On marriage, law, politics and the death of the West

By Dr. Jeff Mirus ( bio - articles - email ) | Jun 26, 2015

Here we go again. The United States Supreme Court has created a new legal definition of marriage and ruled that all states must recognize same-sex marriage. In other recent news, a UN committee has demanded that Ireland hold two referendums—or referenda, according to grammarians of the strict observance—on abortion and the position of women in the home. Clearly this raises questions once again about government from the top down.

Actually, it also raises much deeper questions. While both of these proclamations reveal the worst of top-down politics, it is not clear that working from the bottom-up provides a salutary alternative. The dissenting voices in the Supreme Court argued that marriage must be left to the States, seeing the fault of the decision in its departure from proper procedure. Justice Scalia would no doubt favor a State referendum on marriage, where constitutionally provided, even while opposing the use of the judiciary to settle such a question. And in the UN example, the demand is for use of a referendum.

But if these questions are settled by a state legislature or a referendum, does that solve the problem? The referendum, after all, is not a top-down affair. It is decidedly a procedure designed to resist unpopular governmental impositions. But while this shift in procedure might have pragmatic benefits, the real problem is that all of these political solutions agree that marriage, abortion, and the role of women are fundamentally political questions.

In reality, apart from considerations of good order, there is no reason that the preponderance of opinion of all voters across an entire nation ought to trump the desires of this or that community. Moreover, there is no reason at all—on matters of truth, falsity, good and evil—that the mere opinion of a specified majority at any level ought to have the force of law over a minority at all.

The West was built on the understanding that political procedures are pragmatic mechanisms for peacefully ordering community life, and that they can do this effectively only insofar as they deal with practical questions within a moral framework common to the culture that has given rise to these procedures. Unfortunately, insofar as political mechanisms of any kind are used to establish, alter or destroy that moral framework—or insofar as no common moral framework exists—politics can only breed division and oppression.

Politics without Transcendent Values

Certainly one of the most common sources of division and oppression today is our tendency to effect and accept rule from the highest levels, without any significant restrictions on political authority at the local level. But tyranny can be local, too. No matter how we may settle each pragmatic question affecting the common good, it makes little sense to decide great questions of value through any sort of vote, whether local or imposed from on high.

In any case, too often a concern for the level at which decisions are made is a distinction without a difference. In a top-heavy culture, the lower-downs are often formed according to the educational and media influences imposed by the higher-ups. These fashionable influences generally undermine the deeper sources from which healthy cultures derive the values on which social, economic and political cohesion necessarily depends.

It is precisely values from outside politics which mitigate the potential harms of political fashion, self-interest, callousness, and arbitrary rule. Sadly, we inhabit a world in which all levels of government, but especially the highest levels, consistently impose new visions of happiness on others, with little concern for either the truths or the values which have heretofore fostered a stable community.

True sources of meaning are always non-political, because politics by itself has no particular access to truth. To the contrary, truth and value seep into the human mind and heart primarily through religion, philosophy and experience—all of which are bound up in what we call tradition. Any politics that is not firmly rooted in a system of transcendent values is a recipe for injustice, tyranny and even totalitarianism.

Sources of Meaning

Revelation is by far the best source of truth and value, since God alone perfectly knows the reality He has created. The West—yes, the Christian West—was incomparably enriched by the purifying and enlightening effects of Revelation and grace on the rational achievements of the classical era. But even if a society has no access to authentic revelation, religions that have formed large numbers of people for an extended period tend to embody rich patterns of spiritual and moral insight that have stood the test of time.

So too with deep patterns of philosophical reflection (which, without Revelation, amount to much the same thing). Such a patrimony, developed over a period of centuries and successively refined by generations of fine minds, is far more likely to contain substantial elements of truth than the whims or ideologies of the moment, which seem to shift now roughly every ten years or so. In a “pluralistic” age characterized by rapid change, one must learn to distinguish such passing fads from values that have endured over time.

All of these things, combined with the collective experience of a stable community over a long period of time, unite to form that community’s tradition. Whatever a particular tradition’s weaknesses, its very longevity marks it as a sort of sum total of what has actually worked in the course of human affairs—from its conceptions of the Deity, through its moral constraints, down to its consistent values and patterns of human organization and interaction.

Any society which rejects tradition as a matter of principal destroys the common basis of its lived community life. The ideological rejection of truth does exactly the same thing at the intellectual level. The problem may be best illustrated by our most recent example. A new political decision about the nature of marriage must inevitably be a usurpation, by those who lack competence, of a source of meaning which ought to inform the social order by primarily non-political means.

In other words, whether accomplished by judicial fiat or referendum—whether coming from the well-heeled top or the well-schooled bottom—such a decision will almost invariably be a denial of legitimate sources of truth and value which both transcend and precede politics.

The Death of the West

Yet we see example after example of this process in our own time. The West has turned its back on all the authentic sources of value which differentiate a truly civilized politics from tyranny. The Western political experiment was doomed as soon as it began to see laws as their own source of value. This misconception has developed over a long period of time, but it reached its nadir in the profound failure of legal theory that has dominated all Western nations, including nearly all of their law schools, for most of the past century: legal positivism.

Whether law is rhetorically disguised as the will of the people, or the determination of experts, or merely the result of a widely accepted political process, legal positivism holds that the proper understanding and settlement of each and every question of value is found exclusively in whatever the law itself stipulates. The law, and therefore the State, and therefore the empowered, are subject to neither restriction nor interpretation by anything beyond themselves. The law is not only upheld as the supreme source of social value: It is upheld as the only source.

To put the matter most simply, the religious, philosophical and traditional sources of value which once informed Western culture are now considered “outside the law”. Those who draw meaning from them are now considered outlaws. But values must transcend politics, and the failure to recognize this fundamental reality of social life has destroyed civilized polity in the West. There can be no basis for community—no peace, no freedom and no justice—unless law and politics (and the people who participate in them) are governed by truth.