This is a very rough work in progress continuing on from my recent post on ‘Law, Judgement, Republicanism’.
The problems with a free and open political and judicial culture were diagnosed by Max Weber in his discussion of bureaucracy, which itself draws directly and indirectly on various accounts of the problems of bureaucratisation and administration of the social world (which itself began in the 18th century, at least in terms of explicit discussion of bureaucracy). Wilhelm von Humboldt’s comments on bureaucracy in Limits of State Action is, as far as I can see, the first clear instance. Before that, the closest precedents are, I believe, in comments on the rigidity of Roman law in Montesquieu, which may have been at least in part against the laws and legal institutions of France in his own time.
Bureaucratisation and an administered world can themselves be seen as resting on the necessity of an integrated, hierarchical, rigid, and institutionalised legal system of a ‘Roman’ model, which is true even when thinking of ‘common law’ jurisdiction in England and its off-shoots (England, not Britain, because Scotland has its own more Roman system, and differences between English and Scottish legal institutions survived political union). This process, described in various ways by Weber, Schmitt and Foucault, Austrian school liberals and Frankfurt School Marxists, also rested on the simultaneous formation of commercial society and national economy described by Arendt. Arendt’s account is particularly enriched by comparison with Foucault on the emergence of the art of government.
The consequences of these legal, administrative, governmental, and economic processes is that the political sphere is deprived of content as a means for addressing the community as a community of judging, reflective individuals. Politics becomes competition for control of administration and the distribution of economic benefits that come with with this control. The political world is influenced by a drive to the kind of homogenisation favoured by the world of administration and positive law, which turns into struggles about identity and ‘political correctness’. That is, the struggle to define the dominant identity, with claims to a pluralist position still governed by the wish to establish the dominating identity as more tolerant (which can happen in a ‘progressive’ manner), as in a community seen as a community of communities or a ‘conservative’ manner, where there are distinct communities tied to nations or possibly non-interacting historical communities within nations.
Arendt suggests a perspective aristocratic contest in politics taken from Greek antiquity, particularly Athens, as the antidote to the above. Foucault also has a perspective taken from Greek antiquity, of care of the self, which can also be understood as aesthetic techne, in which our capacity for self-affection is developed in self-creation and recreation, though not as a purely aesthetic play. Machiavelli was in some respects the advocate of the modern integrated state, of sovereignty concentrated in an individual who integrates society through the power of his political skill and creation of a dominating rhetoric or symbolism. In Machiavelli, though, we can also see much that comes from Ancient republicanism filtered through the republicanism of the late medieval city states of northern Italy.
There is not just the remnants of ancient republicanism but its transformation in a world where the state is increasingly invested in territorial control, distinct from the personalised nature of the state as understood before (either in the person of the monarch or the persons making up a republic). The ‘cynicism’ of Machiavelli has its starting point in Aristotle’s Rhetoric, where reason is applied to speech in public places, particularly the courts of law and the political assembly. Though Aristotle distinguishes between the rhetoric of courts and assemblies, he does show a commitment to the idea that they belong to a common world of persuasive speech. Rhetoric appeals to the less deductive parts of human judgement, even the parts of human judgement which come from immediate emotional reactions, but never just that.
The prince who is human and animal, moral and self interested, is also the strong lion and the cunning fox, within his animal self. There is a sense of the total possibility: symbolism and self invention of individuals engaged in the political world. The judicial connection with politics and the social world for whom law is in some sense dead, an accumulated wisdom from the ancients now codified and open to commentary, but not part of political life except in the administrative and governmental roles that Machiavelli himself had for a while on the basis of his legal training, mingled with humanistic (Latinate and literary) education.
Even so, we can see some ideas lingering in Machiavelli of the importance of law in political life, so that it is the ‘parlements’, partly independent and locally representative law courts, of France which gives its monarchy some of the liberty of a republic. In The Prince it is the case that the energy of the people defending its state and its liberties, where they have some history, outweighs the power of the princely ruler, so that classical Polybian republicanism of the Discourses is never completely absent from The Prince.
Most significantly, Machiavelli leaves a legacy which can be seen behind the 20th century attempts to find an alternative to an administered social world. There is the charismatic leader in Weber, the agonistic aspects of politics in Arendt, and the ethics of self-creation and transformation of the self in Foucault. The charismatic leader in Weber should not be understood as a dictator or a person above politics, but as the way in which legally and formally constrained politics can still engage with the social world and the free judgements of individuals. The agonistic politics in Arendt is not just nostalgia for Athens, but an account of what it is to have individual goals and public awareness in a political community. Ethics in Foucault is not just self-creation out of nothing or a non-political playfulness, it is about how we can have free judgement in politics and law. The glory the prince seeks in Machiavelli, and by the citizens of a republic, is a way of seeing that politics combines autonomy and prestige as driving forces in a historically located and contingent political community. Machiavelli anticipates the ways that Arendt understands political freedom to be related to a Homeric culture of seeking fame in public life.
Every so often libertarians ask, in a speculative mode, whether the re-establishment of the Ottoman Empire would not be a formula for peace in the troubled Middle East. The question is interesting on several counts, one of which is that the regions affected by the Islamic State today, Arab and Kurdish alike, plus all of southern Iraq, plus Kuwait, plus Jordan and Palestine (including the current Israel), plus, more loosely, all of the Arabian Peninsula, were more or less under Ottoman/Turkish control until the end of World War One.
Libertarians allude to the “millet” system under which many different ethnic or national groups co-habitated peacefully for several centuries. Those are pretty much the same groups that have been eviscerating one another for several years and pretty much every time a strong and dictatorial leader does not clamp down on them. There is one large fault in this happy vision: the attempted genocide of the Armenians begun under full Ottoman power in 1895 and nearly completed as the empire was falling apart during World War One.
The millet system of governance should be of interest to libertarians who generally wish for less government, less expensive government, more responsive government and, especially, less intrusive government. Under the millet system, at least when it was fully functional, the Ottoman governor of say, the province of the empire that now encompasses Lebanon and Western Syria would summon yearly the Patriarch of the Greek Orthodox Church. He would address him as follows:
“Your Eminence is well I trust, and his family, and I hope that his sons are brave a wise. I am happy to hear that Almighty God has blessed Your Eminence with many grandchildren. And I am told your community is thriving. Now, based on the figures your office gave me and based on my own information, I think that the Greek Orthodox community must deliver to our master the Sultan, one hundred pounds of gold and three hundred fit young men of military age this year. Agreed? Thank you for your visit and may you and your community, Your Eminence, continue to prosper under the benign, enlightened and fair rule of our great sultan.”
Then, the governor would ask over the main Ayatollah of the Shiite Muslims and deliver himself of a similar oration. And so on.
But I must pause for a confession. The quote marks around the above monologue are metaphorical. I am not reproducing a real monologue. Something like the monologue above must have been delivered thousands of times but I must admit I was not present to hear any of them. (On the other hand, I spent time in Turkey on vacation ten years ago and I regularly drink coffee with Turks. And, I like Turks in general.)
Again, the millet system is a good historical example of extreme decentralization and of minimally intrusive government. It was also very inexpensive to administer. It had little permanent bureaucracy to speak of that could grow upon itself and reproduce itself endlessly thus forever shrinking the area of individual autonomy. At the same time as the comparable Hapsburg Empire was developing a large bureaucracy, at the time when territorially much smaller France was perfecting the art of centralized bureaucracy, at the time when the small Kingdom of Prussia was developing the very model of modern bureaucracy that was to become a model for the whole world, the millet system endured in the Ottoman Empire. In general, the Ottoman government was small and it seemed to be treading lightly on the land, you might say. It sounded a little like a sort of libertarian dream.
But, wait a minute, I need to complete significantly the imaginary monologue of the Ottoman governor above. On parting, the governor would have probably added: “Enjoy life and enrich yourselves. Everything will be fine unless I hear too much about you. If I do, bad things will happen to your community.” Or, he did not even need to utter the words. Everyone knew about the bad things that would happen if disorder arose. Some of these bad things were community leaders’ heads on a spike in village centers.
The Ottoman Empire that relied on the light, non-invasive, decentralized millet system was also famous for the fierceness of its repression. And this haven of diversity disintegrated swiftly throughout the 19th century with a speed that must give pause.
The unraveling of the Ottoman Empire began around 1805 when the large and important Egyptian subdivision gained all but nominal independence through an armed revolt and even waged successful war on the Empire. During the rest of the 19th century, the areas of the Empire now comprising Greece, Bulgaria and Romania decisively seceded. In the meantime, much of the rest of the officially defined Empire drifted away, such as Libya and Tunisia. Later, during World War One, the British (Lawrence) and the French did not have much trouble talking the remaining Arab areas of the empire into open rebellion. And yes, there was an attempted massive genocide of Armenians, in two phases. The first phase was under full Ottoman power in the 1890s; the second, much larger step occurred during the waning days of Ottoman rule starting in 1915.
Now, one can argue – and historians routinely do – that the spectacular disintegration of the Ottoman Empire was due to external pressures from the rising, fast industrializing European powers. Yet, the fact that national (ethnic) entities took up every opportunity to leave the Empire does not speak well of the effectiveness of Ottoman administration. The fact that they sometimes did it a a cost of great bloodshed, the Greeks in particular, does not strengthen the idea of contentment of the administered. The fact is that the subject people of the Ottoman Empire including the many governed through the millet system described above seem to have left as soon as the opportunity arose.
The disintegration of the Ottoman Empire poses a conceptual problem: Did it fall apart in spite of the admirable millet system of government or because of it? Was internal peace maintained in the Empire for a long time because of the virtues of the millet system or because of the ever-present threat of a large and fierce army facing a divided and unarmed populace?
Was the Ottoman Empire taken apart from within, and also from without, because the administrative principles behind the millet system impeded the supply of the means of self-preservation?
Beyond this lies an even graver question for anyone with libertarian aspirations: Do systems of administration that share the main features of the millet system, decentralization, low cost, and low-level invasiveness contain the seeds of their own destruction? Does administrative lightness actually nurture violent intervention from above and/or from outside?
I don’t know the answers to these serious questions. I think libertarians of all feathers don’t discuss these and related issues nearly enough. I suspect libertarian circles harbor their own form of political correctness that paralyzes such essential inquiries. I do what I can. I know it’s not much.
The last post focused on the distinction between civil and common law, with regard to Britain’s position as a common law country in contrast with the civil law tradition of the rest of Europe. The promise at the end was to move onto laws, charters, and constitutions in this post. However, I have found it necessary to discuss the idealisation of common law further and look at how a large part of this looks back to a world which is lost, regardless of predominant legal system as societies have roughly speaking moved from customary law to ‘juridification’ (state centred comprehensive law penetrating all social relations), and then the world we live in now of the administrative state.
The British sovereigntist and Eurosceptic position tends to emphasise a supposed unique British exception from the statist rationalism of civil law, in the ‘common sense’ of the accumulation of law arising from judicial precedent in the decisions of judges in previous cases. This supposedly British exception looks rather challenged when we consider the thoughts of the influential German philosopher Hans-Georg Gadamer in his 1960 book Truth and Method. Gadamer refers to French rationalist Enlightenment in contrast with a German form of Enlightenment based on the original understanding of ‘prejudice’.
Prejudice, in Gadamer’s account, did not begin as a negative term for the constraints of false assumptions, but in a legal process in which the court forms a preliminary opinion in an early stage of proceedings. For Gadamer this represents the continuity of custom and the communal sense of justice in contrast to abstract rationalism. What he describes is not the same as the common law tradition, but represents another way in which the apparent underlying advantages of common law can appear in another system.
The idealisation of common law is really a claim to prolong the role of custom in law into the age of state statutes and deliberately constructed legal codes. Not that an age can be identified in which pure custom operated and no state created laws existed. It can be said that laws used to be less in number and articulated in terms of defending the wisdom of ancestors as part of a generally shared sense of justice.
However, the destruction of such a world, which depends on accepting fictions about the harmonious origin of laws outside the interests of power, was not from the triumph of civil law. The heroic moments of civil law in the process that leads from 1789 French Revolution through constitutional monarchy, republic, and Bonapartist autocracy, are the product of the decay of traditional societies in which localised and regionalised kinds of authority operated in ways which mixed statute and customary law, and where even in conditions of political autocracy the state ruled over either a very small community unified by common experience, or larger units which aggregated such communities rather than enforcing a very uniform and unitary form of sovereignty back by a hierarchical bureaucratic-military state machine.
There were of course elements of the latter, as in the eleventh century Norman Conquest of England, but even this established only a minute state machine by modern standards, which recognised the ‘privileges’ and ‘liberties’ of the City of London, the church, the barons, and so on. The idea of civil law is generally traced back to Rome, bracketed by the Twelve Tables of fifth century BCE Rome and the Corpus Juris of Civilis (often identified with the Institutes which form just one part of it) Justinian promulgated in the New Rome of Constantinople in the sixth century CE.
This civil law prevailed in Roman Britain for four centuries as it did from the Rhine to the Euphrates. The Roman world, including the Greek empire governed from Constantinople, that emerged in the sixth century, was nevertheless a world of localised traditional authority in which central state institutions were more like connecting threads rather than an all inclusive structure.
The Middle Ages saw a process of juridification, as Roman law continued in the church and was revived for the state, in which the uniform administration of justice became strong enough for a system of dominating unifying state military-bureaucratic power to emerge underneath sovereignty that was beginning to become more distinct from the person of a king (or occasionally the persons of an aristocratic assembly).
All European states went through a process, which has been implemented elsewhere, leading to what is now known as an administered society, administrative state, biopower, and all the other terms referring to the inclusive, comprehensive and unifying power of state law and state bureaucracy in relation to society. This was simultaneous with the development of capitalism as a dominant economic system working through unified national markets and trade between states.
A lot of what is said about the difference between common law and civil law represents a wish to return as far as possible to go back to a time before administered societies and even before juridification. There is no time at which law was purely traditional and consensual and no current possibility of even approaching that ideal. Concerns about the administered-juridified society have to be addressed with that world.
The common law tradition might or might not on average be better than the civil law tradition from that point of view, but common law is not what its strongest defenders wish it was and it is not obvious that civil law states in northern Europe including Switzerland, the Netherlands and Denmark, and in a slightly more qualified but real way, Germany are doing worse for liberty and prosperity than the English speaking common law countries. France, the homeland of modern civil law, is itself not doing at all badly compared with most countries in the world as it is and certainly in terms of human history.
For the next post the intention is to finally get onto charters and constitutions.