By Dr. Jeff Mirus ( bio - articles - email ) | Jun 29, 2012
How are we to keep politics under any kind of legitimate control? The question is not simply a matter of political legitimacy, for the legitimacy of any specific political authority is fairly murky. It is easy enough to see why political authority in general is always part of the human experience. But the step from a general understanding of the legitimate role of public authority to the legitimacy of any particular government is most often shrouded in mystery. Moreover, the legitimacy of any particular law or government action may be shrouded in something very much worse.
Although we can trace the history of each political regime, we can give only provisional reasons why this or that particular regime should be accepted and obeyed. For example, we may believe in monarchy, but we will be hard-pressed to say why this belief should trump that of our neighbors who believe in democracy. Or we may accept one claimant to the throne while rejecting another, but when we look at the reasons for these preferences we will look in vain for anything other than a human tradition that we cannot fully explain. Similarly, we may believe that only democratic rule is legitimate but we will find it very difficult to answer those who argue that the regime we accept is actually not sufficiently democratic. Or again, we will find it difficult to brand every non-democratic regime in history as illegitimate.
And what reason will we give for accepting laws passed by a particular existing legislature instead of establishing another and different sort of legislature? What absolute reason can an Englishman give for accepting the decisions of the current Parliament or an American for accepting the decisions of the current Congress? We might argue that these bodies are in place, and that they were somehow put in place legitimately by our ancestors, perhaps even in the form of a written constitution. But why should the decisions of our ancestors bind ourselves? Why should we not start government all over again, designing another sort of structure and a different range of constraints to better suit our own needs?
Political authority is the means by which the human community—inescapably composed of interdependent social beings—secures the public good. By “public” here, I really mean the common good, the establishment of those conditions which are necessary for community life to flourish, conditions which benefit all. We recognize in general, then, that the common good demands some sort of community governance. But despite this general understanding, the plain fact is that we accept current modes of governance as legitimate primarily as a matter of political convenience.
Except in rare instances, our particular modes, structures and procedures are in place by default. They are “what we have”, and there is no reasonable prospect of having something else. There is broad agreement, for better or worse, that our present institutions are semi-workable and that obedience to their decrees is better than the anarchy which would result in the absence of such obedience. And so we argue, often vehemently, that our government is legitimate and that everyone has a moral obligation to obey its edicts. But what lines shall we draw, and where shall we draw them? As a matter of philosophical consistency, all this is very weak.
The Question of Legitimacy is Instructive
In both theory and practical experience, the argument for legitimacy falters as government becomes ineffective on the one hand, or tyrannical on the other. The reason is that we all understand that political authority exists for the common good. Therefore, when a government becomes incapable of serving the common good, or refuses to do so, it may legitimately be replaced. People will disagree, of course, over how bad the present government has to be before it is strictly legitimate to ignore it or replace it with something else. They may also be reluctant to draw even the most obvious conclusions if there is no alternative on offer, or if there are punitive consequences for speaking against a tyrannical regime. But as more and more citizens see in their own regime either a systemic breakdown or a systematic abuse of government, the conviction grows that the establishment of a new government would be not only desirable but right.
More often than not, major shifts in governance depend on a combination of cultural expectations and political opportunity. A culture that has little or no experience with competent government will tolerate a higher degree of incompetence, just as a culture with little or no experience with freedom will tolerate a greater abuse of power. A culture with a strong sense of the moral principles which define the common good will have a framework against which to judge the record of its own government, and will find it easier to impose appropriate constraints on those who govern. The constraints desired by a culture which is philosophically and morally at sea will be very different, inviting the abuse of power.
But we must also remember the problem of alternatives. It is only when powerful social leaders are prepared to offer an alternative that a complete change of government is possible. When people want to change the government owing to its incompetence or its abuses, there still has to be an alternative with which the current government can be replaced. There has to be a viable force to contend with the present government if it is tyrannical, or an effective influence that can propose and establish a new form of government in the face of an incompetent regime.
When a sense of lost legitimacy reaches critical mass and combines with a viable alternative, the very nature and mechanisms of government will change in a way that is ordinarily regarded as legitimate. Such changes may be hotly contested among both politicians and citizens as differing judgments are brought to bear on the situation. But the basic rule is this: A government which can secure the common good (i.e., effectively and properly) will gain legitimacy, and the vast majority of citizens will argue that it should be obeyed. From this we see, once again, that our understanding of government is inescapably rooted in our perception of the common good.
Political Power and Political Restraint
The fundamental murkiness of political legitimacy dooms all efforts to place an absolute value on past ways of doing things. Arguments based on a written constitution, for example, work only insofar as there remains widespread support for the provisions of the constitution in the culture of the moment, and especially among those who wield power and influence in that culture. Many cultures have gotten on quite well without written constitutions, and the only significant argument in favor of adhering to a constitution is the general utility it provides for securing the common good in any given culture. These arguments may be strong or weak in themselves, and they may be perceived as strong or weak by the majority of citizens, or the majority of those who matter most. But in fact there is no absolute argument in favor of strict adherence to a constitution. It is simply the way some cultures and governments do things. And both cultures and governments can change.
In other words, legitimacy does not consist in how things have been done in the past, nor in what is written down in a document adopted by other people in another time. The touchstone of legitimacy is whether the existing government secures the common good. The question is whether the government can effectively create, foster or secure the conditions necessary to the flourishing of the community over which it presides politically. Given the nature of both government and the common good, these conditions inescapably involve striking a proper balance between personal liberty and public order. When personal liberty is excessively restricted, government tends toward tyranny, which always undermines the common good. And when public order is lacking, government reveals an incompetence which renders it incapable of securing the common good.
Now it is critical to recognize that in fostering the common good, there is no such thing as a perfect and widely reproducible balance between personal liberty and public order. Within broad limits, the desired balance will vary with the conditions of the culture within which a government operates. The balance will be different in times of crisis, such as war or famine or natural disaster; it will be different in a culture with strong intermediary institutions or a culture in which, for whatever reason, citizens are formed with a keen desire to contribute to the common good; it will be different in a culture characterized by widespread lawlessness or by the threat of external attack; it will be different according to whether a culture is simple or complex, rural or urban, agrarian or commercial; it will be different according to the operative values of the dominant culture, including the cultural sense of what problems should be dealt with in common and what should not.
There is room for significant differences of opinion about the balance between liberty and order in every culture. Indeed, there are few absolute rules about this balance. It is very difficult to argue, at the level of the absolute, that the government must or must not, under any circumstances, involve itself in this, that or the other; or not restrict liberty in this way or that way or some other way. Different cultures are disposed to organize their affairs in very different ways, and with rare exceptions prudence is essential to estimating the overall impact of each decision on the common good, within the operative context of the present culture at the present moment.
Everybody agrees that both too much government and too little government ultimately undermine the common good, pointing again to the Scylla and Charybdis of tyranny and incompetence. But between the two lies a vast field of action. As we have seen, neither constitutions nor past arrangements can provide any sort of absolute guide, for these too were in their time political conveniences, rooted in a specific cultural context. Such conveniences may be regarded as normative in the current situation, or they may not. Where, then, can we look for guidance?
In the American context, I will part company with many conservative friends by stating that I hope never again to hear anyone argue anything from the United States Constitution as a matter of absolute necessity. Please do not misunderstand me. Our Constitution is valuable on two counts. First, it still provides many of the basic rules of government upon which we rely for securing the common good. Insofar as these basic rules are widely accepted and ordinarily used in conducting our political affairs, they have the advantage of providing a framework for acceptable political maneuvering. It is enormously advantageous to the common good that all parties should play by the same political rules. Insofar as constitutionality is still respected within our system of government generally, it should still be used. But it is also clear that a careful reading of the Constitution is not at all a reliable predictor of future law.
Second, for historical reasons, the provisions of the American Constitution enshrine a far greater understanding of and respect for the natural law than most political theorists possess today. Insofar as the Constitution can be used effectively as a shortcut for governance according to the natural law, it should be used in exactly that way wherever it is respected. But this second point highlights the fact that the Constitution is in no sense an absolute source of guidance for law and politics. Rather it depends for both its validity and its ultimate helpfulness on the prudence of its practical provisions within the limits set by the natural law itself. The natural law, in fact, is the sole absolute moral arbiter of what government should or should not do. Good governance is really very easy to define: It is simply political prudence exercised within the confines of the natural law in order to secure the common good.
It is true that our cultural context no longer permits easy advertence to the natural law. The idea is either foreign to or rejected by many Westerners. But the natural law, unlike past ways of doing things and unlike written constitutions, transcends cultural contexts and remains valid for all times. It is both the first and the universal means the Creator uses to instruct us in our nature, limitations, purposes and ends. In fact, the few absolute restrictions there are on government come solely from the natural law, as do the fundamental principles of the common good which government is morally bound to take as its guide.
Consider: It is contrary to the natural law to take an innocent human life. Therefore, under no circumstances may government intend to do this in any of its rules or actions. The natural law recognizes the family—a mother, a father, and their potential and actual children—as the fundamental unit of the social order, an institution which is prior to government itself. Therefore, under no circumstances may government seek to displace or weaken the family as the bedrock of a healthy society. And so it goes: Every absolute restriction on government derives from the natural law, and only from the natural law.
But the natural law also specifies, in a sort of broad outline, the principles which must be operative if the common good is to be secured and enhanced. For example, the principle of the universal destination of goods holds that God created the goods of this world for the benefit of all, not just for some. We know this principle from the natural law. The principle of solidarity holds that, as man is a social being who best achieves every kind of success through interdependence, therefore the common good can be fully secured only through the active concern of all for all. We know this principle from the natural law. The principle of subsidiarity holds that, as both human dignity and human development depend on the person’s participation in the decisions which are taken to solve the multitude of problems with which he must struggle, so therefore it is immoral for government to invest control over such solutions at any level other than the lowest possible. We know this principle from the natural law.
Catholic Social Teaching
Obviously there has been a great deal of thought about the natural law throughout history, and many different cultures have expressed these fundamental principles in various forms. But we Catholics also know that God has invested the Magisterium of His Church with an unerring ability to properly articulate all the principles He has communicated to mankind to assist us in living properly and achieving the ends for which we were made. Thus the Catholic Magisterium has the ability to elucidate not only formal Revelation but that law which God has built into nature itself.
This is why the Catholic Church does not insist that there is only one right form of government or that each government in every time and place must enact a certain set of specific laws or arrange all of its affairs in exactly the same way. On the contrary, through her social teaching—all of which is based squarely on the natural law—the Church simply articulates the truth about man, and the fundamental principles which must be followed if the person is to achieve his full potential in community, including the fundamental principles which ensure the common good.
A grasp of these principles is absolutely essential to sound government, yet these principles typically no longer animate the institutions, laws, mores, politicians and citizens of contemporary culture. In the West in particular, the old order is passing away, if it is not already gone. Moreover, it is impossible to appeal to the past in a culture which has no respect for tradition. For this reason, arguments from constitutionality, judicial precedent, and the habits of our forefathers are increasingly ineffective. But though many may dismiss the natural law as part of some old tradition, the natural law is not really in or of the past. It is always present and in our very bones.
Consequently it behooves all of us to shift the terms of every debate, at least as much as we can. We need to seek guidance in the natural law concerning what is right and good for man and the human community, and we need to undertake prudent analysis of the various solutions which present themselves within that framework. The sooner we can rid ourselves of extraneous and ultimately meaningless arguments the better. The natural law and prudence are the only true limits on government, and almost every lesser argument is now perceived as manipulative, self-serving and partisan. When it comes to governing politics itself, only the natural law, implemented prudently, is capable of rising to a broader—and indeed a higher—level of assent.
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Posted by: the.dymeks9646 -
Jun. 30, 2012 8:35 PM ET USA
Good article because it organizes many troublesome thoughts I've had the past several years, which have become more focused the past week. Indeed, we accept present conditions due to convenience, but my threshold for convenience is really being tested. Many people in the past solved this problem by immigrating to America, but where can those of us who cherish our traditional way of living go, other than back to basics. Legitimacy as you have defined it here, makes sense.