MacIntyre: From the rule of law to the total state

As the regime jails political opponents, meme makers, and protesters while letting violent criminals roam the streets, it becomes increasingly difficult to pretend that we are a nation ruled by laws, not men. The rule of law is understood as a bedrock principle in a constitutional republic, but it has become clear that many Western democracies, America included, have discarded this fundamental axiom. In theory, these nations honor the rule of law as a core value, but in practice they have abandoned it almost simultaneously. Today we will be looking at Bertrand de Jouvenel’s seminal work "On Power" to help us understand why Western liberal democracies discarded the rule of law and embraced the total state.

De Jouvenel begins by defining his terms, explaining the critical difference between laws of nature, natural laws of society, and positive law. Laws of nature are physical laws, like gravity, to which all matter and all men must submit. If something is dropped from a height it must fall; the clever arguments of a lawyer will have no impact on this reality. Natural laws of society emerge from brute facts about their material conditions and the nature of humans in that community, but the members of that society still have agency. If the key water source in a village dries up, then the tribe must move to survive. The people can choose to stay in their village, but the natural consequence will eventually be death if action is not taken.

Moral and civil law usually begin as extensions of natural law, and as long as the power of the state confines itself to enforcing laws of this kind, its citizens maintain their dignity. The barriers placed around human action are aligned with natural consequences and the good that an individual would innately pursue. While there are rules, man is free to pursue virtue because the law is not arbitrary, and he can exert agency in the matters over which he would instinctively seek dominion. This is the ideal mode of state power, but de Jouvenel acknowledges that it is utopian; no government manages to restrict itself to this manner of law in perpetuity.

Positive law is initially created to buttress moral and civil law derived from nature, but it can quickly grow beyond its original scope. Inequality is the most natural of all truths, and the strong will seek laws to enshrine their advantage while the weak seek champions who would use the law to elevate them. While the law was initially bound together and made coherent by the natural circumstances and inherited traditions of society, great and sudden shifts in circumstance can give rise to factions that quickly assemble an array of positive law in their favor.

Law ceases to reflect the natural disposition and folkways of the people and instead becomes a momentary tool of situational advantage wielded by divergent interests. Man loses dignity because he can no longer freely pursue virtue; he is instead bound by arbitrary dictates that no longer align with the natural laws of society.

De Jouvenel does not dismiss the plight of the dispossessed, claiming that they often hold legitimate grievances against social ills caused by times of massive upheaval, when those who hold power take advantage of instability. Positive legislation is often called upon to adjust the social framework when rapid changes take place.

No social reality remains static and change must inevitably come, but positive law always proves unequal to the task. Ideally, legislative remedies would be thoroughly considered and carefully crafted, but in reality the making of laws is generally a rushed, emotional, and greedy exercise. While legislation is called upon to remedy real problems, its creation is usually sloppy, shortsighted, and arbitrary. The general disorder of capricious positive law becomes the answer to the specific disorder of societal upheaval.

As civilizations expand and increase in complexity, they embrace division of labor, which creates additional social stratification and widens the disparities between social classes. This in turn increases the chances of factionalism. Citizens now lead very different lives inside the state and rely on a high degree of social coordination. Religion and social heredity play a key role, binding the very different lives of distinct social classes together, orienting them toward a common goal in a predictable and reliable pattern. The traditions and folkways that had naturally arisen from the character and shared experience of the people now must be carefully passed down from one generation to the next if they are to hold the different social classes fast to a common purpose.

The balance between expansion and social cohesion is delicate, requiring the steady hand of a ruling class that understands the cost of trading long-term stability for its own short-term gain. Rulers who are too eager to indulge in personal enrichment or the accrual of power can easily rupture the social contract by enshrining factional interests in law, warping the system around their temporary desires. Mass expansion through colonization or immigration can provide rapid expansion due to the influx of raw materials and labor, but also threatens social cohesion. The more complex civilization relies heavily on the transmission of traditions and cultural norms to create social continuity, and new arrivals, if left unassimilated, can disrupt overall coordination. Rapid changes due to revolutionary technological advancement can also heavily disrupt social coordination as each faction struggles to find its place and fight for power inside a shifting paradigm.

No set of laws can predict everything, and during times of civilizational upheaval, circumstances will arise that demand new patterns of social coordination over which no body of law yet rules. This is when deeply ingrained values and traditions are most critical, because decisions are made rapidly and informally without significant deliberation. If the people have strong common morality, then the behavior of leaders will be constrained, even during these times of exception, but if not, leaders can use these moments of instability to ensure advantage for themselves or their social faction.

It belongs to the creators of the new conditions, to the innovating elites, guided to the extent needed by the spiritual authorities, to create the code of behavior and the concepts of right conduct which are needed to harmonize the new function with the order of society. These innovating elites must consider, while innovating, the personnel whom they attract, and make ready for their reception frameworks of morals as well as the raw materials of their work. Each function, in a word, has its law of chivalry and its duty of leadership. In the social movement of today, the innovators have neither elaborated these laws nor been conscious of these duties. (De Jouvenel, "On Power," p.411)

The elites may set these rules in times of rapid change, but due to the slow destruction of a shared culture and moral vision, they fail to recognize their social responsibilities. The accelerated nature of modern technological advancement means increasingly frequent social upheaval, which in turn creates more opportunities for social advancement. The rapidity of this social elevation can create the illusion of equality through opportunity, even incorporating that illusion into positive law, but the factions of society will continue to exist. The only real change is that those in positions of leadership and power are allowed to abandon their duties and obligations to the weak under the guise of equality. With no shared moral vision or acknowledgement of social hierarchy, the only duty for those who are elevated by social upheaval is to secure their advantage during the state of exception and enshrine it in law.

When the state originally governed an organic community, its power was bound by other social authorities. The government was forced to share power with the church, regional leaders, community organizations, and the heads of families. The traditions of the people would not allow the state to usurp the authority of these natural social institutions. But as social upheaval becomes more common and change more rapid, the state will seek to align with individuals who have been elevated by chaos to remove these competing spheres of authority. De Jouvenel sees the libertarian and authoritarian impulse as allies, not enemies. Liberation and equality destroy those social institutions that restricted the elevated individual, but those spheres of authority were the only thing holding back the advance of government power, and the state quickly comes behind, absorbing the responsibilities and powers once wielded by those traditional organizations.

With the institutions of shared culture and tradition demolished, all spiritual authority is undermined, and only state power can be called upon to quell the resulting chaos. The structure of social duties that arose from natural law have collapsed from the top down, and the state must claim total power over what had previously been an organic network of distributed social authority if it is to restore order. Without shared religion or folkways, only mass propaganda can be used to install what is now an alien belief system into a population that can find no other way to generate social coordination. The rule of law falls, and the total state is born.