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.

Adam Smith, the City, Natural Order, Republicanism

Primary version if this post, with visual content, at Barry Stocker’s Weblog

At the end of Book III, Chapter 1, ‘Of the Natural Progress of Opulence’, of An Inquiry into the Nature and Causes of the Wealth of Nations, Smith refers to a unnatural and retrograde order. What he means is the inversion of a natural progress from agriculture, to manufacture to international commerce. That natural progress is the progress from improvements in agriculture which allow the formation of towns and investments in manufacture, and a similar progress to international trade.

The unnatural event takes place in European cities where international trade has introduced new luxuries to cities. These luxuries influence domestic manufacturers who compete in that new market, and that further influences agriculture.

I’ve mentioned dialectic in Smith a few times, and Smith as bringer of dialectic into his definitive work on political economy. The idea of an unnatural order is either a break down of dialectic, or a suggestion that dialectic leads to rigid unifying forms. Writing about Pascal and Smith as dialecticians yesterday, I suggested that Pascal’s form of dialectic is more contradictory, more concerned with paradox than Smith’s. Kierkegaard also provides a model of a more paradoxical kind of dialectic, he had a good phrase for it, dialectic of the absurd.

Smith is shocked by something that is clearly inevitable, I would have thought. That is the feedback consequences of a long historical process, so that ‘older’ forms of wealth are influenced by the older forms. There is a moralism here about the influence of ‘luxuries’, not that Smith ever thinks it would be a good idea to try to restrict them. At an earlier point in The Wealth of Nations, Smith even recognises the positive impact of the wealth of towns on the surrounding countryside. He also suggests that an alliance between monarchs and cities in the Middle Ages was a good thing in hastening the end of feudalism, and the increase in free trade.

The moralism about cities appears in a slightly different form with regard to cities which are centres of political power. Smith refers to the huge waste of a royal court and its hangers on which outweighs even the wealth produced by Paris. At another point, Smith mentions the expense of royal courts and back tracks to refer to the honourable role of high royal servants. I’m disposed to believe that Smith was a covert critic of royalty. From that point of view, it;s interesting that in the discussion of the Navigation acts he repeatedly refers to what he normally calls Holland, also known then as the Dutch Republic, as the ‘maritime republic’. Smith strongly hints that royal courts continue the tradition of wasteful expenditure on hangers on, which is wealth diverted from investment, in nomad princes and the like.

The implied criticism of royal expenditure, and of the institution itself, is rather mingled with moralising about the sort of people to be found round royal courts. That lurking republicanism is maybe associated with the less rational dislike of the inversion of nature, since royal expenditure might be regarded as the diversion of economic capacity, occasioned by a premature entry of luxury goods from another country,

This odd outrage at countries which don’t follow economic stages in the right order, is in tensions with the feedback processes Smith otherwise values; and his general feeling that trade should be left alone, except where really very strong moral and national interests are at stake. It also suggests a limitation in the understanding of ‘nature’ at the time, which has natural theology somewhere within it, that is the view that everything in nature moves forward in orderly stages to an end ordained by God. I don’t think that notion is really abandoned, in general, until Nietzsche, and then later in the 19th Century when Darwinism became neo-Darwinism, and when the laws of thermodynamics led to a cultural interest in entropy in nature.

Blaise Pascal, Adam Smith and Dialectic

Primary version of this post, with visual content, at Barry Stocker’s Weblog.

I’ve already mentioned the idea that Adam Smith belongs with Clausewitz as a ‘dialectical’ thinker, that is a thinker concerned with the relation between opposite, and differing , ideas and material forces, and how they are transformed when combined. That is dialectic in a rather general sense. The idea if dialectic was for sometime clouded by a few issues: association with Hegel and the belief that Hegel was an incomprehensible charlatan who was somehow responsible for Fascism and Marxism-Leninism (though if he was incomprehensible it’s difficult to see how he could have been responsible for anything; association with the dismal official ideology of Marxism-Leninism in the communist countries, and distinctly philosophical sub-prime manuals of dialectical materialism; Kant’s attacks on dialectic, by which he meant doctrines of concepts taken beyond the limits of experience, this is sometimes regarded as a refutation of Hegel before he got going, but that most Hegel scholars regard his ‘dialectic’ as a reconstruction of experience.

The situation for dialectic has improved. The inadequacies of state sponsored Marxism-Leninism is not a living issue; Hegel’s reputation as a constitutional thinker has been rehabilitated; Hegel’s method has been understood as something different from what Kant was attacking (a rather big subject I can’t begin to tackle here).

It’s widely recognised that Smith was a dialectical thinker. It’s widely recognised that Pascal was a dialectical thinker. However, the relationship between Pascal and Smith has only be looked at with regard to ideas of self-interest (self-love in Smith and amour-propre in Pascal) and notions of virtue. I haven’t even seen a detailed comparison on that issue, but there is some understanding of the connection. What I have not seen is an account of the connection between Smith and Pascal, with regard to dialectic. There may be some work out there, but it’s not easy to find.

Pascal’s sense of the dialectic is more contradictory than Smith, but they have the following in common.

The difficulty of combining a global and particularistic point of view, which would be necessary to real knowledge.

The sense that self-interest serves collective interests, at least under an effective sovereign authority

A sense of the limitlessness of human desire combined with the finite possibilities than can be grasped.

Pascal’s thought contains a sense of interaction of parts and wholes, which Smith finds in the world and which must be present in the structure of his thought. Smith does not reflection on his own thought, but he does reflect on the way that individuals find it difficult to grasp the consequences parts coming together. He quotes the community in Britain which tried to reject a road because it thought that would allow competition to drive local producers out of business. The real effect is that some producers lose out, but the community gains overall from lower prices and greater competition, and the chance to invest a bigger surplus in new businesses. This seems removed from Pascal’s concerns, but Pascal was aware of the rise of commercial society, though in less articulate terms than Smith, This informs Pascal consciousness of self-love and limitless desire in humanity.

Smith seems more optimistic and social, Pascal seems more pessimistic and inward looking. Both are concerned with a restlessness in human spirit where extremes of moral elevation and depravity become very close. Both look at how the human individual reacts to a world of infinite divisibility: atoms for Pascal, division of labour for Smith. Both look at a world of infinite scope: ever growing markets with ever more intense production in Smith, infinite spaces in the universe, and the infinity of God, for Pascal. Both are concerned with how those must interact in a way which never produces a final comprehensible moment of unity and stasis.

I don’t suggest a direct link, both knew about the history of philosophy, modern science, and were sensitive to the the development of the social world towards the paradoxocal looking combination of greater complexity and integration. Pascal talks of gambling, and uses it as a way of thinking about how we have faith in God, in ‘Pascal’ Wager’; Smith talk about a world of calculation of economic factors and risk taking by economic agents.

Pascal at the beginning of Modern Philosophy

Primary version of this post, with visual content, is at Barry Stocker’s Weblog.

The question of where modern philosophy begins is clearly not answerable, There’s always an earlier precedent for what someone has said, or a later really significant step beyond archaic residues, But let’s at least not just passively assume that modern philosophy began with Descartes. Even in Descartes’ time, Antoine Arnauld pointed out precedents for in Augustine for Descartes’ Cogito, in his ‘Fourth Objection’ to the Meditations on the First Philosophy (fourth of five ‘authorised’ objections to the Meditations printed with Descartes’ reply as an appendix). Of course it was Arnauld that Pascal was defending from his religious enemies, in The Provincial Letters. Søren Kierkegaard pointed out the paradoxes around saying that philosophy became modern in Descartes, as if philosophy was not claiming to be atemporal, and as if it could be reinvented again from nothing, in Johannes Climacus. In Being and Time, Martin Heidegger suggested the idebtedness of Descartes to his contemporary, the late Scholastic Francisco Suárez, somewhat messing up Descartes’ claims to have put the Scholastics in their place. Kierkegaard’s point rather undermines the discussion I have proposed, but I think Kierkegaard appreciated that we have to periodise; as always he wanted to show the inherent paradoxes of knowledge, and the absurdity of some of the formulations of Descartes’ place.

It could be Suárez, it could be Francis Bacon, it could be Montaigne, no doubt there are other contenders, so why Pascal?

1. Pascal might be the first to really give a sense that the human individual grasps itself as alien to the universe.

2. Pascal might be the first to give the sense that human nature is contradictory (between passion and reason, between reason and the senses, between mind and body), and not in a way which can be resolved by balance, moderation, or the sovereignty of reason.

3. Pascal might be the first to break with Antique notions, still very present in Montaigne and Descartes, of moderation, balance, and tranquillity, as achievable and as guiding principles for ethics and rationality.

4. Pascal might be the first to give the sense that human individual grasps itself as a concrete, particular existence preceding description or any particular perception.

5. Pascal might be the first to give a really strong sense of how different the universe is after New Science from older conceptions, when he talks about infinitely large and small, for example.

6. Pascal might be the first to give a really strong sense of humans as alien to nature.

7. Pascal may have taken a big step in scepticism beyond his predecessors. There are various ways in which Pascal picks up on sceptical elements in Ancient philosophy, and in Montaigne and Descartes. But he gets beyond the sense the earlier scepticism always has of offering a cure for illusion in a healthy life style, Scepticism is traumatic in Pascal and tied in with the trauma inherent to human existence. For Descartes scepticism cannot affect actions.

8. Pascal’s Wager might be the first bit of economic reasoning about action, an account of the trade off of benefits and costs in believing in God. It’s missing the point to think this argument is about proof of God’s existence or proof of the grounds of faith. It theorises choices and actions as guided by calculations about costs and benefits, though it looks at the conscious level it hints at the power of that at the habitual level, because the wager is about how you form a habit of belief.

9. Though Pascal takes the idea of ‘mystic foundation of law’ from Montaigne, he really creates the idea that law is absolutely and inherently unjust and violent in principle, not just in application, as I suggested in Sunday’s post.

Link of the Day: Chris Bertram Podcast on Rousseau

Primary version of this post is at Barry Stocker’s Weblog, with visual content!

Why Rousseau Matters

I found this at Alexander Bird’s Philosophy at Bristol blog which links to podcasts of philosophy talks given at the University of Bristol. The last entry is for July, and that is Chris Bertram’s Inaugural Lecture as a Professor. Bertram is one of the contributors to the collective blog Crooked Timber, which is perhaps the most influential political though blog around. Bertram is a leading Rousseau commentator, so I was very interest in hearing this (particularly as I as discussing matters relevant to Rousseau in both of yesterday’s posts) and was not disappointed.

Bertram disposes of the very persistent idea that Rousseau’ philosophy is based on a belief in the natural savage, explaining that what Rousseau is concerned with is how civilisation adds a different kind of self-love to immediate self-love of natural man. Rousseau’s goal is not the return to a ‘noble savage’ but to resist the most negative aspects of the self love which seeks recognition from others. Rousseau’s gaol is to mitigate, and eliminate social status anxiety and envy. Bertram perhaps slightly underestimates the degree to which Rousseau sees humans torn between the two kinds of self-love, between natural and social selves, and as he mentions himself, Rousseau thinks there is an ideal balance at a very early stage of social existence before inequality grows. I would say there is always a tension in Rousseau between the immediacy, the non-anxiety of he natural self and the anxious self-consciousness of the social self. There is always a wish to be more in accordance with nature, but as Bertram is explaining also a positive theory of social development. As I mentioned Pascal in both of yesterday’s posts, it’s appropriate to mention that I think there are some broad similarities on those issues (a divide in man between greatness and fallenness and what comes out of that).

Bertram gets in a few jokey remarks about academic status in relation to other professions, individual academic status anxieties, and rankings of university departments. These do bring the issues in Rousseau to life. Bertram finishes with some remarks on Raws’ version of egalitarianism and Rawls’ work on global justice, arguing for a more radical egalitarian approach. This is not my approach, but Bertram does a good job of presenting his approach in relation to Rousseau. Bertram’s approach is that of Marxist who has moved to a very radical form liberal egalitarianism, so paralleling the development of the late G.A. Cohen, who I posted on a few days ago, with reference to his sad death.

One small think which caught my ear was that Étienne de la Boétie, and his Discourse on Voluntary Servitude, was mentioned as a forerunner of Rousseau’s criticisms of authority. That connected with yesterdays comments on Montaigne as a Boétie was a close friend of Motaigne and is mentioned in the Essays. I have noticed something recently about the reception of de la Boétie and I will deal with that tomorrow.

Link of the Day: Philosophy Bites Podcast on Pascal

Primary version of this post at Barry Stocker’s Weblog, with picture of Pascal, not just a link!

Blaise Pascal pictured above.

Nigel Warburton interviews Ben Rogers on Blaise Pascal in the Philosophy Bites series of short podcasts (29th July). A good introduction, in Warburton’s normal relaxed style with apparently naive questions well pitched to get the interviewee to explain the issues in accessible terms.

The interview starts with reference to the most famous idea in Pascal’s Pensées (which means ‘Thoughts’ in English, but all the translations keep the French title), ‘Pascal’s Wager’. This is a famous argument for the existence of God, which on its own is not very strong, but as Rogers explained it belongs in a longer argumentative strategy of accumulating reasons and habits for faith in Christian God as defined by Pascal. The Wager is the argument that if we have faith in God, we will live a good life so we will still gain even if God does not exists, while if we do not have faith in God our life lacks the pleasure of faith even if Gd does not exists, and we will go to Hell if God does exist.

As Rogers rightly points out, Pascal’s arguments do not exist in isolation, they interact with each other and aim to influence habits as much as pure reflective thought. Rogers points out that Pascal establishes his position by presenting two opposing views,m such as dogmatism and scepticism. Pascal aims to avoid the extremes of dogmatic rationalism and sceptical rejection of knowledge. I certainly support Roger’s suggestion that Pascal should be better known to Anglophone philosophers.

Just two criticisms I can think of. Rogers says that Pascal is not just an ‘aphorist’ as Nietzsche is. This is a misunderstanding as Nietzsche’s ‘aphorisms’ (including passages which go on for a few pages) confront and interact with each other in order to draw the reader into a position, much as Pascal does, and Nietzsche greatly admired Pascal. Rogers could have said more important aspects of Pascal such as: ‘reasons of the heart’, which is less subjectivist than it sounds as it is concerned with those principles we need for knowledge before we can justify or test them; the combination of force and mysticism Pascal sees behind any rationalisation of law and political institutions. However, it is likely that some content will be lost in a short podcast and that may be a necessary sacrifice to accessibility.

As Rogers says, Pensées is a great philosophical and literary classic, full of references to all aspects of knowledge, formed Pascal’s own considerable achievements in science and stylist religious polemic, and possessed of great cultural and historical breadth. Pascal maybe belongs with Plato, Kierkegaard and Nietzsche as a writer who combined philosophy with literature.