Tag Archives: state

Church, King and State – Decentralisation and Liberty


Church, King and State – Decentralisation and Liberty

By Duncan Whitmore

Introduction

It scarcely needs to be said that life as a libertarian theorist and political activist is an often isolated and lonely existence. Even though we often have the evidence to illustrate that we are correct, our ideas are ridiculed, if they are ever listened to in the first place. While “free-marketism” from the point of view of generating “economic efficiency” enjoys a seat at the table of the mainstream and may, depending upon the circumstances, disseminate views which are taken seriously by the highest echelons of government, radical libertarianism does not. We are a bare minority of extremist nutcases, deluded by the romantic fairytale vision of the industrial greatness of the nineteenth century, the reality of which, we are told, meant spoils for the rich and destitution for the masses. Our intellectual heroes are derided as dogmatic crackpots who would do away with all of the civilising achievements of our social democratic world order and consign us all instead to a vigilante society reminiscent of the “wild west”.

Having said of all of this, the endeavour to justify libertarian principles is only a small part of the battle. In fact, the biggest difficulty in such justification is not in crafting high quality arguments that will consign statism and socialism to the intellectual rubbish heap. Rather, it is the fact that the die is so heavily weighted in favour of statism, and that the willingness to accept any kind of confirmation bias, however minute, for the status quo is so eager, that even if one was armed with a fortress of insurmountable libertarian arguments the debate could still be lost. No doubt many libertarian has been in the position of having taken a horse to water only to find that he will not drink – and that, sadly, we must be prepared to wait for him to realise that he is dying of thirst. Read more

The Romanisation of Natural Law


The role of the feudal king is popularly depicted as a monstrous tyrant, but this is a misconception jaded by a modern understanding of authority.  Europe had known kings for thousands of years, but these were prima inter pares (first among equals); feudal Europe was a network of jurisdictions and presented an advanced, yet stateless civilization.  Arthur Joseph Penty refers to the formal clause of a medieval king’s pledge – ‘The land and each inhabitant of it shall be undisturbed in his rights and customs’ – before concluding that kings were

‘not so much the ruler as the first guardian…not so much the owner of the realm as the principal administrator… The principle involved is the one which runs through all Mediaeval polity of reciprocal rights and duties. All public authority was looked upon as a responsibility conferred by a higher power, but the duty of obedience was conditioned by the rightfulness of the command.’[1]

The Church had a fundamental role in maintaining the integrity of these kings.  Canon law – the law of the Church – was built on the rational, natural law; Gratian, Bishop of Chiusi, paved the way for the first systematised set of laws, the Decretum of the mid-12th century, which began with the sentence: ‘The human race is ruled by two things, namely, natural law and usages’.[2]  Canon law also incorporated more of the customary law of European peoples and respected the more libertarian character of ancient European societies: ‘The men of the age fervently believed that “old law was good law.” The compilers of the canonical collections endorsed this maxim.’[3]  This was a fundamental of the customary laws of the Indo-European peoples and essential to feudal society.  Yet, whilst it provided the basis for the development of independent, sovereign institutions and cities etc., it was slow to keep up with the vogue of rediscovered Roman law among many nobles, bourgeoisie and lawyers.  Despite the efforts of Gratian, Canon law would no longer continue to blend the aristocratic libertarianism of European tribes with the higher civilization of Christian rule.

In the 13th century, a new group of canonists would emerge and witness a significant transformation of canon law, almost all of them studying at Bologna, under ‘the greatest Romanist of the time,’ Azo.   Pennington notes of this transformation, ‘The “romanization” of canon law had been underway for almost fifty years, but they applied Justinian’s doctrines more completely and comprehensively than earlier generations.’[4]  One such student, Laurentius Hispanus, would turn natural law upside down and, thus, the whole course of Western civilisation.  It is worth quoting Kenneth Pennington, the foremost scholar on this matter, at some length:

‘In a gloss to Innocent III’s decretal Quanto personam Laurentius adopted a truly revolutionary idea: the prince may make iniquitous law, for the prince’s will is held to be reason. Germanic and earlier learned conceptions of law confused the content of law — that law must be just and reasonable — with the source of the law, the will of the prince. Before Laurentius, the jurists had accepted the idea that a law could not be valid unless it embodied reason. By separating the prince’s will from reason, Laurentius located the source of legislative authority in the will of the prince and laid the intellectual groundwork for a new conception of authority in which the prince or the state might exercise power unreasonably, but legally. He can be said to have begun the voluntarist tradition in political thought.’[5]

Be careful not to confuse the meaning of voluntarist; the lex voluntas posits the will as the source of law, as opposed to the lex rationis of classical natural law, which has reason as the source of law – similar to the a priori of praxeology in Austrian economics or of argumentation in van Dun and Hans-Hermann Hoppe’s dialogue/argumentation ethics.

So, Laurentius not only produced the lex voluntas school of natural law, but in doing so, conceived the embryonic, Machiavellian notion of the legitimised, coercive state.  Even the popes became taken up with this idea; another lawyer of Bologna, Tancred of Lombardy, who considered Laurentius his master, was appointed archdeacon of the cathedral of Bologna and dominated the school.  It was a time when an intellectual status quo could rapidly form across the continent, as Pennington further explains:

‘Unlike today, the schools and the jurists who taught in them were not isolated geographically, linguistically, and jurisdictionally from each other… The jurists of the North read and taught the jurists of the South… The result of this work was the development of a common European jurisprudence that emerged during the thirteenth century.’[6]

Early 16th century France shows the permeation of absolutist thought.  Following Bude’s monarchical divine right theory, Rothbard notes the ideas of the two leading legists of the time, de Grassaille: ‘the king is God on earth’; and de Chasseneux, whose view he summarises thus:

‘All jurisdiction…pertains to the supreme authority of the prince; no man may have jurisdiction except through the ruler’s concession and permission. The authority to create magistrates thus belongs to the prince alone; all offices and dignities flow and are derived from him as from a fountain.’

These legists could well read such ideas back into 13th century developments of the lex voluntas school, as the prioritising of the prince’s will had cracked the dam and, in their own day, the flood would wash away everything in its path.  They ‘systematically tore down the legal rights of all corporations or organizations which, in the Middle Ages, had stood between the individual and the state. There were no longer any intermediary or feudal authorities.’ [7]

The Church, which once opposed the growth of statism, now had many thinkers who had imbibed the Machiavellian zeitgeist.  Giovanni Botero, an Italian Jesuit, writing in the second-half of the 16th century, seems to be critical of Machiavelli, according to many scholars’ analysis of The Reason of State, but Rothbard’s perspective is not so superficial:

‘Botero took care to attack Machiavelli explicitly and pro-forma. But that was merely a ritualistic cover for Botero’s adoption of the essence of Machiavellian thought. While beginning by paying lip service to the importance of the prince’s cleaving to justice, Botero quickly goes on to justify political prudence as crucial to all government…that ‘in the decisions made by princes, interest will always override every other argument’; all other considerations…must go by the board. The overall view of Botero is that a prince must be guided primarily by “reason of state” [raison d’etat], and that actions so guided “cannot be considered in the light of ordinary reason”. The morality and justification for actions of the prince is diametrically opposed to the principles that must guide the ordinary citizen.’[8]

This imagining of a higher reason of state officers, enabling them to act with impunity where actual human reason would deem it unjust, was the influence of Roman law’s derivation of law from will instead of reason and its replacement of natural justice with an artificial order where might insists upon its rightness.  It is this school of thought which would later inform Locke et al. and be called classical liberalism, which is neither truly classical nor liberal.  The king as a person, a fallible person, would differ from the infallible office of king, forming the basis for future ‘civil servants’.[9]

The best examples of this monarchical revolution are the ‘different stories circulated about jurists’ losing horses’ to certain kings in the 16th century.  These apocryphal stories spoke volumes about the kings’ attitudes toward their own dominium and became a running joke – a canter of banter, if you will.  In the original 12th century tale, upon which these were based, Frederick Barbarossa was once riding between the knights, Sirs Bulgarus and Martinus.  He asked them whether he was dominus, i.e. the lord or owner, of the world.  Whilst Bulgarus replied that he was not owner so far as property was concerned, Martinus replied that he was.  The Emperor then got off the horse and had it presented to Martinus.  At this, Bulgarus waxed lyrical: amisi equum, quia dixi equum quod non fuit equum – I lost an equine, because I upheld equity, which was not equitable.

Another story involved two competing teachers of law from Bologna, Azo and Lotharius, and Emperor Henry VI.  When asked who has merum imperium (that is, jurisdiction), Lotharius said the emperor alone does, whilst Azo declared subordinate magistrates held their own jurisdictions unless these were revoked.  Lotharius got the horse and Azo was, we hope, at least thanked for coming; this shows the absoluteness of authority assumed by kings and indicates that, on the whole, any ideas which deviated from this centralising tendency were not well-received.

Like Bodin in the sixteenth century, the jurists of the mid-thirteenth century considered a subject’s dominium over private property to be a right derived from natural law that was exempt from princely authority, with several exceptions: the prince could expropriate property if he had cause, was pressed by necessity, or could rest his action on the public good.’  However, this only grew – they ‘added a further principle taken from Roman private law: two men cannot have complete dominium over the same property.’[10]  Who else then would have superior dominium but the king?

Bruce L. Benson provides some insight as to how such a development took place in England, particularly after the 11th century Norman Conquest, when the land was still threatened by Danes, as it had been for decades.  What started as a means to increase much-needed revenue by forfeiting the goods of executed criminals, developed into criminal law; customary law and other jurisdictions settled matters between individuals, but the kings discovered that, by expanding their supremacy into other jurisdictions through offering pleas and forfeitures, they could become a supreme judge.  Before, Anglo-Saxon law provided ‘that every freeman’s house had a “peace” [which] if it was broken, the violator had to pay…but as royal power expanded, the king declared that his peace extended to other places.  First it was applied to places where the king travelled, then to churches, monasteries, highways, and bridges.’  As revenue increased, the king could effectively buy support for the operation by giving a cut to sheriffs etc.[11]  Welcome to the warfare/welfare state.

Previously, kings certainly had an imperium – a Christian obligation to maintain peace in the Church, amongst his people – the negotium pacis et fides; but, this expansion of the king’s dominium was an encroachment on a person’s restitution for wrongs committed against them.  Further encroachments would give rise to the legend of Robin Hood, and what Pollock and Maitland called the ‘constant tendency to conflict between the old customs of the family and the newer laws of the State’.[12]

 

[1] Penty, A.J. (2018 ed.) A Guildman’s Interpretation of History, Forgotten Books, p.52

[2] Pennington, K. (n.d.) ‘A Short History of Canon Law from Apostolic Times to 1917’, p.19 –  http://legalhistorysources.com/Canon%20Law/PenningtonShortHistoryCanonLaw.pdf (20/06/2018)

[3] Ibid., p.17

[4] Ibid., p.27

[5] Ibid.

[6] Ibid., p.36

[7] Rothbard, M. (2006 ed.) An Austrian Perspective on the History of Economic Thought, Mises Institute, pp. 216-217

[8] Ibid., p.213

[9] Barzun, J. (2001) From Dawn to Decadence: 500 Years of Western Cultural Life, 1500 to the Present, Harper Perennial, p.251

[10] Pennington, K. (1993) The Prince and the law, 1200-1600: Sovereignty and Rights in the Western Legal Tradition, University of California Press, p.24

[11] Benson, pp.29-30

[12] Ibid.

An Easter Message


Christopher Houseman

Today, April 4th 2010, is Easter Sunday, when Christians all over the world celebrate the Resurrection from death of the Lord Jesus Christ, the God-Man sometimes known by the title “the Son of God”. Christians claim, on the basis of written accounts handed down from eye-witnesses, that three days after enduring death by crucifixion, Jesus of Nazareth came back from the dead. Those accounts add that the risen Jesus was seen, heard and even touched by up to 500 of his followers at a time over a forty day period before ascending into heaven.

The Resurrection is an event which Christians have celebrated for about forty generations past, but to we who believe it’s more than an event – it’s the Event which changes human history forever. According to the Christian Church, the Resurrection shows that God in Christ has conquered even death, and that the Jesus who willingly offers everlasting life to his followers is able to do what he’s promised. In Libertarian terms, the Easter story is about the triumph of Life and Truth over an unholy alliance of Imperial Politics and State-sanctioned Religion.

The Easter week-end marks the climax of one of the most distinctive aspects of the Judeo-Christian revelation. The story of world religion normally revolves around human beings trying to reach up to God. The Judeo-Christian story, by contrast, is about God reaching down to us. It’s based on two contrasting but related assumptions: that on the one hand human beings can’t bribe, cajole, or haggle their own way into the good books of an all-sufficient God; but that on the other the God who loves us enough to make and sustain us won’t just leave us to live and die without the chance to relate to God.

You might be wondering what much of this has to do with the Libertarian Alliance. The Alliance includes many atheists and agnostics who would accept little or none of what I’ve just written about the Lord Jesus Christ. It has no unified position on much of anything except the right of everyone to speak and live by the truth as best they understand it – without the modern, centralised, over-regulating, greedy, grasping State to stand in their way. Where might Christianity fit into a Libertarian world, except perhaps as one life-style option among many? The truth is that Christians and Libertarians have much more to offer one another here in Britain than mere tolerance of one another.

For instance, the Christian Institute has recently pointed out that the current understanding of “equality” in British political discourse means that many Christians have “a growing feeling that ‘equality and diversity’ is code for marginalising Christian beliefs” (Marginalising Christians: Instances of Christians being sidelined in modern Britain, page 7). Christians, it seems, should be “free” to practice their faith privately but not publicly. They should be “free” to answer questions (although even this freedom is under attack), but not to initiate conversations. They should be “free” to live under the law of the land, but not to initiate (or even retain) laws which embody and reflect their beliefs and priorities.

If such limitations were successfully applied to an ethnic group rather than a religious one, the results would often be marginalisation and, eventually, extinction. As noted above, British Christians are increasingly concluding that this is exactly what some British and European political leaders and social commentators have in mind for them and their faith. And while this cadre of anti-Christians is currently small, it is vocal, well-connected and highly motivated. If its members succeed in their legislative and cultural objectives, I suggest that the results will be horrifying for Christians and Libertarians alike.

With the demise of Christianity, our primary cultural basis for distinguishing between the individual and the State would disappear too. Instead, the State would become the Western world’s arbiter of moral values, the assessor of the value of each individual human life, and finally (by a remorseless logic) the giver and taker of life on a scale unknown in the West (certainly not since 1945 at any rate). In short, the State would become a fully fledged pretender to godhood. During the 20th century, the loss of the boundaries between God and the State cost Eastern Europeans and Asiatics over 100 million civilian lives between them in what was probably the most expensive educational project in recorded history. You can read more about it in Professor RJ Rummel’s book Death by Government. How many millions of lives might the West be willing to throw away in the 21st century in order to learn the same lessons?

Would democratic humanists offer much resistance to such a State? I suggest their opposition would amount to very little. In the first place, if this life is all you’ve got, will you really risk it during the rise of an increasingly violent dictatorship to prevent an unknown number of complete strangers being killed? Some might, but most wouldn’t. Why lose so much forever in exchange for what one will never see? Some brave parents might make the ultimate sacrifice for their children – but what if the State subsequently took those orphans into “care”?

Secondly, the democratic humanist critique of dictatorship often rests on the twin pillars of utilitarianism and respect for legal procedure. This kind of critique is fuelled by current affairs. It suffers badly once State control of news and education can shape a nation’s understanding of what is socially “good” and can also spare a government’s blushes. What’s more, modern totalitarian States have often killed, exiled or co-opted prominent intellectuals and lawyers into ensuring that legal minutiae are complied with wherever possible. This second point in particular may help British Libertarians understand why their critique of the modern nation-state is only just starting to attract the mass media attention it needs and deserves.

By contrast to the democratic humanist approach, the Christian faith, rightly understood, proclaimed and applied, has the power to act as the moral conscience of the Libertarian movement in Britain and of the wider nation – as indeed it did to the Gladstonian liberals of the nineteenth century. In so doing, it would offer the Libertarian movement the moral ammunition it needs to see off the old criticism that Libertarians are really conservatives who want to smoke pot without getting arrested. It would also give Libertarians an acceptable basis for discussing the importance of family, community, culture and society. “laissez faire” isn’t rhyming slang among Libertarians for “I don’t care”, and I’ve yet to meet a Libertarian who thinks it should be.

But how can an assortment of classical liberals, cultural conservatives, voluntaryists, and anarcho-capitalists help the Church? What do Libertarians have to offer Christians, apart from the promise of leaving them in peace? To put it bluntly, if Libertarians could only offer Christians good-humoured toleration, it would be a great improvement on the current situation of the British Church. Even the most humanistic Libertarians I’ve met genuinely believe that the Church should be free to promote and live out its message in Britain to the greatest extent its moral, spiritual and material resources will permit. In Libertarian thinking, equality means equality for Christians too. Christian, if you really think this is what the current Establishment and its supporting chorus of so-called “New Atheists” are offering you, kindly reconsider. In fact, I suggest that Christians and Libertarians can and should actively co-operate in a number of areas.

Consider for instance the Libertarian slogan “For Life, Liberty and Property”, which potentially contains much that Christians should find appealing (see, for instance, John 10:7-10, Luke 4:18-21; 2 Corinthians 3:16-18). There can be no doubt that consistent application of this slogan would offer us all far greater freedom of conscience than we presently enjoy. Why, for instance, are Christians and everyone else in Britain forced through the tax system to pay for most of the 7 million plus babies aborted in the United Kingdom since 1967? How can forcible subsidies of the taking of millions of innocent lives be justified in a country that supposedly upholds our freedom of conscience as well as that of women who choose to have an abortion? I can assure any Christians who want to pursue this matter further that they’ll find a hearing and a number of sympathisers in the Libertarian Alliance.

For their part, Libertarians can help Christians put meat on the bones of lines such as “Your will be done on earth as it is in heaven”. Christian teaching has not only to be proclaimed and explained. It must also be applied, which begs an obvious question: how? Let me give but one example where Libertarians have put in a great deal of thought over the past few decades. Western governments are becoming ever more desperate to suppress reports of their national debts by blaming the media, “speculators” and anyone else they can find. The politics of State-run redistribution, financed by ever-larger government deficits and overseen by corporately-sponsored political parties, is about to collapse in on itself (as is the custom of oversized black holes).

The results will be devastating for many ordinary households. As in times past, adversity will bring many to the doors of their local church looking for answers. When that happens, Christian leaders will have a choice. Will they emphasize that we are given God’s grace to live here and now too? Will they prepare now to explain later that the centralised, politically driven issue of fiat money (mere pieces of paper) through central banks is an abomination to God? A government-run fiat currency violates God’s commands to use just weights and measures (Deuteronomy 25:13-15), and involves secretly moving the landmarks (Deuteronomy 19:14) of savers by diluting the purchasing power of what they own in favour of the politically connected mega-banks and multinational corporations who get the new money first. The end result is that Big Banking and Big Business get to bid for today’s resources at today’s prices with tomorrow’s money supply. Little wonder that the rich get richer and the poor fall further and further behind when the state controls the money supply!

Will Church leaders also call for the State-controlled, relativistic National Curriculum to be scrapped? The Bible places the primary responsibility for education on parents, supported by the leaders of God’s people (Deuteronomy 6:4-7; Joshua 8:34-35; Nehemiah 8:1-10). I’m amazed how many Christians keep imagining all will be well if they can just give a Christian gloss to the God-hating, Christ-killing, micro-managing, grasping, one-size-fits-all State – and if that sounds like an overstatement, try looking at governments as God and Satan see them (Daniel 7; Luke 4:5-8). The compelling, conformist violence of the law (especially in the field of so-called “social engineering”) and the exercise of free choice informed by the royal law of love (James 2:8) are fundamentally different in nature. True, God gave the Law of Moses – but that was to teach people the reality of their sinfulness and their need for Christ (Galatians 3:21-29).

Will Church leaders have the knowledge and courage to inform the Christian call to repentance with specifics about how foreign policies, government “aid” programs, so-called “free trade” agreements and “conservationism” have been used to retard the industrialisation of the countries formerly known as the Third World? Closer to home, will they call time on the politics of State-run redistribution as a massive exercise in electoral bribery from the voters’ own pockets? Or will those leaders just say that God wants the suffering crowds to know the presence of Jesus and ask them to keep coming back to learn more about a better hereafter? Such a message, while not false in its content, would clearly be an inadequate portrayal of the Christian life to a materially and spiritually impoverished people in desperate need of both eternal Truth and practical responses amidst financial ruin.

Whether you’re a Church leader, an “ordinary” Christian, or just someone looking for a principled, reasoned and radical alternative to the database state, please accept this invitation to contact the Libertarian Alliance. Meantime, regardless of your own beliefs, I hope you’ll accept best wishes for a very Happy Easter from the Libertarian Alliance and I.