
[50]
Ibid., 19.
[51] The image reminds one of Navajo hozhro or “walking in beauty.” See the wonderful novels of Tony Hillerman.
[52] Ibid., 20-21. The “new” education conditions children, the “old,” right education initiates or nurtures what is there.
[53] Ibid., 11. The “positivist debunkers,” if we may call them that, that Lewis targets in his lecture, who would educate the young, “have cut out of his soul, long before he is old enough to choose, the possibility of having certain experiences which thinkers of more authority than they have held to be generous, fruitful, and humane.” Ibid., 9 (Emphasis added)
[54]
Prospectus, 90.
[55]
Lewis rues the possibility of the “new”
education cutting out of the souls of youth “the possibility of having certain
experiences which thinkers of more authority than they have held to be
generous, fruitful, and humane. Abolition, 9.
[56]
“On Authority and Alienation,” 532. Compare
St. Augustine: “[A] people is an assemblage of reasonable beings bound together
by a common agreement as to the objects of their love.” CD, xix.24.
[57]
Niemeyer concludes by saying that as the
foregoing demonstration of the presence of authority in sovereignty has shown,
“It is the quality of authority in sovereignty that enables us to speak of the
‘representation of truth,’ recognized by Eric Voegelin as the central problem
of all politics. Ibid., 533.
[58]
See “Of the Origin of Government,” ¶1, 39:
“Man, born into a family, is compelled to maintain society from necessity, from
natural inclination, and from habit.” See also ¶5, 40-41: “Habit
soon consolidates what other principles of human nature had imperfectly
founded, and men, once accustomed to obedience, never think of departing from
that path in which they and their ancestors have constantly trod and to which
they are confined by so many urgent and visible motives.” Emphasis added to
both quotes.
[59]
“Of the Original Contract,” ¶5, 45, supra.
[60]
Politics, I.I.
[61]
Sense of Injustice, 28-29. He cites the famous lifeboat murder cases of United
States v. Holmes (1842) and Regina v. Dudley and Stephens (British,
1884), and the 1944 United States Supreme Court case of Steele v. Louisville
and N.R.R. He also cites the government’s creation of fair employment
practices commissions in the 1940s.
[62] Ibid., 30.
[63]
Ibid., 22: “Are these aspects ethical in their
nature? They are . . . .” Ibid., 23: “Are these aspects of justice universal?
Hardly.” Ibid., 26: “Is the sense of injustice right? Certainly not . . .
.”
[64]
Ibid., 31. He remarks: “We are concerned with
studying the sense of injustice, not as a product or effect, but as an
operative cause in the law.”
[65] General Theory of Authority, 163. I take “bound in conscience” to mean “obligated.”
[66] Wolff’s de facto versus de jure authority in In Defense of Anarchism, 9 passim.
[67]
A General Theory of Authority (Notre Dame: University of Notre Dame Press, 1962,
1980). “Authority is present in all phasis of social life.” Ibid., 13.
[68] Ibid., 82.
[69]
The paternal function is particularly well
described in Philosophy of Democratic Government, 8-9.
[70]
“On the Meaning of Civil Obedience,” in the
1980 edition.
[71]
Zen and the Art of Motorcycle Maintenance, 183-186.
[72]
The Tacit Dimension, Chicago: University of Chicago Press, 1966. I
might be stretching Polanyi’s concept of “tacit knowledge” here. He identifies
tacit knowing particularly with performing skills: we may not be aware of how
we do something, but still we can do it. He also, however, uses the example of
facial recognition, which seems close to the events of recognition we are
discussing here. We cannot say what part or aspect of a face enables us
to identify the person. Yet we can identify. Polanyi acknowledges the natural
aptitude for physiognomic identification, and also Gestalt perception, though
he excludes Gestalt theory from his conception of tacit knowledge.
[73]
When deciding a First Amendment case requiring
a determination of whether a movie contained “hard-core pornography,” Stewart
concurred with the court’s decision and said, “I shall not today attempt
further to define the kinds of material I understand to be embraced within that
shorthand description, and perhaps I could never succeed in intelligibly doing
so. But I know it when I see it, and the motion picture involved in this case is
not that.” Jacobellis v. Ohio, 378 U.S. 184, 197 (1964), Stewart,
J., concurring). Stewart would later
say, “In a way I regret having said what I said about obscenity—that's going to
be on my tombstone.” No worries, Potter, it isn’t there. See
www.findagrave.com.