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The West and the Rest
Globalization and the Terrorist Threat
By Roger Scruton ISI Books
Copyright © 2002 ISI Books
All rights reserved.
ISBN: 978-1-4976-4894-4
CHAPTER 1
The Social Contract
The word "religion" derives from the Latin religio, the root of which, according to a disputed ancient tradition, is ligere, "to bind." Looked at from the outside, religions are defined by the communities who adopt them, and their function is to bind those communities together, to secure them against external shock, and to guarantee the course of reproduction. A religion is founded in piety, which is the habit of submitting to divine commands. This habit, once installed, underpins all oaths and promises, gives sanctity to marriage, and upholds the sacrifices that are needed both in peace and in war. Hence communities with a shared religion have an advantage in the fight for land, and all the settled territories of our planet are places where some dominant religion has at some time staked out and defended its claims.
But religion is not the only form of social binding. There is also politics, by which I mean the government of a community by man-made laws and human decisions, without reference to divine commands. Religion is a static condition; politics a dynamic process. Whereas religions demand unquestioning submission, the political process offers participation, discussion, and lawmaking founded in consent. So it has been in the Western tradition, and at least one thinker has seen the contest between the religious and the political forms of social order as the process that formed the modern world.
However, the contest between religion and politics is not in itself a modern one. This we know not only from the Bible, but also from Greek tragedy. The action of Sophocles' Antigone hinges on the conflict between political order, represented and upheld by Creon, and religious duty, represented in the person of Antigone. The first is public, involving the whole community; the second is private, involving Antigone alone. Hence the conflict cannot be resolved. Public interest has no bearing on Antigone's decision to bury her dead brother, while the duty laid by divine command on Antigone cannot possibly be a reason for Creon to jeopardize the state.
A similar conflict informs the Oresteia of Aeschylus, in which a succession of religious murders, beginning with Agamemnon's ritual sacrifice of his daughter, lead at last to the terrifying persecution of Orestes by the furies. The gods demand the murders; the gods also punish them. Religion binds the house of Atreus, but in dilemmas that it does not resolve. Resolution comes at last only when judgment is handed over to the city, personified in Athena. In the political order, we are led to understand, justice replaces vengeance, and negotiated solutions abolish absolute commands. The message of the Oresteia resounds down the centuries of Western civilization: it is through politics, not religion, that peace is secured. Vengeance is mine, saith the Lord; but justice, says the city, is mine.
The Greek tragedians wrote at the beginning of Western civilization. But their world is continuous with our world. Their law is the law of the city, in which political decisions are arrived at by discussion, participation, and dissent. It was in the context of the Greek city-state that political philosophy began, and the great questions of justice, authority, and the constitution are discussed by Plato and Aristotle in terms that are current today.
However, two great institutions intervene between the modern world and its premonition in ancient Greece: Roman law, conceived as a universal jurisdiction, and Christianity, conceived as a universal church. St. Paul, who transformed the ascetic and self-denying religion of Christ into an organized form of worship, was a Roman citizen, versed in the law, who shaped the early church through the legal idea of the universitas or corporation. The Pauline church was designed, not as a sovereign body, but as a universal citizen, entitled to the protection of the secular and imperial powers but with no claim to displace those powers as the source of legal order. This corresponds to Christ's own vision; in his parable of the tribute money, Caesar's public jurisdiction is tacitly contrasted with the inner authority of religion, governing the person-to-person relationship between the individual and God: "Render therefore to Caesar the things that are Caesar's; and unto God the things that are God's" (Matthew 22:21). And it contrasts radically with the vision set before us in the Koran, according to which sovereignty rests with God and his Prophet, and legal order is founded in divine command.
The Christian separation of religious and secular authority recalls Aeschylus's solution to the dilemmas thrust upon mortals by the gods. This Christian approach was developed by St Augustine in The City of God and endorsed by the fifth-century Pastoral Rule of St Gregory, which imposed the duty of civil obedience on the clergy. The fifth-century Pope Gelasius I made the separation of church and state into doctrinal orthodoxy, arguing that God granted "two swords" for earthly government: that of the Church for the government of men's souls, and that of the imperial power for the regulation of temporal affairs. This idea persists in the medieval distinction between regnum and sacerdotium, and was enshrined in the uneasy coexistence of Emperor and Pope on the two "universal" thrones of medieval Europe. Much wise and subtle argument was expended by medieval thinkers on the distinction between the two sources of authority in human affairs, with the early fourteenth-century thinker Marsilius of Padua expressing what was to become the accepted Western view of the matter in his Defensor Pacis. According to Marsilius it is the state and not the church that guarantees the civil peace, and reason, not revelation, to which appeal must be made in all matters of temporal jurisdiction.
With the breakdown of papal jurisdiction and the rise of the Reformed churches, ecclesiastical law had less and less influence on the business of government. This result did not come about without conflict, and in several cases (England being the most striking instance) there resulted an explicitly "national" church, under the authority of a secular monarch. Nevertheless, throughout the course of Christian civilization we find a recognition that conflicts must be resolved and social order maintained by political rather than religious jurisdiction. The separation of church and state was from the beginning an accepted doctrine of the church. Indeed, this separation created the church, which emerged from the Dark Ages as a legal subject, with rights, privileges, and a domestic jurisdiction of its own. And it was through his theory of conciliar government that Nicholas of Cusa, in 1433, introduced the modern understanding of corporate personality, and made it fundamental to our understanding of the church.
No similar institution exists in Islamic countries. There is no legal entity called "The Mosque" to set beside the various Western churches. Nor is there any human institution whose role it is to confer "holy orders" on its members. Those Muslims who have religious authority — the 'ulama' ("those with knowledge") — possess it directly from God. And those who take on the function of the imam ("the one who stands in front"), so leading the congregation in prayer, are often self-appointed to this role. Islam has never incorporated itself as a legal person or a subject institution, a fact that has had enormous political repercussions. Like the Communist Party in its Leninist construction, Islam aims to control the state without being a subject of the state.
Freedom of conscience requires secular government. But what makes secular law legitimate? That question is the starting point of Western political philosophy, and is now mired in academic controversy. But, to cut an interminable story indecently short, the consensus among modern thinkers is that the law is made legitimate by the consent of those who must obey it. This consent is shown in two ways: by a real or implied "social contract," whereby each person agrees with every other to the principles of government; and by a political process through which each person participates in the making and enacting of the law. The right and duty of participation is what we mean, or ought to mean, by "citizenship," and the distinction between political and religious communities can be summed up in the view that the first are composed of citizens, the second of subjects.
This account of legitimacy may not be endorsed by every Western philosopher. But it is endorsed by almost every Western politician, at least when out of office. There seems to be no better justification for imposing a decision on a group of people than to show that the decision is theirs. The social contract and the participatory process are envisaged as mechanisms for transforming the choices of members into the choice of the group. And what better guarantee can I have that a choice made in my name is legitimate than that I myself have made it?
It is for this reason that politicians, asked to define what they mean by the "West," and what the "war against terrorism" is supposed to be defending, will invariably mention freedom as the fundamental idea. Without freedom there cannot be government by consent; and it is the freedom to participate in the process of government, and to protest against, dissent from, and oppose the decisions that are made in my name, that confer on me the dignity of citizenship. Put very briefly, the difference between the West and the rest is that Western societies are governed by politics; the rest are ruled by power.
The idea of the social contract helps us to see both the strengths of Western systems of government and their weaknesses. Although the social contract exists in many forms, its ruling principle was announced by Hobbes, with the assertion that there can be "no obligation on any man which ariseth not from some act of his own." My obligations are my own creation, binding because freely chosen. When you and I exchange promises, the resulting contract is freely undertaken, and any breach does violence not merely to the other but also to the self, since it is a repudiation of a well-grounded rational choice. If we could construe our obligation to the state on the model of a contract, therefore, we would have justified it in terms that all rational beings must accept. Contracts are the paradigms of self-chosen obligations — obligations that are not imposed, commanded, or coerced but freely undertaken. When law is founded in a social contract, therefore, obedience to the law is simply the other side of free choice. Freedom and obedience are one and the same. This was the thought that so excited Rousseau, and the thought Kant was to develop into a comprehensive theory of secular morality.
Contracts create vetoes. If there is a party to an arrangement who cannot agree to its terms, then the contract will be void. Another way of seeing the social contract, therefore, is as a device that endows the ordinary citizen with a veto. Laws to which the citizen cannot consent are illegitimate, and the state must therefore be maintained in a constant state of vigilance, lest it lose the consent of the citizen and the right to command him. A state founded on a social contract is therefore maximally respectful of the autonomy, freedom, and dignity of the individual. Those things which no rational being can agree to surrender — life, limb, and conscience — become, in the contractarian view of things, absolute entitlements or "human rights." And when communities find their happiness and neighborliness through their distinctive ways of life, these too must be protected, by guaranteeing the rights of acknowledged minorities.
The contractarian view of legitimacy takes a decisive step away from the religious conception of the world. Even if I believe that the state was divinely ordained, and that God's commandments already incline me to civil obedience, it is not this which endows the law with its legitimacy. For my fellow citizen, who believes no such thing — perhaps because he is an atheist, or because he inclines to other gods — also has a veto over the contract. His consent too must be secured, and the law must be such that he could see reason to accept it. God's commandment is not a reason for him as it is for me, and therefore cannot be the ultimate ground of the law's legitimacy. The law must be grounded in considerations that provide a reason for everyone, regardless of religious beliefs.
Hobbes took the view that self-interest was the clue to rational choice, in this as in every other sphere, and that the social contract would be binding just so long as it was in the interest of each citizen to subscribe to it. Since life in a state of nature is "solitary, poor, nasty, brutish and short," all of us have a reason to put ourselves under the protection of a sovereign power, and everything necessary to the exercise of that power will be rationally acceptable to the subject. Religion, ideals, even moral principles play little or no part in the reasoning of Hobbes's subject — at least when it comes to the foundations of political obligation. The be-all and end-all of politics is rational self-interest, and it is this which establishes both the legitimacy and the limits of a secular rule of law.
Later contractarian philosophers differ from Hobbes in their theory of rational choice, and in the nature of the contract that they derive from it. But they tend to share Hobbes's view that the social contract must be acceptable to all rational beings, and can therefore make no reference to matters over which there might be reasonable disagreement — religion being the first and most important of these. In its latest version, that articulated by John Rawls, the social contract theory goes a step further, removing all reference not merely to religion, but to the individual "conception of the good" which might distinguish one group of citizens from their neighbors. Rawls's aim is not to give grounds for political obligation, but to develop a theory of distributive justice. Moreover, his social contract is a highly artificial construction, existing (at least in its original version) as a hypothetical thought-experiment, against which moral intuitions can be measured and adjusted, and corresponding to no actual or implied agreement between citizens in a modern body politic. Nevertheless, it exemplifies the project initiated by the early contractarians — the project of removing from the legal order all reference to the sources of division and conflict between human groups, so as to create a society in which no question can arise that does not have a solution acceptable to everyone.
If religion, culture, sex, race, and even "conceptions of the good" have all been relegated to the private sphere, and set outside the scope of jurisdiction, then the resulting public law will be an effective instrument for the government of a multicultural society, forbidding citizens to make exceptions in favor of their preferred group, sex, culture, faith, or lifestyle. And while one may reasonably wonder at the miraculous correspondence between the "just society" as it emerges from Rawls's thought-experiment and the received ideas of liberal New York, this simply reinforces the status of the theory as the theology of a post-religious society. Rawls has taken to the limit — or rather, to one of its limits — the Western idea of a purely political order, in which all bonds of membership are contained within the abstract rights and duties of the citizen.
Like Hobbes, Rousseau, and Kant, Rawls relies on principles the validity of which he believes to be universal, and therefore acceptable to all people, whatever their history and condition. However, human societies are not composed of all people everywhere, and are indeed by their nature exclusive, establishing privileges and benefits that are offered only to the insider and cannot be freely bestowed on all comers without sacrificing the trust on which social harmony depends. The social contract begins from a thought-experiment, in which a group of people gather together to decide on their common future. But if they are in a position to decide on their common future, it is because they already have one: because they recognize their mutual togetherness and reciprocal dependence, which makes it incumbent upon them to settle how they might be governed under a common jurisdiction in a common territory. In short, the social contract requires a relation of membership, and one, moreover, that makes it plausible for the individual members to conceive the relation between them in contractual terms. Theorists of the social contract write as though it presupposes only the first-person singular of free rational choice. In fact it presupposes a first-person plural, in which the burdens of belonging have already been assumed.
Even in the American case, in which a decision was made to adopt a constitution and make a jurisdiction ab initio, it is nevertheless true that a first-person plural was involved in the very making. This is confessed to in the document itself. "We, the people ..." Which people? Why, us; we who already belong, whose historic tie is now to be transcribed into law. We can make sense of the social contract only on the assumption of some such precontractual "we." For who is to be included in the contract? And why? And what do we do with the one who opts out? The obvious answer is that the founders of the new social order already belong together: they have already imagined themselves as a community, through the long process of social interaction that enables people to determine who should participate in their future and who should not.
(Continues...)
Excerpted from The West and the Rest by Roger Scruton. Copyright © 2002 ISI Books. Excerpted by permission of ISI Books.
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