Montaigne, Hayek and Schmitt on Law

The last post suggested looking at the distinction in Friedrich Hayek and Carl Schmitt between Law and Legislation, and the accompanying claim that Law should be placed above Legislation; and suggested that the claims could be usefully looked at in the context of that legal and political theory which emphasises political contestation. The Law over Legislation claim in Hayek and Schmitt involves some anti-political elements, which undermine their best thought about politics, and that can best be corrected by using that legal theory current, Critical Legal Studies, which seems most remote from their way of thinking. To put it rather crudely, the right wing of Critical Legal Studies overlaps with the left wing of Hayek-Schmitt interpretation. The ‘right wing’ of CLS includes most obviously Max Weber and Hannah Arendt. As I pointed out in the last post, this fits with a reading of Foucault which has appeared in various posts over time, though Foucault is of course a major figure of reference for the ‘left wing’ of CLS. I will add to Foucault, another figure generally placed in  avery left leaning context, Jacques Derrida. Derrida’s contribution to legal theory is most associated with his long paper ‘Force of Law: “The Mystical Foundation of Authority”‘. The idea of the mystical foundation goes back to Blaise Pascal and then to Michel Montaigne. Pascal’s Pensées has close relationship with Montaigne’s Essays, often paraphrasing and transforming passages. Derrida notes such an occasion when Pascal discusses the lack of foundation for law. Pascal refers to the arbitrariness of law, so that it is different on one side of the river from another, where the river coincides with a national frontier. State law has no foundations except in the force that the state can use to enforce law. That arbitrariness itself leads us to perceive the role of the mystical, that is of divine authority. The only real law is the law that comes from God, since that is the only law that can be absolute and free from the arbitrariness of state law. This line of thought is not put forward by Pascal as legal theory, or jurisprudence in the normal sense. Pascal does not mean to deny the authority of human laws, or the need for judges to follow the rules of the legal institution to which they belong. The argument is more designed to lead us to thoughts of the greatness God in comparison to fallen humanity, which has lost something Godlike in itself. Nevertheless Pascal’s thoughts do relate to political and legal thought, corresponding with the weakening of a belief in the unity of human, divine and natural sources of law. Pascal’s discussion draws on Montaigne’s essay on ‘Experience’ which reflects on Montaigne’s time as a judge in Bordeaux. The law cannot be just in his account, as there is always conflict between general judicial principles and the context of any individual case. Montaigne notes the need for consistency in judgement, and the following of previous judgements. Concerns with the stability of the institution of law, and the unity of legal principles place barriers ,n the way of fully accommodating the particular facts of particular cases. The consequence is that the judge has to knowingly make unjust judgements. These tend to particularly affect the poor and lowly who are always treated badly by institutions. As with other sceptical moments in his considerations of the mores, ethics and law of the society in which he lives, Montaigne is more inclined to melancholic resignation than radical change. His own writing might be regarded as an attempt to spread greater sympathy for the unfortunate, and awareness of the harsh consequences for individuals of the operation of power; and it had some success from that point of view, forming a major part of the growing cultural emphasis on human sentiments directed at all individuals since then. We should also consider the possibility of a more radical political reading of Montaigne. His Essays discuss his friend Etienne de La Boétie, who died young, and is most famous as the essay on voluntary servitude, that is on the willingness of the many to serve one man who has power. La Boétie advocates rebellion in contrast with the apparently conservative and moderate Montaigne. Montaigne says that he considered including La Boétie’s essay in his own Essays, but did not do so because it might be misunderstood as a challenge to royal state authority of the time. This does at least raise the possibility that Montaigne is repressing his own more  radical thoughts out of fear of royal censorship, rather than expressing a deep going moderation and respect for authority at that time. These reflections on the contradictory  and unjust  nature of law in Montaigne, suggest a starting point for Derrida and Foucault’s thoughts on similar lines, and suggests that such a way of thinking cannot be limited to left wing anti-capitalist thought. Both Foucault and Derrida have brief, but significant moments of identification with Montaigne: for Derrida that is in relation to the interpretation of interpretation which Montaigne sees as an endless necessity in the discussion of legal and sacred texts; for Foucault that is in relation to awareness of the possibilities of the stylisation of life, and the nature of the self as self-relating. So we can apply to Hayek and Schmitt, those two great believes in the unity, authority and continuity of Law, the scepticism of the Renaissance humanist with regard to those claims about law, and contextualise CLS in that way.

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