Motus Mentis

In America, we hear a great deal about the “rule of law”. We flatter ourselves that we have managed, by the genius of the Founding, to find a way to be ruled, not merely by the vector-sum of the will of powerful men, but by a set of abstract principles. We imagine that in this way we have achieved what Carl Schmitt called the “neutralization of the political”. And so we subordinate ourselves to an apparatus — the State — that implements these neutralizing abstractions.

We now see all around us that all of this is failing. Why? For two reasons.

The first is that, as Schmitt made clear, you cannot escape the political. Any abstract legal system must rest on moral and philosophical axioms, and given the inevitable diversity of human opinions about such things, and the conflict of human interests, there are only two possible outcomes: either that which can be “neutralized” is simply the unimportant residue that remains when all of those differences are excluded; or there will be strife and struggle over what those axioms are, and how they should be expressed in law.

The size of the residue that can genuinely be neutralized depends upon the commonality of opinion and moral intuition among the people to be governed: the more commonality, the more can be abstracted away from the political. With high diversity, or bipolarity, of these opinions and intuitions, the residue that can be “neutralized” shrinks to the point that it includes nothing that really matters, while everything else is subject to the “friend/enemy” distinction that is the essence of the political. (While we can in principle imagine a society so coherent, so perfectly unified in axioms and opinions, that everything can be neutralized and politics vanishes, such a society has yet to exist, and you shouldn’t hold your breath.)

This difference in the inherent limit of the possible attenuation of the political is why homogenous nations tend more to be ruled by law, while in radically diverse nations, in which political conflict potentially engrosses every aspect of society, order must usually be maintained by a central authority powerful enough to suppress the political, or by physical separation of groups and factions, with some local autonomy, or both.

In a divided society, there are two ways in which a political faction can express itself through the ostensibly neutral medium of the “rule of law”: first, by controlling the creation and content of the laws themselves, or second, by controlling the application and enforcement of the law. To the extent that the law embodies disputed principles, it ceases to be neutral, and becomes political. It becomes an arena of struggle between friends and enemies — and the smaller the area of actual neutrality, the more bitter and existential the struggle becomes. The “rule of law”, at that point, becomes nothing more than a pretense, a façade to mask what is actually only a contest for power. At this point the law, stripped of neutrality but retaining its power, becomes a weapon.

Once this happens, those who continue to believe, by a habitual or sentimental attachment, in the neutrality of the law become vulnerable to its use as a weapon, and those whose aim is to dominate by any means necessary can use this to their advantage. The late Saul Alinksy, in his influential manual of subversion Rules for Radicals, understood this well, and enshrined it as his Rule #4:

Make the enemy live up to its own book of rules.

We see in today’s news just how this weapon works. A litigious front organization calling itself the Satanic Temple exploited our commitment to religious tolerance to erect a statue of Baphomet — an overt and ostentatious display of reverence to the Devil — as part of a Christmas display at Iowa’s state Capitol. A man by the name of Michael Cassidy was outraged enough at this desecration to take the bait, and beheaded the thing. He has now been charged with — can you guess? — a “hate crime”.

That this is a pure example of Rule #4 — a wholly malicious exploitation of a “neutral” loophole intended to allow Americans to pursue the holy in their own way — is evident in the Satanic Temple’s description of itself:

Founded in 2013, the Salem, Massachusetts-based Satanic Temple says it doesn’t believe in Satan but describes itself as a “non-theistic religious organization” that advocates for secularism.

This, then, is the fundamental weakness of a system like ours: it was designed centuries ago for a homogeneous society that shared not only a heritage and history, but also an anchoring and unifying belief in a transcendent moral order. It provided a degree of individual liberty that could only succeed if the people who were to live by it were able to govern themselves according to principles upon which there was broad and basic agreement. As John Adams put it:

Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.

In Aristotelian terms, it was a form that was suitable only for a particular kind of “matter”. But that matter now is not what it was. Gone, in large part, are the shared heritage and history, and the commonality of language and culture — the horizontal ligatures that bound the founding generation together as a nation. Most corrosive of all, though, is the loss of our “anchoring and unifying belief in a transcendent moral order”.

These losses mean that the “rule of law” is now no longer a neutral thing at all. We see in its asymmetrical application that it is now only a bludgeon, and it is in the hands of the Enemy.

Here’s one more thing to think about: it has been understood at least since Hobbes that there is a mutual relationship between obedience and protection. If we are to grant to the State (or any entity) the power to rule us, then we are entitled to insist, in return, that it protect us. Now look at our cities, at our border, at the chaos of 2020, at the fate of Daniel Penny, at the overt legal harassment and persecution of political opposition, and ask yourself: how’s that contract working out? Still feeling obedient?

– PS: If you have the time to listen to a podcast, see Auron Macintyre’s rousing commentary on the Iowa story, here.