Opinion from a Libertarian ViewPoint

State Power

Posted by M. C. on July 26, 2022

And the temptation of anarchism

By Carlos Ramalhete
A Thomist Worldview

Bureaucracies started trying to grant themselves more power by treating written law as if it were nothing less than divine. That’s called “positivism”, as promulgated laws are called “positive law”, in a contrast to customary law.

 no Italian, Brazilian, Indian, Cambodian, Ukrainian, Persian, or Namibian will ever consider the possibility that obeying some silly law would be morally required of him. None of us would mistake the State for organized society, or even consider the ludicrous possibility that one would somehow need to have a government-issued “license” to cut hair, fish dinner, whatever.

I do understand anarchists. Even more so rich anarchists. In a way, a First-World anarchist is like someone who only knew an abusive father, and ends up rejecting the very concept of family. If I lived in a place where all laws a Modern state tries to promulgate were enforced, the anarchist temptation would be indeed strong. Fortunately, I live in a country whose language has no expression for “law enforcement”, and where laws can “stick” (that is, be accepted and obeyed) or not. Most of them don’t, and absolutely nobody in Brazil would ever consider the possibility of mistaking mere State-promulgated laws for moral precepts.

The problem, though, is not laws by themselves, but the whole package: the function of the State, its powers, its limits if any, what Law (or a law) happens to be, and so on. As always, there is a long story; a quite big chunk of History leading to the present situation. That’s the story I’ll try to tell here.

Laws promulgated by the State (by a personal ruler, in fact, as there were no impersonal States yet) were something quite rare anywhere 500 years ago. People were expected to do what everybody else does and refrain from doing what other people didn’t, and that is it. In a way, this notion persists everywhere; police officers, for instance, tend to see criminals and troublemakers in general not precisely as law-breakers, but rather as people who do stuff decent people wouldn’t. “I don’t go around stealing stuff; why does he?! This low-life scumbag’s place is in jail.”

That is what Anglo legal systems tried to preserve with the notion of common-law rule; hard cases would be solved by finding a previous case that looked more or less alike, and then stretching the precedent decision sotoover the new, seemingly related, situation. It worked well for small tightly-knit communities, but when increasingly big societies tried to rule themselves that way, things started going downhill. After all, what is obvious in a certain place and social group can pretty well sound absurd in another place, and there is nothing to prevent both from being within the same legal system.

The other approach for a legal system is the Roman, created with a vast Empire, of widely different people and cultures, in mind. In it, there is no place for common law: everything one is forbidden to do is written down, and whatever is not forbidden is allowed. That’s how judicial systems work in most of the world. One thing some people don’t realize about it, though, is that in a Roman Law system every judge is in practice quite free to interpret the written law his own way. It is a bit like the American Supreme Court’s freedom of movement around the Constitution: the basic text is the same, but not all Supreme Courts are the same, and what one found in the Constitution is not at all seen by another.

Thus the law, in the Roman system, ends up being not at all something to be obeyed literally, even if such literalness were possible. Laws are guidelines, not moral obligations, and custom has much to do with how (or whether) a certain law is understood and accepted by society in general. On the other hand, in the last two hundred and some years, as Modern society became even crazier, there has been a kind of revolution within legal systems everywhere (and in legal theory as well, of course). Bureaucracies started trying to grant themselves more power by treating written law as if it were nothing less than divine. That’s called “positivism”, as promulgated laws are called “positive law”, in a contrast to customary law. Tommaso Beccaria, the Italian legal theorist, once wrote that a trial should be “the perfect syllogism”, in which the text of the law would be the major premise, the actions of the defendant the minor premise, and the sentence the impersonal consequence. Quite clueless about the ways of the world, the young brat; no wonder, as he was 26 when he wrote “On Crimes and Punishments”, his most important work.

Anyway, in his time, mistaking printed text for divinity had already had a couple of centuries’ history. The present theory of the all-powerful State comes from this peculiar kind of madness, by the way. When the twilight of Western Civilization was started by a monk hammering a piece of paper onto a church door (on Halloween, no less!), there were very strong social pressures brewing all over Northern Europe. Friar Martin Luther’s creation of a brand-new religion with Islamic overtones was not a cause, but a consequence, of his hammering away. He just wanted to challenge a guy who was in his neighborhood fund-raising for the construction of St. Peter’s Basilica (in Rome) to debate him on the fundraiser’s very questionable marketing tricks. All Hallows’ Eve was the perfect time for nailing his propositions to that particular church’s door, as the very next day the largest exposition of sacred relics in all of Northern Europe would be held there. People would be coming from hundreds of miles around, and word of the challenge would certainly get to the peddler.

Friar Martin, though, was a professor of Sacred Scripture; therefore, he had indeed read all of it at least once. The guy who he was challenging, on the other hand, would probably not know more than what was read in the liturgy, even if he had some formal theological training. After all, Peter Lombard’s Sentences – not Scripture, or Patristics, or Liturgy… – were the main focus of higher theological studies at the time. Hence, to make it easier for himself, Fr. Martin came up with a rule for the debate: all and any arguments should be drawn from the Scriptures. Not very fair.

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