RIGHT & GOOD (via Matt Scofield):

Tiananmen in London (Frederick Turner, 12/19/2003, Tech Central Station)

[L]et us take a look at history, especially the history of our most fundamental intuitions about the nature of law. Laws seem, as many philosophers have opined, to be based on one of two foundations: what is good, and what is right. Very roughly, the distinction can be found in the difference between our own two traditions, of Roman law, and English common law; further back, between the ancient Hebrew ritual law, and the code of Hammurabi. Legal experts will, I hope, forgive the many exceptions to these generalizations for their usefulness as an analytic tool of thought.

The distinction, even more generally, is between what is commanded of us by the gods or God (or, in later ages, by Humanity, by Nature, by Reason, or by Popular Will) on one hand; and what is required of us in the honest fulfillment of a contract, on the other. The former, which finds its Western origins in ancient Israel (and can be found also in the Confucian legal system of ancient China), sees law as a way to enforce the good -- the good as a transcendent endowment of human society that we can partly intuit, especially if we are talented, trained, learned, and morally upright. The latter, which can be identified roughly with the Hammurabic, Solonic, and English Common Law traditions, sees laws as the way to make sure the humble contracts that human beings make with each other have the support they need over and above the natural sanctions built into our families, our markets, and our practical agreed systems of mutual trust. The first emphasizes the good, the second, the right. [...]

Let it be said at once that this essay is not an attack on the law of good, nor simply a paean to the law of right. The laws of good apply still more strongly to the individual conscience as the secular enforcement of them diminishes. They apply also to the free institutions of civil society (protected from each other, as they must be, by the law of right). The absolute claims of the law of good that make it so dangerous when armed with secular power are precisely what generate the decent conduct without which a good society is impossible. If the enthusiasts of the religious right were to abjure any claim to govern by legal coercion the conscience of the citizen, I would be in agreement with almost the whole of their cultural program for our country.

But goodness is, in my view and that of almost all ethicists, essentially bound up with freedom. We cannot praise a coerced virtue, nor blame an enforced crime. The very core of morality, enjoined by God himself in almost all religions, is the spontaneous assent to divine grace. Paradoxically, to enforce the law of good is to destroy it. Paradoxically, the freedom to do evil -- as long as it does not violate the right -- is required for the freedom to do good. The law of right is at its center the law of freedom, and is thus, paradoxically again, the only thing for which one can rightly resort to coercion and war. All of this is not to say that the law of good must bottle itself up within the individual and the closed community, and render itself impotent. Instead it means that the law of good must win the world the hard way, by the noncoercive means of persuasion, gifts, and the marketplace -- must win the population one by one by one. And it can only do so under the wing of the law of right.

Certainly, the laws of right do not make a perfect world. Adam Smith's Invisible Hand, the miraculous pricing mechanism praised by Mises and Hayek, that directs resources to where they are most needed, does indeed work, in the large statistical aggregate, when it is protected by the law of right. But it cannot deal with local tragedies, and it cannot by itself create the social and cultural capital that renders people capable of exercising political freedom in a responsible and objective way. And it cannot per se engender the marvelous overplus of heroism, sanctity, generosity and scientific and artistic integrity that society needs to advance. But neither can the law of good do so when enforced by coercion, for these things are free gifts and cannot of their nature be coerced.

This is all well and good in so far as the analysis is carried, but that's not quite far enough. For the order of the regimes matters--those states that transitioned from the law of the good to the law of the right were able to do so precisely because their citizens' consciences were so saturated in notions of what was and was not good. Additionally, the enforcement of the good, while no longer strictly enforced by the state, was deeply interwoven in the law of the right and the society (non-governmental institutions) was well-equipped and willing to use social pressures to fill the gaps. As the law of the right was coerced by the state, the law of the good was effectively coerced by society. A balance was attempted.

But it is the way of human affairs that such balancing acts are dicey things and the idea that the state should have no role in dictating the good easily deteriorates into the idea that society should have no role either and thence into the idea that there is no good and thence into the idea that such vestiges of the law of the good as remain in the law of the right must be torn out by the roots and so on and so forth until we reach the point where the state coerces those who seek to follow the law of the good to accept the anti-good or be punished themselves. The state, which began by making common cause with the good becomes its de facto enemy--arguably, its quite conscious enemy, because it can not tolerate any alternate source of authority and power.

Once this situation prevails the state must lose its legitimacy, or some considerable portion thereof, in the eyes those who seek the good. For example, whatever you may think of the laws themselves, it must be conceded that there is a considerable difference between the state saying that it will not seek to enforce sexual behavioral norms and the state saying that no other institution or individual may discriminate on the basis of departure from those norms. The former might arguably be said to be consistent with getting the state out of the business of coercing the good--the latter, inarguably, puts the state into the business of coercing a radically new version of the good and thereby brings us full circle. To this, the adherents of the good need not acquiesce.

MORE:
-The Best Introduction to the Mountains (Gene Wolfe, December 2001, INTERZONE magazine)

There is one very real sense in which the Dark Ages were the brightest of times, and it is this: that they were times of defined and definite duties and freedoms. The king might rule badly, but everyone agreed as to what good rule was. Not only every earl and baron but every carl and churl knew what an ideal king would say and do. The peasant might behave badly; but the peasant did not expect praise for it, even his own praise. These assertions can be quibbled over endlessly, of course; there are always exceptional persons and exceptional circumstances. Nevertheless they represent a broad truth about Christianized barbarian society as a whole, and arguments that focus on exceptions provide a picture that is fundamentally false, even when the instances on which they are based are real and honestly presented. At a time when few others knew this, and very few others understood its implications, J. R. R. Tolkien both knew and understood, and was able to express that understanding in art, and in time in great art.

That, I believe, was what drew me to him so strongly when I first encountered The Lord of the Rings. [...]

It is said with some truth that there is no progress without loss; and it is always said, by those who wish to destroy good things, that progress requires it. No great insight or experience of the world is necessary to see that such people really care nothing for progress. They wish to destroy for their profit, and they, being clever, try to persuade us that progress and change are synonymous.

They are not; and it is not just my own belief but a well-established scientific fact that most change is for the worse: any change increases entropy (unavailable energy). Therefore, any change that produces no net positive good is invariably harmful. Progress, then, does not consist of destroying good things in the mere hope that the things that will replace them will be better (they will not be) but in retaining good things while adding more. Here is a practical illustration. This paper is good and the forest is good as well. If the manufacture of this paper results in the destruction of the forest, the result will be a net loss. That is mere change; we have changed the forest into paper, a change that may benefit some clever men who own a paper mill but hurts the mass of Earth's people. If, on the other hand, we manufacture the paper without destroying the forest (harvesting mature trees and planting new ones) we all benefit. We engineers will tell you that there has been an increase in entropy just the same; but it is an increase that would take place anyway, and so does us no added harm. It is also a much smaller increase than would result from the destruction of the forest.

I have approached this scientifically because Tolkien's own approach was historical, and it is a mark of truth that the same truth can be approached by many roads. Philology led him to the study of the largely illiterate societies of Northern Europe between the fall of Rome and the beginning of the true Middle Ages (roughly AD 400 to 1000). There he found a quality -- let us call it Folk Law -- that has almost disappeared from his world and ours. It is the neighbour-love and settled customary goodness of the Shire. [...]

Earlier I asked what Tolkien did and how he came to do it; we have reached the point at which the first question can be answered. He uncovered a forgotten wisdom among the barbarian tribes who had proved (against all expectation) strong enough to overpower the glorious civilizations of Greece and Rome; and he had not only uncovered but understood it. He understood that their strength -- the irresistible strength that had smashed the legions -- had been the product of that wisdom, which has now been ebbing away bit by bit for a thousand years.

Having learned that, he created in Middle-earth a means of displaying it in the clearest and most favourable possible light. Its reintroduction would be small -- just three books among the overwhelming flood of books published every year -- but as large as he could make it; and he was very conscious (no man has been more conscious of it than he) that an entire forest might spring from a handful of seed. What he did, then, was to plant in my consciousness and yours the truth that society need not be as we see it around us.

-Debates about primacy of conscience show the need for truth and freedom (Andrew Hamilton, 30/10/2003, Online Opinion)

Conscience is usually identified with the process by which we make decisions about right and wrong. When we follow our conscience, we weigh the arguments and do what we recognise to be right. Conscience engages the hunger for truth and goodness that are the core of humanity.

When we speak of the primacy of conscience we imply it must take precedence over some other things. In spelling out where conscience has precedence, Archbishop Pell and his critics agree, for example, that conscience has primacy over the claim of the state to dictate the religious faith and practice of its citizens. Archbishop Pell explicitly acknowledges this in endorsing the Declaration of Vatican II on Religious Freedom, which insists that the search for religious truth is central to human beings, and that assent to it must be freely given.

They agree also that conscience has primacy over our convenience or our comfort. The stories of martyrs are remembered in order to show that human dignity never shines more brightly than when people brave threats to their life and security in following their conscience.

This common insistence on the importance of conscience is significant, because in Australian national life today religious freedom and the lonely conscientious voice need all the support they can find. When so many people find government policies and their execution morally repugnant, we need a moral framework that expects and honours conscientious dissent and the religious freedom of minorities.

If conscience has primacy over religious coercion and over comfort, the aphorism “conscience has no primacy; truth has primacy” needs to be qualified; for the commitment to religious freedom could be interpreted that a true faith must yield to conscience inspired by false beliefs.

It is not helpful to see truth and conscience as rivals for precedence. When placed within the play of conscience truth does have primacy. When we ask what we should do, we affirm the value of truth. When forming our conscience, we enquire about the truth. After we recognise the truth, we choose to follow it but remain open to changing our way of acting if what we believed to be true turns out to be false. So truth does have primacy within conscience over self-interest and arbitrary choice. Our decisions are well made when they follow our recognition of truth.

This helps address Archbishop Pell’s major concern: the relation between the conscience of Catholics and the church to which they give allegiance. The archbishop claims that in committing themselves to the Catholic Church it is unreasonable to accept that God’s guidance is given through church teaching and simultaneously to appeal to the primacy of conscience to dismiss that teaching.

He cites those who dismiss the teaching of the Catholic Church about doctrines like the divinity of Christ, about moral issues like contraception, and about pastoral regulations that forbid offering the Eucharist to non-Catholics or to the divorced. He also instances those who, on the basis of conscience, justify remaining in the church while working to overturn such authoritative church teaching as the prohibition of homosexual practice or euthanasia. This kind of appeal to conscience leads him to argue that the principle of the primacy of conscience should be publicly rejected. He claims that because Catholics recognise that truth is to be found within the teaching of the church, they should give precedence to that truth in forming their conscience.

The Archbishop’s argument depicts a church that has been corrupted by a culture hostile to faith. I respect his judgment, but do not recognise in it the Australian church with which I am familiar. Although there is a crisis of authority within the Catholic Church, as in society, I believe that it touches a relatively small area of faith and life, and has more to do with the style of formal teaching than with its content.

-Conservatism and Classical Liberalism: A Rapproachment (Sam Roggeveen, Winter 1999, Policy)

If [F.A.] Hayek (1992) had been right about conservatism I would not be one either. But there are good reasons to be conservative, and in this essay I will attempt to examine what it is classical liberals dislike about conservatism, ask whether or not such criticisms are justified, and see if a reconciliation is possible. I believe on many points it is, and that the work of the British philosopher [Michael] Oakeshott is a useful means to achieve it. First though, speaking as a conservative, and in a spirit of reconciliation, I offer a concession to classical liberalism.

My concession is this: the professed conservative disposition of aversion to change is in reality not confined to conservatives at all. Conservatives will often warn that change ought not to be embarked upon ‘for its own sake’, but when is this ever the case? It would surely constitute a certain form of mental illness to prefer change for its own sake rather than for the perceived benefits that this change is likely to bring (One interesting exception to this which Oakeshott himself identifies is the fashion industry. Here change is indeed indulged in for its own sake, to the extent that annual or even seasonal change has itself become a tradition. This raises the question of whether tradition and innovation are opposites, or whether innovation can become a tradition). This scepticism is something common to all people of right mind. The real difference between conservatives and liberals is that conservatives have not been infected with the spirit of improvement. They are much more content with what they have rather than constantly striving for something better.

The other difference is that liberals feel the need for reasons to retain a thing. A conservative is happy to keep this same thing unquestioningly, all the time with a vague feeling that the wisdom of the ages is in any case superior to his own, and that there is therefore little profit in questioning such matters. For liberals, the status quo needs to be defended just as change does - on rational grounds. Appeal to tradition (‘Because we have always done it this way.’) is to the liberal as impoverished and miserable a response as one could find, but is the source of great nourishment for the conservative.

Classical liberals also consider conservatives anti-individualist, or at least not individualist enough. As I hinted at above, the work of Michael Oakeshott could be said to provide a middle ground here, in that although he makes a strong case for individuality, he distinguishes this from individualism, the latter being a rather crude ideological construct which is to classical liberals what ‘traditionalism’ is to conservatives. For Oakeshott the emergence of the individual as a free moral agent is the defining event of modern history, but contrary to much French Enlightenment thought, which argued that the shackles of tradition needed to be thrown off for man to be truly free, he is at pains to point out that the individual can only flourish within an established framework of tradition.

Oakeshott can also help us to meet some of Hayek’s objections to conservatism, as at some points Hayek is too far off the mark on conservatism for reconciliation to be possible. In particular his depiction of conservatism as nationalist is wildly at odds with most conservative sentiment on the subject. A cursory reading of Burke’s views on European affairs (such as his Letters on a Regicide Peace, for instance, in which he describes a common European society) would have been enough to put Hayek right here. However the main point of departure for a conservative, particularly one familiar with Oakeshott, comes very much earlier in Hayek’s essay. In the opening paragraphs Hayek puts what he takes to be a ‘decisive objection’ to conservatism, namely that although it is useful in putting the brakes on change, it can itself offer no alternative to change. ‘It may succeed by its resistance to current tendencies in slowing down undesirable developments,’ he says, ‘but since it does not indicate another direction, it cannot prevent their continuance.’ For a liberal, on the other hand, the pace of change is not as important as the direction of movement.

For an Oakeshottian the substance of this objection would meet with immediate and vigorous agreement, except of course that rather than seeing it as an objection they would count this seeming poverty of ideas as a strength of the conservative disposition. For Oakeshott there ought to be no single ‘direction of movement’, rather (and this should appeal to classical liberals), the state should be so constituted as to allow individuals to pursue their own purposes, with the role of the state being to simply allow this to occur as smoothly and peacefully as possible without imposing a higher purpose of its own. Oakeshott’s great enemy throughout his intellectual life was the Rationalist planner, the one who sought to impose an abstract blueprint on society without thought of historical or local circumstance. On the face of it Hayek would seem to be an obvious ally in this cause, but in a famous passage in his essay Rationalism in Politics, Oakeshott says of Hayek’s Road to Serfdom that ‘although a plan to resist all planning may be better than its opposite...it belongs to the same style of politics’.

Later Hayek restates his case against conservatism in slightly different terms, arguing that by its distrust of theory, conservatism deprives itself of weapons in the battle of ideas. A number of things strike the Oakeshottian about this line of argument. One concerns the use of the word ‘ideas’, by which Hayek presumably means ideologies. Oakeshott’s concern in much of his writing is that the world of ideas is in fact abused by the bogus assumption that better theory can lead to better practice. For Oakeshott the two are entirely separate realms, and the world of ideas is corrupted into ideology when one attempts to apply it to the ‘real world’. Another notable aspect of Hayek’s case is the imagery of ‘battle’, which tends to jar with one more used to Oakeshott’s metaphor of ‘conversation’. The rather beautiful image of civilisation defined as a conversation between all those (be they alive or dead) schooled in the ‘language’ of a particular discourse is one of the most appealing facets of Oakeshott’s thought. Whereas a ‘battle of ideas’ implies steadfast commitment, violent confrontation and eventual victory or defeat, Oakeshott’s conversation metaphor begets images of accommodation, compromise and inconclusiveness.

Posted by Orrin Judd at December 22, 2003 7:11 PM