Neocons vs. Theocons, Again
Clinton, Robert Lowry, First Things: A Monthly Journal of Religion and Public Life
In November 1996, a First Things symposium on American democracy and the courts raised a furor among two groups of conservatives that later came to be known as "theocons" and "neocons." The controversy was sparked by Father Richard John Neuhaus' purported suggestion--backed up more or less strongly by several of the symposium's other contributors--that reasonable people might plausibly view the current American regime, at least in some of its judicially driven aspects, as "illegitimate."
It is easy to understand why conservatives would be uncomfortable with such a suggestion. After all, most Americans were reared on a particular variant of the Lockean contract theory of government that ultimately found its way into the Declaration of Independence. According to this theory, a determination of governmental illegitimacy justifies armed rebellion. Yet conservatives have also been reared on Edmund Burke's idea that revolutions are almost never justified--even when official behavior seems intolerable.
Now that the furor has subsided, I would like to offer some thoughts about the idea of "legitimacy" and its relation to the judicial usurpation that both conservative camps seem to have agreed upon. I shall begin by offering the suggestion that "legitimacy" is, strictly speaking, a term that both derives from, and modifies, "law." It has, in modern times, been applied to government as a whole, but as the etymology suggests, this application is problematic.
In classical legal thought, before the rise of the modern notion of sovereignty and of the nation-state, legitimacy attached to the acts of government but not to its very existence. That is why a regime whose acts and laws were unjust could be thought without contradiction to deserve obedience. As St. Augustine put it: all human governments are fatally defective and thus merit no allegiance; yet the peregrini, the children of God whose real citizenship is in the City of God, nonetheless have a near-absolute obligation to submit to these unjust regimes during their brief stay on earth, because the alternative (revolution) is complete disorder.
Thomas Aquinas did not put the matter quite so starkly, but the gist of his remarks is the same. For St. Thomas, the entire universe is governed by laws, and human or positive laws are only a small subset of this larger body of law. Moreover, since the positive laws that govern human society are merely attempts to represent the human law that is derivative from lex natura--engrafted upon human nature--and in conformity with the lex aeterna, their "legitimacy" is entirely a question of the extent to which they capture the existing reality that they are designed to represent. Since the attempt to capture and represent this reality is concrete and particular, it is manifest only in particular acts and laws--not in the regime as a whole.
Thus Socrates sums up the whole of classical legal thought in Minos when he answers the question "What is law, for us?" with the statement "Law is the discovery of what is." And the process of discovery proceeds, as it were, "case-by-case." In the Summa Theologica, St. Thomas can assert simultaneously and confidently both of the following points: (1) the acts of a human legal authority that are not in conformity with the lex aeterna are not really laws at all--except in a "perverse" or unjust sense; and (2) there is a general duty of obedience that attaches even to unjust "laws" (non-laws) for the sake of earthly peace, which--along with the inculcation of virtue--is one of the two main purposes of human law.
The reason that these two propositions seem paradoxical--or even contradictory--to modern observers is that the dominant jurisprudence of the day is a variant of legal positivism, which holds forth a "command" theory of law, insisting that all law is the result of human artifice. Legal positivism demands an all-or-nothing answer to any …
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Publication information: Article title: Neocons vs. Theocons, Again. Contributors: Clinton, Robert Lowry - Author. Magazine title: First Things: A Monthly Journal of Religion and Public Life. Issue: 86 Publication date: October 1998. Page number: 18+. © 2009 Institute on Religion and Public Life. COPYRIGHT 1998 Gale Group.
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