Montaigne and Pascal on the Foundation of Law

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

I’m more familiar with Blaise Pascal than with Michel de Montaigne, but I am doing some work on Montaigne at present. I’ve noticed something that I had not noticed before, how much Pascal takes from Motaignes’s Essays and uses in his Pensées. That include Pascal’s famous phrase about the mystical foundation of law.

What is the difference between them in the context of that phrase, something which will give me a start in thinking about the relationship between them. Montaigne, who had been a judge, refers in the immediate context to the impossibility of justice in law, There is always a contrast between following the forms of law and what the sense of justice tells the judge. There are always mistakes so that the innocent are punished. Montaigne concedes that as a judge he must have been involved in many mistakes and many occasions in which his sense of justice collided with the decision he had to bring. In the broader context, he refers to the endless possibilities of interpreting law. The law is never obvious, it can always be debated and there is no end to the debate or the number of positions that can arise in the debate. So justice is not present for at least three reasons: inevitable mistakes, the conflict between intuitions of justice and what the existing law requires, the impossibility of certainty in knowing what the law says. Legal judgements can only arise through a biased interpretation of law, there simply is no interpretation which will not be endlessly discussed if we try to be completely objective. The way law works as whole is that it is there and has to be applied, it has not foundation beyond the fact of its existence. This acceptance of legal institutions though they cannot be just is the mystic foundation of authority.

Pascal’s contextualisation refers to the force of law. This does not exactly contradict Montaigne, but Montaigne seems to think more in the sense of law as a habit rather than something imposed by force. Pascal also refers to the link between custom and equity. Equity, the sense of the broad justice of law as a whole, is an outcome of custom. This does not exactly contradict Montaigne either, but it seems more radical to emphasise that any sense of equity is a product of custom. Pascal directly criticises Montaigne’s view by saying that people do not not follow law through custom, but because they believe it is just. Again, even here, Pascal does not really contradict Montaigne, he is also concerned with the role of custom and habit. What marks out Pascal’s position is he thinks irrational beliefs are necessary to laws and the state. Montaigne emphasises imagination, but Pascal goes further in seeing the social world as something that depends on what people imagine.

Montaigne does not really emphasise contradiction, he presents a self that knows it is highly fallible but does it best to follow a modestly defined reason. Legal institutions are not just, but people obey them because they are used to them.

Pascal strongly emphasises contradiction. He strongly emphasises the irrationality of the self; and the way it imagines itself and the world. People obey legal institutions because they believe them to be just. The process by which people come to believe they are just must be a least partly as in Montaigne, habit. But for `Pascal, the habit builds on force and the imagination. The human self is not just confused, it is driven by imagination, by the search for glory, and external force.

Montaigne versus Pascal, is like Montesquieu versus Rousseau?

I don’t suggest that will completely work, but it would be a useful comparison.

Montaigne and Montesquieu see moral imperfection, errors of judgement and lapses into violence, intruding into social life.

Pascal and Rousseau see constitutive egotism, illusion, and violence, at the origin of social life.

Philosophy and Gambling: Pascal and Hume

Blaise Pascal and David Hume were united by a love of gambling

Pascal’s interest was as far as I understand terminated by his conversion to intense Catholicism, inspired by the Jansenism dominant at the convent at Port-Royal in Paris. Port-Royal produced distinguished philosophers like Pierre Nicole and Nicholas Arnaud and educated the great tragedian Jean Racine. Pascal’s interests encompassed mathematics, physics, theology, philosophy of religion, metaphysics, epistemology, and social philosophy.

David Hume was sceptical of all revealed religion though valuing moderate religion as a part of civil society. He certainly did not engage in the asceticism that Pascal followed in his later years, and which may have hastened his death.

Though his attitude to religion was instrumental, Hume has a social philosophy similar in some respects to Pascal. For both, organised society and state institutions emerge through convenience rather than from basic principles. For Hume, this is a happy reality, for Pascal it is part of the view that God is absent from the universe, and from human society. For Hume, humans follow self-interest rooted in ‘passions’ (Hume used the word in a way that covers all psychological motives), and learn to adopt the rules and institutions which enable everyone’s self-interest to flourish enhancing commerce and the arts. For Pascal, this is true but is evidence that humans are half angels half beast, who have lost the grandeur which belongs to divine life.

For both, a godless universe lacks certainty. The world is not guided in every respect by divine purposes, those purposes are distinctly absent. For both, there is a sceptical aspect to their philosophy, for without God’s immediate presence what guarantee is there that our perceptions are reliable. Both dealt with questions of probability and chance. Science looks like it contains probabilities, though never certainties. However, some aspects of experience do not even lead us to probabilistic expectations about the future.

Gambling is an obvious example. Hume focuses in his work on knowledge, on the throwing of dice. We know there is a one in six chance of any one side being thrown However, there is nothing we can say about which is more probable, experience does not help ıs, because however many times we throw a die, for the next throw it is still a one in six chance for any one side. For Hume, that is the probabilistic nature of the universe in its most extreme aspect. For Hume, induction establishes probabilities for scientific laws of nature. However, since Hume does not think we know at what the future will be, even at the next moment, his induction has a weak basis, and even more so when we consider that induction rests on a continuity over the mind in time, which Hume thinks has not real justification, since we must regard continuous personal identity as a fiction for unifying states of mind at different times.

By his own account, philosophising brought melancholia to Hume which he relieved by gambling. The gambling, the encounter with uncontrollable chance and intrinsically futile attempts to overcome chance, or to play with chance within a framework of play between individuals which enables us to try and control chance.

Pascal saw the universe as governed by physical laws, but for him they lacked foundations. The only foundation could be God who is absent. Like Hume, Pascal contributed to early probability theory, and as with Hume we can see the gambling as resulting a fear of pure chance, the attempt to control pure chance, or the experience of surviving pure chance. Pascal also emphasised that life could be a dream, that ı could be a king dreaming that I am who I think I am. There would be no difference between being a king and the pauper who dreams vividly half the day of being a king. Our own identity is a matter of uncontrollable chance.

Pascal even produced an argument for religious faith (Pascal’s wager) based on chance and simple ideas about probability. Famously, he argued that life without faith is despair. If we have faith, and there is no God, we have lost nothing and gained a life with hope; if we do not have faith but God does exist, we will have less happiness in life and we will suffer damnation in the next life. The rational thing therefore is to have faith. It is a mistake to look at the argument in isolation, as this can make it seem weak and self-deceiving, an argument in which we suppress doubt to make life more pleasant. It is just one part of Pascal’s argument about belief and his arguments need to be judged as a whole. I would say that on the whole, he is building up a way of thinking in which we can only grasp reality in any way through an idea of God, which may or may not be correct in the end, but is more than a matter of comforting self-deception.

Gambling, anxiety about reality, and the wish to find a way of contolling chance, of experiencing it as part of a rational universe, or of playing with inner anxiety in order to control it are a strong feature of Pascal and Hume. Where would philosophy be without their interest in gambling?

Tocqueville on Republican Politics and the Tyranny of Small Communities

Political Readings of Tocqueville
Alexis de Tocqueville has been taken up within many perspectives: Religious Conservative, Libertarian near Anarcho-Capitalist, Neo-Conservative, Communitarian Left-Liberalism, Any other definition of Liberalism that might exist, Post-Marxist Democratic Theory, and no doubt a few positions I’ve overlooked. Despite this wide ranging appeal, some Marxists and near Marxists take him as the enemy. His support for, and involvement in the French colonisation of Algeria, and his assumption that Islam is culturally, intellectually and morally inferior to Christianity. are always emphasied by that tendency whoa re rather quieter about the racist and colonialist assumptions that can be found in Marx and other leftists of the time. Foucault’s Society Must be Defended provides an account of how left-wing and democratic thought originate in an idea of a kind of ‘race war’ with a ‘foreign’ elite.

Universalism and Competition between Nations
The support for colonialism has been regarded favourably by some Neo-Cons as a committment to universalising liberal-democratic ideas, though surely at its best Neo-Conservativism shows more respect for all religions and the right of all nations to self-government, even if with the assistance of US intervention. There is evidently an element of Islamophobia round the fringes of Neo-Conservatism. The Marxists and Neo-Cons are rather too keen to drag support for European colonialism in the 19th Century into another context. Tocqueville’s views on international relations were a mix of Realism and idealism. He was a Realist in the sense that he believed that nations conflict around questions of national pride and it is right to support the pride of your own nation. This itself refers to the element of this thought which emphasises the role of pride and the search for superiority in the human imagination, itself rooted in in his reading of Rousseau and Pascal. He was an idealist in the sense he believed that national policy should be directed to moral universalist goals like abolishing slavery, and he was certainly never at all attracted to the idea that any race is inferior or superior to any other. This post is principally concerned with his views on democratic theory and we will progress to that theme.

Tyranny of the Majority
The main concern here is to contest the assumption from a variety of directions that Tocqueville was for localism against the central state. We need to look at what he meant by the ‘tyranny of the majority’. Beofre we even consider Tıcqueville’s view of the ‘tyranny of the majority’, we have to deal with the widespread belief that John Stuart Mill coined that phrase. Mill used th phrase in On Liberty, but took it from Tocqueville, who he had met. Their relationship ended awkwardly, but Tocqueville certainly made an impact on Mill, who thought it worth writing long reviews on both parts of Democracy in America. Tocqueville used the phrase ‘tyranny of the majority’ in the Democracy to refer to local spirit in small town America. Though Tocqueville has enormous respect for the spirit of self-government in small town America, he also had deep concerns about the way that public opinion imposes conformity and crushes individuality in local communities. He thought a strong central state was necessary in order to balance that small town spirit. The inhabitants of the small towns needed to be able to appeal to a federal centre to resist the conformity of small towns. It is important to note that Tocqueville though public opinion could be just as dangerous to liberty as the state. That was the basis of his concern that democracy might lead to the worst kind of tyranny if a government resting on public opinion imposed the majority view in an authoritarian manner. Tocqueville should not, therefore, be invoked in support of the view that local participation in politics or the moral spirit of small communities, is the basis of liberty. This places Tocqueville closer to the more statist aspects of the Federalist Papers, than to the Jeffersonian belief in the absolute value of local community autonomy

Law and Conserving Liberty
Conservatism, in the sense of defending law against the tyranny of the majority, was best upheld by a new aristocracy, of the legal profession, which is necessarily committed to defending law and to its administration in a hierarchical structure headed by the central state. For Tocqueville the aristocracy was important in limiting monarchical power in the pre-democratic world. His
father was deeply connected with the ‘ultra-monarchist’ current in French politics. This is a misleading label in the sense that this current was for the aristocracy and against strong central monarchical power. Again for a good diagnosis, see Foucault, Society Must be Defended. Tocqueville caused great resentment in his family by adopting liberal constitutional democracy, which in the French context meant accepting the strong sovereignty of the National Assembly. Nevertheless, the concerns of the ultra-monarchists are in some way present in Tocqueville’s political thought.

Tocqueville and Republicanism: Politics and Human Spirit
Two points here: Tocqueville provides an alternative to recent Republican theory; Tocqueville cannot be associated with anti-political forms of Libertarianism and archaeo-conservatism. This is also present in the Marxist and anarcho-communist wish to abolish the state. These currents tend to find politics degenerate compared with the emergence of decisions from the ‘natural’ authority present in established communities. Tocqueville’s thought is Republican. He
thought politics was a part of the spirit of human communities and is necessary to liberty. He recognised that it rests on pride, envy, egotism and ambition, within himself and all who participate in politics, but considered competitive politics as the best way of using those tendencies in human character.

Tocqueville and Republicanism: An alternative to Current Republican Theory
The very welcome revival of Republican theory in Phillip Pettit and others, is largely a social democratic theory which places social and economic equality at the centre. Tocqueville recognised the need for state sponsored welfare, but was a lot more cautious about state action to promote equality, he thought the state has a role in preventing destitution not in redistributing property. Tocqueville provides an example of Republican participation as and end of human character, based on moderate welfarism and deep respect for property rights as the foundation of liberty and property, and the necessary basis for the independence of all from the state. Current Republicanism is very close to Communitarianism in assuming moral grounds for collective limitation of individualism, while adding more interest in politics as a part of human life. Tocqueville provides an alternative to the economic egalitarianism and to the moralistic view of politic as an instrument for moral goals.

Machiavelli: Republican, Democrat and Lover of Liberty

The Myth of Machiavelli
Another cross over with work on teaching in this blog which tackles the enduring myth of Machiavelli. The myth is of a thought only directed to the celebration of the immoral use of power. In this myth, Machiavelli is the guide to seizing and holding power as an end in itself; and Machiavelli is presented as a diabolical, or at least cynical, exponent of cruelty as the price of power. This parallels the kind of accusations made against Nietzsche (discussed in earlier posts), and rather conveniently from this point of view the course ends with Nietzsche. The intervening figures are Bacon, Hobbes, Harrington, Spinoza, Locke, Montesquieu, Rousseau, Humboldt, Kant, Hegel, Marx and Mill.

Machiavelli and the Case of Nietzsche
This kind of accusation against Machiavelli is not widely accepted at all by those working on Machiavelli. In the case of Nietzsche, there is division between commentators on whether Nietzsche should be seen as an Authoritarian Extreme Elitist focusing on domination by the ‘Overman’, or a Liberal Moderate Elitist focusing on the example for humanity established by the ‘Overman’.

The Machiavelli Critics and their Hypocrisy
The consensus of those who have spent much time with Machiavelli is that he was arguing intellectually, and fighting in life, for Republicanism, Democracy and Liberty. The myth is all the more annoying and all the more in need of refutation. It is significant that Jesuit writers worked hard on establishing that myth. The original Jesuits were completely devoted to upholding church power, and they were much more extreme in their adherence to ‘wicked’ means than Machiavelli. Unlike Machiavelli they thought they acted from divine approval. If anyone thinks this is a harsh portrayal of the Jesuits, they should consult the criticisms made of the the Society of Jesus by that most passionate of Catholic thinkers, Blaise Pascal, in his Provincial Letters (down load text). The tendency for the notoriously power hungry to stigmatise Machiavelli did not end with the Jesuits, Frederick the Great (Frederick II of Prussia) wrote an Anti-Machiavel (download text). Frederick wrote this just before inheriting the throne, an event he celebrated with the invasion of Hapsburg Siliesia. Frederick was an admirable person in many ways, as a sincere adherent of Enlightenment and tolerance, but he was not short of the wish to gain and increase power through any means. Those most devoted to the cynical pursuit of power have a persistent need to scapegoat Machiavelli.

The Twilight of Divine Order
The myth of Machiavelli is not just the creation of those who need to believe in something worse than their own desire for power for what they fondly believe is some higher purpose. The image of diabolical ‘Machiavel’ appears in Christopher Marlowe‘s great Sixteenth Century play, The Jew of Malta (download text). In Marlowe, and others, Machiavelli acquires an aura somewhat like Don Giovanni in Mozart’s opera (as discussed by Kierkegaard in Either/Or I, ‘The Immediate Erotic Stages or the Musical-Erotic’), who fascinates with his relentless immorality and who acquires a kind of moral superiority in refusing to repent even as he is dragged down to Hell. Machiavelli was dismissive of Christianity and openly advocated immorality in the service of the state, but that was an immorality which served the public good and not a diabolical exultation in evil for its own sake. Like other Early Modern thinkers and writers, like Marlowe and Shakespeare, like Pascal and Hobbes, Machiavelli was gripped by the feeling that society could not be built on the foundations of purist morality, and sometimes enjoyed the feeling of emancipation from an all present divine morality. That is not the same as just welcoming evil, as the case of Pascal shows, it can involve great melancholy. For Machiavelli, human self-interest and fallibility is a truth to be grasped without evasion while trying to create the best possible form of political community, the Republic.

The Prince
Niccolo Machiavelli was the author of two great books: The Prince(download here) and The Discourses on the First Ten Books of Titus Livy (download here). The myth of Machiavelli is maintained by referring only to The Prince, and then only in a vulgarised form in which Machiavelli is held to instruct a Prince on how to seize and hold onto power by any means possible, in a spirit of diabolical pleasure at the evil resulting. It is a nonsense to take The Prince in isolation since Machiavelli makes it clear that the book is only one part of his political thought, devoted to principalities. He makes it clear in Chapter Two of The Prince, just two pages into the book that the has written on republics elsewhere. In any case, any remotely careful reading of the book will note two things.

1. Machiavelli wrote the book to encourage an Italian prince to unite divided and occupied Italy, as can be seen in the last chapter, ‘Exhortation to Liberate Italy from the Barbarian Yoke’

This opportunity to provide Italy with a liberator, then, after such a long time, must not be missed. I have no doubt at all that he would be received with great affection in all those regions that have been inundated by the foreign invasions, as well as with great thirst for revenge, with absolute fidelity, with devotion and with tears of gratitude. What gates would be closed to him? What people would fail to obey him? What obvious hostility would work against him? What Italian would deny him homage? This foreign domination stinks in the nostrils of everyone. Let your illustrious family, then, take, up this mission, with the spirit and courage and the faith that inspires all just causes, so that under your standard our country may be ennobled, and under your auspices these words of Petrarch will come true

Valour will take up arms against wild attacks;
And the battle will be short:
for the ancient valour is still strong in Italian hearts.

2. There is the patriotic motivation for The Prince in which a prince will become the instrument to a unified Italy that Machiavelli certainly hopes will evolve into a Republic modelled on that of Ancient Rome.

Even if we concentrate on the advice Machiavelli give this potential unifier of Italy on how to hold on to power, we notice a Republican spirit, in which the ruler must rule in the public interest, shining through.

Chapter XIX
I conclude, then, that rulers should worry little about being plotted against if their subjects are well disposed towards them, but if their subjects are hostile and hate them, they should be afraid of everything and everyone. Well-ordered states and wise rulers have always been very careful not to exasperate the nobles and also to satisfy the people and keep them contented; this is one of the most important things for a ruler to do.

The Discourses
The Discourses are a commentary on the first 10 books of Titus Livy/Livius History of Rome. Livy wrote his history under Augustus in the early years of the Empire, exalting the heroic era of the rising Republic. Machiavelli wrote a commentary on Livy, because the Republic of Rome was his model of Republicanism, Democracy and Liberty. Machiavelli referred to a mixed constitution of monarchy, aristocracy and democracy rather than democracy, but that was the closest thing to Liberal Democracy as we understand it within the thought of the time.
Some of Machiavelli’s chapter headings in Book One really tell us what we need to know: ‘What kind of Events gave rise in Rome to the creation of Tribunes of the Plebs, whereby that Republic was made more Perfect’; ‘That discord between the Plebs and Senate of Rome made this Republic both Free and Powerful’; ‘How Necessary Public Indictments are for the Maintenance of Liberty in a Republic’. These alone are enough to tell us that Machiavelli valued: the Republic, the representation of the poor in the political institutions of the Republic, open struggle and conflict between groups of citizens as strengthening the power and freedoms of the Republic, rule of law and the subordination of all citizens equally to law is a foundation of Republican liberty.
Let us have one quote from Chapter 4 to confirm those impressions

The demands of a free populace, too are very seldom harmful to liberty, for they are due either to the populace being oppressed or to the suspicion that it is going to be oppressed, and, should these impressions be false, a remedy is provided in the public platform on which some man of standing can get up, appeal to the crowd, and show that it is mistaken. And though, as Tully remarks, the populace may be ignorant, it is capable of grasping the truth and readily yields waht a man, worthy of confidence, lays the truth before it.
Critics, therefore, should be more sparing in finding fault with the government of Rome, and should reflect that the excellent results which this public obtained could only have been brought about by excellent causes. Hence if tumults led to the creation of the tribunes, tumults deserve the highest praise, since, besides giving the populace a share in the administration, they served as the guardian of Roman liberties, as we shall show in the next chapter.

James Harrington: English Republican and Follower of Machiavelli

Harrington was a Seventeenth Century English Republican in an era of political struggle and excitement about conflicting political ideas. Despite the anathemas thrown at Machiavelli, Harrington studied him and drew inspiration for his own development of Republican theory for his own time. Let us confirm Machiavelli’s real influence on political ideas through a quote from Harrington’s master work A Commonwealth of Oceana (download here).

The Preliminaries, showing the Principles of Government
[…] government (to define it de jure or according to ancient prudence) is an art whereby a civil society of men is instituted and preserved upon the foundation of common rights or interest, or t (to follow Aristotle and Livy) it is the empires of laws and not of men. And government (to define it de facto or acording unto modern prudence) is an art whereby some man, or some few men, subject a city or a nation, and rule it according unto his or their private interest; which, because the laws in such cases are made according to the interest of a man or of some few families, may be said to be empire of men and not of laws. The former kind is that which Machiavel (whose books are neglected) is the only politician that hath gone about to retrieve […].

A Note on How a Major Conservative ‘Liberal’ Thinker Needed to Stigmatise Machiavelli as Wicked

One major Twentieth Century political philosopher, Leo Strauss, (a major influence on Neo-Conservatives) stuck to this prejudice. In his Thoughts on Machiavelli, Strauss sticks to the interpretation of Machiavelli as ‘wicked’, which is a consequence of Strauss’ adherence to Ancient Philosophy, particularly with regard to the place of Natural Law. That is Strauss resisted any tendency to think of the state, and therefore politics, as grounded in anything other than Natural Law. Natural Law is itself a phrase with many interpretations, but what Strauss was referring to was the idea that all humans can and should arrive at the same basic morals and laws through use of reason, because laws are based on an objective eternal order. He was drawing on a rich tradition rooted in Plato and Aristotle, and in Muslim, Christian and Jewish readings of Ancient Greek philosophy.
Strauss’ claim that Machiavelli broke with the Natural Law tradition is not controversial, and neither is his view in Natural Right and History that modern political thought is premissed on a separation between laws as they exist historically and natural law increasingly seen as an abstract ideal. Given that modern political philosophy, along with modern thought about law and ethics, has turned away from Natural Law towards more empirically and historically conditioned understanding of political principles, the identification of Machiavelli as uniquely wicked is a mischievous attempt to undermine modern political philosophy as opposed to the supposed eternal truths of Plato and Aristotle. A rhetorical trickery is used in which Machiavelli, as represented in a common place misunderstanding, is used to undermine Machiavelli and all modern political philosophy. Nietzsche is also used and misused in this way by Strauss. He uses a fundamentally cheap and misleading argument resting on prejudices about diabolical Machiavelli and Nazi Nietzsche, mixed up with pretensions to calm dispassionate universal reason, to instate Plato, as the beginning and end of political philosophy. Various references to Aristotle essentially serve the idealisation of Plato. In this way, Strauss is able to define himself as a ‘Liberal’ with an essentially ultra-conservative argument, a strangely familiar way of arguing. Strauss thought that philosophical truth is gained through an ‘esoteric’ reading of Plato and his Medieval interpreters, that is a reading according to Strauss’ eccentric search for hidden meanings. In accordance with this, Strauss accepted democracy but thought the rhetoric of democracy was a cover for the rule of the those enlightened to Straussian standards. Even though they essentially regard democracy as an instrument of the ‘wise’ ruler, Straussians in US politics are remarkably keen on a universalist crusade for democracy. The consequence is an enhancement of the power of the state within the US and in the hegemonic claims of the US in the world system, to an extent which shocks many traditional conservatives used to doctrines of the limited state and prudent self interest in international relations.