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English Pages 216 [211] Year 1998
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Pilgrim Law Robert E. Rodes, Jr.
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Some images in the original version of this book are not available for inclusion in the netLibrary eBook. Copyright 1998 by University of Notre Dame Press Notre Dame, Indiana 46556 All Rights Reserved Manufactured in the United States of America Library of Congress CataloginginPublication Data Rodes, Robert E. Pilgrim Law / Robert E. Rodes, Jr. p. cm. Includes bibliographical references and index. ISBN 0268038228 (pbk.: alk. paper) 1. Religion and justice. 2. Christianity and justice. 3. Social justice. 4. Religious ethics. 5. Religion and sociology. 6. Religion and state. I. Title. BL65.J87R63 1998 340'.115—dc21 9737190 The paper used in this publication meets the minimum requirements of the American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI Z39.481984.
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COMPEREGRINIS
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Contents Preface
xi
I. Pilgrim Law
1
I. An Apology for Jurisprudence
1
II. Values and their Implementation
3
III. The Kingdom Present in Mystery
10
II. Social Justice and Liberation I. Needs, Rights, and Duties: The Concept of Social Justice
14
II. The Intractability of History and the Eschatology of Law
17
A. Sociological Jurisprudence: Law as Technology
17
B. Law and Economics: The Apotheosis of the Practical
19
C. Fiat Justitia: An Eschatological Response
21
III. Justice and Class
23
A. Rationales
24
B. Responsibilities
25
C. Transitions
27
III. Class and History
31
I. The Fact of Class
31
A. Marx and Engels: The Classic Analysis
31
B. Djilas: The New Class
33
C. The Organization Man: Capitalism to Managerialism
34
II. Class Instrumentalism and Marxist Legal Theory A. The Phenomenon
14
36 36
1. Landholders
37
2. Capitalists
37
3. Managers
38
B. Exceptions
39
C. Marxist and NonMarxist Explanations
41
III. The Legal Basis of Class: A Historical Account
43
A. Feudalism and Land Tenure
43
B. Capitalism and Entrepreneurship
44
C. Managerialism and Regulation
49
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IV. Felt Needs: A Moral Account A. Values
51
B. Toward Accountability
52
IV. False Consciousness I. The People's Charter and the Ruling Class
55 55
A. Feudalism: Heredity and Providence
57
B. Capitalism: The Exaltation of the Market
58
C. Managerialism: TheTriumph of Process
61
II. The Goose and the Common: Metamorphoses of Property
63
III. The Appropriation of Ideologies
65
A. Liberalism and the Subjectivity of Values
66
1. Freedom: The Emancipation of Privilege
68
2. Equality: The Race to the Swift
71
B. Natural Law: The Ideology of Eden
74
C. Christian Theology: The Sanctity of Patience
82
D. Marxism: The Absolutizing of Class
83
E. Critical Legal Studies: Nihilist Liberalism
84
IV. Conclusion: Values and History:The Dilatory Conscience V. The Option for the Poor I. A Reprise of False Consciousness
85 91 91
A. Values and Classes
91
B. Ideological Loopholes
93
C. A Corrective Vision
94
II. The Preferential Option
96
A. On the Margins: Defining the Poor
97
B. Alternative Options
99
1. Utilitarianism: Costs versus Benefits
100
2. Wealth Maximization: Trickle Down I
100
3. The Difference Principle: Trickle Down II
101
C. The Focus of Preference III. Exercising the Option
102 103
A. Career: The Poor As Clientele
105
B. Power: The Poor As Constituency
105
C. Accountability: The Poor As Lodestar
107
VI. Law and Accountability
50
112
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I. Values into Jurisprudence A. Class Values: The Jurisprudential Mainstream
112
B. Independent Values: A Dubious Fit
114
1. Feudalism: Beyond Order
115
2. Capitalism: Beyond the Market
116
3. Managerialism: Beyond Process
117
C. Dissonant Values: Critical Legal Studies
120
II. Accountability and Resistance
124
A. Class Values: Accommodation
125
B. Independent Values: Ends Versus Means
127
C. Inchoate Values: Openness
131
III. The Legal Profession: Marginalizing the Transcendent
132
A. Expertise
132
B. Pornography and the Prise de Conscience
134
IV. Conclusion: The Option for the Poor VII. The Second Sword I. Church as Institution
137 140 140
A. The Twofold Presence: Erastian and High Church
140
B. Secular Models
143
C. Class and Values
144
II. Deployment for Accountability A. Erastian Forms
149 150
1. Church As Enterprise
150
2. Church As Infrastructure
152
B. High Church Forms
154
III. Balance and Legitimacy
158
A. The Secularist Claim
158
B. Teaching in Dialogue
162
C. Institutional Patterns
166
1. Erastian Elements
166
2. High Church Elements
168
IV.Conclusion: "Church and State"
112
170
VIII. Conclusion
174
Notes
179
Index
195
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Preface This is my second venture into liberation jurisprudence. In the Preface to my first, Law and Liberation (1986), I said that I had not attempted a systematic presentation of theory, and that I hoped to try a more systematic approach another time. That is what I have now done here. What follows is intended to present a coherent theory incorporating the principles of liberation theology into AngloAmerican jurisprudence. The theology comes mainly from Gustavo Gutiérrez, supplemented by my own reflection on some of the major teaching documents of the Catholic Church. The nontheological elements in the mix include the standard intellectual furniture of an academic lawyer of my generation, along with a certain amount of Marx, Engels, and their continuator, Milovan Djilas, and a few odds and ends from my sometimes esoteric reading and research. Of course, I refer here only to written material germane to the present work. Other spiritual and intellectual debts are too many for enumeration, too profound for expression. In appropriating the principles of liberation theology for jurisprudential use, I have had to reshape them a good deal. It has been suggested that it might be helpful to the original users of the principles if I were to explain the reshaping at the outset. That is not altogether easy to do, but I will make the attempt. In the first place, my appropriation of liberation theology has been mainly from the top down. It responds rather to an intellectual awareness of poverty and oppression than to a grass roots experience of them. My awareness of the inadequacy of
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traditional legal categories is also more academic than experiential. My intellectual formation in the law was dominated by a sociological jurisprudence articulated in technological metaphors like "social engineering" and "legal apparatus." Legal scholars of my generation had a substantial hope of improving society by deploying our professional skills in much the same way civil engineers hope to improve the highway system by deploying theirs. It was a serious disappointment when we had been at it for some years to find that the hopedfor improvements did not come about as rapidly and as unambiguously as the Indiana Toll Road. Historical reflections, some of them presented in this book, teach us that we should not have been surprised. By trying to use law to improve society, we were trying to bring history under control, and the thing cannot be done. We can have no certainty that our efforts to bring about a particular result will in fact bring it about, or that when brought about it will not make matters worse in unanticipated ways. Against this background, it was the eschatological. aspect of liberation theology that spoke most profoundly to my concerns. The pursuit of justice through law is eschatologically validated even if its historical fruition is problematical. We are to seek justice with all the professional skills at our command because God calls us to do so, and assures us that our ambiguous and flawed successes, along with our wellintentioned failures, will be appropriated and given a place in the wholly successful Kingdom that He Himself is constructing. The eschatology gives legitimacy to our whole professional enterprise, and supports the use of professional skills for whatever good purpose comes immediately to hand. The enterprise legitimated in this way has of course its own techniques and its own requirements. It differs from other enterprises in which philosophical or theological reflection plays a part because it has coercive measures available to make its concerns effective, and because it uses elaborate procedures to
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determine what concerns it will implement and how it will implement them. The difference accounts, at least in part, for my decision to adopt a new category, pilgrim law, rather than try to expand the traditional understanding of natural law to include an eschatological dimension. In our personal moral life, to be sure, it makes sense to include our eschatological calling, our spiritual journey into the unknown, among the requirements of our nature, and try to make a harmonious synthesis of the whole. But structuring the intervention of the civil magistrate in the process— which is what jurisprudence is about—is a very different matter. Here, the principal role of human nature is teleological. Laws are to serve people; therefore, reflection on human nature will enable us to evaluate laws in terms of what they are for. Laws in support of human nature as we experience it may be problematic in many ways, but the telos is reasonably clear, and has been elaborated in a substantial corpus of natural law doctrine. The journey into transcendence—which I have authority in both scripture and tradition for calling a pilgrimage—does not fit easily into that corpus because it is theologically indeterminate. It is toward a Kingdom that eye has not seen nor ear heard, although the Second Vatican Council tells us that it is already present in mystery. The obscurity of the destination is not an insuperable obstacle to an understanding of the route (the suggestion that it was advanced and rejected at the Last Supper), but it poses unique challenges to the professional skills of a lawyer. I hope that the nature of these challenges and the ways I seek to meet them will become apparent in the course of the book. Here, I will say only that they constitute my reason for leaving natural law within its traditional confines and establishing a separate—although complementary—category for the legal requirements of the pilgrimage. The liberationists' preferential option for the poor has of course a prominent place in a jurisprudence based on their
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doctrine. But it poses some special problems. As always, it has to be expressed in such a way as not to belie the universal scope of human solidarity and divine love. As a jurisprudential principle, it must also be conformed to the requirement of justice, ''Treat like cases alike." The maxim and its application are familiar enough to anyone trained in the law; still, it often takes a good deal of professional skill to dispose of a concrete case in such a way as to give them their proper place along with other values, including the option for the poor. The need for professional skill requires some slighting of the "epistemological privilege" that liberationists attribute to the poor. It is true enough that if we are to serve the poor we must learn from them. We must try to see their situation as they experience it rather than filtering it through extraneous categories of our own. Even so, we cannot forget that our service to them depends on our deployment of skills that they do not have. It may be difficult to teach lawyers about the condition of the poor, but it is easier than to teach poor people law. Our profession also precludes responding to the liberationists' call for solidarity with the poor by trying to be poor ourselves. The poor are powerless and marginalized. The thought of being powerless and marginalized lawyers is interesting, but hardly realistic. In fact, liberationists generally recognize that barring a special vocation along with the grace to carry it out we are not called to surrender all our privileges in order to be one with the underprivileged. Our privileges are not that easy to get rid of, and for most of us they are inextricably bound up with our opportunity to serve. There are, of course, other ways to be present among the poor, but they are too complex and often too interior to be implemented in a legal system. So I have preferred to speak of accountability rather than solidarity. Spiritually, it may not be much of a substitute. But within the confines of our profession, it is a way of giving effect to an ascesis of service, and of recognizing the divine priority that exalts the class of people we serve over the class to which we belong. Saint James in his
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Epistle urges us to rejoice in this priority, and our enthusiasm for the institutions that make us accountable to the wider society for the right use of our privileges can be a measure of our response. Accountability requires something to be accountable for doing or failing to do. If, as standard Marxist doctrine seems to suppose, a ruling class has no purpose beyond its own hegemony, there can be no basis for calling it to account regarding the use to which that hegemony is put. A Christian interested in social justice has to find some way to appropriate the important insights of Marx and Engels (and, in my opinion, Djilas) into class dialectic without absolutizing class as Marx and Engels do. Christian teaching as I understand it recognizes a number of absolutes, but class is not one of them. Accordingly, my effort to present a relativized class structure within a context of wholly or partially transcendent values should not be regarded as peripheral to the main argument of the book. It provides an essential theological support for it. The use of Christian theology as normative for the laws of a secular state bespeaks an ecclesiology whose opponents refer to it as "Constantinian" after the first professed Christian to carry the sword of Caesar. In my opinion, those who raise this objection draw too sharp a distinction between the church and the world—a distinction from which the church has distanced itself with the Second Vatican Council's Gaudium et Spes. That document stresses the Godgiven dignity of all human beings, whatever their beliefs or practices, the consonance of revealed truth about the human condition with truths intuited or arrived at in other ways, and the duty of Christians to live by these truths not because they are revealed, but because they are true. Assigning a role to Christian doctrine does not necessarily mean assigning a role to the church. If the attack on Constantinianism draws too sharp a distinction between the church and the world, it does not, in my judgment, draw a sharp enough one between the church and the individual Christian. Here too, Gaudium et Spes takes a different approach: it is the business of the institutional church to teach me how to be a Christian, but it
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cannot teach me how to be a lawyer. The church has a juridical presence, and must figure in any general account of the law: I shall deal with it in due course. But Caesar continues to have a good many things of his own, and it is Caesar's (or Constantine's) things that are the subject of this book. I have had the benefit of a critical reading of the manuscript by Thomas L. Shaffer, Charles E. Rice, Donald P. Kommers, and M. Cathleen Kaveny of the Notre Dame Law School, the Rev. David B. Burrell of the Notre Dame Philosophy Department, the Hon. John T. Noonan, Jr. of the United States Court of Appeals for the Ninth Circuit, Paul H. Titus and David B. Rodes of the Pittsburgh bar, Jane Rodes of the Harvard Law Review, and of course Jeanne C. Rodes of St. Mary's College. Alan Gunn of the Notre Dame Law School and Hugh Collins of the London School of Economics have been equally helpful in reading individual chapters involving their special expertise. Dwight King, Lucy Payne, and Patti Ogden, Research Librarians at Notre Dame Law School, were elegantly helpful in running down lost references. The editors of The Journal of Law and Religion published the first chapter as part of a Festschrift for Judge Noonan, and those of the Notre Dame Law Review published the second as a tribute to the memory of my dear friend and colleague, Edward J. Murphy. Nancy Beaudoin, my secretary, typed the manuscript, incorporated all my revisions, and turned the end product into cameraready pages. To all of these, and to many others, I am deeply grateful. Awareness that every pilgrimage is made in company comes with particular force and particular pleasure to those of us who aspire to be scholars. NOTRE DAME, INDIANA FEAST OF THE TRANSFIGURATION, 1997
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I— Pilgrim Law I— An Apology for Jurisprudence A people's laws are deeply imbedded in its culture. They embody its collective moral reflection, its common understanding of the terms on which human beings are to live together, its customs, its historical experience, and its aspirations for the future. It is perhaps to be expected that Americans should enshrine their constitutional documents, build courthouses like temples, deploy their laws with ruthless practicality, and not take kindly to the suggestion that their laws are less practical then they think. Or that Italians should maintain a legal system like an old palazzo, with imposing staircases you can lose your breath climbing, bizarre opening hours, a wing or two closed for restoration, and a few kindly people who will sometimes show you where the elevator or the back door is hidden. It is the cultural range of the subject matter that makes the study of jurisprudence interesting. There are philosophies of law, some good, some bad, some indifferent, but philosophy does not exhaust the subject of jurisprudence, because major jurisprudential questions (e.g., what is a corporation) are not philosophical. There are theologies of law also, but they do not exhaust the subject either. As Christopher St. Germain had a sixteenth century theologian point out to a law student, the law of God is not concerned with land titles. Granted, it would be possible to distribute land titles in such a way as to offend the law of God, but
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the point stands nevertheless. It would also be possible to build a theologically unacceptable house (say a firetrap), but that does not make architecture a branch of theology. Historians, anthropologists, sociologists, and economists have also made law into grist for their respective mills, but they too have failed to produce exhaustive treatments of the subject. Take these three questions: should the civil jury be abolished; should a husband be liable for rape of his wife; should there be a steeply graduated income tax. No one of the listed disciplines is capable of answering all three. But an adequate system of jurisprudence will have to answer them. Anything people do will eventually bring some of them into contact with the law and the law with them. Any adequate legal system guides the whole ongoing life of the community it serves. But it will not do to say that law is coextensive with the whole of life and let it go at that. We deploy professional skills that are not common to all who share our culture (that is why we have to go to school to learn them), and that are to a considerable extent transferable from one culture to another (as was shown by a few Roman bishops in England in the seventh century, and by a few English lawyers in Asia and Africa in more recent times). The foundation task of jurisprudence is to define those skills and the principles for their proper and effective deployment. There seem to be two elements that distinguish law, the subject matter of jurisprudence and of the skills in question, from other manifestations of the culture in which it operates. One is that law is in some way chosen; the other is that power is deployed in support ("enforcement") of it. As H.L.A. Hart has pointed out, we do not decide what shall be right and what shall be wrong as we decide what shall or shall not be legal. We may look to our moral judgments to decide what laws we shall make, and we may include among our moral principles one that says it is right to obey the law and wrong not to. But whether shooting rabbits or drinking vodka is right or wrong is something we try to discern, not to decide. Nor do we decide on our historical experience, or on our customs
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except to the extent that we try to change them by making laws. Whatever we believe in, whatever we have been, whatever we wish to be, when the time comes for us to choose out of the available material specific principles for the ordering of our life together, we draw on the skills of the legal profession. This is the case whether or not we deploy power in aid of the principles we choose. But it is true a fortiori if we do. The exercise of power is subject to moral and customary principles distinct from the ones on behalf of which we exercise it, and those principles are particularly appropriate for the legal profession to learn and apply. II— Values and Their Implementation The work of the legal profession, the whole enterprise of making, analyzing, and applying laws, provides a kind of bridge between the society we would like to be and the society we are, between our values and their realization. The term "value" has had so frequent and so fuzzy usage in recent decades that I am reluctant to adopt it. But I have not been able to come up with a satisfactory alternative. The legal enterprise is concerned with a great variety of things that people would like to have happen—the restoration of Christianity in Eastern Europe, the survival of elephants on the Serengeti, affordable automobile insurance in California, the suppression of subliminal satanism on MTV, the introduction of the works of Kate Chopin into the local high school curriculum—things that often have nothing much in common except that someone is trying to use legal dispositions to bring them about. It is the whole body of these desiderata that I have in mind when I refer to values. Of course, in an open society, different people will offer different values for the law to implement. The ones I will use in this book are derived from a general Christian understanding of human beings and their affairs, and from what seem to me to be
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philosophical and cultural corollaries of such an understanding. Despite the development of religious pluralism in recent times, I believe Christianity can still offer an agenda for those who are not Christians. On this point, I have relied heavily on the Second Vatican Council's teaching document Gaudium et Spes, and on the development of the teaching of that document in the theology of liberation, and in the social teachings of the popes and of various national episcopal conferences. All of these suggest that the message of the Gospel must be presented in dialogue with the world, and that Christians fulfil their mission by affirming whatever is fully human in human life. The values arrived at in this way come in different categories. Some are permanent and universal (they are often called transhistorical and transcultural, usually by people who do not believe in them), while others belong to a particular historical situation or a particular culture. The permanent and universal values are often presented systematically under the name of natural law. The claim is that they are common to all people everywhere. To make laws that disregard them is all of a piece with making sixfingered mittens or wagons with square wheels. Whether the principles of natural law can be discovered by unaided philosophical reflection, or whether some assistance from divine revelation is needed, has been much debated among proponents of the doctrine. But either way they rest primarily on shared intuitions of what it means to be a human being. The historical and cultural values in the law have engaged the attention of a good many theorists. The most important of them have been connected with the historical school or the sociological school of jurisprudence. The former, a product of nineteenth century German romanticism, attributes laws to a Volksgeist, the spirit of a people. The latter, coming out of the social science of the late nineteenth and early twentieth centuries, and carrying the immense prestige of Roscoe Pound, sees law as a way of adjusting with the least possible friction or waste the competing interests that appear in a particular condition of society. The two
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approaches, though they may emphasize different values in a particular situation, are not inherently inconsistent. No people's spiritual heritage should be diminished by the reduction of friction and waste. Nor is there inconsistency between either approach and the perception that some values transcend both history and culture. If we let our thoughts and our sympathies range through different times and places, we will come upon many things that are unique and many others that are common. Some of the values the law pursues are personal: they call for realization in the lives of individuals. Others are economic or social, to be realized in the ordering of a whole society. On the personal side, traditional writers on natural law have called for promoting virtue and suppressing vice, or for commanding what is right and forbidding what is wrong. More recent formulations have set goals of human happiness, flourishing, or fulfillment. Other schools of thought have been more concerned with freedom or with the pursuit (as distinguished from the achievement) of happiness. While it is possible to carry one or another of these formulations to such an extreme as to make it inconsistent with the others, I think they can best be understood as complementary. They express in various ways the requirements for a fully human existence. The traditional economic and social value in the law is the common good, i.e., the sum total of those good things such as clean air or paved and lit streets that must be in place for everyone in the community if anyone is to have them. Modern writers have often preferred other terms. Jeremy Bentham proposed utility, which is often characterized as the greatest good for the greatest number, although greatest wish fulfillment might be more accurate. Roscoe Pound, as we have seen, called for arrangements that would produce maximum satisfaction of wants with minimum friction and waste. The contemporary lawandeconomics school calls for "wealth maximization," which seems to be a matter of putting everything into the hands of those who set the highest price on it. Other modern writers look for peace, security, or some kind
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of welfare. All these values have something to be said for them, but I do not believe that any of them can be accepted as telling the whole story. Legal dilemmas are often presented as clashes between economic or social values on the one hand and personal values on the other. Such clashes do not occur only under revolutionary or dictatorial regimes that seem to be founded on the maxim that you cannot make an omelet without breaking eggs; there are many examples in our own system as well. We are told that to secure full employment we must deprive workers of minimum wage laws and laws for the protection of their health. Then we are told that to combat inflation we must deprive them of laws for the protection of their jobs. We will deal with these claims further when we come to take up the virtue of social justice. The dilemmas they present are very real, but the proposed dichotomy between economic or social values on the one hand and personal values on the other is spurious. Whatever economic or social values deserve to be implemented must be in some way ancillary to personal ones. In the long run, the only right ordering of society is one that makes it possible for individual human beings to live as they are meant to live. For a Christian, of course, there is a longer run in which both personal and economic or social values will find a single consummation in the Kingdom of God. Whatever values the law pursues, it has two ways of pursuing them, and the two exist in some tension. We can call them instrumental and didactic. The law operates instrumentally when it affects people's behavior by deploying incentives and disincentives. These can be simple and straightforward, rewards for good behavior and punishments for bad, or they can be complicated and indirect, as when we try to discourage the poaching of alligators by forbidding the sale of alligator bags or when we try to encourage investment by lowering taxes. The didactic operation of the law is simply a matter of witnessing the moral standards, the moral reflection, and the social
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customs of the community. While we do not generally regard our lawmakers as better or wiser than ourselves, most of us are prepared to accept the law as embodying a mainstream consensus about how people ought to live, or as exercising leadership in bringing such a consensus about. The law plays a role that some of the political theologians refer to as consciousness raising. And even without raised consciousness we prefer, other things being equal, to obey the law and think of ourselves as lawabiding citizens. In some cases the instrumental and didactic operations of the law work harmoniously together to the same end. The classic example is in the area of civil rights. The same statutes and judicial decisions that produced injunctions, contempt citations, reinstatement with back pay, and cease and desist orders made people who practiced discrimination with impunity ashamed of themselves, or at least defensive; made victims of discrimination assertive; encouraged people who believed in equality to make their presence felt; and brought home the moral objections to discrimination to people who had not previously thought about the matter one way or the other. In other areas, and perhaps more common ones, the two sets of operations clash, producing serious professional dilemmas and inconclusive political debates. For instance, in a famous entrapment case, Felix Frankfurter weighed the catching and punishing of particular criminals against "public confidence in the fair and honorable administration of justice, upon which ultimately depends the rule of law," and found the latter, the didactic, concern more weighty than the former, the instrumental. On the other hand, when it comes to sex and drugs, there is a good deal of feeling that didactic considerations of encouraging chastity and deterring drug abuse should give way to instrumental ones of preventing unwanted pregnancy, venereal disease, and AIDS. Accordingly, there is considerable support for free condoms and sterile needles, as well as for compulsory sex education, despite
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the resulting impairment of the moral witness of the law. It is possible to argue that either of these operations of the law is a mere instance of the other: either moral witness is an additional weapon in the arsenal of incentives and disincentives, or the deployment of incentives and disincentives is one of a number of forms of moral witness. As the two arguments are about equally persuasive, they tend to cancel each other out. Accepting one or the other offers a certain philosophical convenience, but either of them leads to an impoverished jurisprudence. To refer the whole enterprise to its didactic function tends to stifle creativity in the enforcement process. Once you have commanded what is right and forbidden what is wrong, and laid on the stocks and the lash for lesser infractions, the ax and the gibbet for greater ones, you can rest content with your fulfillment of the practical responsibilities of your profession. You can devote your intellectual energies to refining your values and their application to more and more complicated fact patterns, without regard to their realization in the world. On the other hand, referring everything to the instrumental function tends to obfuscate the applicable values. You tend to find more and more sophisticated ways of accomplishing things, while paying less and less attention to what it is you are trying to accomplish. The end result is apt to be a legal system that is all realizations and no values. Classical and medieval legal scholarship were particularly subject to the first of these reductive perils. The late fifthcentury Theodosian Code bears witness to the last days of the Roman Empire, when the supreme authority could find nothing better to do with the legal system than sit in the midst of the growing chaos issuing more and more commands that fewer and fewer people obeyed. To my mind, a sort of legal nadir was reached when the Emperor, discovering that the burdens of municipal magistrates had become so great that they were running away, ordered troops to find them and bring them back. It evidently did not occur to
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him or his legal advisers to find ways to make the job more attractive. This kind of unreality was carried over into medieval Roman and canon law scholarship. The Romanists organized and applied the enactments of their fifthcentury predecessors without regard to who if anyone was going to enforce them. The canonists applied their enactments ipso jure if, as was often the case, they thought no one would apply them in fact. The result was that both systems offered elegantly elaborated sets of values with severely attenuated realizations in the life of the people. The concentration on values at the expense of their realization has not been limited to Roman and medieval times. Macaulay has a good deal to say about the unfortunate efforts of seventeenth century English Puritans to embody their morals in the statute book. I can attest to similar attitudes with similar results among those who sought—sometimes successfully—to give legislative effect to Roman Catholic natural law doctrines during the 1950s. Campaigns over contraception in Massachusetts and divorce in New York come readily to mind. In neither case was there much attention paid to the possibility that the immorality of a practice might not be a fully sufficient reason for a law forbidding it, or that the practical results of a prohibition ought to be taken into account before the prohibition is enacted. Catholics, of course, were not alone in taking this attitude: some Protestants approached the sale and consumption of alcohol in the same way. But most modern legal thought falls into the opposite error. It is rigorously instrumentalist. It concentrates on realizations with only token regard for the values being realized. It is dominated by technical metaphors such as Roscoe Pound's ''social engineering." It licenses the deployment of more and more sophisticated legal technologies with less and less regard for what they are supposed to be accomplishing. Some authors happily characterize this state of affairs as the "end of ideology." Others content themselves with simple ideologies of giving as many people as possible whatever
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they want, or, under some doctrines, whatever they want and can pay for. But whether you accept one of these ideologies or opt for no ideology at all, the end result of your technical skill is apt to be increasing legal support for consumerism, the one value whose hold on our people it does not take much philosophical reflection to discern. My point is this: Because law provides a bridge between our values and their realization, an adequate account of it must be the product of reflection on both. And for such reflection we must maintain some balance between the didactic and the instrumental operations of the law. To reduce the whole enterprise to its didactic operation will lead us to concentrate on values to the exclusion of realizations; to reduce it to the instrumental will lead us to do the opposite. III— The Kingdom Present In Mystery But a balanced reflection on the whole enterprise will not lead us to a philosophically or theologically compelling account: it will lead us to a mystery. It will show us that the values are openended and the realizations are intractable. No more than love, art, education, hospitality, or any other major human activity can law be assigned a specific set of values and held to the task of realizing them. Law is one of the major forms of human encounter and common life. The end of law is no less than the end of humankind. And we are not to know our end, nor are we to achieve it by our own devices. Granted, if we accept, as I do, a Christian theology of origins, we will recognize at the roots of our consciousness a lingering intuition of a primordial state of innocence from which we have fallen, and to which we would like to return. We will believe also that we have knowledge of that state by revelation, and that it is partly accessible, at least in theory, to philosophical reflection. This is the state envisaged by doctrines of natural law.
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But Christian eschatology does not teach us to hope for a restoration of the state from which we have fallen. Rather, it speaks of a new heaven and a new earth, and tells us that eye has not seen nor ear heard, nor has it entered into our hearts, what good things God has prepared for those who love Him. We are called, both individually and collectively, to a new state of being, one both foreign to our experience and foreign to our thought. Since what we have lost is a requirement of our nature, it must be included in some way in what we are to find. What our eschatology envisions is a radical change in our original condition, yet one in which our original condition is respected and affirmed. It follows that natural law is a part, but only a part, of an account of the values to be realized in law, and that the rest of the account is radically unknowable. That we cannot know where we are supposed to be going might seem sufficient in itself to establish that we cannot know how to get there. Still, it is important to point out also that by elementary Christian doctrine we cannot hope to bring about our personal salvation by our personal efforts and we cannot hope to bring about the Kingdom of God by bringing history under control. Our legal technologies and the schools of jurisprudence based on them do not merely participate in the inadequacy of our value systems: they suffer from inadequacies of their own. Like natural law doctrines, they have their uses, but they cannot tell the whole story. The foundation of a Christian jurisprudence, then, is the understanding that we are called to pursue an unknown end by inefficacious means. Because the pursuit has often been likened to a pilgrimage, I will refer to its jurisprudential consequences as pilgrim law. The principles of this pilgrim law should be regarded as complementary to the more familiar principles of natural law and sociological jurisprudence, rather than opposed to them. Despite the uncertainty of both ends and means, reflection on the pilgrimage will show us what some of the principles are. First, the pilgrimage, along with its legal consequences, is
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intrinsic to the human condition. It does not separate Christians in particular, or even believers in general, from a mass population headed in some other direction. As the Second Vatican Council puts it, the joys, the hopes, the griefs, and the anxieties of people in general are the joys, the hopes, the griefs, and the anxieties of the followers of Christ. Laws to celebrate the joys, fulfill the hopes, assuage the griefs, and relieve the anxieties may be Christian in their inspiration, but they are universal in their concern. Second, while we are not to know the end of our—and everyone's—pilgrimage, we can understand the general direction well enough to recognize an obstacle when we see one. In deploying our professional skills to avoid or eliminate such obstacles, we are not assuring any final consummation, for as long as history continues other obstacles will arise to take their place. But the work is a practical way of loving our neighbors. God calls us to it and blesses it. Third, the obstacles in question are not always merely personal. They are often built into our economic, social, and political institutions. To the extent that we are part of the society that maintains these institutions, we are in some part responsible for the obstacles, and doing what we can to reform or dismantle them is an act of justice to people whose achievement of their Godgiven destiny is impeded by them. Doing what we can is often a matter of making or applying laws in ways that our professional training has shown us. It is here that pilgrim law complements the traditional doctrines of sociological jurisprudence, providing a deeper awareness of the goals of the legal enterprise, and a more realistic awareness of what the legal enterprise can accomplish. Fourth, the human condition is beset by the tragic failures of individuals and communities to achieve the high purposes to which God has called them, or even to persevere in the pursuit of their Godgiven ends. A Christian jurisprudence, therefore, must cope with tragedy. It must bear witness to redemption, and, as far
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as possible, further it. It is here that pilgrim law provides an essential complement to natural law, which is prelapsarian in its outlook, and has no answer to anyone's failure to live up to what it prescribes. Finally, pilgrim law supports the openendedness of the pilgrimage itself. It opposes any philosophy, any politics, or any jurisprudence that commits individuals or humanity in general to a known and therefore spurious destiny, or to no destiny at all. Here, of course, pilgrim law intersects with the Enlightenment understanding of freedom, as it is embodied in our familiar constitutional doctrines. It also responds to a deeper understanding of freedom. In a good deal of medieval thought, freedom is seen as the power of a created being to move without hindrance in the way God intended. This line of thought seems to underlie a number of modern theological formulations both Jewish and Christian, including Gustavo Gutiérrez's idea of liberation as the unfolding capacity to love God and neighbor. Formulations of this kind suggest that freedom to pursue the pilgrimage is basic to the whole scope of what I have described as pilgrim law. I see pilgrim law, accordingly, as the fundamental jurisprudential manifestation of the theology of liberation. I shall attempt in what follows to situate this particular manifestation within the general framework of a Christian jurisprudence.
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II— Social Justice and Liberation Sir William Blackstone, on beginning the study of law, set down his feelings in a flow of tetrameter couplets. Central both to his rhetoric and to his feeling are these lines: Then welcome business, welcome strife, Welcome the cares, the thorns of life, The visage wan, the poreblind sight, The toil by day, the lamp at night, The tedious forms, the solemn prate, The pert dispute, the dull debate, The drowsy bench, the babbling hall, For thee, fair Justice, welcome all!
Although the legal profession is not lacking in either intellectual stimulation or material reward, the deeper satisfactions come from the pursuit of justice, and the experience of occasionally catching up with it. I— Needs, Rights, and Duties: The Concept of Social Justice Justice has traditionally been defined as that virtue that moves us to render to others what is due them. It has been applied by extension to a state of affairs in which that virtue is commonly practiced and departures from it are suitably redressed, or even to
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one in which people in one way or another generally get what is due them. To pursue justice through law is presumably to deploy the skills of our profession to bring about or maintain some such state of affairs. It follows, of course, that a jurisprudence concerned with the pursuit of justice must rest on some understanding of what is due people. There is in us a deepseated intuition that we do not give people their whole due merely by keeping out of their space and their chattels, living up to our agreements with them, and otherwise letting them alone. (Thou shalt not kill, but need'st not strive/Officiously to keep alive.) We fulfill our nature in a social milieu, and we pursue our pilgrimage of life in company. We owe one another what help we can give in doing both. There is, therefore, a certain correspondence between needs and rights, so that the requirements of nature and pilgrimage are in some way requirements of justice. In making this point, I have separated nature from pilgrimage because, as we saw in the last chapter, they make different, albeit complementary, demands on the law. The demands of nature provide the juridical component of what we understand by natural law. They embrace what we need to live as human beings were originally meant to live—to be nurtured and educated through childhood and adolescence; to marry, to establish and support families; to engage our faculties in useful work; to participate in the economic, social, and cultural life of the community; to have such health care as we need and the available resources can supply; to have decent support in old age and disability. The demands of the pilgrimage—the basis of pilgrim law—extend to what we need for a spiritual journey into the unknown, a continuing openness to a transcendent destiny: freedom, leisure, respect, encouragement, and someone to pick us up when we fall. The special part played by law in meeting these demands is determined by the two special qualities to which I have already alluded: it is deliberately chosen, and power is deployed for its
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enforcement. Because it is chosen, it can be a vehicle for specifying and clarifying what is due from one person to another, and for deliberately rearranging social conditions to give people more of their due. Because it is enforced, it can be a vehicle for motivating A to afford what is due to B. There is a problem relating justice as a condition of society in which people get what is due them to justice as a moral virtue which people can be persuaded or compelled to practice. The problem is called that of assignability: to whose failure to practice the virtue of justice can the injustice of society be assigned? Suppose I am walking on the sidewalk and encounter a homeless man keeping warm on a grate. If he has no access to decent shelter, it would seem that an injustice is being done him: decent shelter is everyone's due. But who is doing the injustice? Even if I had room for this man in my house or enough money to rent a room for him somewhere else, I would find another homeless person on the next grate and others still on the grates after that. In many cities, it would take only a few blocks to use up everything I own. Even if I ought to provide a home for one or two homeless people, which of the many homeless should be assigned to me, and which ones to someone else? If, then, I have a duty to shelter the homeless, it is a duty without a correlative right: it does not give any particular homeless person a claim on me. By the same token, the right of any one homeless person to shelter has no correlative duty: the man I am stepping over on the grate cannot point to anyone in particular with an obligation to take him in. So if justice is necessarily something one individual owes another, it would seem impossible to speak of sheltering the homeless as a matter of justice. In fact, many theorists believe the problem of assignability as I have just stated it to be an insuperable obstacle to treating this or any other support of the poor as a matter of justice. The solution to the problem lies in the concept of social justice. Social justice is that branch of the virtue of justice that moves us to use our best efforts to bring about a more just
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ordering of society—one in which people's needs are more fully met. It solves the problem of assignability because it is something due from everyone whose efforts can make a difference to everyone whose needs are not met as things stand. I do not owe the man on the grate a place to live, but I do owe him whatever I can do to provide a social order in which housing is available to him. I do not owe any poor person a share of my wealth, but I owe every poor person my best effort to reform the social institutions by which I am enriched and he or she is impoverished. II— The Intractability of History and the Eschatology of Law A— Sociological Jurisprudence: Law as Technology It is tempting for an advocate of social justice to identify with the sociological school of jurisprudence, for that school has been in the forefront of most of our initiatives for social reform during the past three quarters of a century. But I believe the temptation must be resisted. The sociological school is inexorably identified with an instrumentalist view of law, and the concept of social justice does nothing to meet the objections to instrumentalism as I stated them in the last chapter. In fact, it gives them more force: a generally just condition of society is far harder to achieve instrumentally than are any of the relatively modest values espoused by Roscoe Pound and his followers—maximum satisfaction of wants, avoidance of friction and waste, and the like. To try to impose a general order on society—even the openended order envisaged by pilgrim law—is to try to control history, something that the best philosophical reflection tells us cannot be done. Herbert Butterfield, the great historiographer, shows that we cannot isolate in history the causes of a single effect or the effects of a single cause. It follows that we can neither predict nor control the results of any given intervention in a historical process.
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Unintended results will always be inextricably entangled with intended ones. This view is consonant with what Jacques Maritain calls the Law of the Ambivalence of History—the principle that good and evil are mingled in any historical development, so that the role of human prudence is not to control the development as such, but to enhance whatever good and resist whatever evil the process brings about. Accordingly, while we can hope to solve particular problems and eliminate particular injustices with the legal skills at our disposal, a fully problemfree, fully just social order will continue to elude us. As long as the world lasts, new problems and new injustices will arise to take the place of the old ones. Recent history illustrates what I mean. The most serious of today's problems are the result of the success, not the failure, of yesterday's solutions. We would not have to worry about the lack of entry level job opportunities if our laws had not provided significant benefits for entry level workers. We would not have to worry about the dependency of welfare recipients if we had no welfare system for them to become dependent on. We would not have to worry about day care for children if we had not outlawed job discrimination against women. We were quite right to protect workers, relieve the poor and emancipate women; the problems we solved by doing so were real and important. So are the new ones we have created in the process: ones we could not have foreseen and must now try to solve. The globally just social order to which we aspire continues to recede as we approach it. Such an order is no easier to express didactically than to achieve instrumentally. We can no more envisage the injustices of the future and teach one another to avoid them than our ancestors could have taught Andrew Carnegie to avoid acid rain, Cyrus McCormick to prevent the disappearance of the family farm, or Henry Ford to cope with smog in Los Angeles. So the concept of social justice seems to leave both the instrumental and the didactic operations of law just where it finds them. Both are useful in pursuing specific limited goals, but
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neither individually nor in combination do they afford a global solution to the vicissitudes of life. The question naturally arises, therefore, why the concept of social justice should play any part in jurisprudence. It seems to state no value that the law is capable of realizing. Indeed, it appears that we cannot be sure of even incremental realizations, since every injustice we remedy may give rise to new ones as bad or worse. Why should lawyers, legislators, judges, and legal theorists not content themselves with pursuing such just results as are possible within the social and historical situation they find in place, rather than setting in motion historical processes they cannot control and social changes whose effect they cannot predict? If the only choice available to us is the one Ambrose Bierce lays down when he defines a conservative as ''a statesman who is enamored of existing evils, as distinguished from the liberal, who wishes to replace them with others," why not opt for conservatism and stick to the devil we know? In fact, there is a good deal of conservative argument that takes just this form. B— Law and Economics: The Apotheosis of the Practical Those of us who reject this line of conservative argument tend not to take it as seriously as we should. I have often encountered it in disconcertingly plausible form. Let me illustrate with a couple of cases as conservatives of the lawandeconomics school would, I believe, analyze them. I pick them because I have used both of them in my own teaching with a very different analysis. Javins v. First National Realty Corp. was a landmark case in tenants' rights, decided by one of our greatest reforming judges, Skelly Wright, in 1971. The decision, departing from a long line of authority it found inconsistent with modern urban housing conditions, held that a tenant could withhold rent if the premises did not live up to the standards set by the housing code. I have always regarded the case (and regard it still) as an example of a good and compassionate judge using the skills of his profession to
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repair a glaring injustice in the law. The conservative analysis is quite different. It begins with the fact that the case has increased the cost of being the landlord of lowcost housing. Previously, the housing code was enforced by city inspectors, too few in number to inspect oftener than once in a while, and probably willing to accept excuses if the landlord was not making enough money out of the building to pay for the necessary improvements. Now, tenants themselves can enforce the housing code by living rent free in any non complying units they happen to occupy. They will presumably accept no excuse from their landlords, who will now have to bring all their units up to code or collect nothing for their investment. But the cost of bringing a unit up to code may take a considerable rent increase to recoup or to make a good return on. The increase may take the unit out of the low cost rental market and turn it into middle class or gentrified housing. The newly gentrified unit can then be rented for less than a landlord would have to charge for a comparable unit newly built. There will be no market, therefore, for new middle class units. At the same time, the cost of keeping units up to code will make new low cost units an unattractive investment: entrepreneurs will put their money into computers instead. As a result, there will not be enough new units built to house an increasing population, and existing units will go to middle class people. So the final upshot of Skelly Wright's judicial intervention in the housing market will be that the poor will have worse housing than before, if they have any housing at all. American Textile Manufacturers Institute v. Donovan was decided by the Supreme Court of the United States in 1981. It upheld an order by the Occupational Safety and Health Administration (OSHA) establishing the amount of free cotton dust that could be permitted in a textile plant. The order was based on a finding, after extensive investigation, that the technology was available to limit the dust to the amount specified, and that no greater amount was consistent with the health of the workers in a plant. The manufacturers claimed that the law
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required a further determination that the benefits of reducing the dust level would outweigh the costs of doing so. This was the claim the court rejected. I use the case in my Administrative Law class to illustrate my general mistrust of costbenefit analysis. My argument is that the costs and benefits are incommensurable: how much more should you have to pay for your shirt or your pillowcase in order to keep textile workers from getting a horrible lung disease? The case, as I see it, implements principles of social justice by answering "whatever it takes." A conservative lawandeconomics analyst will tell me I am asking the wrong question. The fight question is how much extra you would have to pay a fully informed worker to undergo the risk of an unhealthy level of cotton dust, and whether that sum, multiplied by all the workers involved, is greater or less than the cost of reducing the dust level. If we choose the more expensive alternative, we will lose more business to textile makers from Hong Kong, and throw more American textile workers into the ranks of the unemployed, where the psychological damage may be more severe than the damage to their lungs from cotton dust. Furthermore, we are not in a position to decide for all the textile workers in the country whether a short, wellcompensated life with a lung disease at the end of it is better or worse than a long, povertystricken life with stroke, cancer, or Alzheimer's at the end. C— Fiat Justitia: An Eschatological Response One plausible answer to all this conservative analysis is that the claims of social justice are not stated radically enough. If the best we can offer our poor is a choice between substandard housing and no housing at all, or a choice between poverty and lung disease, our economy evidently requires more, not less, intervention than we have thus far undertaken. Unfortunately, though, experience is not very encouraging to the advocates of more intervention. Many of the interventions already in place have been coming unstuck lately. The problem is that the more
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extensive our interventions become the more they look like attempts at a global solution, doomed to frustration by the overall intractability and ambivalence of history. I do not think that this conservative critique can be answered on its own presuppositions, which are pragmatic and historical. My continuing rejection of it is moral rather than pragmatic, eschatological rather than historical. The moral principle is fairly simple: you must do your duty by other people even if you foresee undesirable long run consequences of doing so. If you owe a person money, the fact that he will probably spend it on drink is not a morally acceptable excuse for not paying him. If you are able to throw a life preserver to a drowning man, the fact that he will go home and beat his wife is not a morally acceptable excuse for letting him drown. There is a maxim fiat justitia ruat coelum, let justice be done though the skies fall. It applies to social justice as much as to any other kind of justice. Just as we should not solve the problem of organized crime by putting reputed Mafia dons in prison for crimes they did not commit, or the transportation problem by building highways through people's front yards without paying them, so we should not solve the housing problem by letting people live in substandard rooms or the unemployment problem by letting them destroy their lungs. If this moral stance is not historically efficacious, in that it does not assure us of a quantitative increase of justice from one decade to the next, it still assures us of a different and better history than we would have without it. Regardless of success or failure, a society in which people do the best they can to rectify the injustices they encounter is a better and more humane society and deserves a more honorable place in the history of the world than one in which fear, cynicism, or indifference leads people to let obvious injustices flourish unchallenged. Furthermore, the theology of liberation teaches that the pursuit of social justice has an eschatological significance independent of its historical effect. While true liberation from injustice is always and everywhere the free gift of God, by deploying our skills and
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resources as effectively as we can, we bear witness to God's will to bestow this gift. The Second Vatican Council teaches that the final consummation of history in the Kingdom of God is "already present in mystery." Our own efforts cannot be related to that consummation as means to end, but we believe that they are part of the mystical presence. It is this belief that constitutes the theological foundation for what I have called pilgrim law. III— Justice and Class Concern with social justice necessarily exposes us to the problem of class conflict. I shall have many changes to ring on this problem as we proceed, but certain points need to be established at the outset. The most important is that neither good will nor Christian teachings concerning solidarity and brotherhood will make the problem go away. Wherever there are unjust institutions, somebody is benefiting from them and somebody else is suffering from them. If no one were benefiting, they would not remain in place; if no one were suffering, they would not be unjust. The division between beneficiaries and victims of particular institutions generally corresponds to the overall division of classes in the society: it could not last long otherwise. As a result, efforts to reform the institutions give rise to a class struggle. The class to which the victims belong has a stake in reform, while the ruling class, to which the beneficiaries belong, has an equal stake in the status quo. Christianity does not teach us to ignore this struggle between competing interests. What it teaches us to do is side with the victims even if we ourselves are beneficiaries. If our prosperity is the flip side of someone else's misery, we are, like it or not, oppressors. We should be no more content with being oppressors than we would be with being oppressed. But we did not create the institutions that cast us in that role, and we cannot get out of the role by wishing the institutions away. The beneficiaries of unjust
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institutions, like the victims, need liberation, and the replacement of unjust institutions by just ones, if it could be accomplished, would liberate beneficiaries and victims alike. It is this principle of joint liberation that reconciles participation in an ongoing class struggle with a Christian commitment to universal brotherhood and solidarity. We should not equate the liberation to which we aspire with a general abolition of class distinctions. Such distinctions and the institutions that produce them are not necessarily unjust. We all come into the world with different time and space coordinates, and even in the same time and place we come differently circumstanced— economically and socially as well as physically, intellectually and emotionally. No institutional arrangement for the distribution of wealth and power can fail to take at least some of these differences into account, so that some people will end up with more wealth and power than others. I cannot see that such arrangements are necessarily unjust as long as those who have the least have as much as is required for a fully human existence. A— Rationales Even if class differences are not inherently unjust, they are not morally compelling either. Those who have more than their neighbors do not have it because they deserve it, but because the fortunes of history, geography, economics, or genetics have so fallen out. A number of rationales have been proposed, but none is very persuasive. The traditional one is that people's places in the class structure are all assigned them by God, and justified for that reason: The rich man in his castle, The poor man at his gate, God made them, high or lowly, And order'd their estate.
This is not very good theology. Granted, everything that happens
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is in accordance with God's will, but that does not prove that He wants it to go on happening any more than our being born naked proves that He does not want us to wear clothes. Most of the modern rationales are based on utility, merit, or some combination of the two. The ruling classes rule and the prosperous classes prosper because they serve the wider society by doing so, or because they possess some quality that others should be encouraged to emulate, or that is intrinsically deserving of recognition or reward. If, for instance, we enroll industrialists in our ruling class, it is because we want to motivate more people to become industrialists; because we want to encourage people to practice the supposed virtues of industrialists such as ambition, resourcefulness, and hard work; or because we consider people with those virtues morally superior to other people. Rationales of this kind presuppose first that positions of wealth and power are in fact occupied by people who meet the ostensible criteria for occupying them, and second that those criteria are themselves just and reasonable. Neither presupposition is very realistic. We have it in Scripture that the race is not always to the swift. Even if it were, the value of swiftness would depend on someone's largely fortuitous decision to hold a race instead of a chess match, a caber toss, a bakeoff, or a spelling bee. The decision to hold a market economy instead of any of these may be a little less fortuitous, but history has offered no lack of alternatives. Which will prevail in a given time and place depends on historical developments related very tenuously, if at all, to the deserts of those affected. B— Responsibilities In short the distribution of wealth and power in a society does not correspond significantly to the distribution of virtue, talent, or any other desirable quality. On the other hand, no such distribution is inherently unjust except insofar as it leaves some people lacking what they need to live as befits human beings. But
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wealth and power, even if justly distributed, can be unjustly used. They are held in a social context, and should be used in subordination to social needs. Rerum Novarum, the classic statement of Catholic social teaching, puts it this way: Whoever has received from the divine bounty a large share of temporal blessings, whether they be external and material, or gifts of the mind, has received them for the purpose of using them for the perfecting of his own nature, and, at the same time, that he may employ them, as the steward of God's providence, for the benefit of others.
Whatever the historical origin of the class structure in any given society, those who have the largest share of the benefits are accountable in justice as stewards for the wider society. Social justice does not, then, call for the abolition of class distinctions. Indeed, as we shall see, we should be highly suspicious of any claim that such an abolition has taken place, or is about to. The abolition will probably be illusory, and a camouflaged class system is more dangerous than an open one. The demands of social justice are the same with respect to any class structure, however it arose, and however long it has endured in the past or is expected to endure in the future. These are, first, that the members of every class have enough resources and enough power to live as befits human beings, and, second, that the privileged classes, whoever they are, be accountable to the wider society for the way they use their advantages. If we are considering law, not revolution, the second of these demands will tend to subsume the first. A society may entrust its ruling class with responsibility for its culture, its security, its agriculture, and its electric supply, and frame its laws to see that the responsibility is carried out, but if it does not at the same time make them responsible for seeing that even the least advantaged members of society have what they need for a decent life, the system will be less than just. The different kinds of responsibility may exist in some tension, and be unevenly implemented by the
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laws. When St. Bernard accused the monks of Cluny of clothing their stones with gold while the poor went naked, he was complaining in effect that the responsibility of the ruling class to provide a decent living standard for the poor had been unjustly subordinated to their responsibility for religion and culture. C— Transitions The demands of social justice are part of what keeps the class structure of a society from being static. Marxists, of course, have made us very familiar with the idea that changes in the class structure go hand in hand with changes in the economy. But they have not really succeeded in explaining how a ruling class with as much power as they attribute to it can fail to prevent the economic changes that will result in its displacement by a new class. Their account of the transition from feudalism to capitalism is less than satisfactory; their predictions regarding rule by the proletariat have been generally wrong; and they have entirely disregarded the displacement of capitalists by managers and professionals in the nonCommunist world. None of these changes can be adequately explained by either greed or naïveté on the part of the people in charge; nor can they be shown to have inhered in the previous forms of production and distribution. I believe that they were made at least in part because it seemed fight to make them. Either they were seen as providing better for the meeting of basic needs or they enhanced cultural and social amenities for which the ruling class was responsible to the wider society. This point will provide the main theme of the next chapter, but I will give one example here: the shift to capitalintensive agriculture and manufacturing in England in the eighteenth century. In agriculture, the landowners themselves made the shift in the interest of applying new methods and thereby producing more food. With the aid of enclosure legislation, the great landowners who could afford to innovate bought out the small landowners and peasants who could not. Meanwhile, the more
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enterprising among the small artisans became great factory owners by adopting new industrial technologies and employing the agricultural workers displaced by new kinds of agriculture. At the same time, the great landowners and the newly enriched factory owners invested in an infrastructure of roads and canals to transport goods to market and bring new amenities to their country seats. As the process went on, the factory owners adopted the mores of the landowners, and were recruited into their magistracies and other public functions, while the landowners adopted much of the urban sophistication to which they were increasingly exposed via the roads and canals. It was not until almost half a century later that these developments led to a showdown between agriculture and manufacturing, which manufacturing won. In the interim, it is clear that the landed gentry and the newly coopted factory owners took great pride in what they had accomplished for the better feeding of the masses and the broader distribution of cultural amenities among the welltodo. The displacement of other social classes was regarded as regrettable but inevitable: G. M. Trevelyan tells us that enclosure of agricultural lands was regarded as a public duty. The adoption of what Macaulay refers to as "beautiful and costly machinery" must have been considered a public duty also: he is sure that only lack of education could make anyone oppose it. To sum up the whole evolution, here is Basil Williams's description of the landholding class at the particular point when the economic changes that were to result in its displacement by the capitalist class were already in place, but the displacement itself was yet a few years in the future: No doubt this polite society was in many respects selfish and selfindulgent: by its monopoly of social and political power and its sublime conviction that it alone possessed the right and capacity of leadership, it no doubt continued the subordination and even prevented the development of the classes below far longer than was their due. At the same time, with all their selfish pleasures, they not
Page 29 only elevated the standard of good taste in art, literature, and music and above all in urbanity of conduct and conversation, but set an example as a class of public spirit and public duty. It was this consciousness of civic duty which in the long run eased the inevitable change in their relations to the classes then of little account, and made such a change much easier than was possible in the countries where aristocracies had no purpose in society beyond amusement and military glory.
The responsiveness of the ruling class to the concerns of the rest of society was not entirely due to a consciousness of civic duty. The bizarre electoral system that had grown up over centuries assured the great landowners of control over the House of Commons, but many of them had to placate lesser figures in local society, and often had to spend large sums doing so, if they were to keep their seats. And even those with full control over Parliament had the London populace to fear. They had also to be concerned about local magistrates, who could tap vast reserves of inefficiency if called on to implement a measure they did not like. There was also a general right to hold meetings and submit petitions. It was widely used, and the government tended to take the resulting petitions seriously lest something worse befall. Halévy, describing the political situation in 1815, does not hesitate to refer to ''the supremacy of public opinion." I have said that law is a bridge between values and their realization. It is one that ruling classes are often willing to cross, and that they often cross, willing or not, because of the power of the rest of society. I might add, drawing on the history of various revolutions, that if the bridge is lacking the gap will be crossed in some other way. The drive for social justice is neither continuous nor overwhelming, but it cannot be permanently ignored. If it is not effectively institutionalized, it will find ways, often harsh ways, to become so. The role of law in the institutionalization process is complex, because it controls all the institutions of society and at the same time is one of those institutions itself. It is, like any institution,
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under the power of the ruling class; at the same time, it is the main vehicle for holding the ruling class accountable to the wider society. In its dispositions, it must embody the requirements of natural law and pilgrim law, both as they apply universally and as they are experienced in a particular society. It must also, as far as possible, impose these requirements on other social institutions, and render the ruling class accountable to the wider society for serving the same requirements. To sort out these complex demands on law, and try to organize a Christian response to them, we must examine particular class structures and particular ideologies in more detail.
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III— Class and History I— The Fact of Class A— Marx and Engels: The Classic Analysis While we cannot end a discussion of class with Marx and Engels, we can hardly fail to begin with them. Their treatment of the subject is more elaborate, more systematic, and more influential than anyone else's, and we do not have to agree with their philosophy, their historiography, or even their economics to recognize that they were shrewd observers of what was going on around them. If their account of the succession of dominant classes has to be taken with a grain of salt, it still has to be taken. Their claim is that the prevailing system of production and distribution in any period supports class distinctions whereby one class dominates and other classes are subordinated and exploited in various ways. As history develops, people think up new ways of producing and distributing. These bring pressure on the prevailing system, and the people who can use them to best advantage turn into a new class destined to displace the one formerly dominant. In their concrete application of these principles, Marxists generally begin with the period of domination by the feudal landholding class that arose on the ruins of the Roman Empire. The power of this class evidently originated in its military prowess. By protecting the local peasants, the local landholders
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assured rudimentary conditions of peace for rudimentary agricultural production. The peaceful conditions that grew up under the aegis of the feudal landholders made it possible for a trading and manufacturing class—the bourgeoisie—to develop in the towns. As these people became more and more powerful, they hired more and more people to work for them for wages. As their enterprises superseded more and more of the laborintensive agriculture characteristic of the feudal period, more and more wage labor became available, and the bourgeoisie developed more and more effective technologies for exploiting it. Finally, with the development of mass production, and the parallel development of more efficient and more capital intensive agriculture, the bourgeoisie were in a position to displace the feudal landholding class and impose the system of wage labor on the whole of society. Since their power was based on owning the capital required for the new technologies, their system was known as capitalism. Under capitalism, everything, including labor, was assigned a price through the operation of competition and the law of supply and demand. By the midnineteenth century, traditional social relations were being dissolved everywhere in this way, and the condition of wage labor was becoming more and more abject as the supply continued to outstrip the demand. To emphasize the abject condition of people with nothing to sell but their labor, Marx attached to them the term proletarian—the name given by the ancient Romans to the lowest class in their society, people who served no purpose except to produce offspring (proles). Ultimately, Marx and Engels supposed that the bourgeoisie, having no new worlds to conquer, would destroy one another with their unbridled competition, while the proletariat, realizing that they now had nothing to lose but their chains, would take power and become the dominant class. At that point, there would be no one to exploit anyone else's labor, and a classless society would ensue.
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B— Djilas: The New Class In 1957, this analysis was reexamined in a book called The New Class, by Milovan Djilas, who had been second only to Tito in the Yugoslav Communist Party. Ostensibly Marxist regimes had been in place in the Soviet Union for forty years, in most of Eastern Europe, including Yugoslavia, for more than ten. It was apparent that the historical evolution into classlessness had not taken place as Marx and Engels predicted, and was not about to. Djilas set out with a rigorously Marxist methodology to explain why. He showed that the proletariat cannot effectively exercise the power that Marx and Engels expected them to assume: they lack the organization and the technical skill required to run a modern industrial state. Accordingly, their ostensible power is exercised on their behalf by a class of surrogates whose interests quickly diverge from those of the people in whose name they act. In the typical Communist state, those surrogates are the members of the Communist Party, which is officially recognized as the articulate voice of the proletariat. Taking from Roman law the definition of property as the use, enjoyment, and disposition of material goods, Djilas pointed out that when property is nationalized or collectivized in a Communist society it is the party bureaucrats who use, enjoy, and dispose of it. Djilas's point about the proletariat not being able to exercise power after assuming it was poignantly illustrated by the fate of the Solidarity movement in Poland in 1980 and 1981. Solidarity, it will be recalled, was a grass roots labor movement that arose almost spontaneously out of general dissatisfaction with the Communist regime, and quickly secured the allegiance of most of the working people of the country. But after forcing the government to give it official recognition, it failed to produce a set of leaders with whom the government could effectively negotiate. It broke up into a variety of different constituencies as clamorous as they were uncompromising. Martial law was proclaimed, Soli
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darity was suppressed, and the government went back to treating the Communist Party as the only authentic voice of the working class. After some years, the remnant of the movement played a part in the transformation of Poland into a multiparty state, and Solidarity reemerged as one of the alternative parties offering one of the alternative agendas. It was no longer identified with the whole working class. As Djilas had shown, the proletariat could not take power except through surrogates. In the end, the workers of Poland got a better choice of surrogates than they had had before, but they did not take power for themselves. C— The Organization Man: Capitalism to Managerialism Djilas assumed that his analysis did not apply to the capitalist countries—the developed nations that had not been taken over by Communists. But the rise of a managerial and professional elite in North America and Western Europe has in fact placed a class of people in charge of affairs who look a good deal like the people Djilas describes. A year before The New Class came out, the sociologist William H. Whyte published The Organization Man, describing this elite and its dominance in corporate life. In the ensuing decades, except for adding more women and minorities, the elite has not changed very much, and it still resembles its counterpart in the East. The June 18, 1990 issue of Business Week had a review of a book describing Gorbachev's rise to power in the Soviet Union, and an article describing the careers of the Harvard Business School class of 1970, some of whom were already chief executive officers of corporations. The rise to power of the Harvard M.B.A.s was very like Gorbachev's. Whyte attributed the development of this elite (I will call them the managerial class, although they include independent professionals as well as managers) to shifts in attitude and expectations after World War II, but I believe political and economic changes were more important. The proletariat did not
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take power in any Western country in the way Marx and Engels envisaged, but the combination of the union movement and universal suffrage assured that no one else would take power without their acquiescence. Just as fear of another French Revolution led the British aristocracy in the 1830s to concede power to the bourgeoisie, fear of another Russian Revolution led the capitalists of the West a century later to concede power to the proletariat. All of these concessions brought managers, not proletarians, into power. The unions developed a managerial leadership, the corporations developed managers to deal with them, and the government created agencies with managerial staffs to deal with both. These developments reinforced, and were reinforced by, a tendency toward larger and more capitalintensive business units, a tendency that was already underway on account of changes in technology and finance. More and more businesses involved capital accumulations beyond the reach of any individual entrepreneur, and knowing how to float the necessary capital became part of the professional equipment of anyone who aspired to manage a major business. Where nineteenth century capitalists had hired their managers as they did the rest of their work force, twentieth century managers were hiring their capital as they did their labor. Managers were still theoretically responsible to their investors, but the responsibility sat no more heavily upon them than responsibility to the workers sat on the managers of the Sverdlovsk Motor Works or the Odessa Bread Trust. In East and West alike, then, ostensible power has come to be so diffused that those to whom it is supposed to belong have not the organization or the expertise to wield it effectively. It is therefore wielded for them by a class of surrogates who have more in common with each other than they have with the different constituencies on whose behalf they purport to act. These surrogates form the managerial class which by now has almost entirely displaced both capitalists and feudal aristocrats as the ruling class.
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It does not seem, by the way, that events in the East since the late 1980s have in any way displaced this class as a class. The hope seems to be that "privatization" will replace incompetent managers with competent ones, and for all we know, it may do so. But they will still be managers, just as they are in the West. The emergence of the managerial class presents more than a temporary setback to the classless society envisaged by Marx and Engels. Their idea was that once the capitalist system of production and distribution was fully in place the capitalist class would become superfluous because the proletariat would be doing all the work. Doing away with the capitalists would not disturb the system of production and distribution at all. There would then be only one class remaining—the proletariat—and there would therefore be a classless society. So the prediction of ultimate classlessness depends on a belief in the superfluity of the ruling class. With regard to the managerial class, such a belief would be impossible. That class deploys managerial and professional skills that a modern industrial society cannot do without, and cannot distribute equally among its members. I believe, therefore, that Djilas has permanently put out of the running any hope that the solution to the class struggle is to abolish one or more of the participating classes. The best we can hope for is that the ruling class will—use its advantages for the benefit of the whole society. As I suggested in the last chapter, this is what we should be trying to accomplish with our laws. II— Class Instrumentalism and Marxist Legal Theory A— The Phenomenon Marxist doctrine does not encourage such an endeavor. The legal component of that doctrine is called class instrumentalism. Its principal tenet, simply stated, is that law serves the interests of
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the ruling class. If this were an empirical observation rather than a philosophical doctrine, there would be no lack of evidence to support it. 1— Landholders In feudal times, the statute book, the records of the king's judges and coroners, and, above all, the records of the manorial courts bespeak a legal system devoted to keeping the peasants in order, at work, and reasonably content with their lot, to seeing that the complicated rents and other dues were rendered on time, and to securing the smooth passage of rights and duties from one generation to the next. Furthermore, the feudal landholders, as long as they had power, did what they could to prevent the transition to bourgeois capitalism. They passed laws to limit the free movement of goods, laws to fix prices and wages, laws to keep the peasants from going to work in the towns, laws to prevent the enclosure of open fields. These were evaded while the bourgeoisie were rising to power, and repealed when they had consummated their power in the revolutions of the seventeenth, eighteenth, and nineteenth centuries. 2— Capitalists The capitalists in their turn made laws to favor their own forms of production and distribution. They not only legalized enclosure, they adopted procedures to make it easier. They arranged for the commutation of feudal dues for cash or fixed annual rents. They developed rules of ownership and succession that favored the conversion of land into investable capital. They adopted general incorporation laws to encourage the assembling of capital. They adopted such doctrines as the fellow servant rule to limit the tort liability of entrepreneurs. By their laws against vagabondage and the like, they drove displaced agricultural workers into industrial employment. In some of their colonial possessions, they forced selfsufficient natives into wage labor by levying taxes that had to be paid in cash. They sanctified the institutions of property and contract, both of which they restructured to support the free operation of the market.
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The power of capitalists was deployed against the advent of managerialism just as the power of feudal landholders had been deployed against the advent of capitalism. Marx tells us that the administration of the Factories Act of 1844 in England was frustrated by magistrates who were themselves factory owners. In our country, the rear guard action of the judiciary against the proliferation of administrative controls on business is well known. Less well known, but equally significant, is the set of restrictions on corporate management in the interest of stockholders—i.e., capitalists. These included the doctrine of ultra vires that subjected management to limitations in the articles of incorporation, various rules about the issuance and transfer of stock that protected stockholders from being expelled from involvement in a business, or having their interest diluted without their consent, and principles like cumulative voting that preserved their managerial role. All these were to be attenuated or abolished as the transition to managerialism progressed. 3— Managers With managerialism now solidly in place, we have dropped the bulk of our legal restrictions on the discretion of business managers and administrative agencies. We have adopted broad protections for every form of managerial and professional skill and judgment. We have recast our principles of legal ethics to keep lay moral judgments from impinging on a lawyer's professional service for a client. We have begun interpreting the First Amendment to keep public officials from interfering with professional librarians, educators, and even art critics. These transitions have not been limited to parts of the law with obvious economic or political content. In family law, for instance, provisions in the feudal period tended to protect dynastic marriages and preserve family landholdings, whereas those under capitalism tended to support the stability of the bourgeois family and those in place today seem calculated to recognize the fragility of personal relations among people fully committed to careers in the managerial elite. Similarly, laws concerning debtors evolved
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from a more or less punitive stance under feudalism to a discharge of unfortunate businessmen under capitalism. Under managerialism, they combine provisions for the relief of overextended consumers with provisions for allowing great bankrupt enterprises to change their capital structure without changing their management. B— Exceptions There is ample evidence, then, for class instrumentalism both as historical reality and as present fact. But that is not enough to support the Marxist claim. That claim is not that some, or even most, laws support the interests of the ruling class, but that all laws do—that such support is an inherent quality of law as such. This is a corollary of the Marxist doctrine of economic determinism, which holds that the class structure organized around the prevailing forms of production (the ''base") explains all the various institutions of society (the "superstructure") including the law. Accordingly, if some legal dispositions require a different explanation, the doctrine fails. Such dispositions are not hard to find. T.F.T. Plucknett offers several from the feudal period in his wise and lucid book Legislation of Edward I. He shows that as early as 1187, when Glanville wrote, the law of distress protected tenants against their lords so well as to cause "something like consternation" to a fellow historian who believed that the laws of the period supported the interests of feudal landholders. He shows that the protection of the tenant against wrongful distress was made still stronger in the last half of the thirteenth century. He describes the quo warranto proceedings by which Edward I attempted, often successfully, to strip feudal barons of important and lucrative governmental functions. He shows how laws were adopted over opposition from the landholders to make it possible for merchants to recover their debts by occupying the freehold lands of their debtors. These measures were not merely seen as antifeudal by
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our sophisticated hindsight; they were seen at the time as inimical to the interests of feudal lords. Lords supported them—or at least failed to block them—because they seemed reasonable regardless of whose interests they served. In the period of capitalist ascendency, some legal dispositions were adopted that favored the proletariat, and some that favored surviving elements of the feudal landholding class. Marxists tend to regard the former category as mere manifestations of the astuteness of the capitalist class at finding ways to remain in power by blunting the revolutionary consciousness of the proletariat. But this explanation will not do for laws that favor the landholding class. A case that has occasioned considerable discussion among Marxist legal theorists is Duke of Buccleugh v. Cowan and Sons, a protracted Scottish litigation that ended in the House of Lords in 1876. The defendants were a group of paper manufacturers whose effluent was polluting a river that the plaintiffs, a group of aristocrats with land downstream, were using to water their livestock. Despite the textbook clash between old and new forms of production and use of resources, the plaintiffs won. If you are sufficiently anxious to save the doctrine of class instrumentalism, there are explanations on the market that may satisfy you, but they are too complex and too esoteric to take up here. I do not find them persuasive. Material from the period of managerial ascendency offers a number of examples of rejection of class agendas by legislatures or courts. My favorite is Medical Committee for Human Rights v. SEC (1970), in which a corporate management and an administrative agency were both defeated at the same time. It was during the Vietnam war, and the plaintiff stockholders of the Dow Chemical Company sought to have the company stop making napalm. They invoked an SEC regulation that required corporations to put stockholder proposals on their proxy statements for other stockholders to vote on. The SEC upheld the Dow management in refusing to put this proposal up for a vote—evidently because the proposal was concerned with moral values
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instead of with making money. The court came down strongly in favor of the plaintiffs—so strongly that Dow withdrew its opposition and the SEC amended its rule. C— Marxist and NonMarxist Explanations These are only a few of the available examples, but I think they are enough to make my point, which is that class instrumentalism, although it is a pervasive quality of law, is not an inherent one. Since it is pervasive, we should try to do something about it, and, since it is not inherent, we should be able to. For a start, let us see if we can discover why it happens. The first Marxists, including Marx and Engels themselves, tended, as did the most prominent Soviet legal theorists, to see the process as deliberate. They pictured judges, legislators, and legal theorists carefully considering what legal dispositions would best serve the interests of the dominant class, and then adopting those dispositions. They often characterized as "cynical" or "hypocritical" the effort to justify such dispositions in terms of transcendent values. The problem with this crudely conspiratorial theory of class instrumentalism is that it gives conscious choice more of a role in the development of social institutions than Marxist historiography is generally willing to allow. It presupposes, for instance, that in Engels's England everyone from the prime minister down to the parttime justice of the peace knew what was best for the capitalist class, and knew that his own best interest was fully in accord with that of his class. A good many Marxist theorists have preferred to find an unconscious element at work. They argue that the system of production and distribution tends to appear to those who live under it to be the only sensible way of producing and distributing. Accordingly, keeping the system in place—and thereby keeping the dominant class in power—seems mere common sense. Hugh Collins, whose careful study of Marxist legal theory has provided
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me with a good deal of the material for this account, puts it this way: The central argument is that ideologies arise from and are conditioned by social practices in the relations of production. Since the class of owners of the means of production share similar experiences and perform approximately the same role in the relations of production, there emerges a dominant ideology which permeates their perceptions of interest. Laws are enacted pursuant to this ideology. . . . There is no need . . . to suggest that the ruling class is aware of its class position and deliberately sets out to crush opposition. Instead, its perceptions of interest will appear to be the natural order of things since they are confirmed by everyday experience. A corollary of this is that laws enacted according to the dictates of a dominant ideology will appear to the members of that society as rules designed to preserve the natural social and economic order. The ruling class will not have the oppression of other classes in mind, but simply the maintenance of social order.
Both Marxist versions of how the law comes to serve the interests of the ruling class suppose that the class came first and adopted serviceable laws after it had effectively taken power without legal support. But this is not always what happens. When a law appears on the books, the people whose interest it serves seem to materialize out of nowhere. Having found a new source of prosperity, they proceed to prosper. In the case of particular interest groups, it does not take long for this to happen. It scarcely took twenty years for new understandings of the First Amendment in the 1960s to create a flourishing pornography industry out of what was formerly a small underthecounter operation. The culture of single parenthood now so widespread in our inner cities arose in just a couple of generations after we adopted a welfare law that made special provisions for widows and orphans. There were of course other forces at work, but a major part was played by this legislation that was adopted to deal with a situation very different from the one that arose under it. The evolution of whole classes is a longer and
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more complicated process, to be sure, but I believe the chronology is similar: each evolution was attributable in great part to the effect of laws that were already in place. III— The Legal Basis of Class: A Historical Account A— Feudalism and Land Tenure Consider first the transformation of the marauding bands that descended on the Roman Empire in its last days into the feudal landholding class of the high Middle Ages. Once their authority was established, and with it their responsibility to their subjects, the early kings rode circuit with their retinues, boarding on the populace and doing justice as they passed. But soon they began locating favored retainers permanently at strategic points. Each of these retainers would do the king's work and collect the king's provender in the place assigned him. The produce that formerly supported the whole entourage for a few nights would presumably support one member and his household all year. What turned these retainers into a class of feudal landholders instead of a class of field administrators was a set of legal principles that tended to separate the job from the emoluments. Traditional Germanic law knew nothing of requiring a fiduciary to account. Therefore, the beneficiaries of these early grants, unlike the bailiffs and stewards of later medieval times, kept whatever they took in and did not spend doing their jobs. As a result, the Romantrained lawyers who looked at the situation tended to see them not as compensated officials but as holders of rights in land with obligations attached. This development of the law of land tenure was already well underway by the time the armored knight, as kind of human tank, came to dominate warfare. A great deal of land was given out on
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the terms thus developed as support for these highly trained and expensively equipped fighters, who were obliged in return to show up for the king's wars when sent for. With landed property in this condition, heritability came in partly because the holders expected to be able to provide for their sons, and partly because there was no other way at the time to insure that the person assigned a social function had been adequately trained for it. Inheritance of functions was not limited to the landholding class; it obtained at every level of medieval society—even, until about 1100, in the church. It meant that every child knew what he was going to do when he grew up, and could therefore prepare to do it. For the landholding class, inheritance of functions meant inheritance of land. The feudal landholding class, then, took shape and became powerful within a framework of legal doctrines and institutions that were already in place. Had there been a different legal framework, the same economic and social forces would have produced a different class. To be sure, once the feudal landholders were solidly established, they refined the laws to serve their interests better. But what they refined were laws that were already there. B— Capitalism and Entrepreneurship Capitalists also, once they were in power, adopted legal dispositions to help them stay there. I have referred to a few of them, and Marx and Engels have volumes more. But, as was the case with the feudal landholders, the basic legal structure on which capitalism depended was in place before a class of capitalists arose to take advantage of it. The main features of that structure as it is generally understood are the following: 1. The abolition of feudal dues and the replacement of personal services and inkind payments by wage labor and cash rentals.
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2. Effective enforcement of contracts in general and debts in particular. 3. Free use of property for such economic purposes as the owner may choose. 4. Free access of buyers and sellers to the market. 5. Protection of capital accumulations through pooling of resources. Let us see how each of these developed. 1. Marx saw the abolition of feudal dues in 1660 as the consummation of the victory of the bourgeoisie over the feudal landholding class. But Blackstone saw it as the emancipation of feudal landholders from capricious royal exactions. I believe Blackstone was right. These dues were being commuted for cash payments long before they were abolished. It was certainly no later than 1200 that kings realized that they could get more fighting done by collecting money from their tenants and hiring soldiers than by making their tenants fight in person. Somewhat different considerations led to the replacement of serfs by wage laborers in the fields, but the transition had begun long before it was accelerated by the Black Death and the resultant labor shortage. The work of a feudal society no less than that of a capitalist society could be done better by people who were paid to do it than by people who lay under a hereditary obligation to do it for nothing. 2. Harold Berman has shown that the law merchant with its provisions for the enforcement of contracts was in place all over Europe by 1200. While it probably got its start from the merchants themselves, the feudal monarchies were routinely content to enforce it, and often to enforce it against feudal landholders. The enforcement of contracts outside the law merchant was slower in arriving, but it is far from recent. The
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action of assumpsit, by which the English common law enforced contracts, began developing out of tort remedies in the late 1300s, and was fully in place by 1600. In the eighteenth century, it absorbed most of the provisions of the law merchant for enforcing contracts. 3. The use of property for innovative agriculture and the diversion of agricultural land to other uses were made possible by the "enclosure" of the common lands and open fields. The legal foundation for the former was laid very early. An English statute of 1236 provided that the lord of the soil could take over any part of a common that the commoners could not prove was needed to pasture the animals that they stabled on their own land. And this was held to be declarative of the common law. As for the open fields, these could always be divided into compact units by the owners of the traditional strips—and not all the householders of a medieval village were owners of the strips they and their ancestors worked. The process of enclosure by agreement was well underway before legislation was adopted in the eighteenth century to support it. Once the lands were divided into compact individual holdings, the owners could use them as they pleased. Until the invention of the steam engine, running water was the main source of power, and the use of property for industrial expansion depended on the right of riparian owners to put up dams. This right was established in the seventeenth century at the latest. It was held that a downstream owner could not complain of a mill newly erected upstream unless it permanently diverted the water from its course, and that even a new mill would be protected from a diversion of its water by an upstream owner. 4. The medieval monopolies of fairs and guilds were local. With improved transportation, it became possible to avoid them by doing business somewhere else. It is to this fact that some of the greatest English cities of modern times, Birmingham, for instance, owe their origin. With unregulated business flourishing on the
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outside, the local monopolies had to drop their claims in order to stay in business. This process was about complete in the first decades of the seventeenth century. With old monopolies on the way out, Elizabeth I and James I developed an unfortunate practice of creating new ones by letters patent in order to raise money or reward royal favorites. But a set of judicial decisions and statutes invalidated these grants when they applied to anything that had previously been manufactured or traded freely. Such grants were thus effectively limited to their modern function of rewarding inventors. Accordingly, access to the market was almost entirely free in England by the outbreak of the Civil War in 1642. 5. Guilds and boroughs, to speak only of secular bodies, had corporate status all through the Middle Ages. The English courts held as early as 1429 that the members of such a body were not individually liable for its debts. While most guilds were made up of craftsmen, a few groups of merchants, notably those of the Staple, had attained guild status in England by the end of the thirteenth century. There is some disagreement concerning the extent to which these bodies were influenced by their Italian counterparts, which had been organized much earlier on the model of the Romanlaw societas. Beginning in the sixteenth century, the English Crown chartered a number of trading companies, mostly for foreign trade. At first, these were regulatory bodies, like modern professional associations, but in the seventeenth century, many of them started trading on a "joint stock" rather than having individual members trade on their own. In the latter part of the century, these joint stocks were commonly divided into transferable shares. By the early 1700s, then, there were a number of these "joint stock companies" enjoying both the modern incidents of limited liability and transferable shares. The Bubble Act, adopted in 1720 in response to a speculative disaster called the South Sea Bubble, forbade the establishment of any more such companies except by
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royal charter or Act of Parliament. There were not a lot of such acts and charters, but there were some, especially for companies building roads or canals. In 1825, the Bubble Act was repealed, and the corporate form developed in the seventeenth century became freely available to support the capital accumulations demanded by the nineteenth. To establish that the capitalist class did not create the legal conditions for its own dominance, we will have to relate this chronology to the rise of capitalism. That rise seems to have been gradual from the midseventeenth century to the midnineteenth. By the midseventeenth century, free competition in the manufacture and distribution of goods had pretty well won out over the privileges of medieval guilds and fairs. Sometime in the eighteenth century, landowners who expanded their production by adopting more capitalintensive management became dominant over landowners who adhered to old ways. Factory production by wage laborers arose in some places as early as the sixteenth century, but did not come to dominate over domestic production at piece rates until sometime in the nineteenth. It was evidently the displacement of feudal retainers and peasant cultivators through enclosure of the open fields that provided much of the wage labor for largescale manufacturing. It was not until fairly late that the growing economic power of the capitalist class was translated into political power. Certainly there were some incipient capitalists with political influence from the fifteenth century on, but the class was not in solid control of Parliament, let alone the courts, until the reform of the franchise in 1832. Note that the Corn Laws, a protective tariff on cereal grains that solidly favored landowners over manufacturers, were adopted in 1815 and not repealed until 1846. In short, the capitalists, like the feudal landowners who preceded them, came to dominate society by operating in a legal framework that was already there. In fact, Marx himself, despite his general commitment to a class instrumentalist view of law, appears to
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admit in certain places that the abolition of feudal restraints on property and labor was a precondition, not a result, of the rise of capitalism. C— Managerialism and Regulation In the Communist countries the transition to managerialism—often direct from feudalism without an intervening capitalist stage—was required in order to implement the central economic planning that Communist doctrine demanded. The rhetoric of proletarian dictatorship could not stand up against the practical necessity for a class of managers where there was so much that had to be managed. The significant question is whether the people who created the legal framework of the Communist administrative state were the same people who took power under it. At least in the long run, the answer is no. The ability to run a revolution is a good deal different from the ability to run a factory; revolutionaries therefore tended to give way to managers in the first few years after taking power. In the Soviet Union, the transition was marked by the eclipse of Trotsky in the 1920s, and the purge of the Old Bolsheviks in the 30s. In China, it was marked by Mao Zedong's ''Cultural Revolution" in which he tried unsuccessfully to arrest the process. In each case, the Communist revolutionaries had created legal structures under which the people who prospered and ruled were not revolutionaries but managers. In the nonCommunist world, the transition to managerialism has been more complicated and more peaceful, but just as inexorable, and just as dependent on prior law. The accumulations of capital that initiated the process were made possible by nineteenth century developments in corporation law. Their effect of increasing the role of managers in business and decreasing that of capitalists was enhanced by the laws regulating securities and by tax laws that made it less and less possible for individuals to have enough money to supply their own capital for their own enterprises. Labor organizations arose in response to the large
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capitalist enterprises, with the object of meeting employers on something like equal terms. They were given protection under laws supporting the collective bargaining process. Under this protection they expanded to the point that they needed full time managers to do their organizing and negotiating. Meanwhile, government agencies were set up by law to control relations between corporations and the public, and then to control relations between labor and management. These agencies developed full time managerial staffs. Lawyers, economists, and experts of all kinds began multiplying to help people deal with all these public and private organizations and the laws that governed them. Many of the laws that supported this evolution were in place by the end of the nineteenth century; others were adopted in the 1920s and 30s. The managerial class came definitively into power just before or just after the Second World War. Like earlier classes, therefore, it became dominant under a legal framework that was already in place. IV— Felt Needs: A Moral Account This historical account shows that many of the most important of the laws that serve class interests are not enacted through the power of the class whose interests they serve. They often come in before that class has a sure grip on power; often they provide some of the essential conditions for that class to take power. It follows that they are adopted at the instance, or at least with the acquiescence, of other classes. My claim is that the people running society often adopt such laws because it seems right to adopt them —despite, not because of, the effect they will have on transferring power to a new ruling class. I offered one example of such motivations at the end of the last chapter. Here I will offer more.
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A— Values We have seen that the legal framework for the feudal landholding class developed when the peripatetic princes of the Dark Ages began locating their followers on the ground and endowing them out of local revenues. They did this in order to reward their faithful followers, and to discharge their responsibility to protect their subjects, keep them in order, and assemble them for war when the need arose. Providing the ministrations of religion was often an additional motive. All this had to be accomplished without any of the central fiscal apparatus that supports the field administration of a modern state. The rulers developed the best legal framework they could for meeting what they saw as their responsibilities. The beneficiaries of the legal framework then grew into a stable and coherent ruling class. The laws that brought the capitalist class into dominance were adopted, often quite explicitly, to improve production and distribution, and to support new capital intensive technologies that made labor easier and goods and services more plentiful. The just claims of tradesmen and property owners were also taken into account. The preamble to the 1285 Statute of Merchants balances motives of both types: Forasmuch as Merchants, which heretofore have lent their Goods to divers Persons, be fallen in Poverty, because there is no speedy Remedy provided, whereby they may recover their Debt at the Day of Payment; and for this Cause many Merchants do refrain to come into the Realm with their Merchandise, to the damage of such Merchants and of all the Realm. . . .
Centuries later, the same combination of fairness and utility was still being used to dissolve restrictions on the free use of capital and the enforcement of contracts.
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The legal basis for the power of the managerial class in Communist countries was of course provided by Communism itself. The laws took their moral force from the revolutionary concerns of the first Communist leaders and the just grievances that led people to support or at least accept revolutionary change. The peaceful changes that occurred in Western societies originated in similar grievances and similar moral concerns. The laws giving power to government officials rested on a belief that they could not keep up with the fastpaced and ingenious people they had to regulate unless they were invested with a great deal of discretion. Laws enhancing the power of corporate managers rested sometimes on a belief that they would make more money for investors if left alone and sometimes on a belief that if left alone they would consult public interests other than making money. But any way we look at the situation, it is clear that the legal framework for managerial ascendency was adopted in order to bring about greater general prosperity and a fairer distribution of the amenities of life. B— Toward Accountability This brings us back to the perception of law as a bridge between values and their realization. The legal dispositions under which a class rises to dominance reflect values accepted by the wider society independent of the class. As a result, they tend to include provisions through which the class can be held accountable to the wider society for implementing the values in question. We can find examples in each period of class dominance. The legal framework within which the feudal landholding class arose took shape around the moral obligations belonging to the relation of ruler and subject, together with the practical necessity of relying on custom and inheritance to maintain social functions and transmit them from one generation to the next. The laws tended accordingly to make the ruling class accountable for stable
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relationships and stable customs. All forms of power were exercised formally through courts, writs, and processes. Even the lowest ranks of society were protected against any imposition that was not customary, and often they themselves could determine with legal effect what the applicable customs were. The laws that brought the capitalist class to power were intended to facilitate the creative application of capital and organization to a more effective production and distribution of goods and services. It was the market (Adam Smith's "invisible hand") that was expected to insure that this creativity would be channeled into socially useful projects. In this way, the capitalist class was to be accountable to the wider society for implementing the values that led to its dominance. Accordingly, laws under capitalism tended (among other things) to protect the market—to enforce agreements, to redress fraud, to suppress monopolies and combinations, to secure free use of property. To a lesser extent, they tried to afford more effective access to the market by rejecting transactions clouded by extreme necessity or duress, and by authorizing laborers and other isolated bargainers to combine for a better negotiating position. Managers come to power as surrogates for wider constituencies, groups of people who lack the organization to exercise power on their own behalf. It is through some form of political process that they are made accountable for pursuing the interests of those in whose name they act. The laws accordingly tend to protect the political process. We not only give more and more scope to freedom of speech and the press, we pay more and more attention to the political rationale for these freedoms, and less and less to other rationales available (notably the personal need for selfexpression). Ancillary to this rationale, we have begun extending these freedoms to the acquisition of information as well as to the dissemination of information once acquired. Conceptions of due process as we apply them to present day managers have a superficial resemblance to medieval conceptions of formality, but they are much more closely related to conceptions
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of public—and therefore political—accountability. The procedures aim mainly at making officials subject to public scrutiny regarding the rationality of their decisions. The laws imposing accountability on managers are not limited to government officials. Due process concepts have been extended to all kinds of private contractual relations from that of professors with their universities to that of automobile dealers with their manufacturers. Other laws have attempted to protect the democratic process in the election of labor union officials and the input of shareholders into corporate policy decisions. These forms of legal accountability, valuable as they are, are all subject to the same infirmity. They come out of the moral and legal context in which the power of the ruling class was established, and they cannot effectively reach beyond that context. They cannot respond to the historical processes by which the present ruling class will one day be displaced; still less can they give effect to values that transcend both history and class. They are not adequate, therefore, to make the people in control of society fully accountable for their part in a fully human existence and a fully human pilgrimage for the wider society and its members. I intend in the remaining chapters of this book to examine the obstacles in the way of a more fundamental accountability, and consider how the principles of liberation theology can be drawn on to overcome them.
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IV— False Consciousness I— The People's Charter and the Ruling Class In 1842, there was presented to the British Parliament a document called the People's Charter, containing a number of demands, the most important of which was that every adult male in the country be given the vote. One of Macaulay's collected speeches is devoted to expressing his reasons for rejecting that demand. His argument is that the prosperity of the country depends on the security of property, and that property could not be secure if the masses of propertyless working people had control of the government. He admits that if there were a better set of schools in the country the poor might become so well educated as to be trusted with the franchise, but as things then stood it could not be hoped that they would forbear to destroy the economy and themselves with it: Imagine a wellmeaning laborious mechanic, fondly attached to his wife and children. Bad times come. He sees the wife whom he loves grow thinner and paler every day. His little ones cry for bread, and he has none to give them. Then come the professional agitators, the tempters, and tell him that there is enough and more than enough for everybody, and that he has too little only because landed gentlemen, fundholders, bankers, manufacturers, railway
Page 56 proprietors, shopkeepers have too much. Is it strange that the poor man should be deluded, and should eagerly sign such a petition as this? The inequality with which wealth is distributed forces itself on everybody's notice. It is at once perceived by the eye. The reasons which irrefragably prove this inequality to be necessary to the wellbeing of all classes are not equally obvious. Our honest working man has not received such an education as enables him to understand that the utmost distress that he has ever known is prosperity when compared with the distress which he would have to endure if there were a single month of general anarchy and plunder.
As always, Macaulay presents his views with uncommon lucidity and eloquence. But they are not uncommon views. In one form or another, they have been put forward whenever a ruling class has found reason to limit its accountability to the wider society. However they are stated, they are reducible to the following three claims: 1. The system currently in place is basically beneficent. 2. The sufferings experienced by some people under this basically beneficent system are unfortunate but inevitable. 3. The people who suffer under the system cannot be expected to appreciate its basic beneficence. They must therefore be kept from destroying it, as they would do if they could. These claims form the basis of what Marxists call false consciousness—the ideological foundation for the hegemony of the ruling class. False consciousness has many ways of entering into the law, and all of them have the effect of limiting the accountability of the ruling class. In this chapter, I will examine some of these legal manifestations and see why we keep adopting them. In the next chapter, I will try to show how we can avoid them.
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A— Feudalism: Heredity and Providence The clearest manifestations are those that explicitly appeal to a conviction such as Macaulay's that, whatever the cost, the essential elements of the prevailing system must be kept safe. Each ruling class has had its own concerns in this regard. Under feudalism, it was a matter of maintaining the moral authority of a class defined for the most part by heredity. When the system was fully in place, this authority drew support from a general belief in the providential character of inheritance. Somehow, God was seen to have more of a hand in your being born to a particular set of parents than in your gaining wealth and power by skill, patronage, or hard work. There is no theological basis for thinking that fortuitous events are more providential than purposeful actions, but it is easy to think there is. The providential moral authority of the feudal landholding class stood them in good stead when it came to controlling the lower orders and so securing the stability of society. But it stood very much in the way of their imposing accountability on their own class. Feudal magistrates could reprove, entreat, and rebuke their fellow landholders and their heirs, but they could not humiliate them, as that would impair the moral authority of the whole class. Peasants could be subjected to the lash and the stocks, but the higher orders could not. Even the church went along with this tenderness for the moral authority of the ruling class. We have a case of a knight who was allowed to have his squire carry his armor for him in a penitential procession, and another who was let off with a fine "because it is not decent for a knight to do public penance." Such attitudes made it particularly difficult to make the magistrates themselves accountable. Feudal magistracies were generally either hereditary or distributed among hereditary landholders. If you inherit your position or your eligibility for advancement, God has bestowed it on you, and mere incompetence
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is no reason for man's taking it away. Indeed, even corruption or oppression, although it is ground for correcting an officeholder, is not always seen as ground for getting rid of him. As a result, the feudal state was often not efficiently, or even decently, served. B— Capitalism: The Exaltation of the Market What inheritance was to feudalism, the market was to capitalism. While its justifications were naturalistic and utilitarian rather than religious, it too was seen as axiomatic for a beneficent economic and social system, and it too set limits on the ability of law to impose accountability on the ruling class. The limits were broad enough to make capitalists generally accountable for the decency and efficiency of the market. The law provided remedies against fraud, intimidation, or chicanery. It exercised control over monopolies and other practices that tended to inhibit the free operation of market forces. It made provision for dealing justly with situations in which the market could not operate effectively, and could be restricted without impairment of its basic structure. Dangerous, immoral, or unhealthy goods and services were excluded. Public utility treatment was established for operations in which a guaranteed monopoly was required to justify the necessary investment of capital. In short, whatever the law could do to support and humanize the market with its ancillary property and contract rights it was very likely to take in hand. But when it came to correcting the deficiencies of the market as such, the aspects of it that inherently resisted accountability, the wrongs that could not be put fight within the fundamental restraints of a market economy, that was a very different matter. These were solemnly declared to be inevitable, or were not addressed at all. For example, pristine capitalist legal thought was explicit in its refusal to take account of what critics referred to as inequality of bargaining position. Such inequality was inherent in the disparity of fortune that resulted inevitably from the free operation of the market:
Page 59 No doubt, whenever the right of private property exists, there must and will be inequalities of fortune; and thus it naturally happens that parties negotiating about a contract are not equally unhampered by circumstances. This applies to all contracts, and not merely to that between employer and employé. Indeed a little reflection will show that wherever the right of private property and the right of free contract coexist, each party when contracting is inevitably more or less influenced by the question whether he has much property, or little, or none; for the contract is made to the very end that each may gain something that he needs or desires more urgently than that which he proposes to give in exchange. And, since it is selfevident that, unless all things are held in common, some persons must have more property than others, it is from the nature of things impossible to uphold freedom of contract and the right of private property without at the same time recognizing as legitimate those inequalities of fortune that are the necessary result of the exercise of those rights.
This language is taken from the opinion of the United States Supreme Court in Coppage v. Kansas (1915). It did not go unchallenged, even in the Court. Justice Holmes, in a terse dissent, referred to ''the equality of position between the parties in which liberty of contract begins." But the logic of the majority opinion proved inescapable as long as the Court remained in the business of giving constitutional protection to capitalism. In more recent times, it is true, both courts and writers have referred to unequal bargaining position in connection with the redress of unconscionable terms in "adhesion" contracts—agreements which large businesses offer their customers on a takeitorleaveit basis. It is argued that since the customer has no realistic opportunity either to bargain over terms or to shop around for more favorable ones, judicial interference is in aid of the classical free market rather than in opposition to it. But the unequal bargaining position involved in these situations comes not from unequal resources but from unequal organization. It belongs more to managerialism than to capitalism. Nothing was heard of it when capitalism was in full swing.
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Capitalist theory was less explicit but equally effective in stopping the law from dealing with shifts of capital and fluctuations in wages and prices. The market was expected to take care of putting capital where it would do the most good, and to distribute goods and labor in accordance with demand. To interfere with these processes in the name of social utility was to deny the fundamental capitalist axiom that social utility is served primarily by the operation of the market. To the extent that legislation and government planning were allowed to displace the market in the allocation of labor, production, and investment, the transition from capitalism to managerialism was under way. The centrality of the market under capitalism also prevented adequate legal treatment of "externalities"—effects of a market transaction on persons not parties to it. Where the law could find a way to factor such effects into the transaction involved, it often did so; otherwise, it ignored them. The example most frequently discussed these days is environmental damage. If you spread noxious fumes over the property of a few neighbors, or poison a river and kill the fish downstream, you can be treated as interfering with specific rights, which you can buy and your neighbors can sell if they will: the purchase and sale will be another market transaction and another cost of your business. But if you pollute whole counties and poison long stretches of ocean, or—what is more likely—if you and several others in the same business do so in combination, the market cannot be structured so that it will automatically make you bear your share of the cost. The social costs of employment and unemployment are another example. If an employer adopts a new technology that halves its work force, someone has to support the displaced workers and their dependents or find them new jobs or accept their stealing or starving. If an employer does not pay enough for its workers to live on, somebody will have to make up the difference. If an employer does not support disabled or superannuated workers, someone else will have to, or they will not be supported at all. To the extent that costs of this kind could be assigned to a particular
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employer, capitalist legal theory was adequate to assign and impose them. It was determined in a series of cases that reasonable sustenance for the worker and reasonable protection against the risks inherent in the work are part of the cost to society of whatever the worker produces. It should therefore be borne by the user of the product. If the employer is made to bear it in the first instance, it will enter into the employer's price to the public, and thus end up in the place where it belongs. Since measures to accomplish this result are mere allocations of costs necessarily incurred, they can be adopted without impairing the basic primacy of the market. But other social costs are less easy to assign. When a factory cuts its work force in half, it is all very well to make the owners pay unemployment compensation to the laid off workers, but what of the grocer who loses half his customers, or the automobile dealer who will sell fewer cars? What of the high school graduates who will no longer be able to look to the factory for entrylevel jobs? These burdens, if the law is to meet them, must be distributed in accordance with ideological principles and administrative practices in which the market plays no part. Capitalism has generally preferred to leave them unmet. C— Managerialism: The Triumph of Process Under managerialism, what is axiomatic is The System. Of course, feudalism and capitalism are both systems, as are the legal system and the economic system in any period. But The System, eo nomine, is a peculiarity of managerialism. Through it, technology, organization, and expertise are deployed by managers to solve problems beyond the reach of the market. Each individual has a particular part to play in this overall enterprise. The concerns addressed are too vast and too complicated for anyone to understand exactly where his or her particular piece of the puzzle fits in, but things will go generally well if everyone works according to plan. It follows that people who act in accordance with approved
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procedures are not to be held accountable for the consequences of what they do. This principle has a broad application in the laws of the modern managerial state, as well as in the workings of its institutions both public and private. It is the principle that leads a lawyer to feel no responsibility for succeeding by superior advocacy in returning an abused child to the custody of an abusive parent. Or a high school principal to feel no responsibility for graduating students who cannot read. The same principle dominates the thinking of the insurance claims representatives who pursue a lawsuit to its bitter end even though both sides are insured by the same company; of the general, referred to by Felix Cohen, who complained that war ruined the discipline of the army; and of the occasional hospital intake worker who lets accident victims perish while the forms are being filled out. It is manifested in a variety of cases supporting the discretion of administrative agencies and corporate managements, and in multitudes of criminal cases decided on whether the right procedures were followed instead of whether the right results were reached. Many of the more outrageous examples do get redressed. Provision is made for abused children to have lawyers of their own. Educators keep working on plans to teach their students to read. Generals eventually adopt disciplines suitable to the wars they have to fight. Administrative agencies adopt rules calculated to bring their proceedings to just conclusions, and so on occasion do corporate managements. Lawyers and judges are constantly at work trying to reform their procedures so that they will bring about the best possible results as often as they can. But all the reforms involve changing the procedures. The idea of evaluating results independently of procedures continues to be strenuously resisted: the latest of the political battles has been over the use of student test scores in the evaluation of schools. What the moral authority of the hereditary elite was to feudalism, and what the inviolability of property and contract was to capitalism, the internal integrity of The System is to managerialism. The deployment of managerial skills to make The System better is to be commended, but efforts to bypass it are to be condemned.
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II— The Goose and the Common: Metamorphoses of Property In every period, these systemic barriers to accountability have been enhanced by the tendency of major juridical concepts to take on a life of their own, and operate outside the scope of the values they were intended to implement. The evolution of the idea of property is particularly instructive in this regard. It is pretty clear that in traditional Catholic doctrine, and in classical philosophy as well, the basis for property was utilitarian: a system of private property was the best way to provide for the allocation of common resources to the meeting of individual needs. As long as property was understood in these terms, no one could claim to be free from accountability for how much of it he accumulated or what he did with it. But feudal ideology, by making property ancillary to a divinely ordered social hierarchy, invested it with more than utilitarian justification, while the jurists, influenced by the dominium of late Roman law, tended to make all rights of ownership more absolute than either history or philosophy would allow. These extensions of the understanding of property rights eased the transition to capitalism by making it easier to regard each piece of property as "belonging" to some particular individual, who could then buy out or abolish whatever interest other people had in it. The law locks up the man or woman That steals the goose from off the common, But leaves the greater villain loose That steals the common from the goose.
The concepts that supported this paradox were carried over into capitalist ideology to fill the gaps in the utilitarian justification that capitalism ostensibly claimed. It was fairly arguable that the
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general tenets of laissez faire were conducive to technological creativity and overall prosperity. But the arguments would not support the immunity that property owners actually enjoyed from any serious legal challenge to how much they had or what they chose to do with it. For this purpose, resort was still had to arguments resting ultimately on religion and Roman law. Capitalist ideology reinforced these arguments with liberal doctrines of personal freedom. Whatever I am free to do at all I am free to do with the support of such resources as personal industry, divine providence or dumb luck have sent my way. In other words, the Roman law understanding of my property as that which is subject to my will is incorporated into the liberal understanding of what scope my will should have. This incorporation is behind the passage from Coppage v. Kansas quoted a few pages back. It made another appearance in the Supreme Court in Buckley v. Valeo (1976), holding that it is a violation of the First Amendment to forbid a person with money to spend it on trying to influence an election. The argument that this version of freedom makes the rich a lot freer than the poor seems to have persuaded no one much except Andrei Vyshinsky, who made it the foundation of the critique of bourgeois rights in his book, The Law of the Soviet State. The capitalist amalgamation of freedom and property has been carried over into managerialism, sometimes with odd results. The courts have tended to accord to corporations the same protections they give natural persons, without paying much attention to the fact that corporate managers are the only natural persons who actually profit from the protection they give. Thus, Justice Powell of the United States Supreme Court, put the question of corporate free speech in these terms: The question in this case, simply put, is whether the corporate identity of the speaker deprives this proposed speech of what wouldotherwise be its clear entitlement to protection.
With the question stated in this way, the real issue in the case—
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whether the state could prevent corporate managers from diverting the stockholders' money to the support of causes in which the stockholders might not believe— became a matter of whether such prevention was a compelling state interest warranting a serious interference with free speech. It was held not to be. What makes the treatment odd is its reference to the corporate identity of the speaker. As must be obvious when we think about it, a corporation does not speak. Some natural person speaks, and some legal or philosophical doctrine leads us to attribute the speech to the corporation. The question before the Court was whether the state could control the scope of the applicable doctrine. The Court answered the question in the negative without ever understanding it. In this way the legal developments of property and freedom have shielded corporate managers from accountability over a broad range of what they do. The legal distortion involved was discerned by Thurman Arnold in 1937: The most obvious conflict of 1937 was that in which the creeds accepted by respectable people described social organizations in the language of personally owned private property, when as a matter of fact the things which were described were neither private, nor property, nor personally owned.
This language comes from a book, The Folklore of Capitalism, whose main thesis was that the legal institutions of the time were not able to impose accountability on corporate management because they were dominated by concepts that no longer corresponded to reality. Arnold draws more on psychology and less on history than I do, but on the whole he supports the point I am making here. III— The Appropriation of Ideologies Arnold was one of the first generation of New Dealers. His solution to the nonaccountability of corporate managers was to set
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administrative agencies to control them. That the personnel of these agencies would turn out to be just as managerial as their corporate counterparts, and just as resistant to accountability, did not become apparent until some time later. Arnold helped to lay the foundation for the nonaccountability of this wing of the managerial class by writing off most of the ideological restraints on them as "theology." This is of course a metaphor, but it has more than metaphorical significance. Arnold and his contemporaries of the American Legal Realist school tended to conflate ideology and religion, perhaps because neither met their exacting standards of verifiability. While they did not go so far as to make ideological neutrality a requirement of the religion clauses of the First Amendment, they did generally make it a tenet of their jurisprudence. Since the power of the managerial class is based on expertise, and since an ideology is the only thing a lay person can call on to challenge an expert, this ideological neutrality became a powerful force for the prevention of accountability. By now it has assumed an important place among the legal concepts deployed for that purpose. Ideological neutrality is of course itself an ideology. It is not the only ideology that tends to restrict the accountability of ruling classes. Most of the ideologies on the market either do that or can be made to. I suppose an ideology that was complete in its coverage and solid in its philosophical foundation could not be appropriated in this way, but false consciousness seems to come in by any intellectual gaps that may appear. The ways in which this happens are specific to particular ideologies and classes. I will venture a few generalizations, but not until we have looked at the most important examples one by one. Let us begin with liberalism, because it has been for some centuries the most influential ideology in Western society. A— Liberalism and the Subjectivity of Values The basic liberal approach, as I see it, is to extract from the
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medieval and classical philosophical synthesis its broadly attractive principles of personal autonomy, dignity, and worth, while leaving behind its more controversial and therefore more divisive principles regarding the ultimate destiny and purpose of human beings. Those who seek a philosophical basis for this split generally find it in an epistemology that refuses to attribute objective truth to anything that is not either empirically verifiable or logically inferable from selfevident principles. This doctrine naturally cuts the ground from under any objective standards of value we may wish to adopt. It makes judgments of good and evil, judgments of right and wrong, into personal preferences comparable to liking or not liking parsnips. Suppose, for instance, you see a person with a bucket and a straight razor walking through Skid Row buying ears at fifty dollars each. Your repugnance for what he is doing is empirically verifiable, but the "wrongness" of it is not. When you say it is wrong, if you mean more than simply that you dislike it, you are appealing either to a raw intuition or to philosophical and theological standards of how people should treat one another; these are not empirically verifiable either. While proponents of liberal ideology do not all adopt this extreme epistemological position, I think it is fair to say that they are none of them comfortable with taking public stands inconsistent with it. They do not want me to impose "my" values on other people. And when I ask why the values I seek to impose are "mine" instead of "everybody's" they come up with explanations that amount in the end to the values in question being neither empirically verifiable nor logically inferable from self evident principles. Whether implicit or explicit, this is an impoverished epistemology, because it gives no support to our intuitive respect for one another as beings of profound and mysterious destiny. It seriously affects the scope of freedom and equality, the two main values derived from the principles that liberalism carries over from the older synthesis. It forecloses any principled examination of
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whether freedom to do one thing is more important than freedom to do another, and whether equality in one respect is more important than equality in another. And so it comes about that the Supreme Court of the United States makes the freedom to play golf on Sunday as important as the freedom to attend church, and the Federal Court of Appeals of Canada says that unmarried couples must have the same right as married couples to cohabit on military bases. Freedom and equality, important as they are, cannot stand on their own as values. If they are not controlled by other values, they become selfcontradictory and inconsistent with each other. To the extent that an employer is free to fire union members, employees are not free to unionize. The less differences in wealth figure in the distribution of places in a college class, the more differences in test scores figure. The more housing and employment are equally available to all, the less landlords and employers are free to decide whom they will deal with. Since liberal ideology offers no governing value by which these contradictions and inconsistencies may be resolved, it does nothing to check the natural tendency to resolve them in favor of the ruling class. I have shown in this connection how capitalist lawyers attached the Roman law conception of property to the liberal understanding of freedom to defeat attempts to impose accountability on capitalists. Similar attitudes are pervasive in every period. Sometimes they are supported by fairly sophisticated arguments; sometimes they are merely taken for granted. Either way, what they do in the end is make freedom a principle that members of the ruling class should not be interfered with in the use of their privileges, and equality a principle that no differences count except those that characterize the ruling class. 1— Freedom: The Emancipation of Privilege Classical and medieval philosophy saw freedom primarily as the capacity of each created being to progress toward a Godgiven destiny. It is not
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hard to see how combining this view with a perception of one's place in the hierarchical order as a part of one's Godgiven destiny would turn freedom into the exemption of the feudal landholding class from accountability. That is, in fact, what it did. In King John's England, for instance, the freedom fighters were landowners resisting interference by the Crown. The rising capitalist class tended to see freedom in terms of personal decision—their right to make creative use of whatever was theirs, and their right to enter into transactions with other people and have them enforced. Accordingly, with the triumph of capitalism, property and contract came to be the chief interests protected under the name of freedom, and the chief beneficiaries of the concept came to be the capitalists, who owned property and were in a position to make favorable contracts. To be sure, some of the personal freedoms, like that of the press, reached a broader constituency. But even here, as the Marxists were not slow to point out, capitalists had a good deal of an edge: with the invention of the linotype machine and the rotary press, a capitalist could do a lot more publishing than a worker or a peasant could. One of the main intellectual props of managerialism is a perception that the different aspects of the economy are so interdependent that individuals cannot possibly be left free to decide on the terms of their own participation. All such terms must be subject to control by public authority in the interest of the overall enterprise. The protection of property and contract in the name of freedom was rapidly diminished as this perception became more and more prevalent along with the managers and professionals empowered to regulate the economy in response to it. Accompanying this development was an increased acceptance of the view that freedom means little to people without the resources to exercise it. The doctrine that contracts can be vitiated by unequal bargaining positions moved into the mainstream of legal thinking. So did the perception that the freedom of workers can be impermissibly curtailed by employers or that of tenants by
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landlords. It followed that the administrators, lawyers, and other professionals who protected against economic and social coercion were engaged in the enhancement of freedom. Abraham Lincoln was quoted: The shepherd drives the wolf from the sheep's throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty.
Reading this analogy, those of us who belong to the managerial and professional class tend naturally to identify with the shepherd rather than the sheep. We therefore pay a lot of attention to derivative freedoms. If other people are to make free decisions about their own affairs, we must be free to deploy our professional and managerial skills in such a way that those decisions can be effectively implemented. Thus, one of our leading authorities on legal ethics argues that lawyers are not to be faulted for what they do on behalf of their clients (as long as it is not illegal) because: The lawyer, by virtue of her training and skills, has a legal and practical monopoly over access to the legal system and knowledge about the law. The lawyer's advice and assistance are often indispensable, therefore, to the effective exercise of individual autonomy.
The autonomy of the client becomes the freedom of the lawyer to depart from generally accepted standards of decency if the client so chooses. Under managerialism, transformations of this kind have become pervasive in liberal ideology, and have had a good deal of success in the courts. Examples frequently in the news relate to the press, the arts, and the public funding of abortions. In much liberal thought, freedom of the press, which was originally the right of people with printing presses and stocks of paper to disseminate such information and views as they cared to, has become the freedom of professional journalists to gather information for their
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employers, and often to gather it in ways that would not be permitted to ordinary citizens motivated by idle curiosity. By the same token, the freedom of artists to give expression to their personal vision has become in many liberal circles the freedom of art critics and museum directors to spend public money on the arts without accountability to the elected representatives of the public. Finally, a good deal of liberal ideology sees a woman's right to an abortion as irresistibly entailing the right of doctors to be paid out of government health care programs for advising and administering abortions for the poor. It is worth noting, incidentally, that many of those who protest limits on public funding of abortions are quite silent about other limits on public funding of health care, many of them as bizarre as they are unjust. Presumably the reason is that these limits affect people's health rather than their freedom. 2— Equality: The Race to the Swift With the evolution of classes, equality has evolved in rather the same way as freedom, and for rather the same reasons. As freedom has meant the power of the ruling class to make full use of its advantages, equality has meant the disregard of all differences except those that characterize the ruling class. This too is an inevitable consequence of the lack of ultimate values in liberal ideology. Equality, taken by itself, can go no farther than the traditional legal maxim ''treat like cases alike." To answer the question of whether case A is like case B, and, if so, how, requires additional input, philosophical, theological, or ideological, from some other source. For such a purpose, Christian tradition has had only this to offer: In accordance with the teachings of the Gospel, the equality of men consists in this: that all, having inherited the same nature, are called to the same most high dignity of the sons of God, and that, as one and the same end is set before all, each one is to be judged by the same law and will receive punishment or reward according to his deserts.
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In response to this understanding, feudal doctrine saw rich and poor, lord and peasant, as equally entitled to carry out the mission God had assigned them in the social hierarchy, and equally entitled to be rewarded for doing so, or punished for not doing so. The differences in social status were not inconsistent with equality: they were mere differences in people's parts within a harmonious whole. The difference between lord and peasant was no more a matter of inequality than the difference between eye and hand. For the ideologies that accompanied the rise of capitalism, the objection to feudal inequalities was not so much their magnitude as their irrationality. It seemed outrageous that an honest and hard working tradesman should be considered inferior to an idle and dissolute nobleman, or that a fortune earned in providing useful goods and services to one's contemporaries should be considered less worthy of respect than one extracted from the local peasantry some generations before. It was vaguely recognized that the son or grandson of a manufacturer could be as worthless as the remote descendant of a crusader, but the right to earn property would be incomplete if it did not include the right to pass it on. Therefore, the demand for equality did not include a demand for equal distribution of resources. As Thomas Jefferson put it: The true foundation of republican government is the equal right of every citizen in his person and property and in their management.
The capitalist version of equality supported contract as well as property. Contractual relations are rationally chosen by people seeking to better themselves by honest exchanges of goods and services. They are the rational alternative to the fortuitous relations imposed in a hierarchical society by accident of birth. Hence Sir Henry Maine's famous dictum that "The movement of progressive societies has hitherto been a movement from status to contract." So under capitalism, equality, like freedom, supported property and contract, the mainstays of the ruling class. Marx and Engels are harsh, but I do not believe unjust in their characterization:
Page 73 The bourgeoisie, wherever it has got the upper hand, has put an end to all feudal, patriarchal, idyllic relations. It has pitilessly torn asunder the motley feudal ties that bound man to his "natural superiors," and has left remaining no other nexus between man and man than naked self interest, than callous "cash payment."
Or, as Anatole France put it more succinctly, "In every well regulated state, wealth is something sacred. In a democracy, nothing else is." There were always a few people who insisted that distinctions based on the ownership of capital were no more rational—and therefore no more consistent with equality—than hereditary distinctions. But as long as capitalism was in the ascendency, these people were a small minority. When capitalism began to be displaced by managerialism, they began coming into their own. Their claim was and is that positions in society should be assigned on the basis of ability and industry without regard to either wealth or birth. But aside from a few entertainers and ball players, the people who have the best positions in society are managers and professionals. Therefore, the forms of ability and industry that qualify people for advancement are the ones characteristic of managers and professionals. A situation in which managers and professionals are recruited according to the possession of these qualifications is regarded as one of equality—sometimes referred to as equality of opportunity to distinguish it from other versions. Again, then, equality becomes a principle that no distinctions matter except those that characterize the ruling class. This version of equality too has had its detractors, although they are in a minority and will probably continue to be as long as managerialism prevails. Their objection is that the continuous recruitment of everyone competent into the ruling class leaves everyone else in a status of officially certified incompetence: The more the economy's implicit judgments are seen as based on true "merit" (and "equal opportunity"), the more those who fail will feel they deserve to fail, the easier it will be to equate economic
Page 74 success with individual worth, and the greater the threat to social equality. If you're offered all the opportunity in the world and still can't climb into the middle class, what does that make you? The losers in the subsidized scramble for skills and money will have to face the implication that they are, well, losers.
The problem was noted as early as 1958 by Michael Young, in an engaging predictive fantasy which, except for adding the term "meritocracy" to the language, has had less attention than it deserves. It is possible for liberal ideology to discern the problem, but not to provide a solution. The author of the language quoted above, Mickey Kaus, writing in The New Republic in 1992, goes on to say: The picture isn't pleasant. What can liberals do about it? It hardly makes sense to sabotage the meritocracy—to deny Americans opportunities for training and advancement, to preserve arbitrary barriers to success that are themselves violations of our notions of equality. Yet the more liberals try to give those on the bottom a "ladder up," the more they accelerate the trends that are giving success itself an invidious meaning. . . . Perhaps liberals don't have any way out of this conundrum.
He points out in his concluding paragraph that "It was certainly easier to have a sense of equality in a less secular time, when the equal dignity of citizens could be grounded less in the power of the state and more in shared beliefs about the relation of men to God." This is pretty much the point I have been making about the whole liberal ideology. Lacking any vision of a human destiny that transcends class, it cannot develop a principled basis for calling the ruling class to account. B— Natural Law: The Ideology of Eden Among the more attractive alternative ideologies are those based on natural law. But they too fail to provide an adequate basis
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for accountability—albeit for quite different reasons. I have already alluded at several points to the limitations of natural law doctrine. Obviously the lack of a transcendent vision is not one of them. But natural law has little to say about how its vision should be implemented. It is content to leave most practical questions to the prudential judgment of the lawgiver. It provides a powerful condemnation whenever the ruling class grossly abuses its privileges, but it cannot set standards for using those privileges well. In the first place, its vision of the human condition is prelapsarian. It tells us where we have come from, but not where we are going or how to get there. It has no answer to the tragic failures of individuals and societies to live up to either their origin or their destiny, and therefore no answer to a vast area of concern for both law and government. Furthermore, in the law's constant tension between values and their realization, natural law deals almost exclusively with values. It offers no basis, therefore, for criticizing institutions that fail to serve the values they claim to, or for challenging people whose intentions are good. In a good deal of medieval thinking, natural law reinforced the hierarchical order of society by binding all the classes into a single harmonious whole. It is generally prevalent doctrine that Shakespeare is offering when he puts this encomium of "degree" into the mouth of Ulysses: The heavens themselves, the planets, and this centre, Observe degree, priority, and place, . . . .How could communities, Degrees in schools, and brotherhoods in cities, Peaceful commerce from dividable shores, The primogenitive and due of birth, Prerogative of age, crowns, sceptres, laurels, But by degree, stand in authentic place? Take but degree away, untune that string, And, hark, what discord follows! each thing meets In mere oppugnancy: the bounded waters
Page 76 Should lift their bosoms higher than the shores, And make a sop of all this solid globe.
Marx and Engels are presumably referring to some understanding of the same kind when they say that the bourgeoisie have "pitilessly torn asunder the motley feudal ties that bound man to his 'natural superiors.'" With the ascendency of capitalism, natural law was easily recruited to the support of property and contract. From one's natural right to enjoy and distribute the fruits of one's labor, and one's natural obligation to keep one's word, philosophers such as Grotius and Locke provided a natural law basis for the whole capitalist apparatus of creative investment and cooperation by choice. Even Leo XIII bought into the theory: The soil which is tilled and cultivated with toil and skill utterly changes its condition; it was wild before, now it is fruitful; was barren, but now brings forth in abundance. . . . Is it just that the fruit of a man's own sweat and labor should be possessed and enjoyed by anyone else? As effects follow their cause, so it is just and right that the results of labor should belong to those who have bestowed their labor. With reason, then, the common opinion of mankind . . . has found in the careful study of nature, and in the laws of nature, the foundations of the division of property, and the practice of all ages has consecrated the principle of private ownership, as being preeminently in conformity with human nature. . . .
On the other hand, Leo did not follow his contemporaries who drew unqualified support for capitalism from the principles of natural law. The encyclical from which the above passage is taken, Rerum Novarum (1891), goes on to assert the rights of working people in no uncertain terms, and calls on the state to protect those rights when the need arises. Leo explicitly subordinates freedom of contract to the right of a worker to decent support. This too is a matter of natural law: Let the working man and the employer make free agreements, and
Page 77 in particular let them agree freely as to the wages; nevertheless, there underlies a dictate of natural justice more imperious and ancient than any bargain between man and man, namely that wages ought not to be insufficient to support a frugal and wellbehaved wageearner. If through necessity or fear of a worse evil the workman accept harder conditions because an employer or contractor will afford him no better, he is made the victim of force and injustice.
Because Leo's use of natural law is on the whole evenhanded, it sheds light on the inherent deficiency of natural law as a vehicle for imposing accountability on the capitalist class. Despite the reference to new things in the incipit and the opening paragraph, Rerum Novarum states the applicable principles of natural law as if the relevant questions were whether a farmer who cleared and planted a tract of wilderness should be allowed to keep the produce and whether the corner grocer should pay his cashier enough to live on. The rhetorical question, "Is it just that the fruit of a man's own sweat and labor should be possessed and enjoyed by anyone else?" although it is intended as an attack on socialism, could have been written by Marx as an attack on capitalism. The encyclical seems to show no recognition that it is not the fruit of his own sweat and labor that Andrew Carnegie or J.P. Morgan is possessing and enjoying, or that inadequate wages are due at least as much to the prevailing structures as to the hardheartedness of employers. More than forty years before Leo wrote, Marx and Engels had said: Hard won, selfacquired, selfearned property! Do you mean the property of the petty artisan and of the small peasant, a form of property that preceded the bourgeois form? There is no need to abolish that; the development of industry has to a great extent already destroyed it, and is still destroying it daily. . . . You are horrified at our intending to do away with private property. But in your existing society private property is already done away with for nine tenths of the population; its existence for the few is solely due to its nonexistence in the hands of those nine
Page 78 tenths. You reproach us, therefore, with intending to do away with a form of property the necessary condition for whose existence is the nonexistence of any property for the immense majority of society.
The problem is institutional and tragic: the principles of natural law cannot solve it. Pius XI, in his encyclical Quadragesimo Anno, celebrates the fortieth anniversary of Rerum Novarum by recapitulating and expanding on its doctrine. Pius seems much more aware than Leo of the institutional dimension of the problems he addresses. He recognizes that capital may be taking more than a fair share of the returns of industry even when the workers are not reduced to starvation levels. He shows some awareness that the problem is exacerbated by capitalist legal systems in which the interests of workers are not effectively represented. He encourages the development of labor unions and other organizations to give those interests an effective voice. In the realm of practical implementation, he presents the principle of subsidiarity, which has been of enduring value as a counter to unnecessary centralization. But then he gets into trouble. Having committed himself to a congeries of organizations pursuing different interests, he finds it necessary to institutionalize a principle by which they can all be kept in harmony. Societies must "establish a juridical and social order which will, as it were, give form and shape to all economic life." Writing in Italy in 1931, Pius was rather naively open to the idea of a Fascist state as the kind of juridical and social order he had in mind. After describing such a state at some length in favorable terms, he ends in a waffle: Anyone who gives even slight attention to the matter will easily see what are the obvious advantages in the system We have thus summarily described: The various classes work together peacefully, socialist organizations and their activities are repressed, and a special magistracy exercises a governing authority. Yet lest We neglect anything in a matter of such great importance . . . , We are compelled to say that to Our certain knowledge there are not
Page 79 wanting some who fear that the State, instead of confining itself as it ought to the furnishing of necessary and adequate assistance, is substituting itself for free activity; that the new syndical and corporate order savors too much of an involved and political system of administration; and that (in spite of those more general advantages mentioned above, which are of course fully admitted) it rather serves particular political ends than leads to the reconstruction and promotion of a better social order.
While Pius cannot be wholly sanguine about his wistful aspiration to social harmony, he cannot entirely give up on it either. He cannot honestly leave out an expression of skepticism, but he attributes it to anonymous other people rather than making it his own. In finding Quadragesimo Anno unacceptably soft on Fascism, my object is not to bring up the political shortcomings of the Vatican in the 193 Os, but to illustrate the limitations of natural law as an ideology for holding the ruling class to account. For all the institutional sophistication of the document, its insistence on social harmony requires it in the end to leave the power in society where it finds it—in the hands of the ruling class. It sets high moral standards for that class, and anyone in power has much to learn from it. But it offers no way to cope with those who fail to learn. Its institutional initiatives fail to make the ruling class accountable outside its own ranks, or even effectively accountable within them. Indeed, by setting high moral standards for those in power, without imposing accountability for meeting the standards it sets, it strengthens the hands of all leaders, including corrupt ones. They can draw moral authority from the good they are supposed to be doing without submitting to any inquiry into whether they are really doing it. Quadragesimo Anno came out in a time of transition between capitalism and managerialism. In outlining the duties of public authority, it seems most of the time to be presupposing a government dominated by capitalists. Part of the time, however, especially when it is discussing Fascism, it shows an awareness of
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the managerial domination that is to come. More recent papal documents applying natural law to the economy are quite explicitly geared to a managerial society. Mater et Magistra, Populorum Progressio, Pacem in Terris, and the Second Vatican Council's Gandium et Spes all make constant reference to the complexity of the economic and social system and the need for expertise to master it. In these circumstances, it is the duty of the Christian laity "to observe the laws proper to each discipline, and labor to equip themselves with a genuine expertise in their various fields." A class whose power is based on organization and expertise naturally derives support from such teaching as this, just as a class whose power was based on the ownership of property derived support from the teaching of the earlier documents. We have once more a doctrinal literature that sets standards for the ruling class, but offers no basis for holding that class accountable to the wider society. Centesimus Annus, the encyclical of John Paul II relating the centenary of Rerum Novarum to the fall of Communism in Eastern Europe, analyzes the transition to managerialism in greater detail, and takes up its effect on those who cannot gain places in the new ruling class: Whereas at one time the decisive factor of production was the land and later capital—understood as a total complex of the instruments of production—today the decisive factor is increasingly man himself, that is, his knowledge, especially his scientific knowledge, his capacity for interrelated and compact organization as well as his ability to perceive the needs of others and to satisfy them. However, the risks and problems connected with this kind of process should be pointed out. The fact is that many people, perhaps the majority today, do not have the means which would enable them to take their place in an effective and humanly dignified way within a productive system in which work is truly central. They have no possibility of acquiring the basic knowledge which would enable them to express their creativity and develop their potential. They have no way of entering the network of knowledge and
Page 81 intercommunication which would enable them to see their qualities appreciated and utilized. Thus, if not actually exploited, they are to a great extent marginalized; economic development takes place over their heads, so to speak, when it does not actually reduce the already narrow scope of their old subsistence economies.
This document is much more definite than the earlier ones regarding what the state must do to support the humanity of the marginalized classes. While it states that ''the church has no models to present," it is pretty clear about the importance of developing institutional forms to implement the principles it sets forth. On the other hand, it is much less reliant on natural law as a solution to the problems it considers. A computer search of the English translation generates just four references to natural rights and none at all to natural law. Freedom, accommodation, and divine grace are given far more importance in arriving at a just ordering of economic and social life: The events of 1989 are an example of the success of willingness to negotiate and of the Gospel spirit in the face of an adversary determined not to be bound by moral principles. These events are a warning to those who, in the name of political realism, wish to banish law and morality from the political arena. Undoubtedly, the struggle which led to the changes of 1989 called for clarity, moderation, suffering and sacrifice. In a certain sense, it was a struggle born of prayer, and it would have been unthinkable without immense trust in God, the Lord of history, who carries the human heart in his hands. It is by uniting their own sufferings for the sake of truth and freedom to the sufferings of Christ on the cross that people are able to accomplish the miracle of peace and are in a position to discern the often narrow path between the cowardice which gives in to evil and the violence which, under the illusion of fighting evil, only makes it worse.
Generally, then, the papal documents indicate that natural law cannot provide a basis for institutions making the ruling class
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accountable to the wider society. The documents that rely on natural law fail to arrive at such a basis, and the document that comes nearest to arriving at one puts natural law to one side in doing so. But these documents represent the most powerful and sustained (and in other respects, successful) effort anyone has made to apply the principles of natural law to the economy. It seems fair to say that their failure in this respect must be one intrinsic to natural law. The source of the failure is, I believe, at the very heart of natural law doctrine: the principle that the proper function of human law is to implement natural law, to make specific what natural law leaves general. Reflection on particular legal dispositions in the light of this principle tends almost inevitably to focus on their transcendent aims, rather than on whether they are well calculated to achieve those aims, or whether those aims encompass the full range of human destiny and human need. Such reflection presents the ruling class with an ennobling vision of its responsibilities, but by the very fact of doing so it turns attention away from people who use the privileges but scorn the responsibilities. It makes us think of feudalism in terms of Arthur and his knights instead of Raoul de Cambrai and his marauders. It makes us think of capitalism in terms of men who built railroads and founded universities instead of men who broke unions and manipulated stock prices. It makes us think of managerialism in terms of people who create benefit plans instead of people who turn down applications for lack of documents. C— Christian Theology: The Sanctity of Patience Christian theology, insofar as it relies on natural law doctrine in dealing with economic and social questions, is subject to the shortcomings of that doctrine as I have just described them. There are also certain tendencies in Christian theology (largely out of favor in the academy at the moment, but still common in the pews, and far from rare in the pulpit) that produce shortcomings of their
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own. One is a preoccupation with the providential character of the status quo. This preoccupation can give great comfort to the beneficiaries of the system currently in place, and it has often done so. I have already quoted and criticized a hymn on the subject. There has been at times a companion tendency to dwell on the redemptive character of suffering. This too has been a source of unmerited comfort to the comfortable classes. It is true enough that suffering can be redemptive, but a tyrant or an exploiter has no more right to draw justification from that fact than a murderer or a rapist has. An objection that is sometimes brought forth against all forms of political theology is that Christianity is concerned with the salvation of individuals and should not be involved in reorganizing economic and social structures. The world is inherently a vale of tears, and Christians should be concentrating on making a good exit, not on transient ameliorations of their temporary quarters. This attitude, sometimes referred to as pie in the sky, overlooks the historical dimension of God's intervention in human affairs and the promised redemption of history itself as well as of individual persons. It also overlooks the basic principle of social justice: whatever I can do to save people from oppressive institutions I owe them as surely as I owe whatever I can do to save them from drowning. Closer to the theological mainstream is a concern with the commitment of Christianity to human solidarity across class lines. This solidarity certainly precludes absolutizing the class struggle, as Marxists do. But it should not be taken as requiring us to ignore the obvious fact that unjust institutions have beneficiaries on the one hand and victims on the other. It is because solidarity transcends class lines that the reform of the institution liberates beneficiary and victim at once. D— Marxism: The Absolutizing of Class Marxism was not developed in time to give support to any
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ruling class but the managerial, and many Marxists see that support as an aberration. While I am willing to concede that no academic Marxist is responsible for Stalin, the claims of the Communist Party to leadership over the working class go back at least to the Communist Manifesto of 1848: The communists, therefore, are on the one hand, practically, the most advanced and resolute section of the workingclass parties of every country, that section which pushes forward all others; on the other hand, theoretically, they have over the great mass of the proletariat the advantage of clearly understanding the line of march, the conditions, and the ultimate general results of the proletarian movement.
It is this conception of the mission of the Party—leadership based on singlemindedness and expertise—that supported its transformation into the "new class" discerned by Djilas. Moreover, the Marxists' absolutizing of class would seem to make it impossible for any ruling class to be called to account. All the institutions through which accountability might be imposed are in Marxist theory inherently classbound. Class interests not only determine the prevailing structure of law and politics, they even determine the prevailing understanding of right and wrong. The Marxist view of class admits of neither institution nor standard external to the ruling class. If you disapprove of the way that class is ruling, your only alternative is to replace it with another. E— Critical Legal Studies: Nihilist Liberalism A nonMarxist radical approach has been put forward in recent years by the Critical Legal Studies Movement. It is broadly nihilistic. It rejects two basic principles of legal analysis, which Roberto Unger calls formalism and objectivism. By formalism he means the belief that legal analysis free of ideological content is possible and necessary. By objectivism he means the belief that the positive law displays, however imperfectly, an intelligible
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moral order. Despite what seems an overstated skepticism, I believe that the CLS Movement has useful insights to offer, and I will try to deal with them in due course. But what I want to point out here is that these particular forms of skepticism reinforce the resistance of managers and professionals to accountability outside their class. If you cannot understand a law either by reading what it says or by referring to the moral insights that give rise to it, then neither a layperson nor an ordinary meat and potatoes lawyer will be able to apply it without calling in an expert. Thus, it will be unlikely to pose a serious challenge to a class whose power is built on expertise. While the CLS writers are generally scornful of liberalism, when pressed for positive principles to replace the ones they dismantle, they tend to fall back on the liberal standbys of freedom and equality, with the classbound consequences I have already taken up. Unger's remedy of choice, which is a periodic redistribution of resources, seems particularly open to this criticism. Whatever redistribution occurs will have little effect on the managerial class: their principal resource cannot be redistributed because it is in their heads. All the redistribution will do will be to ferret out and eliminate the few people who have managed to come into positions of wealth or power without the necessary intellectual tickets. IV— Conclusion: Values and History: The Dilatory Conscience All these institutional and ideological biases in favor of the ruling class are examples of false consciousness at work. After examining so many of them, perhaps we can focus on the nature and etiology of the phenomenon itself. I would define false consciousness as adherence to a purported value that in fact supports the ruling class in its freedom from accountability to the
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wider society. It goes with a general tendency to mistake class interests for the common good. We have looked at the most. important values that have been cast in this role under different classes—the divinely ordered harmony of the universe under feudalism, the unshackling of technological and organizational creativity under capitalism, broadly distributed social welfare under managerialism. A number of things contribute to the process by which such values as these are turned to the support of the ruling class of the moment. In the first place, there is the silence, and sometimes the invisibility of other classes. Those of us who prosper under the system currently in place tend to suppose that the hardships others experience under the same system are less serious and less pervasive than they really are. We do not generally observe the hardships at first hand unless we go looking for them, and most of the disadvantaged people we encounter have something to gain by telling us what we want to hear. We, for our part, are all too apt to lack the resources of heart and mind to penetrate the placid surface and see what is really happening to the people in our society who are not as well off as we are. Contemporary accounts indicate that Southern slaveholders were genuinely surprised, and even hurt, to find that most of their slaves opted for freedom when it became available. Similarly, the Los Angeles riots of 1992 surprised a good many welloff Americans who were familiar enough with the relevant economic and social data. Part of the problem is that history moves faster than our minds do. I have alluded several times to the tendency to think of private property in terms of honest craftsmen and tillers of the soil instead of the large business corporations that have become the major beneficiaries of the institution. We often suffer from similar tendencies to see the protection of workers or the relief of the poor in terms of the economics or the demographics of Franklin Roosevelt's time. The tendency naturally supports administrators and other professionals like those who first came into power at that time.
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Also, the ruling class has often been supported by wide acceptance of philosophical and theological doctrines that are plain wrong. We have considered the effects of a theology that turns divine providence into divine approval of the status quo, of a moral philosophy that offers no transcendent values to control the operations of property and contract, and of a political philosophy that insists on the ideological neutrality of the state. Marxists, of course, take a cui bono attitude toward doctrines of this kind: if a philosophical or theological position supports the ruling class, the ruling class probably thought it up for that purpose, or at least developed it by absolutizing their favorite economic structures. For my own part, however, I believe that the human intellect is quite capable of falling into error without any ulterior motive. While these causes all contribute to false consciousness, I do not think any of them constitutes the primary reason for it. For that, I think we must look to the nature of the process by which successive ruling classes come to power. The historical evolution I described in the last chapter indicates that new departures in law arise in response to new perceptions of value, and that new classes arise as a result of these new departures in law. False consciousness sets in when the new juxtaposition of class, law, and value comes to be taken for granted. There ceases to be serious public debate over whether the legal dispositions that keep the ruling class in power are required to implement the values that led to their enactment, or whether those values are the ones most in need of implementation at the moment. The ruling class comes to be idealized in terms of the moral qualities appropriate to its role as guardian of the prevailing values—chivalry under feudalism, creativity and hard work under capitalism, expertise under managerialism. Members of the ruling class who lack the qualities in question are regarded as aberrational, and their continuing access to power and privilege as the product of unfortunate but unavoidable imperfections in the law. This state of affairs persists until new experiences bring new values into public consciousness—a process Jacques Maritain refers to as prise de conscience.
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These new values call for new legal approaches and the process begins anew. Ultimately, then, false consciousness is a result of the inevitable failure of the ongoing prise de conscience to keep up with the experience to which it responds. Maritain notes that moral philosophy follows behind moral experience: It is a kind of afterknowledge. The moral philosopher submits to critical examination, elucidates, sorts out, justifies, reinterprets, formulates in a more systematic or more pungent manner the natural morality of mankind, I mean the moral standards and regulations which are spontaneously known to human reason in such or such an age of culture. As a result, it is rather infrequent that a moral philosopher is in advance with respect to his time.
Both philosophical and legal responses to a set of moral insights are apt to be elaborate, and to require considerable investment of time and psychic energy to construct. Once they are fully in place, with a powerful ruling class for their beneficiaries and guardians, it becomes extremely difficult to break out of the intellectual and juridical patterns they impose. As Hugh Collins points out in a passage quoted in the last chapter, such patterns come to seem like no more than common sense. They therefore resist the impact of new moral experience. Only when such experience becomes extremely cogent and pervasive, and when the effort to contain it within existing patterns has manifestly failed, will new departures be given serious consideration. In the interim, false consciousness occupies a good deal of the intellectual ground. This account of false consciousness differs from the Marxist account by giving primacy to moral insights. Marxists, except on those occasions (fortunately not rare) when their intuitive outrage gets the better of their theory, have no place for moral judgments that transcend class. Morality, like law, is for them part of the superstructure that a particular ruling class imposes on the economic base, and that serves the interest of that class. On this view of the matter, as Collins says:
Page 89 The term false consciousness is used by Marxists narrowly to refer to the adoption of the dominant ideology by the subordinate classes. To the extent that this dominant ideology fails to match up to their experiences it is a misleading form of consciousness. It will also almost certainly function to legitimate the ruling class's hold on power by portraying the relations of production as the natural order of things.
Presumably, the adoption of the same ideology by the ruling class does not constitute false consciousness because the ideology in fact matches up to the experience and supports the interest of that class. In other words, consciousness is false in Marxist theory only when it is adhered to outside the class whose experience it reflects and whose interest it serves. But as a Christian, I must believe that right and wrong are the same for everyone, and I must value my neighbor's flourishing as I do my own. A spurious value is just as spurious for the beneficiaries of the system it supports as it is for the victims, and the beneficiaries have a stake in replacing it with true values just as the victims do. A Christian, of whatever class, should desire to live in the truth. And the truth is that class privileges are never the natural order of things. They are artificial results of measures taken to implement transcendent values. We probably cannot make them go away, but we can insist that they be exercised in strict and continuing subordination to the values that occasioned them, and to other values equally important. Law is, or should be, the primary instrument for securing that subordination. The legal profession, unfortunately, has not had a very good record in seeing that the law does its work in this regard. Lawyers are trained to serve their clients, and members of the ruling class generally find it easier to become clients than other people do. Indeed, under managerialism lawyers not only serve the ruling class; they are ex officio members of it. Both professional training and selfinterest therefore make them especially susceptible to false consciousness. But the study of law is founded on truths that
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transcend our professional training, and the profession of Christianity requires us to embrace values that transcend selfinterest. We can hope to break out of false consciousness and play a part in applying the law to its proper function of making the ruling class—even when it is our own class—accountable to the wider society.
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V— The Option for the Poor I— A Reprise of False Consciousness A— Values and Classes In examining the effect of false consciousness on values in the law, we have three levels of values to consider. First come what I will call class values. These are the ones behind the laws that supported the formation and empowerment of the ruling class—stability under feudalism, abundance under capitalism, fair distribution under managerialism. They are relied on to justify the continuing hegemony of the ruling class, and when false consciousness sets in it becomes axiomatic for the law that the ruling class is in fact implementing them. Empirical observations that bely the axiom are put down to the inevitable imperfections of a basically beneficent system. That explanation was given in one form or another when the stability of the feudal state was menaced by meaningless wars over meaningless hereditary rights, and again when abundance under capitalism gave way before the operation of the business cycle. It is given today under managerialism when our system of distribution passes by the inhabitants of East Los Angeles or the South Bronx, to say nothing of Bangladesh. Next are values that are largely independent of class, such as the ones represented in laws that forbid people to break into each other's houses, or require them to support their children. We
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expect the ruling class to implement such values as these simply because the whole legal enterprise is in their hands. These independent values are seldom explicitly rejected, but false consciousness places them in constant danger of being subordinated to class values or obfuscated through lack of accountability. For instance, under feudalism, the personal security of peasants and laborers could be invaded by members of the aristocracy in ways that the law did not approve, but did not redress for fear of impairing the social stability that the aristocracy were expected to provide. Under capitalism, the health, safety, and morals of segments of the population were left without legal protection so that the institutions of property and contract could be given full play for the sake of industrial productivity. Under managerialism, we often subordinate family responsibilities to the careerism of the elite, and we put up with a good deal of crime and illiteracy rather than subject professional social workers and educators to accountability outside their own ranks. In each period, the shortcomings are attributed to the inevitable imperfections of a basically beneficent system. Finally, in each period, some values have not yet fully engaged the prise de conscience. I will call these inchoate values. Their rise to full acceptance is slowed by false consciousness, but in the long run they can be expected to make themselves felt. Eventually, they will give rise to new law, and with it a new alignment of classes. Many kinds of productivity and invention were inchoate values of this kind during the feudal period, as were many kinds of welfare and distribution during the period when capitalism was at its height. What values are in the same condition today under managerialism is harder to say, because we have not the benefit of hindsight. The congeries of social and sexual concerns that politicians call family values seems likely to be an example, or perhaps a set of examples. Our growing discomfort with some people's lack of opportunity to make an honest living at a useful task may suggest another example. In any event, whatever these inchoate values are, false consciousness stands in the way of their
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being brought forward to disrupt the authority of the ruling class or call its members to account. B— Ideological Loopholes There are a number of doctrines to which we—or some of us—look to derive new values or to organize and validate old ones. These do not inherently support the distortion caused by false consciousness, but, for reasons I tried to develop in the last chapter, they do not do much to resist it either. We have seen how Christian theology, through emphasis on the providential origin of the status quo, the redemptive effect of suffering, and the individual character of salvation, can be made to seem almost entirely neutral on questions of social justice. Similarly, natural law doctrine, with its appeal to highlevel moral principles, its technical naiveté, and its lack of allowance for the consequences of sin or failure, can be made to judge the ruling class entirely on its aspirations without regard to its effect in the real world. Liberalism, by contrast, with its twin principles of freedom and equality, permits distortion of values not by appealing to highlevel moral principles, but by rejecting them. As long as people live together, the price of freedom for one person will be the coercion or constraint of other people. To the extent that the government and the legal system are prevented from coercing, others may coerce all the more. And those who are able to coerce the most will be the members of the ruling class. So, unless freedom is referred to some higher value, it will serve only to keep the government or the law from interfering with that class taking full advantage of its privileges. Similarly, as it is impossible to make everyone equal in every respect, the pursuit of equality is necessarily a matter of determining which differences shall be significant and which shall not. In the absence of any higher principle, the differences that are found to matter will naturally be those that distinguish the ruling class from the rest of society. Yet another opening for distortion is provided by those theories
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that draw all their values from history. Traditional Marxism and the modern Critical Legal Studies movement differ in many ways, but they have in common that history is their highest source of values. They see the values presently in place as historically determined, and they look to history eventually to produce new structures and the values to go with them. Marxists have a more detailed picture of the future than CLS adherents have, but in the last analysis neither can offer a more cogent objection to the status quo than that it is to be superseded or a better reason for regarding the future as normative than that it will come to pass. Their claim (explicit in the case of CLS, implicit in that of Marxism) is to delegitimize the status quo. But in doing so they delegitimize all possible alternatives at the same time. Since the ruling class cannot gain legitimacy by improving its performance, there is no basis for calling it to account. It can only be replaced by a different ruling class, one that will be just as subject to false consciousness and just as unaccountable as its predecessor. Meanwhile, the claim to deligitimize tends to mask the participation of its proponents either in the current ruling class or in the one with which they hope to replace it. C— A Corrective Vision Liberation theology and its juridical component, pilgrim law, do not reject these different sources of values as much as correct them—plug the ideological loopholes that leave them open to the distortion of values by false consciousness. In the case of Christian theology, basic liberationist doctrine shows that the claim that Christianity has no political dimension is incompatible with the rudimentary duty to love your neighbor. Rescuing neighbors from oppressive economic and social institutions is no less a part of your Christian duty than rescuing them from plagues, fires, earthquakes, and floods. The redemptive character of suffering, the providential character of events, and the individual character of salvation are no more relevant in the one case than in the other.
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For natural law doctrine, pilgrim law provides an indispensable complement to apply to the legal concerns of a redeemed and fallen world. Without departing from the requirements of human nature, it takes account both of a destiny that transcends those requirements and of a reality that falls short of them. It keeps us aware that the values the ruling class is supposed to implement are not in fact being fully implemented, and would not secure a perfect world even if they were. At the same time, by recognizing both eschatology and tragedy, pilgrim law puts the liberal values of freedom and equality in their proper perspective. It makes of freedom not an apotheosis of choice as a formal principle independent of what is chosen, but a continuing openness of each person to his or her transcendent destiny. In the name of freedom, it resists all forms of closure, whether ideological, such as materialism or totalitarianism, or tragic, such as addiction or poverty. In this way, openness becomes a higher value than choice, and the ruling class can be held accountable both for the closures they accept for themselves and for the closures they impose on the wider society. Pilgrim law rescues the commitment to equality from its futile quest for secular principles to justify making one difference between people more important than another. It recognizes that our true equality lies in our equal eschatological significance. It is equally important that each person's final destiny be achieved, and we have equal responsibility to ensure as far as possible that each person who falls by the wayside is picked up and set back on the path. It follows that whatever advantages are possessed by the ruling class should be used for the eschatological benefit of the whole society, and that the class can be held accountable for any failure to use them in that way. Pilgrim law meets any attempt to found values on history by insisting that all history is subject to eschatological judgment. No history can be normative that does not look for its consummation in the Kingdom of God. We do not know what form that consummation will take, except that it will be in some way
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conformable to our nature. Accordingly, whatever ruling class history comes up with must avoid historical closure, and must stay within the limits imposed by natural law. It can be held accountable for failing to do either. II— The Preferential Option In general, then, by maintaining a vision at once eschatological and tragic, pilgrim law removes the ideological props from false consciousness in the law. But that is not all that needs to be done. False consciousness is not fundamentally an ideology, and can flourish with no ideological support at all. It is fundamentally a deficiency of heart and mind. To overcome it, we need a change of attitude, a new opening of hearts and minds to the truth. To that end, the theology of liberation proposes a preferential option for the poor. This term originated in Latin America in the 1970s. It was first officially used by the Latin American bishops at Puebla in 1979. Later, it was adopted by the bishops of the United States in their economics pastoral and by John Paul II in Centesimus Annus. The doctrine is basically that the church, while not ceasing to recognize God's universal love for the whole human race, should teach that He has a special love and concern for the poor—for those deprived of the material necessities of life and condemned to live on the margins of society—simply because they need more from Him than other people do. Both the church and individual Christians should reflect this special concern in their life and witness. As the American bishops put it: The example of Jesus. . . . imposes a prophetic mandate to speak for those who have no one to speak for them, to be a defender of the defenseless, who in biblical terms are the poor. It also demands a compassionate vision that enables the church to see things from the side of the poor and powerless, and to assess lifestyle, policies and social institutions in terms of their impact on the poor.
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In its original conception, the option is pastoral and spiritual, as the bishops go on to say: It summons the church also to be an instrument in assisting people to experience the liberating power of God in their own lives, so that they may respond to the Gospel in freedom and dignity. Finally, and most radically, it calls for an emptying of self, both individually and corporatively, that allows the church to experience the power of God in the midst of poverty and powerlessness.
To the same effect is Gustavo Gutiérrez's account of the thinking that went into the early formulations of the option: For the church the issue was this: how to deal pastorally and theologically with the question of poverty; more completely, how to say to poor people ''God loves you," and how to announce the Gospel from the standpoint of the sufferings and hopes of the poor.
For present purposes, we must turn this pastoral and spiritual option—without distorting it—into a legal principle, and one that will be effective against the influence of false consciousness on the law. A— On the Margins: Defining the Poor First, we need to decide who, for legal purposes, are the poor. All Christians are of course encouraged to be poor in spirit, and some of them succeed even though they have considerable resources at their disposal. Such people may have an important pastoral and spiritual presence in the world, but they obviously need no special help from the law. Similarly, there is great pastoral and spiritual significance in the voluntary poverty to which some Christians are called. Those who have that vocation and live up to it have unique opportunities to serve the poor while living in solidarity among them. But while they may be carriers and heralds of God's liberating concern for the poor, they are not themselves
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objects of it. Voluntary poverty is not the condition of the poor. The poverty we are concerned with, then, is both material and involuntary. We cannot go beyond these observations to a set of generally applicable criteria for determining who is poor and who is not. The government may maintain a poverty index expressed in dollars per year, but some people who have less may be relatively comfortable for one reason or another, and many who have more may still lack some of the basic amenities of life. Moreover, when we consider the whole range of subjects with which the law has to deal, we will encounter many people who are poor in some respects but not in others. A family with a comfortable place to live may have to cut sugar cane eighty hours a week to buy food. A person whose children are enrolled in a fine public school may not be able to afford winter coats for them. People otherwise well provided for may have no provision for sickness or old age. The situation becomes still more complicated when we consider the effect of culture contact and travel. Migrant workers may live in conditions of total abjection in the country where they work, and yet save enough to be considered relatively affluent when they return home. Conversely, people with a simple and coherent culture may be quite comfortable with very few resources until they come in contact with tourists and real estate developers and find that they are too poor to own their own land. The nearest we can come to a general definition is to say that the poor are those who lack the material conditions to lead a fully human existence in the particular circumstances in which they find themselves. Children may not have the family connections or the education they need. Adults may not have sufficient opportunity to found and support families or to engage their faculties creatively in useful work. There may not be adequate care or treatment for the sick. Old people may not be allowed to live respectably and die decently. People may be hedged about in numerous ways so that they are not fully open to their spiritual destiny or not fully free to pursue it. In Jacques Ellul's memorable phrase, they may be
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"cornered by death." Subsuming these material privations and perhaps extending beyond them is the position of the poor at the margins of society. As Gutiérrez puts it: To be poor is to be insignificant—that is to be poor. One reason is the deprivation according to some standard—economically and socially speaking—but it is not only that. To be poor is to be nameless, not relevant for our society and for our Church—that is to be poor.
When we are considering legal dispositions and legal transactions, there is probably no need to use an across the board definition of the poor. It should be enough for us to see who is in danger of being marginalized, treated as irrelevant, or deprived of some condition for a fully human existence by the particular project we have in mind. If it is a corporate merger, the poor will be the workers made superfluous by newfound economies of scale. If it is a conversion of rental housing into condominiums, the poor will be the tenants who cannot afford to buy their apartments. If it is charging a book fee in the public schools, the poor will be those who cannot afford to pay it. If it is a change in the divorce laws, the poor will be middle aged housewives with no marketable skills. If it is a war on drugs, the poor will be Bolivian peasants with no cash crop except coca leaves. B— Alternative Options In each situation, then, the preferential option for the poor calls for discerning who is being placed in this kind of jeopardy, and taking measures for their protection before doing anything else to accomplish our purpose. This option, as I see it, cannot be displaced by any form of costbenefit analysis. We owe everyone without exception a recognition of their humanity: the duty cannot be quantified against any other value, much less subordinated to it.
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1— Utilitarianism: Cost Versus Benefits The impossibility of quantifying makes the option for the poor inconsistent with any form of utilitarianism. The point is in a way paradoxical, because in some historical situations utilitarian agendas have served the poor well. We owe to utilitarians the general observation that a given quantity of resources will afford more pleasure or alleviate more pain if it is widely distributed than if it is not. But when it comes to more complicated agendas, the willingness to quantify makes it possible to sacrifice a few of the poor for the benefit of the rest, or, if a large enough quantum of pain or pleasure is in issue, even for the benefit of the middle class. Since decisions are in fact made by the ruling class, it is very easy at this point for false consciousness to set in. For instance, the utilitarians who came into power in England after the election of 1833 adopted, with the best intentions in the world, a poor law that can only be described as punitive. Their thought was that if conditions could be made hard enough for the poor everyone would try not to be one of them, and most would succeed. On strict utilitarian grounds, it is hard to fault this reasoning. But a preferential option for the poor would call for rejecting it on account of what it did to those who remained poor. 2— Wealth Maximization: Trickle Down I Another currently popular doctrine that is ruled out by an option for the poor is that of wealth maximization, as put forward by the lawandeconomics school. The doctrine values everything you have at what you would take to part with it, and everything you do not have at what you would be willing and able to pay for it. For example, if I have a painting that I am willing to sell for ten thousand dollars, and you have twenty thousand dollars cash available to spend on the painting, we have thirty thousand dollars worth of value between us. But if you had the painting, you would not take less than twenty thousand for it. Suppose, then, you buy it from me for fifteen. You now have a painting worth twenty thousand dollars to you, plus five thousand cash, or twentyfive thousand all told. I
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have fifteen thousand cash. Between us, then, we now have forty thousand instead of thirty. So the transaction has added ten thousand dollars to the total wealth of the community. Those who favor wealth maximization as a legal principle try to establish rules that will encourage transactions of this kind. Note that this doctrine assigns value on the basis of ability to pay, or to save. If the owner of the painting, for instance, is starving, he will probably be willing to take less for it than if he has enough money to wait for a better offer. Also, if the man who will give up to twenty thousand dollars for the painting wants it to decorate his basement bar, while the local museum cannot afford to pay more than twelve thousand, the man should have it instead of the museum. It is at this point that wealth maximization differs from utilitarianism: the utilitarian would give the painting to the museum because it will give more pleasure there. It follows that wealth maximization is a preferential option for the rich. Those who favor it argue that it brings about a wealthier society, and that such a society is ultimately in everyone's interest. Drawing examples from the recently defunct Communist regimes, they show that laws concerned with distribution inevitably curtail production to the point that there is nothing significant to distribute. This doctrine is a sophisticated form of what has been called "trickle down." One way or another, what it amounts to is that if the rich get rich enough they will have something left over for the poor. The arguments offered in support of this theory do not in fact support it. They show only that central planning and equal distribution do not provide the best possible adjustment of economic relations within the ruling class. It does not at all follow that the needs of the poor will not be better met under a system that sets out explicitly to meet them. 3— The Difference Principle: Trickle Down II A still more sophisticated version of trickle down is provided by the "difference principle" developed in John Rawls's book A Theory of Justice. Rawls argues that an arrangement that leaves A better off than B is
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justified if and only if it leaves B better off than he would be without the arrangement. This corresponds to a common way of thinking. It is reflected, for instance, in the passage from Macaulay quoted at the head of the chapter before this one. Since the prosperity of the entire society depends on the institution of private property, even the poorest members of society would be placed in dire straits if private property were to be tampered with. In theory, this principle should correspond precisely to the preferential option for the poor as I have stated it. With respect to any project we have in mind, the poor will be those who end up the worst off of all those affected by the project. The difference principle calls for putting the project through only if those people will be better off than they would otherwise have been. Surely, this is just what is demanded by a preferential option for the poor. If we could evaluate our options with total disinterest and a working crystal ball, this theoretical correspondence might work, out in practice. But in an unpredictable world full of selfinterested people, it is an invitation to false consciousness. In a typical project, the people who stand most to gain will be members of the ruling class. So will the people who have to decide whether to do it or not. As I have tried to show, that class will have come into ascendancy under legal forms inspired by a moral judgment, and will then have appropriated the moral judgment in support of its continuing hegemony. The project under consideration, therefore, will simply add to a set of privileges whose rationale in terms of benefit to the whole society is already in place. It is unlikely that a theoretical adherence to the difference principle will lead anyone to question seriously whether the conditions for applying that principle in fact obtain. C— The Focus of Preference From this canvassing of the alternatives, I conclude that anyone who wants to make a preferential option for the poor an effective presence in the law and an effective check to false consciousness must focus attention directly on those who in any given situation
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constitute the poor, adjusting the affairs of the rest of society according to whatever options are available when the needs of those poor have been sufficiently provided for. The right approach was adumbrated as early as 1851 by Charles Kingsley in Yeast, an egregiously bad novel, unfortunately, for it is full of excellent social commentary: We gentlemen all run into the same fallacy. We fancy ourselves the fixed and necessary element in society, to which all others are to accommodate themselves. "Given the rights of the few rich, to find the condition of the many poor." It seems to me that the other postulate is quite as fair: "Given the rights of the many poor, to find the condition of the few rich."
It would seem that strict justice would not support either of these postulates, for in strict justice no one's rights can be inconsistent with anyone else's. The rich may not have as many rights as they think they have, but whatever rights they do have they must have as firmly as the poor have theirs. But it is not given to human beings to judge impartially between themselves and others. And since the judging between the ruling class and the wider society is always done by the ruling class, an antiseptic impartiality in the judgment is not to be hoped for. The only way to avoid an inadvertent bias in our own favor is to adopt a deliberate bias the other way. If we do not embrace the second of Kingsley's postulates, we will inevitably embrace the first. The preferential option for the poor, then, is not strictly a requirement of justice, but it is a condition for doing justice in the real world. It is an application of common Sunday school morality: if we set out to do no more than our duty we will end up doing less. III— Exercising the Option The option, understood in this way, is conceptually elusive. It
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is not exactly a value for the law to implement, for we can either regard it or disregard it in implementing whatever values happen to engage our attention. In the case of health care, for instance, President Clinton threatened at one point to veto any insurance program that failed to cover all Americans, while his opponents argued that we cannot afford any program at all unless some people are left out. He was exercising a preferential option for the poor, and his opponents were refusing to do so, but all were seeking to implement the value of widely distributed health care in the way they considered best. In fact, whatever we set out to accomplish, we will accomplish it more surely, more swiftly, and more painlessly if we reconcile ourselves to a certain number of people being excluded from its benefits. The false consciousness to which we are always subject will make such reconciliation easy, and will impose a common pattern on all such reconciliations. Every project will confirm us in our conviction that our own prosperity and the sufferings of the poor are alike the inevitable products of a basically beneficent system. The preferential option for the poor, then, is an ascesis for the ruling class—one to which they must adhere with a good deal of rigor if they are to avoid the pitfalls of false consciousness. There are innumerable ways of letting some people go down the tubes so that the rest may prosper, and we are called to reject every one of them. If the option is an ascesis for the ruling class, it is a sign for the poor themselves. It is an affirmation of their inherent worth, and of the unacceptability before God of the situation in which they find themselves. They are not to be told that their sufferings are inevitable, and if they are told it, they are not to believe it. For us who make and apply laws the preferential option for the poor can be an effective personal orientation. It can suggest a stand on many of the issues of the day, and on many of the cases and transactions our clients bring us. But we need also to consider its impact on 'the legal system as such. Can it be effectively institutionalized? If not, can it flourish better under some
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institutional forms than others? Or does it affect the legal system only through the consciences of people who believe in it? A— Career: The Poor As Clientele A couple of possibilities can be rejected out of hand. First: The preferential option for the poor is not a career choice. Because I teach law students, I probably pay more attention to this point than its theoretical density calls for. Too many law students see the option as simply one of working for a legal aid office or a government agency at a salary barely high enough to pay off their student loans. I spend a good deal of time and effort every year trying to persuade them that this is not the case. To be a lawyer for the poor is entirely commendable, but it is not the same as exercising a preferential option for them. The burdens of the poor are being fashioned in the corporate law offices downtown faster than they can be relieved by the legal aid offices or by the government. Lawyers who advocate the cause of the poor before their business clients will probably do the poor at least as much good as lawyers who represent them in court. Lawyers can exercise a preferential option for the poor in any kind of practice. B— Power: The Poor As Constituency My next point is more difficult and probably more important: The preferential option for the poor is not a power base. Empowering the poor in the sense of giving them a say in their own lives is of course a major goal of any decent legal system. But it carries with it a paradox: those who are effectively empowered with respect to a particular aspect of their lives are, at least in that respect, no longer poor. It follows that the empowerment of the poor as such is inherently illusory. Furthermore, the poor are prevented from taking power for the same reason Milovan Djilas found that the proletariat were: they lack the organization and expertise required to exercise power in a modern state. Reflecting
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on this situation, those who care or profess to care about the poor are strongly tempted to believe that the next best thing to empowering them would be taking power on their behalf. Such a belief invites false consciousness. It leads a person to claim that power exercised on behalf of the poor is not subject to the same restraints as other power, or that members of the ruling class who exercise such power should not be accountable in the same way as other members. In the Western democracies, no one has succeeded in building the poor into a single constituency supporting a unified exercise of power, and no one is apt to. But appropriating particular constituencies among the poor has become quite common. For instance, it appears to be painfully easy for ruling class blacks to enhance their position within their own class by appropriating the well publicized and well justified outrage of the numerous blacks in the underclass. Members of the ruling class with ties to other discrete sections of the underclass have gone the same route with varying degrees of success. Even within the favored constituency, it is not in the interest of the poor to provide this kind of power base for members of the ruling class. In the first place, the approach encourages an invidious comparison of victim status among different groups of the poor, with the position of each group's ruling class surrogates depending on how broadly and abjectly that group is victimized. The surrogates have a stake, therefore, in not mitigating the condition of their respective constituencies—one beyond the stake the whole ruling class has in the status quo. At the same time, other members of the ruling class are led to believe that conferring privileges on the surrogates is beneficial to their constituencies among the poor. The motivation to exercise a preferential option for the poor is thus turned to the support of a faction of the ruling class. The institutions we now have in place for relieving the poor, like their predecessors over the past few centuries, are far from preferential. They provide a modicum of sustenance, generally out of what other people think they can spare. Neither funding nor
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distribution is adequate to raise the poor to what human dignity requires. In the AntiPoverty Program of the 1960s, an effort was made to go beyond these institutions and mount a more effective attack on poverty, deploying the necessary resources, and even giving the poor themselves some voice in how these resources were applied. The failure of the effort is instructive. It turned out—as might have been expected—that the people chosen to represent the poor in the administration of the different programs were too tenuously identified with their constituents to represent them effectively. At the same time, they drew on their representation of the poor to resist accountability to anyone else. When they became obnoxious, laws were revised to make them subject to local political authorities—who did not even claim to represent the poor. At particular times and places some of these programs did in fact embody a preferential option for the poor. But at no point was the option, as such, effectively institutionalized. Nor was it institutionalized in the organizations that grew up here and there under the efforts of ''community organizers" such as Saul Alinsky. Some of these organizations were successful both in effectively representing constituencies of poor people and in confronting established power structures on their behalf. But they cannot be regarded as a general institutionalization of a preferential option for the poor, or even as pointing the way to one. Success was sporadic, and highly dependent on the vicissitudes of local politics. Perhaps the only lesson fully transferable from one situation to another is the need for examining each situation carefully on its own terms. C— Accountability: The Poor As Lodestar So the answer to the question whether the preferential option for the poor can be effectively institutionalized is yes, but in forms too casespecific to provide a coherent body of doctrine. It will not give us a general criterion for weighing free trade against protection or government against private health insurance. It will
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only tell us to evaluate each situation on its own merits, weighing all the variables carefully with the poor in the forefront of our minds. In this theoretical account, we cannot follow the option into any of these concrete manifestations. But the option does have one general consequence of the utmost importance for legal theory. It dismantles a pervasive set of assumptions introduced into the law by false consciousness. These are the assumptions that stand in the way of imposing accountability on the ruling class and making effective use of the law for human ends. I have already dealt with them at some length. They are: 1. The values behind the legal dispositions that have created and empowered the ruling class are still being implemented by these dispositions, and they are still the most important ones for the law to implement. 2. The legal system currently in place is therefore basically beneficent, and the costs of seriously changing it will surely outweigh the benefits. 3. Accordingly, nothing of note can be done for those whose human needs are not met under existing law. The sufferings of such people are the unfortunate but inevitable consequence of a basically beneficent system. 4. The political power of those who suffer in this way must be limited so that they will not make matters Worse in a necessarily fruitless attempt to make them better. They cannot be made to understand the inevitability of their sufferings or the basic beneficence of the system. To accept a preferential option for the poor, even as an abstract principle, is to reject the third of these assumptions out of hand. The results of trying to reshape our institutions to meet everyone's needs may be incalculable, but to commit ourselves to the undertaking is to deny that it is a priori futile. Nor can a system be called beneficent if it leaves anyone's needs unmet while it
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commands the resources to meet them. The second assumption is also inconsistent with a preferential option for the poor, because it presupposes that the costs and benefits to the whole society of meeting the needs of the poor are to be weighed against each other, whereas the option calls for meeting those needs as far as possible whatever the cost. The fourth assumption is of course dependent on the second and third, and falls with them. Since the second assumption follows from the first, the rejection of the second entails by modus tollens a rejection of the first as well. That is the rejection that makes it possible to impose accountability on the ruling class. It is possible that they are still implementing the values that brought them into prominence, or that they can be made to do so. And it is possible that they can be made to implement whatever other values need implementing. But that is not inevitably the case. We cannot assume it. Since it is possible but not inevitable for the ruling class to implement social values, it is appropriate to frame legal dispositions to get them to do so. That is what I mean by making the ruling class accountable to the wider society. Before looking at the means for achieving this accountability, we need to remind ourselves once more of the values we seek to advance by achieving it. As we have already seen, the preferential option for the poor is not one of them. Rather, by neutralizing false consciousness, it serves as a precondition to subjecting the interests of the ruling class to any values at all. Furthermore, we cannot make the option effective until we have a set of values already in place, because we need values to tell us who the poor are. The poor are those who lack the resources to live as befits human beings: to know who is poor, we must know how it befits human beings to live. For that, we turn once more to the familiar values of natural law, and the less familiar but equally important values of pilgrim law. The requirements of nature, as we have seen, are support and nurture through the various stages of life, some form of respected participation in the community, and some opportunity to be
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creatively engaged in the service of other people. The requirements of the pilgrimage are continuing openness to an open ended destiny, and protection against the different forms of closure that obtrude themselves along the way. The way these requirements are experienced in a particular time and place, and the way they are met—if they are met—will depend of course on peculiarities of history and culture, economy and circumstance. Putting all these variables together, we can arrive at the set of values that a particular legal system should be implementing. These we can use in calling the ruling class to account and in exercising a preferential option for the poor. We can hope also that our experience of doing so will reinforce the ongoing prise de conscience and lead to a continuing refinement of the values embodied in our law. For us who are members of the ruling class, our liberation and our pilgrimage depend on our accepting this level of accountability, even though it brings to light problems in which we are inextricably complicit, and which the full measure of our diligence and skill cannot solve. In proposing a preferential option for the poor as a remedy for false consciousness, I have assumed that only false consciousness stands in the way of making the ruling class accountable to the wider society, and that only lack of accountability stands in the way of making them embody the values of society in the legal system. For our immediate purposes, I believe these assumptions are legitimate, but we cannot go any farther without qualifying them. The point is that in the absence of false consciousness we will not take it for granted that the ruling class and the laws by which it is organized and empowered are in fact implementing the values they are expected to implement or that those values are the ones most in need of implementation. If we do not take it for granted, we can ask whether or not it is the case, and if we ask we will have some chance of getting an answer. If the answer shows us that the ruling class is not doing as we would desire, we can take steps to make it do differently. The reason my two assumptions need to be qualified is that to ask is not always to receive an answer, and to
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take steps is not always to take them successfully. We still need good institutional tools if we are to impose an informed and effective accountability on our ruling class. It is to these institutional tools that we must now turn.
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VI— Law and Accountability I— Values into Jurisprudence A legal system that holds the ruling class adequately accountable to the wider society will ensure first of all that the privileges of that class are defined and limited in terms of the service its members are expected to render and the values they are expected to implement. Further, it will ensure as far as possible that status and advancement within the class depend on living up to the same expectations, and that class members internalize those expectations and accept responsibility for fulfilling them. These standards form a mirror image of the Marxist doctrine of class instrumentalism: according to that doctrine, the services performed by the ruling class are so defined and internalized as to rationalize the privileges already enjoyed by the class and the sources of advancement within it. My inversion follows from my general claim that classes arise and take shape from the effort to implement values—that values precede class rather than the opposite as Marxists suppose. A— Class Values: The Jurisprudential Mainstream As I pointed out in an earlier chapter, these standards of accountability are to some extent built into the legal dispositions through which the ruling class comes into existence and into power. Such dispositions were adopted with particular values—the ones I have called class values—in mind. If they are administered
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in accordance with their original purpose, they will give at least a modicum of implementation to those values. If they are so far distorted as to give those values no implementation at all, they and the class structure dependent on them will eventually collapse. There is, therefore, in every legal system a core of laws and values that are tolerably well matched, and capable of being brought into close correspondence without undermining the ruling class. Jurisprudential enterprises devoted to analyzing this core and finetuning the correspondences between law and value within it are generally well accepted by the ruling class. Because of that acceptance, they tend collectively to constitute the prevailing jurisprudence in any period. As such, they are often distorted by false consciousness. But because they reflect a core of true values and laws truly intended to implement them, they contain a core of truthfulness on which it is possible to build. So under feudalism, where the ruling class took power under laws making them responsible for order and stability, order and stability became the mainstays of jurisprudence. Forms were adhered to because of the disorder to be feared in departing from them. Law was analyzed and criticized on a practical level under particular writs and processes, and on an abstract level under a cosmology that assigned everyone and everything a divinely appointed place. Capitalist jurisprudence assumed a ruling class whose mission was the creative deployment of resources for a more abundant supply of goods and services. Juridically, creativity translates into will: if people are all free to do as they please, anyone who thinks of a creative project can carry it out. Mainstream jurisprudence was devoted to questions of what resources were to be subject to whose will. These it answered largely through the institutions of property and contract as governed by the overall operation of the market. Older doctrines and structures, insofar as they interfered with people's exercising their will within the sphere assigned them, were dismantled in the name of freedom and equality. The transition to managerialism brought a class into power that
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was more concerned with distribution than with production. This concern required sophisticated limitations on property, contract, and the operation of the market. It required organization and expertise to make the limitations work. Mainstream jurisprudence became devoted therefore to structuring organizations and their interaction, and to determining when and to what expertise was to be applied. It addressed political, administrative, and juridical processes—what decisions were to be made by whom, and in response to whose input. The preoccupation of managerial jurisprudence with process should not be equated with that of feudal jurisprudence with formality: their purposes, presuppositions, and results were all different. Even so, there is a certain similarity between letting a criminal go because he learned to read in jail awaiting sentence and letting him go because of a defect in the search warrant under which the evidence against him was unearthed. It is also worth noting that under managerialism a number of relations, notably that of employer and employee and that of landlord and tenant, have defied Sir Henry Maine's perception of the flow of history by evolving resolutely from contract to status. Probably, what these examples show is less a similarity between managerialism and feudalism than the inescapable durability of certain jurisprudential problems. B— Independent Values: A Dubious Fit The durable problems do get addressed, even if they fail to show up in the class values that provide the core of prevailing jurisprudence. There are always additional values independent of class, ones that the society respected before the current ruling class came along, and respects still. The ruling class is expected to do something about them because doing something about them is perceived as a responsibility of bearing rule. If—as is apt to be the case—they cannot be harmoniously integrated into the set of class values by which the ruling class is created and empowered, they
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appear in the prevailing jurisprudence in tension with those values. A system of jurisprudence may have built into it a criterion or a procedure for resolving this kind of tension. Or it may go its cheerfully schizophrenic way, resolving questions ad hoc when they arise, and offering no general resolution of any kind. 1— Feudalism: Beyond Order Under feudalism, the prevailing jurisprudence of strict adherence to law was moderated by epikeia, a term usually translated as equity, but capable of covering a multitude of virtues from rationality and goodness to common sense. The classic hypothetical on the subject involved a law requiring the city gates to be shut at sunset. The country is being invaded, and the citizens are fleeing for safety to the city. They are still coming when the sun sets. Of course we do not shut the gates. Nor do we obey a "keep off the grass" sign when we see a child on the grass being attacked by a dog. In the AngloAmerican legal system, epikeia was related to conscience, and the Chancellor drew on his authority from the King to make people give up benefits afforded by the law, but which in good conscience they should not have. In the canon law epikeia was built into the system of dispensations, or exemptions from the application of a particular law on the theory that the author of the law would not have wanted his enactment to have the baneful result it would otherwise have here. As far as possible (not all that far, as things turned out), this account of dispensation was reinforced by making the author of the law the one who could dispense from it so that dispensation could be considered a mere ad hoc exercise of legislative power. No attempt to incorporate epikeia into the prevailing jurisprudence produced a comfortable fit. The concept generally did not enter into the interpretation of any particular legal disposition. Rather, it provided a reason for not complying with such a disposition when the compliance called for by the strict interpretive standards in common use would bring about an unacceptable result. So in 1459 in the wellknown case of J.R. v. M.P., it was
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held that a sealed instrument could be enforced in the Court of Common Pleas even though the plaintiff had been ordered by the Chancellor to give it up, and was in jail for refusing to do so: The Chancery is not a court of record, for it is only to examine the conscience. We here are bound to the law and cannot go beyond. It belongs to them to examine the conscience.
The order and harmony of feudal jurisprudence were also disrupted by the recognition of the principle salus populi suprema lex: The law of England had always as well an extraordinary and expeditious court to conserve the peace of the kingdom, as an ordinary form of prosecution, where the bleeding state required not speedy remedy.
In England, salus populi supported the Court of Star Chamber, as this passage from Hudson's treatise of 1621 on that court indicates. On the Continent, similar considerations supported the rise of absolute monarchy. Here, too, the operation of the law was generally superseded rather than revised. 2— Capitalism: Beyond the Market Under capitalism, the values independent of class that introduced a tension into mainstream jurisprudence were those that restricted the enforcement of contracts, the use of property, or the operation of the market. Most of these were grouped under a loosely defined concept called the police power of government—the power to protect the health, safety, morals, and welfare of the people. This power was invoked to justify making an employer pay workers enough to live on and support their families, forbidding the building of houses without proper drainage, requiring meat to be inspected, making wouldbe drivers take a road test, and forbidding prostitution. The police power figured prominently in parliamentary debates in Britain, and in constitutional litigation in
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the United States. Numerous attempts were made to explain it, and in the process to limit it, but none was very successful. Basically, it was available whenever the consequences of laissezfaire capitalism proved unacceptable in a particular case. Family relations were generally exempted from the rigors of capitalist jurisprudence. With certain exceptions, contracts were not enforceable between members of an immediate family, nor were torts redressable. The responsibility of family members for one another's support, and their duty to make good one another's transactions with outsiders were alike laid down by law, and for the most part could not be varied by their individual arrangements. There was also a broad category of fiduciary relationships within which transactions were permitted but were carefully scrutinized for unfairness or overreaching. These might be inferred from ties of kinship, from business or professional relations, or simply from a recognized habit of one party trusting the other. In addition to these categories, there is a line of authority suggesting that if a transaction is outrageously unfair the courts may refuse to enforce it, or at least refuse to enforce it in equity. Some statutes, including the Uniform Commercial Code, have made provision to the same effect. All these doctrines are stated as exceptions to the general rule of respect for property, contract, and the market. Except as regards litigation within the immediate family, they are very casespecific unless they are laid out in detail in some statute. There are no brightline formulas showing when the exceptions apply and when the standard rules of property, contract, and the market must be allowed to take their course. Again, then, values transcending and limiting those by which the ruling class was created and empowered did not fit comfortably into the prevailing jurisprudence. 3— Managerialism: Beyond Process Some of the doctrines that restricted class values under capitalism became class values themselves under managerialism. Public health, safety, morals,
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and welfare (or at least three of them) were the very raison d'être of the managerial class, and the fairness of transactions has always been one of their constant concerns. The countervailing values under managerialism are usually individual rights and effectiveness. For managers, however, these values can cut two ways. They protect individuals against overly intrusive or overly stupid managerial interventions in their affairs. But they are also invoked to protect managers from each other or from control by the wider society. Consider the differences among the uses of these values in the following cases: 1. A court is asked to set aside a determination by the Veterans Administration denying benefits to a particular veteran. 2. A court is asked to invalidate a statute providing that the art critics administering a government fund for the arts must take community standards of decency into account in awarding their grants. 3. A court is asked to set aside an order of a county welfare department placing a child with foster parents whom the plaintiff considers unfit. 4. A court is asked to invalidate a state statute fixing the funding for public school systems in accordance with the success of their pupils on certain standardized tests. In the first and third cases, values are invoked to protect individuals against managers; in the second and fourth, they are invoked to protect managers against accountability outside their own ranks. To the extent that the values involved in such cases can be implemented by procedural adjustment, they can be subsumed into mainstream managerial jurisprudence. They become additional elements in the acrosstheboard fairness to which that jurisprudence has always aspired. But there are cases, mostly
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under the First and Fourth Amendments, where the individual interest at stake is deemed to outweigh whatever aspect of general welfare or public interest the applicable procedures are intended to subserve. And there are cases, mainly involving products liability or professional malpractice, where the following of prescribed procedures is not considered an excuse for reaching an unacceptable result. Perhaps the cases I have in mind can best be described as involving a tension between social and commutative justice. We have seen that social justice involves structuring the institutions of society so that they will meet the needs (and therefore the rights) of those affected by them. Commutative justice, by contrast, is oneon one. It is a matter of me rendering to you, here and now, what I here and now owe you. The rendering may not always serve the institutional needs of society. Here are a couple of examples: (1) An Indian tribal court is asked to resume custody of an elevenyearold girl who is being raised off the reservation by the foster mother to whom she was given at birth. The social justice concern is the erosion of Indian culture by the removal of Indian children to be raised among whites. The commutative justice concern is the damage to a child on the threshold of adolescence from being pulled out of the only home she has ever known; (2) Several people are killed in the crash of a light airplane. Their survivors sue the manufacturer. The social justice concern is that the cost of defending such suits as these, many of them groundless, is gradually pricing light airplanes off the market. The commutative justice concern is that if the manufacturer is in fact responsible for the accident, the plaintiffs ought to be compensated. Concerns that can be assigned to social justice can be brought into mainstream managerial jurisprudence, and implemented as class values. By definition, social justice involves institutions, and institutions are the subject both of the expertise and of the mandate of the managerial class. Using this expertise and this mandate, Roscoe Pound attempted to develop an allinclusive jurisprudential account by reducing the tension between social and commutative
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justice or between class values and individual rights to one between shortterm and longterm social interests: In insisting on the supremacy of law, the common law is not bound of necessity to stand always against the popular will in the interest of the abstract individual. Rather, its true position is one of standing for ultimate and more important social interests as against the more immediately pressing but less weighty interests of the moment by which mere will unrestrained by reason is likely to be swayed.
Pound's attempt is not successful. There are individual interests that cannot without intellectual violence be turned into longterm social interests. And they fit no more comfortably into managerial jurisprudence than does the police power into capitalist jurisprudence or epikeia into feudal jurisprudence. In every period of history there are class values central to the prevailing jurisprudence, and there are independent values that will not fit comfortably but will not go away. C— Dissonant Values: Critical Legal Studies Roberto Unger, the leading theorist of the Critical Legal Studies movement, refers to the legal embodiment of class values as ''principles," and that of independent values as "counterprinciples." He makes the tension between the two the basis for his rejection of "objectivism"—the view that the law displays "though always imperfectly, an intelligible moral order." For example: The generalization of contract theory revealed, alongside the dominant principle of freedom to choose the partner and the terms, the counterprinciples: that freedom to contract would not be allowed to undermine the communal aspects of social life and that grossly unfair bargains would not be enforced. Though the counterprinciples might be pressed to the corner, they could be neither driven out completely nor subjected to a system of
Page 121 metaprinciples that would settle, once and for all, their relation to the dominant principles.
In legal analysis, principle and counterprinciple generally appear as rule and exception. For instance, in contract law, pacta sunt servanda is the general rule, and the refusal to enforce unconscionable contracts is the exception. It is a basic CLS tenet, coeval with "deconstructionist" doctrine in other disciplines, that distinctions of this kind between rule and exception can be flipped over at will. That is, we could just as well say that fair dealing is the rule, and the enforcement of agreements freely and advisedly entered into is the exception. Since rule and exception, principle and counterprinciple, are of equal moral force and cover the same ground, there is no moral or logical basis for determining which shall be one and which the other. Accordingly, the choice is made politically. Since it is made politically, it is made in the way most favorable to the people with the most political power—that is, to the ruling class. The basic CLS claim is that by bringing into the open the political, and therefore contingent, nature of legal decisionmaking it is possible to "delegitimize" and ultimately to destabilize the legal order within which the decisions are made. Accordingly, the whole enterprise will become more pliable, more open to the introduction of new values: Enlarged doctrine extends into legal thought a social program committed to moderate the contrast between routinized social life and its occasional revolutionary recreation. It wants something of the quality of the latter to pass into the former.
Unger brings a new, and sometimes moving, rhetoric to his understanding of revolutionary recreation—to what he hopes to introduce into the law by taking advantage of the pliability he desires to establish: The ideas generate the animating vision of a society in which the
Page 122 effacement of the contrast between revolutionary struggles over the established order and routine deals within it has more fully liberated exchange, production, and personal attachments from the vitiating force of dominance and dependence and from the compulsions of an unexamined sense of possibility.
But on examination, this language comes to look a good deal like the standard liberal aspirations to freedom (elimination of "the compulsions of an unexamined sense of possibility") and equality (eliminating "the vitiating force of dominance and dependence"). It is not surprising, therefore, that CLS agendas, when they are specific, tend to look like liberal agendas, relying heavily on freedom and equality, and generally, in my opinion, subject like other agendas of the kind to the false consciousness of the managerial class. Given their project of excluding transcendent values from the law by making them cancel each other out, it is hard to see where else the CLS writers could have gone for agendas. The importance of the CLS project lies in its insistence on taking seriously the dialectical tension among values in the law. Unger is, alas, no more than fair when he claims that many of his colleagues use the tension merely to sharpen adversarial skills and cut favorable deals, failing to recognize that they undermine their own moral witness in the process: In the law schools . . . , the students are told that they will be taught a forceful method of analysis. This method is meant to be applied to a body of law presented, to a limited but significant degree, as a repository of intelligible purposes, policies, and principles. . . . Yet the real message of the curriculum is the denial of all this. . . . This implicit lesson differs from our explicit one by its cynical negativity. It teaches that a mixture of lowlevel skills and highgrade sophistic techniques of argumentative manipulation is all there is—all there is and can be—to legal analysis and, by implication, to the many methods by which professional expertise influences the exercise of state power.
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The mistake, as I see it, of Unger and his cohorts was to begin their project by buying into the moral anarchy they found in place. Agreeing with the cynics that the tension between principle and counterprinciple eliminated the possibility of any intelligible moral order in the law, they sought—and, in my opinion, failed—to come up with a noncynical response. For the purpose, Unger tries to position the human being in history between two conceptions which he calls Aristotelian and existentialist (giving both terms definitions of his own). The Aristotelian response sees the purpose of the struggle against arbitrary constraints as the realization of an objective ideal of social or personal life that lies on the further side of the unjustifiable limits, waiting to be made actual.
Whereas the existentialist response sees nothing on the other side but the pure and purely negative experience of freedom itself.
These conceptions have a certain resemblance to natural law and pilgrim law as I have described them. But, lacking the support of a Christian eschatology, the Aristotelian vision is closed rather than merely partial, and the existentialist vision is empty rather than merely unknown. Unger is forced, therefore, to treat them as Scylla and Charybdis, whereas I have attempted to integrate them. For me, therefore, the openendedness of human destiny does not call for a corresponding openendedness, in the law. Law is ancillary to human purposes which, while they cannot be fully discerned, are well enough understood to provide criteria for the law's contribution to them. These are the source of the "values" to which I keep referring. But in that case, how do I account for the dialectical tension between values as the CLS writers discern it? And, more important, how do I resolve it? For an answer, I think we must take a closer look at the class origins of the tensions in question.
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The CLS writers see the distinction between principle and counterprinciple, rule and exception as merely arbitrary. They argue, therefore, that the choice between one and the other can be made either way. While it is customarily made to support the hegemony of the ruling class, it could just as well be made to undermine that hegemony. This analysis, in my opinion, misconceives the role of class in the development of law. For principles and counterprinciples are not simply floating clichés that happen to fetch up on the beach in countervailing pairs waiting for some hegemonist or antihegemonist to sort them out. They differ from the outset in both history and function. The principles are the legal doctrines that create and empower the ruling class, the embodiment of the values it relies on for legitimacy. I have referred to these as class values. The counterprinciples embody values independent of class. Their presence in the law is probably earlier chronologically and more solidly rooted philosophically than that of the principles. But as they are not the primary concern of the ruling class, they tend to be marginalized. The principles, therefore, are inseparably connected with class values, while the counterprinciples are made necessary by the failure of those values to cover the ground. The distinction between one and the other is not made arbitrarily for the purpose of supporting or undermining hegemony. It is an unavoidable result of the class structure, its support for hegemony is inevitable, and it cannot be flipped over as long as the class structure is in place. II— Accountability and Resistance If the bad news is that we cannot eliminate hegemonic. oppression by flipping over distinctions between principle and counterprinciple, rule and exception, the good news is that we do not need to do so. The distinctions are not fortuitous. They are
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dependent on the class structure, and that is not fortuitous either. Class values are at root genuine values. Their presence in the law reflects at some point a genuine perception in the society of what it means to be a human being, and how the human beings in a particular society are to pursue their pilgrimage together. But values independent of class owe their presence in the law to the same kind of perceptions. Where the two sets of values or their legal embodiments appear to clash, therefore, these perceptions can be drawn on for a resolution consonant with the truth about the human beings affected and their pilgrimage. Throughout this work, I have attributed to law a defining task of providing a bridge between a society and its values, and, derivative from that, a task of holding the ruling class accountable to the wider society. My claim here is that as regards the defining task, the values in question depend on a truthful perception of the human condition, and form a coherent, internally consistent set, although as regards the derivative task, they fall into different categories because of their different relations to the ruling class. I will try at this point to show how the whole set affects (or ought to affect) the law in a society like our own. I can offer some examples of desirable forms actually in place, but naturally not as many as I would like. A— Class Values: Accommodation First come the class values. Laws implementing these, or at least calculated to do so, will be in place in any system, and will be well integrated into the prevailing jurisprudence. They are the mainstay of both the power and the legitimacy of the ruling class. Also, while a ruling class always tends to resist accountability outside its own ranks, the resistance is less tenacious both intellectually and politically when the accountability relates to class values. Since the ruling class exists to implement these values, it is hard, at least in an open society, to escape some examination of whether it is in fact implementing them. Laws imposing this kind
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of accountability can be introduced without too much disturbance of mainstream jurisprudence, and, once they are in place, the ruling class tolerates them without too much difficulty. In this category, therefore, we have no lack of examples—examples, that is, of laws that enable the wider society to examine whether members of the ruling class are doing what they are supposed to do, but that do not challenge either the functions or the authority of the class as such. Among such laws are the following: 1. Administrative Procedure Acts. The main purpose of these is to ensure that bureaucratic decisionmakers are fully informed of the pros and cons of the decisions they have to make, that they consider any input interested persons have to offer, and that they support their decisions with rationales for which they are willing to take public responsibility. 2. Sunshine laws and Freedom of Information Acts. These bring the actions of government bureaucrats under public scrutiny. The hope—not fully realized—is that the scrutiny will deter at least the most flagrant forms of venality or idiocy in the carrying out of their functions. 3. Conflict of interest laws. These include the elaborate Rules of Professional Conduct governing the legal profession, the provisions against insider trading in federal and state securities acts, the common law rule against appropriation of corporate opportunities by officers or directors, and the various "revolving door" statutes and regulations that keep employees of regulatory agencies from going directly to work for the businesses they have been regulating. In each case, the object is to keep personal considerations from coloring decisions that ought to be made in the light of applicable class values and the laws implementing them. 4. Whistleblower protection laws. These keep lower echelon government bureaucrats and corporate managers from suffering retaliation when they expose the wrongdoing of their superiors. The hope is, of course, that the wrongdoing will be
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deterred by the prospect of exposure or at least redressed when the exposure occurs. B— Independent Values: Ends Versus Means When it comes to values independent of class, examples are harder to find. Under managerialism, as we have seen, these values fall mainly under the heads of individual rights and effectiveness. To be sure, if our concern with these values is limited to whether the best organizational techniques and the best professional expertise at our command are being deployed in their implementation, these will be class values like all the others, and laws like the ones just listed will serve to make the ruling class accountable for implementing them. But it is possible to impose these values more radically, without regard to the limitations of the available organization and expertise. Laws that do that are like epikeia under feudalism or unconscionability under capitalism: they subject the ruling class to controls beyond the internal logic of its power and legitimacy. I have referred in this connection to cases under the First and Fourth Amendments as subjecting the ruling class to individual rights, and to products liability and professional malpractice as imposing standards of effectiveness on them. When a speaker is allowed to continue on the platform despite the best judgment of the authorities that the speech is inimical to public order; when a known criminal goes free because the evidence necessary to convict him was obtained through an unacceptable invasion of his home; when a corporate giant can be forced into liquidation through a class action on behalf of people made sick by its products; when doctors, lawyers, or psychologists are subjected to sixfigure judgments because lay juries think they have done harm by misapplying their professional expertise—the ruling class is being held accountable outside its own ranks for failing to implement values independent of class. Other laws making the ruling class accountable outside its own
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ranks for individual rights include those against sexual harassment, those requiting employers to make reasonable accommodations for the religious practices of their employees, and those requiring leaves of absence for new parents. Laws imposing similar accountability for effectiveness include antitrust laws and other provisions for subjecting managers to the same market discipline as capitalists. We have recently imposed such laws on airlines and long distance telephone companies (with, in my opinion, ambiguous results), and are thinking of imposing them on the Post Office and even the prison system. Other laws for the same purpose include those reimbursing hospitals at fixed dollar amounts for particular ailments treated, regardless of the work actually done, and those proposed for rewarding school authorities in accordance with the performance of their students. All these forms of accountability seem a little tenuous. I believe the reason is that the values they represent are never fully articulated. As a result, these values are highly vulnerable to distortion by false consciousness, and they can be turned into class values simply by assigning managers, bureaucrats, or professionals to give them effect. If accountability is to be firmly established, the values on which it is based must not only be independent of class, they must transcend class. Accordingly, we must return once more to the requirements, familiar by now, of nature and pilgrimage. These are overarching requirements. We need to use them to measure both class values and values independent of class, and see how the latter make up for the incompleteness of the former. We have seen that under managerialism the independent values that give the most difficulty are individual rights and effectiveness. Both of these reflect the contingent character of whatever contribution can be made to human needs through the deployment of organization and expertise. The recognition of individual rights can be fully secure only when it is based on a recognition that society, the economy, and the law are none of them salvific. Human destiny is openended, and,
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even so far as it is known, it depends on choices that cannot be effectively coerced. If people could be dragged kicking and screaming to ultimate felicity, it would be hard to come up with a reason for not dragging them. For this reason, a tendency to benevolent despotism (or despotic benevolence) has affected the managerial class not only under totalitarian regimes, but even under liberal democratic regimes such as our own. Rights that are put forward with no transcendent vision behind them do not effectively resist this tendency. Harvard law Professor Mary Ann Glendon shows in a book called Rights Talk that it is possible to glorify individual rights to the point of absurdity, and still define them in such a way as to interfere hardly at all with managerial agendas. Your right to your job may be so well protected that you cannot be fired for habitual drunkenness at work, but you can do nothing if your employer decides to move its whole operation to Hong Kong. Or your right to the privacy of your home may be so well protected that you can get away with murder if the police do not have a search warrant when they find the murder weapon under your bed, but you can do nothing if the city decides to take your property by eminent domain and put a parking garage on the site. Only if individual rights are founded on a human destiny outside the limits of the whole managerial enterprise can they provide a basis for scrutinizing managerial agendas and calling their authors to account. Effectiveness cannot be merely a class value because managers and professionals do not generally cope well with transaction costs. They are glad enough to have good effects come from their involvement in a situation, but they are seldom open to the possibility that the effects would have been even better if they had stayed away. As a result, there is a general drift in the direction of more and more elaborate managerial and professional structures involving more and more people. C. Northcote Parkinson embodied this drift in his famous Law as "Work expands with the time available for its completion." He argued that an enterprise with more than a certain number of people could keep all of them
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busy on internally generated projects without accomplishing anything whatever in the outside world. He arrived at his theory (or discovered his law) in the course of a historical study of the British navy. He found that the number of people working in the Admiralty increased steadily over a long period of time, quite independently of whether the number of ships and sailors increased, decreased, or stayed the same. This proliferative drift will be inevitable as long as the managerial class sets its own standards of performance. Managers and professionals, with all the good will in the world, will be hard to convince that increased application of time and effort on their part will sometimes achieve only negligible improvement, or that things they do well are often less useful than things they do badly. Examples are common; as a law teacher, the one I find readiest to hand is litigation. As soon as they start litigation— or even as soon as litigation is threatened—lawyers set goals for themselves in terms of maximizing the gain or minimizing the loss to their clients from the final outcome. They assemble vast amounts of information, and deploy elaborate procedural devices and shrewd negotiating tactics, often disregarding the hope for justice and reconciliation between the parties, the cost to taxpayers and other litigants from their tying up of the court system, and even the likelihood that their fees and costs will outweigh any gain to their clients from the final outcome they bring about. A poignant example of what I have in mind is presented by a recent television documentary on the subject of pedophile priests. It appeared that in many cases when a victim of such a priest came forward, the diocese would put the matter in the hands of its attorneys, the attorneys would advise the course of action best calculated to save the diocese from liability or unfavorable publicity, and the diocesan administrators would follow the advice— disregarding both the pastoral needs of the victim and the original function of the diocese to witness the Gospel. I am not stating here any indictment of either lawyers or diocesan administrators as such. People with professional skills
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tend to apply those skills, and people with organizational roles tend to fulfil those roles. As members of a selfconfident and wellintentioned ruling class whose power is based on organization and expertise, they are trained to believe that if they are conscientious in carrying out their assigned tasks, and if all their colleagues are equally so, everything is bound to be all right. This is as true of doctors, academics, account executives, production managers, and editors as it is of monsignori and lawyers. We can try to inculcate a broader vision in the managerial class, but if they are to be truly accountable, we must set their goals in the light of transcendent values, and make provision for people outside their own ranks to judge how well those goals are being achieved. So far, we have looked at class values, the source of what Unger calls principles, and values independent of class, the source of Unger's counterprinciples. Class values, it seems, provide the mainstay of the prevailing system of jurisprudence. Laws holding the ruling class accountable for implementing them tend to fit comfortably into the jurisprudence, and to be accepted by the class. Values independent of class are harder to fit into the jurisprudence, and easier to distort or marginalize through false consciousness. If the ruling class is to be made effectively accountable for them, they need to be made advertent, and to be explicitly referred to the transcendent values of nature and pilgrimage from which they are derived. C— Inchoate Values: Openness This brings us to our third category, inchoate values, those that enter into the prise de conscience. These, by definition, are perceived in terms of something wrong with society that ought to be put right. If the ruling class is responsive to such perceptions, they will make their way peacefully into the law, and any modification of the class structure that they bring with them will be relatively painlessly effected. If the ruling class is adequately accountable to the wider society, the perceptions will still make
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their way into the law, albeit not without painful political proceedings. If the ruling class is both obtuse and unaccountable, there may well be revolutionary upheavals before the law is adequately reshaped. But the prise de conscience is a permanent force in the history of the world. One way or another, it will eventually make itself felt. III— The Legal Profession: Marginalizing the Transcendent In any society, we who are lawyers and judges will have the major share of the responsibility for maintaining the legal system as a bridge between the society and its values. To that end, we must be aware of what is going on in our society. We must also be aware of the applicable values—those identified with the ruling class, those adhered to independently of class, and the transcendent values of nature and pilgrimage on which the others depend, and which fuel the ongoing prise de conscience. This awareness is never without its problems. In one society, we may be too academic—so sophisticated in our analysis of the transcendent that we lose track of what is actually going on. In another, we may be too pragmatic—so aware of the things we can make happen that we hardly stop to think whether they ought to happen or not. But our situation in today's managerial society is more problematic than ever, because we are so firmly established as members of the ruling class. We are unique in being so large a part of the problems we are supposed to be solving. A— Expertise We are trained to be experts and rewarded for deploying expertise. At the same time, it is expertise that defines the ruling class to which we belong. The danger is that we will keep seeing problems as solvable through expertise when it is really something else that they require. And once a problem is seen as soluble
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through expertise, there is the further danger of seeing the values involved as class values. Then the failure of the ruling class to solve the problem can be seen as nobody's fault: since all the expertise available is being applied, those trying to solve the problem are doing the best they can. Tendencies of the kind have been at work in our approach to all manner of social problems from AIDS to slum housing to truancy. Lawyers have been heavily involved in efforts to solve these problems by increased application of expertise, and in the marginalization of proposed solutions that call for a more effective witness to transcendent values. In fact, lawyers and courts have been in the forefront of the movement in recent years to privatize all such values. In consequence, the organized bar, in calling for an improvement in ''professionalism", has come up with almost nothing concrete beyond the honest deployment of expertise in serving the agendas of those who hire it, and the avoidance of obfuscating maneuvers that prevent colleagues from doing the same. In the case of class values, this is probably adequate. If a case involving such values is honestly and competently advocated on both sides and honestly and competently judged, the values in question will probably be genuinely served: When an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done.
This happy thought, from the Preamble to the Model Rules of Professional Conduct in force in most American jurisdictions, is reasonably applicable to such a case. But I think we must be less sanguine where other values are involved. We are trained to privatize these values, and to advocate as vigorously against them when they do not favor our clients as for them when they do. Faced with equal advocacy on both sides, a judge, trained in the same school as the lawyers, is apt to leave the relevant value in abeyance and decide the case on something else. Freedom and equality, with the distortions of false
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consciousness as I have already described them, are always at hand for the purpose, and are commonly used. A recent example is the case involving The Citadel, a military school partly funded by the State of South Carolina. A federal court in that state has ruled that a woman seeking admission could not be excluded on the ground that it was an allmale school. Later, the court ruled that upon admitting her, the school could require her to shave her head, since all other entering students were required to do so. The two values involved in the case were equality of educational opportunity and personal dignity. The first is a class value: it ensures that people with the ability to enter the ruling class will have the training to do so. Whether it should extend to military training for women is debatable, but debatable within the context of class values: does excluding women from military training significantly impair their opportunities for entry into and advancement within the ruling class, or does it impair the deployment of expertise for the common defense? There are cogent arguments both ways, and we may assume with the framers of the rule quoted above that if both sides are competently represented before a competent judge a decision will come down one way or the other taking all the arguments into account. But the value at stake in the decision about shaving the woman's head is personal dignity. This is a value that is not merely independent of class; it transcends class. Whatever inequalities there are in the class structure, people are equally entitled to this. I believe it is precisely because it is a transcendent value that the court went wrong in handling it. And go wrong it certainly did. It is possible to be of two minds about whether a woman should have full access to genderneutral military training, but not about whether anything that she is allowed to do in the way of military service she should be allowed to do without shaving her hair off. B— Pornography and the Prise de Conscience The class identification of the legal profession has particularly
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problematic effects on the prise de conscience. The subject is a little difficult to pin down, but ex hypothesi the values that enter into the prise de conscience are inchoate values. They have not yet been embodied in the law. To show how our profession gets in the way of their becoming so, we will have to pick a value that we suppose to be in the process of entering, and examine what is happening to it. For the purpose, I will select with some misgiving the suppression of pornography. The serious objection to pornography is that it brutalizes and trivializes sex. A nonbrutal and nontrivial sexuality is a requirement of human nature and an essential accompaniment to a fully human pilgrimage. It is, therefore, a transcendent value. The course of the prise de conscience over the past century or so has made us aware that the value in question will be all the better for honest treatment in literature and the arts. I believe that there is developing now a further awareness that it needs legal and societal reinforcement, and that this reinforcement will have to include curbing the enthusiasm of certain writers and artists for undermining it. It is becoming apparent, therefore, that the suppression of pornography implements a transcendent value, although it has to be done with some care lest the value take more harm than good. The main body of the legal profession is divided between two views on the subject of pornography. The majority view is that books, pictures, and stage and screen presentations with an explicit sexual content, however gross, are still books, pictures, and stage and screen presentations, entitled as such to the protection of the First Amendment unless some specific harm can be attributed to them, comparable to the harm from shouting "Fire!" in a crowded theater. The fact that any number of pedophiles, rapists, torturers, and serial killers are found to have drawers full of the stuff in their bedrooms is written off as "anecdotal." Until there is evidence assembled by the methodology of the social sciences, showing that the perusal of this material causes harm, the material must be protected. The view, adumbrated in the Sermon on the Mount, that
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the perusal is itself a harm is never discussed. I pointed out in an earlier chapter that equating freedom with ideological neutrality is an element in the false consciousness of the managerial class. It is at work here. The law's treatment of literature, the arts, and the media must be ideologically neutral, subject only to interventions whose need is determined and mediated through the application of expertise. In short, the response of the majority of mainstream lawyers to pornography is to leave it alone until it infringes on some class value. The minority view is that of certain feminists who point out that a good deal of pornography depicts the mistreatment of women or the reduction of their humanity. To allow it to flourish, therefore, is to violate gender equality and perpetuate the powerlessness of women. The material that lawyers of this persuasion pick for suppression is certainly well worth suppressing, and, given the nature of the debate in which they are involved, it is hard to fault them for not going farther. If you spend enough time arguing with people who think everyone should own an Uzi, you may conclude that .22 pistols are not so bad after all. Even so, it needs to be noted that the line they draw between what they would suppress and what they would leave alone turns the value they are pursuing into a class value. Their primary objection to pornography is structural. By conflating sex, presumably a universal value, with the subordination of women, pornography tends to entrench subordination in the social order: It institutionalizes the sexuality of male supremacy, fusing the erotization of dominance and submission with the social construction of male and female.
The fact that it supports the mistreatment of individual women is important, but secondary: Understanding this dimension of the problem does not require noticing that pornography models are real women to whom, in most cases, something real is being done; nor does it even require
Page 137 inquiring into the systematic infliction of pornography and its sexuality upon women, although it helps.
This structural concern with the distribution of power is necessarily internal to the ruling class: they are the ones with power to distribute. What the feminist antipornography agenda disregards is a substantial body of sexually explicit material that does not subordinate women to men. In fact, it makes them wholly equal, even to the same mindless opportunism in the pursuit of sexual release. It does not claim that women like to be overpowered or hurt, nor does it make them into sex objects any more than it does men. Its real destructiveness is in its trivialization of sex, its persistent teaching that sexual pleasure entails no dues, economic, social, moral, or emotional. This teaching provides a quick fix for the personal lives of those who commit themselves to managerial or professional careers. It is accepted by enough successful members of the elite to prevent the development of a mainstream constituency within the legal profession in favor of suppressing it. In this analysis I am not proposing any specific legal remedy for the destructive treatment of sex in literature, the arts, or the media. We may hope that the ongoing prise de conscience will gradually give currency to the transcendent value at stake and indicate what legal dispositions that value requires in our particular society. My point is only that the classbased ethos of the legal profession tends to delay the process by marginalizing the transcendent value. IV— Conclusion: The Option for the Poor We must return at this point to the preferential option for the poor. It is a necessary ascesis for the whole managerial class—indeed, for every ruling class in every age—but it is especially necessary for us who belong to the legal profession. With it, we can monitor our success in building and maintaining our bridge
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between our society and its values. With regard to class values, it can show us whether the ruling class is doing its job, and whether the legal dispositions that define and support the ruling class are in fact accomplishing what they are intended to accomplish for the rest of society. With regard to values independent of class, it can warn us if they are being marginalized, if the suffering induced by failure to give them effect is being shrugged off as inevitable. It can show us where the counterprinciples do not adequately balance the principles. Finally, the preferential option for the poor supports the prise de conscience by fixing our attention on unmet needs. It shows us where the law will have to take a new direction if it is to continue to serve human purposes. The preferential option for the poor presupposes transcendent values because it is only through such values that we recognize an unmet need when we see one, or discern who is poor and who is not. For many people, the values will be intuitive, and the perception of met and unmet needs equally so. The values taught by Christian theology will be more systematically articulated than these intuitions, but they will be the same values unless either the intuitions or the theology is distorted by false consciousness. It is the teaching of the Second Vatican Council that Christians are moved by the same joys, hopes, griefs, and anxieties as everyone else. Accordingly, Christians may be expected to find in their religion a good deal more than private guidelines for the exercise of options left open by the secular state. Christianity should inform their understanding of the transcendent values to be implemented for the whole society through the operation of the legal system. These values do not violate religious freedom because religious freedom is in fact one of them. By the same token, the mission of the Christian church calls for bearing witness to the values in question not merely before its own congregations, but before the whole society. This witness does not involve a coercive jurisdiction for the church—or, indeed, any jurisdiction at all:
Page 139 The role and competence of the Church being what it is, she must in no way be confused with the political community, nor bound to any political system. For she is at once a sign and a safeguard of the transcendence of the human person.
The role and competence thus claimed do, however, make of the church a juridical presence with a significant effect on the embodiment of values in the law. To complete our account of the legal institutions through which human nature is recognized and the human pilgrimage supported, we must now consider the structure and operation of this presence.
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VII— The Second Sword I— Church As Institution Catholic Christians have always claimed for the church a juridical presence coordinate with that of the state. Theorists have supported the equality of the two orders by appealing to Jesus's instruction about rendering to Caesar and rendering to God, or, more fancifully, to His exchange with the apostles on the way to Gethsemane when they announced that they had two swords, and He said that would be enough. As some medieval commentators went on to point out, He did not say it would be more than enough. In Catholic teaching, divine law dictates both the basic polity of the church and its fundamental equality with the state. On the other hand, the details of its institutional structure and its relation with any particular state are a product of historical development and human prudence; they can differ greatly in different times and places. In many ways, therefore, the church as a juridical presence has taken part in the historical shift from one class to another. In other ways, however, it has stood out against all historical developments, semper eadem. A— The Twofold Presence: Erastian and High Church The result has been in every period a certain enduring tension in the churchstate nexus, While I suspect that the tension I have in mind inheres in the Incarnation, and must be felt in some way in the personal life of every Christian, it has a distinct institutional
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manifestation. I have found in the churchstate controversies of the seventeenth and eighteenth centuries a useful terminology for describing that manifestation. The vision of the church as sharing the historical vicissitudes of the rest of society I call Erastian. Erastus (1524–83) was a Swiss theologian who taught that the church had no proper coercive jurisdiction independent of the civil magistrate. His name became attached to those Anglicans who were content with the substantial role played by Crown and Parliament in the affairs of their church. I have extended the term Erastian to cover any view of the church as one of the complex of institutions public and private through which Christians hope to implement an agenda for the whole society in a given time and place. The vision of the church as standing over against society I call High Church. The term was originally applied to those Anglicans who saw the polity and autonomy of the church as divinely established, or who stressed the sacramental and liturgical aspects of the Christian life rather than the personal and evangelical aspects. I use it to cover any view of the church as an institutional embodiment of the transcendence, the otherness, of God, and of the divine judgment that attaches to every existing society for not being the Kingdom of God. Wherever the church has had a significant institutional presence, the functions assigned it have tended to reflect both views. On the Erastian side come the various tasks the church has undertaken to fill gaps in the work of the civil magistrate. The provision of schools and hospitals and the relief of the poor have been examples in many times and places. In England, administration of decedent estates belonged to the church until the middle of the nineteenth century. During the period when the Western Roman Empire was falling apart, even the maintenance of law and order was often entrusted to the church. These are all functions that modern political theory would assign to the state, although the church is involved in some of them even now. Matters of joint temporal and spiritual concern, such as marriage,
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were assigned almost completely to the church when one ecclesial body commanded the allegiance of everyone in society; church and state tend to deal with them concurrently today. Other matters on the Erastian side are those with which the church has dealt because particular societies have wanted their social controls deployed with more pastoral finesse than the state could command. The enforcement of chastity has usually fallen into this category: the significant involvement of the coercive power of the state has generally proved unfortunate, as in The Scarlet Letter or Measure for Measure. Except for an illfated, even if noble, experiment in the 1920s, the enforcement of temperance has generally been regarded as falling in the same category; a few people would put the discouragement of drug abuse there as well. Often, social justice and civil rights have been seen as concerns for the church on its Erastian side rather than for the state. Either the values concerned, like chastity and temperance, have commanded a moral consensus that society was not prepared to enforce coercively, or they have formed part of a Christian agenda that the church was more willing to propose than the society was to accept. Examples range from the medieval condemnation of usury to the attack on slavery and the support of labor unions in the nineteenth century to the support of racial equality and the condemnation of the nuclear arms race in recent decades. The High Church component of the church's presence cannot exactly be called an agenda. The reason it is High Church is that it points to human purposes beyond the reach of society, and to social shortcomings for which society has no remedy. These include in all times and places the eternal salvation of the individual, the final consummation of history, and the fact that the world as we know it is not the Kingdom of God. Other items are specific to a given state of affairs. In early medieval times, church institutions deployed a witness against anarchy and violence. In later medieval times, and again in the Gilded Age of capitalism, the witness was against greed, selfishness, and ostentation. Today, it
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is against anomie, licentiousness, destruction of the environment, and marginalization of the poor. Of course, there is no brightline distinction between High Church and Erastian manifestations of particular church institutions. It is quite natural for the attempt to effectuate Christian principles in society to go hand in hand with a proclamation of the divine judgment on society for not implementing them fast enough. The relative emphasis will probably depend on how society responds, and on how the work and witness affect the spiritual lives of those who participate. When a work is progressing nicely and attracting good support, utilitarian, Erastian perceptions of it are apt to be uppermost in people's minds. Conversely, when the effect on society becomes harder to achieve or more limited by considerations proper to the art of the possible, those involved in the work are more apt to content themselves with a nonutilitarian, High Church witness, and the mutual support that they derive from bearing that witness in common. These fluctuations of emphasis are manifest in movements as diverse as the Gregorian reform of the eleventh century and the civil rights movement of the 1950s and 60s. B— Secular Models However their function is conceived, church institutions tend to take their form from secular society. They copy the typical forms that embody the power of the ruling class in a given period. So, in the feudal landholding period, church bodies were feudal landholders. The bishops and monasteries had great estates, and the parish priests had strips in the village arable. The prayers and masses that priests and religious undertook to offer on behalf of their benefactors were assimilated to other services that feudal tenants did for their land. The church had its own courts for collecting customary revenues and punishing public sinners. In short, its whole institutional presence was structured and formalized, like that of the various secular authorities.
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Under capitalism, the private business became the model for church institutions. Landed endowments gave way to contributions and investments as the basic means of finance. Dioceses and parishes began to look like corporations and their branch offices. Under the laws of many countries, including the United States, they also took that legal form. The relation between priest or minister and congregation or parish was assimilated to a contract for services, and the organizational rules of particular churches became articles of association or deeds of trust. Naturally, the earlier forms did not give way to these new forms all at once, but the transition generally kept pace with the transition from feudalism to capitalism in other walks of life. With the advent of managerialism, these church institutions, like their secular counterparts, developed more elaborate organizational and bureaucratic structures, and more formal patterns of involvement in the political process. Look at the central agencies of any American church today, and compare it with those of thirty or forty years ago. Or compare the materials on diocesan and parochial organization in the 1983 Roman Catholic Code of Canon Law with that in the 1918 Code. Or for that matter, pick up any parish bulletin in the back of a church and look at the list of offices and committees. Ad hoc advocacy organizations under religious auspices cannot really be regarded as part of the same development: they go back at least as far as the temperance and abolitionist movements of the nineteenth century. But I think it is fair to say that their recognition as integral to the overall institutional presence of the church in society dates from the civil rights and antiwar movements of the 1960s—the time of consolidation of the power of the managerial class. It was that class for the most part that provided the advocacy organizations with both targets and recruits. C— Class and Values Like their secular counterparts, ecclesiastical institutions,
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formal and structured under feudalism, privatized under capitalism, bureaucratic and political under managerialism, have been better able to impose accountability for the implementation of class values than for that of independent values. The church under feudalism duplicated, supported, and justified the social order by its liturgical and paraliturgical. observances, crowning and anointing kings, celebrating and enforcing dynastic marriages, assigning village magnates special seats in their village churches, and assigning prelates to offices of state. At the same time, churchmen both in their preaching and in their example reminded the ruling class of its responsibility to the lower orders—to protect them, to do them justice, and to show them munificence of hospitality and alms. But the independent values, humility, peace, forgiveness of injuries, selfrestraint, were often marginalized. They were treated as the prerogative of certain people or people in certain places, and thereby made innocuous to everyone else. For instance, the cruelties of the criminal justice system were never moderated across the board by the acrosstheboard witness of the church. Rather, members of the clergy were exempted from some part of the responsibility for administering them, and miscreants who escaped into church buildings were let off of any punishment involving death or mutilation. A judge who imposed a death sentence was made ineligible for ordination because of a ''deficiency in Christian mildness," but there was no effort to make society generally less deficient in that regard. The church implemented class values under capitalism by its stress on the right use of property. Thrift, honesty, and philanthropy were stressed as duties of the wealthy, and at the same time, as their justification for having wealth. Property was supported in church social doctrine as a source of new wealth and as a reward for useful endeavor. Church institutions conformed to the market economy by substituting the collection plate for landed endowment as a primary means of support. Mark Twain, only partly in jest, has his Connecticut Yankee in King Arthur's Court
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saying that the trouble with the medieval church was that it was not kept on its mettle by competition as nineteenth century American churches were. Health, safety, morals, and welfare, the independent values that the legal system was most concerned with under capitalism, got even less institutional support from the church than from the state. To be sure, church members were pretty well called to account for their personal moral lapses, and those who directly pandered to such lapses by running brothels, gambling houses, or saloons were suitably denounced. But the involvement of Christians in economic and social structures detrimental to the health, safety, morals, and welfare of whole sections of the population was on the whole safer from interference by the church than by the state. Christian social teachings were slow to reach full doctrinal articulation, and slower still to reach grass roots acceptance, while the occasional involvement of particular ministers or congregations in protest against concrete injustices tended not to elicit public support from higher church authorities. The characterization of the church's response to capitalism as pie in the sky was not altogether fair, but it was fairer than we might have wished. The class values of the managerial church, like those of the managerial state, involve the deployment of organization and expertise for a broadly distributed wellbeing. The church's version of wellbeing is more directed at the moral and psychological dimensions of life, less at the material, than is the state's, but there is a good deal of overlap. Schools, hospitals, and agencies for the relief of the poor operate in about the same way whether they are secular charities, church bodies, or instrumentalities of the state. Political projects are mounted under any number of different combinations of secular and religious auspices, and religious congregations take their place alongside all kinds of secular groups in providing supportive communities for their members. Priests and ministers often incorporate secular roles as counselors or social workers into their understanding of pastoral ministry. Leonardo Boff describes the evolution of the managerial church
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very effectively—if you substitute "managerialism" for his "advanced technological capitalism." The Church took its place among the modern sectors of society, especially among those involved in the transformation of the world. The Church did not immediately seek out the state but rather the groups that held scientific, technological, and political power in civil society. The Church itself modernized its structures, adapting them to the functional mentality of the day. It secularized many of its symbols, simplified the liturgy, and adapted itself to the spirit of the times. The Church's word became more prophetic in the sense that it denounced the abuses of the capitalist system and the marginalization of the poor. However, it did not present an alternative perspective but a reformist one, acceptable to the dominant sectors of society. Basically, it did not demand another type of society but rather sought greater participation for all in the modern liberal system of advanced technological capitalism.
Personal values play the same ambivalent part in the managerial church that they do in the managerial state. To the extent that they support the enterprise of professional theologians, they tend to be subsumed among the prevailing class values as part of the general welfare. Freedom of inquiry, freedom of speech, the primacy of the individual conscience in the moral life, and even God's unconditional acceptance of those who believe in Him have all been taken into the mainstream in this way, restated through the expertise of professionals in the field, and drawn on both to make professionals accountable to one another and to shield them from accountability outside their ranks. But other personal values, personal piety, personal holiness, personal witness, personal charity, and personal salvation, cannot be turned into class values in this way. Because they have remained independent of class, they have tended to be marginalized. No church can explicitly reject them, but churches that give them a high priority tend to be marginalized as "fundamentalist," and people who try to increase the emphasis on
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them in the mainstream churches tend to be written off as unduly attached to the pieinthe sky mentality of the unfortunate past. The evolution from capitalism to managerialism, like that from feudalism to capitalism, has been slower in the church than in the state. Although Boff, in the passage just quoted, described a form of managerial church, most of the church structures that he criticizes in the rest of his book (Church: Charism and Power, 1985) are capitalist and even feudal ones that have remained in place, at least in Latin America. But the new structures with which he hopes to supplant or control the existing ones are in essence managerial. His remedy of choice is for the people to exercise power at the grass roots level through their "base communities." But he assigns to "religious intellectuals" the task of articulating these grass roots aspirations and bringing them into accord with the traditions of the church: On the one hand, through a link with the lower classes the intellectual helps them perceive, systematize, and express their great desire for liberation while, on the other, accepting them within the religious (theological) task of the Church, demonstrating their coherence with the fundamental ideals of Jesus and the apostles.
This language seems to me quite reminiscent of that in which Marx and Engels claimed leadership of the working class for the Communist Party. At the conclusion of his book, Boff suggests that leadership in the church should be attached to "charisms," and indicates that natural talents can be charisms if the person who possesses them refers them properly to their origin as gifts of God. It seems to me that the church as he envisions it would end up controlled by a divinely sanctioned meritocracy. His prescription for the church has the same defect as Thurman Arnold's prescription fifty years earlier for the state: instead of making the ruling class more accountable, he replaces it with a new and equally unaccountable ruling class.
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II— Deployment for Accountability While there is no exact correlation, the church's implementation of class values tends to be Erastian, that of independent values High Church. This is natural enough. As we have seen, there is in place in any period a set of secular institutions for the implementation of class values. It is easy for church institutions to mesh with these, giving and receiving support where there is overlap, filling gaps where there is not. This meshing is by definition Erastian. Many independent values, by contrast offer only a tenuous basis for meshing the institutions of church and state, because they have no more than a tenuous embodiment in those of the state. Just as they tend to appear in secular law as counterprinciples and exceptions, they tend to appear among the institutions of the church as exhortations, homilies, and symbols. These class based patterns of implementation expose Christian values to a danger that must be apprehended and guarded against when we make provision for the juridical presence of the church. The institutions of the church tend to marginalize values independent of class in the same way as do those of the state. Erastian forms are so tied in with their secular counterparts as to be equally subject to the ruling class and its temptations to false consciousness, equally incapable of calling that class to account for values beyond the ones it was created to implement. High Church forms, whatever else they do, carry the bulk of the responsibility for the church's eschatological witness. Their concern with values that the ruling class cannot implement makes it very difficult for them to call that class to account for failure to implement values it can. In a society with a broad and conspicuous ecclesiastical presence, the failure of church institutions to call the ruling class to account may place a wholly undeserved divine sanction upon the immunity of that class from accountability. In this way, the church will exacerbate the failings of the state instead of making up for them.
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The situation is also not without its perils for the church. Since the inherent tension between Erastian and High Church elements takes its particular form in any period from the ruling class, it keeps threatening to impart a class bias to the whole proclamation of the Gospel. A— Erastian Forms Because Erastianism sees the church as merely one institution among others in the whole institutional complex through which the social goals of the ruling class are implemented, it tends to see the church's ministry, the proclamation of the Gospel, as merely one social goal among others being implemented. Under feudalism, the object of the landowning class in introducing prelates and clergy into every level of their social structure was declared to be: to inform them and the people of the law of God, and to make hospitalities, alms, and other works of charity in the places where the churches were founded.
Among the upper echelons of society, bishops and abbots served government and people in both temporal and spiritual affairs. The lower clergy served lesser landowners in very similar ways. At every level, things temporal and spiritual tended to be seen as coordinate in the same way as their institutional manifestations were: . . . man hath thre things to governe, that is to say, Soule, Body, and worldly Goudes, the which ought and shulde ben principaly reweled by thre Sciences, that ben Divinite, Fisyk, and Lawe, the Soule by Divinite, the Body by Fisyk, worldly Goudes by Lawe. . . .
Soul, body, and worldly goods were seen as similar concerns to be dealt with in similar ways. 1— Church As Enterprise Under capitalism, the Erastian view
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of the church makes it an entrepreneurial project of free individuals, or, in some places, a part of the infrastructure, like the education system. The first alternative, the "Voluntary Principle," is extravagantly praised in the following passage from an 1893 book by H.K. Carroll, who was in charge of amassing religious data for the 1890 United States census: It is to be remembered that all the houses of worship have been built by voluntary contributions. They have been provided by private gifts, but are offered to the public for free use. The government has not given a dollar to provide them, nor does it appropriate a dollar for their support. And yet the church is the mightiest, most pervasive, most persistent, and most beneficent force in our civilization. It affects, directly or indirectly, all human activities and interests. It is a large propertyholder, and influences the market for real estate. It is a corporation, and administers large trusts. It is a public institution, and is therefore the subject of protective legislation. It is a capitalist, and gathers and distributes large wealth. It is an employer, and furnishes means of support to ministers, organists, singers, janitors, and others. It is a relief organization feeding the hungry, clothing the naked, and assisting the destitute. It is a university, training children and instructing old and young, by public lectures on religion, morals, industry, thrift, and the duties of citizenship. It is a reformatory influence, recovering the vicious, immoral, and dangerous elements of society and making them exemplary citizens. It is a philanthropic association, sending missionaries to the remotest countries to Christianize savage and degraded races. It is organized beneficence, founding hospitals for the sick, asylums for orphans, refuges for the homeless, and schools, colleges, and universities for the ignorant. It prepares the way for commerce and creates and stimulates industries. Architects, carpenters, painters, and other artisans are
Page 152 called to build its houses of worship; mines, quarries, and forests are worked to provide the materials, and railroads and ships are employed in transporting them. It requires tapestries and furnishings, and the looms that weave them are busy day and night. It buys millions of Bibles, prayerbooks, hymnbooks, and papers, and the presses which supply them never stop. Who that considers these moral and material aspects of the church can deny that it is beneficent in its aims, unselfish in its plans, and impartial in the distribution of its blessings? It is devoted to the temporal and eternal interests of mankind. Every cornerstone it lays, it lays for humanity; every temple it opens, it opens to the world; every altar it establishes; it establishes for the salvation of souls. Its spires are fingers pointing heavenward; its ministers are messengers of good tidings, ambassadors of hope, and angels of mercy. What is there among men to compare with the church in its power to educate, elevate, and civilize mankind?
Note the insouciance with which temporal and spiritual ends are mingled in this panegyric. I have italicized those elements that seem to pertain uniquely to the ministry and witness of the church. Of the other elements, some, such as education and poor relief, are concurrent concerns of the church and other agencies; some, such as prayerbooks and tapestries, although they pertain to divine worship, are referred here to their effect on the economy. The rest seem to pertain exclusively to the part played by the church in the general prosperity attributable to free enterprise. 2— Church As Infrastructure The second capitalist Erastian alternative, church as infrastructure, is expressed by Macaulay in a speech explaining why he is not for disestablishing the Church of England: If I would keep up the Established Church of England, it is not for the sake of lords, and baronets, and country gentlemen of five thousand pounds ayear, and rich bankers in the city. I know that such people will always have churches, aye, and cathedrals, and
Page 153 organs and rich communion plate. The person about whom I am uneasy is the working man; the man who would find it difficult to pay even five shillings or ten shillings ayear out of his small earnings for the ministrations of religion. What is to become of him under the voluntary system? Is he to go without religious instruction altogether? That we should think a great evil to himself, and a great evil to society. Is he to pay for it out of his slender means? That would be a heavy tax. Is he to be dependent on the liberality of others? That is a somewhat precarious and a somewhat humiliating dependence. I prefer, I own, that system under which there is, in the rudest and most secluded district, a house of God where public worship is performed after a fashion acceptable to the great majority of the community, and where the poorest may partake of the ordinances of religion, not as an alms, but as a right.
This, of course, is just as utilitarian as Carroll's apology for the Voluntary Principle. Given the prevailing understanding of utility, it must be seen as capitalistic also. Managerial Erastianism enlists the church in an extensive consortium of organizations and experts engaged in the solving of problems. William H. Whyte's book, The Organization Man—although published in 1956, still a useful guide to many aspects of managerial life—has a chapter called "The Church of Suburbia." He shows the church congregations in the housing development he studies as undertaking a great variety of social, civic, and recreational functions, with spiritual concerns taking something of a back seat: Even though they might themselves feel that spiritual considerations are basic, a considerable number of churchmen have been persuaded that they should ask people in the door by mentioning only the social and practical benefits one will find inside.
Just when this development was gathering strength, the civil rights movement, the opposition to the Vietnam war, and the AntiPoverty Program came on the scene. All invoked Christian principles that few important secular organizations seemed in any
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hurry to implement. There was a significant gap, and church organizations did a good deal to fill it. Even after things quieted down in the seventies and eighties, the gap remained. A continuing range of social problems, especially those affecting the underclass, were addressed, if at all, by organizational and professional skills deployed in large part under ecclesiastical auspices. I am far from disapproving of this deployment: it is an essential function as our society is constituted. But we must not forget that it is filling a gap that should not be there to fill. Assigning the church a function not inherently its own masks the fact that the function is not being performed by those to whom it properly belongs. George Bush's famous "thousand points of light" represented seven or eight hundred failures of social justice for which he intended to disclaim responsibility. Making up for these failures puts the church in danger of being distracted not only from the ministry of Word and sacraments, but even from the work of pointing the failures out. B— High Church Forms Where Erastianism creates a danger of reducing the Word and the sacraments to the level of a classbound secular agenda, High Churchmanship creates a danger of exalting some classbound secular agenda to the level of Word and sacraments. Feudal High Churchmanship was most fully manifested in the Gregorian Reform of the late eleventh and early twelfth centuries, which claimed a divinely ordained superiority not only for the pope but also for the whole ecclesiastical hierarchy. Gerd Tellenbach, in his seminal study of the subject, shows the juridical form taken by this development: From the earliest times there is noticeable a tendency to claim validity for hierarchical distinctions on earth as well as in the Hereafter. It was easily admitted that the servant of God may be considered to have a special aptitude for the leadership of his fellowmen, and that a special rank should therefore be accorded him even
Page 155 on earth. Such a connexion between religious and secular status was promoted by the structure of medieval law, with its peculiar differentiation of subjective rights, formally corresponding to the gradations of religious worth.
The political processes set in motion by this doctrine, and the ensuing legal adjustments, need not concern us here. What is important is that they established both for the pope and for the whole clerical order a spiritual status required neither by their function nor by their deserts. An alternative version of feudal High Churchmanship, caesaropapism or divine right monarchy, was largely displaced by the Gregorian Reform, although it had a brief revival after the Reformation. It dominated the Byzantine Empire, and later the Russian. If Charles I and Archbishop Laud had had their way, it would also have dominated the Church of England. The logic of divine right monarchy ran no farther than the anointed king, but in the early days of feudalism similar High Church attitudes can be discerned in the relation of lord and vassal. As Marc Bloch puts it: The first and obvious duty of the good vassal is to know how to die for his chief, sword in hand—a fate to be envied above all others, for it is that of a martyr and it leads to Paradise. Is this what the poets say? Undoubtedly: but it is also what the Church says. A knight, provoked by threats, had killed his lord. ''Thou shouldst have accepted death for his sake," declared a bishop, speaking in the name of the council of Limoges in 1031; "thy fidelity would have made thee a martyr of God."
These disparate aspects of feudal law all manifest High Church tendencies in that in each case there is an invocation of the Deity—the oath of the vassal, the anointing of the king, the ordination of the priest, the consecration of bishop and pope—that confers on some member of the ruling class a divine position that transcends practicality, and sometimes even justice.
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In capitalist society, High Church attitudes were centered on the salvation of the individual, and the role of the church in bringing that salvation about. Where Erastianism saw individual enterprise as the origin of the institutional church, High Churchmanship saw individual fulfillment as its end. The attitude was manifested in a Catholic piety centered on the interior life and a Protestant piety centered on the acceptance of Jesus Christ as one's personal Saviour. These are, to be sure, authentic Christian experiences, and experiences commonly found within the church. But the church is not ancillary to them, as High Church individualism tends to make it. They are but responses—and only partial responses at that—to the gratuitous gift of God which the church is commissioned to proclaim and minister. With the advent of managerialism, a good deal of High Church thinking has shifted from the individual to the group. With the shift has come a danger of assigning either to the "base communities" of Roman Catholicism or to the "gathered" churches of Evangelical Protestantism more than their share of the church's transcendent significance. Some charismatic groups fall into the same danger by their claim to privileged access to the Holy Spirit. And sometimes an ecumenical group of social activists will develop in the name of church a communal ethos transcending both their several denominational affiliations and the cause that brought them together. Here again, the question is one of emphasis. We are social beings: community is an authentic human experience, and community with other followers of Christ is an authentic Christian experience with an important place in the life of the church. The managerial world involves us in many collectivities, and we are reminded— especially by Martin Buber—that we are called to a loving recognition of those whom we encounter in each of them. It is natural, therefore, that we should seek to embody our faith commitment in similar collectivities. But none of them can encompass the church's mission to proclaim and minister God's gratuitous gift, and none can fully encompass our response to that
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mission. The affinity of feudal High Churchmanship, with ruling class concerns is obvious. That of capitalist and managerial High Churchmanship is less so, but I think a strong case can be made. It has been noted, for instance, that the interior life to which Catholic High Churchmanship attached itself under capitalism tended to be the prerogative of an elite—people who had enough education to appropriate a fairly complex set of theological doctrines, and who did not need to spend much time and thought on material needs. Such people were not necessarily capitalists in their own right, but they tended to come from welltodo families, and they needed wellto do patrons. Personal conversion, the Protestant counterpart of Catholic interiority, did not make the same economic demands. But the ecclesial communities in which such conversion was preached tended to inculcate at the same time values of earnestness, austerity, selfconfidence, and hard work that were conducive to prosperity under capitalism. The result, as Elie Halévy puts it in his history of nineteenthcentury England, was that: There came into existence a class of austere men, hard workers and greedy of gain, who considered it their twofold duty to make a fortune in business and to preach Christ crucified.
The exact relation between Protestant doctrine and the rise of capitalism is a much debated topic, and I shall not address it here. My point is only that a High Church ecclesiology based on personal conversion can be drawn on to give an unearned transcendence to a capitalist ruling class. The groups that are seen as transcendent under managerial High Churchmanship have the same problems of surrogacy that Milovan Djilas discerned in his examination of the dictatorship of the proletariat. Grass roots do not organize themselves, and the people who have the skills to produce grass roots organizations tend to be a good deal more managerial than the rank and file. It is very easy for the transcendence of the group to turn into that of
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its leaders, and thus into that of the ruling class. III— Balance and Legitimacy So far, we have been considering distortions of the church's mission—ways in which the ruling class runs a risk of marginalizing aspects of God's Word, or subverting it into utility or idolatry. We have now to see how these risks can be avoided, and how the church can be assigned its proper place in the legal firmament. This will be less a matter of eliminating the attitudes and practices we have discussed than one of keeping them all in some kind of balance. They are all authentic elements in our response to God's free gift of Himself to us and to His church. But none may be placed on a par with the gift itself. A— The Secularist Claim We must also give further attention to the problem of relating the church's mission to the legitimate autonomy of a pluralist state. Before assigning the church a place in the legal firmament, we need to address the claim that in this day and age it has no place there at all. The claim is raised in public debate in two forms, which I will call the strong and the weak. The strong claim is that all citizens are under a moral obligation to refrain from putting forward any legal agenda that they cannot justify on nonreligious grounds. The weak claim is that it is morally incumbent on the church and its ministers to refrain from taking an official stand on what laws should or should not be adopted. I believe that both claims need to be firmly rejected. The strong claim, unless it is severely qualified, is selfcontradictory. It proposes a criterion for morally acceptable legal agendas. If I adopt that criterion on account of my religious convictions, then I violate it by adhering to it. Were I to adopt it pursuant to a moral standard that trumps my religious convictions,
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I would be a bizarre—and I think not very respectable—religionist. Therefore, if I am to accept the claim, it must be on account of some moral doctrine that my religious principles neither require nor forbid. Some religious traditions, my own included, admit that there are such doctrines. But whether a particular doctrine is one of them requires theological analysis to establish. So even if I find the claim to rest on nontheological grounds, I still violate it by adhering to it. Take a fairly easy case. The child of Jehovah's Witnesses is in the hospital suffering from a condition which the doctor in attendance believes requires a blood transfusion. The parents wish to invoke the law to prevent the doctor's administering the transfusion. The doctor wishes to invoke the law to prevent the parents' interfering with the transfusion. If the principle under consideration is morally compelling, the parents are obviously violating it. Their objection to blood transfusions is that God has forbidden them. Their proof that that is the case is based on certain scriptural texts that require draining off the blood of slaughtered animals before eating the meat. But any doctor who regards Jewish or Christian scriptures as normative will violate the principle just as much as the parents do. The only way to support the transfusion is to argue that the parents have misinterpreted their texts—which is just as theological an argument as the one the parents used. This example barely scratches the surface of the verbal and conceptual difficulties raised by any claim that it is morally incumbent on religious people to disregard their religion in a substantial part of their lives. But rather than elaborate further on these difficulties, let us go straight to the root of the claim under consideration. The root reason why it must be rejected is that it rests finally on a version of freedom that I have already shown to be part of the false consciousness of the managerial class. The reasons it accepts for doing things are professional reasons, reasons based on expertise. The reasons it stigmatizes as religious are those based on the transcendent significance of the human being and the human pilgrimage. Here is how Robert Audi, a particularly
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lucid spokesman, articulates the distinction: A secular reason is, roughly, one whose normative force, that is, its status as a prima facie justificatory element, does not (evidentially) depend on the existence of God (for example, through appeals to divine command), or on theological considerations (such as interpretations of a sacred text), or on pronouncements of a person or institution qua religious authority.
Set alongside this definition This Land is Home to Me, the powerful and lyric economic and social pastoral issued by the Catholic bishops of Appalachia in 1976. Note how rigorously the rationales put forward by the "corporate giants" for their agendas in the region conform to Audi's criterion: The way of life which these corporate giants create is called by some "technological rationalization." Its forces contain the promise of a world where —poverty is eliminated —health cared for —education available for all —dignity guaranteed —and old age secure.
And note how the countervailing considerations brought forward by the bishops violate the same criterion: Without judging anyone, it has become clear to us that the present economic order does not care for its people. In fact, profit and people frequently are contradictory. Profit over people is an idol.
Page 161 And it is not a new idol, for Jesus long ago warned us, No one can be the slave of two masters: either he will hate the first and love the second, or treat the first with respect and the second with scorn. You cannot be the slave both of God and money.
The point I am making is even more abundantly clear if we turn from excerpts to the tenor of the whole document. The preferential option for the poor requires religious support, and nevertheless is morally compelling. It takes a religious view of human destiny to keep insisting that it is never acceptable to let even a few people fall by the wayside so the rest may prosper. Still more does it take an act of faith to keep insisting that it is possible not to do so: Yet we still dare to speak, and speak strongly, first, because we trust our people and we know that those who belong to the Lord truly wish to do his will; and second, because we believe that the cry of the poor is also a message of hope, a promise from the Lord, That there can be a better way, for he has told us, The Truth will make you free.
Rejecting the strong claim on these grounds entails rejecting the weak claim also—the claim that the church should not take an
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institutional part in public debate. The preferential option for the poor is a Christian doctrine, and those responsible for the proclamation of Christian doctrine cannot disavow the responsibility for proclaiming it. The same will of course be true of any other Christian doctrines calling for implementation in the law. The introduction of the church and its teachings into public discourse is not inconsistent with religious freedom, with the rights of nonmembers, or with the nature of a pluralist society unless the teachings themselves are. The teachings I have advocated throughout this book are not. I have characterized them as a Christian understanding of human beings and their affairs. They are no less an accurate understanding for being Christian. Those outside the church will experience that understanding, if the church is true to it, as a profound respect. This respect is given to whole human beings in the complexity of their concerns and the transcendence of their destiny. Anyone who respects autonomy rather than people will not be content with it. But it cannot be limited by any moral claim that Christians can be expected to accept. Nor can a participation in public life based on it—whether by individual Christians or by the institutional church— give anyone legitimate ground for complaint. B— Teaching in Dialogue Of course, what we are considering is participation, not control. On matters such as the Trinity or the manner of Christ's presence in the Eucharist, the institutional church can make rulings that are binding on adherents and of no more than academic interest to anyone else. But here we are dealing with the laws of a civil society, embracing Christians of different denominations, believers in other religions, and believers in no religion at all. The church is called to affirm the dignity of all these people with authority and confidence, as well as their just claim to a fair share of the common resources and amenities of society. But the church has no authority either to judge or to prescribe how this affirmation works out in the
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daily living arrangements of a particular society, or in the laws that ought to govern those relations. The teaching of the church on social justice and law, therefore, can be articulated either in generalities and platitudes of high authority or in specific proposals open to serious debate. Authoritativeness and specificity are necessarily tradeoffs. The adjustment between them has been made differently on different occasions. To my mind, the most successful way was that adopted in This Land is Home to Me, the Appalachian pastoral letter that I have just quoted. By adopting a free verse style interspersed with scriptural passages, the authors can be powerfully authoritative in proclaiming God's call to choose life over death: The Messiah, his Father and their Spirit are the Living God. They are different from the dead idols which clutter history, because they, and not the idols, act for justice. The dead idols prove to be gods of oppression. I am Yahweh your God who brought you out of the land of Egypt, out of the land of slavery. You shall have no gods except me. (Exodus 20: 1–3) The choice between the Living God and inert idols is not only a choice between justice and injustice, It is also a choice between life and death: Today, I set before you life or death, blessings or curse. Choose life, then,
Page 164 so that you and your descendants may live, in the love of Yahweh your God,
His preferential love for the poor: We know that there will be other opinions, about the truth of Appalachia, other views than those of the poor. But we must remind ourselves that the poor are special in the eyes of the Lord, for he has told us, in the voice of his Mother, He has pulled down princes from their thrones, and exalted the lowly. The hungry he has filled with good things, the rich sent empty away. (Luke 1:52–53)
and His will to free the oppressed: That day, Yahweh rescued Israel from the Egyptians . . . and the people venerated Yahweh. . .(Exodus 3:7–9; 14:30–31) Not only in the liberation of his people does the Lord reveal himself as the Living God, but also within Israel by defending all those who are victims of injustice. He will free the poor man who calls on him, and those who need help, he will have pity on the poor and feeble . . . he will redeem their lives from exploitation and outrage. (Psalms 72:12–14) Thus, the God of Israel, who is also our God, is the God of the poor, because he frees the oppressed.
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At the same time, they can be quite specific in criticizing the economic and social situation as they perceive it: —Food is too expensive. —Taxes are too high for most. —(Too low for the rich). —Sickness puts people into debt. —College is out of reach for their children. —Paychecks keep shrinking. And it's worse still for those who can't work, especially the elderly. Meanwhile corporate profits for the giant conglomerates, who control our energy resources, keep on skyrocketing.
while disclaiming any divine support for their perceptions: We know that our words are not perfect. For that reason, this letter is but one part of an unfinished conversation —with our people —with the truth of Appalachia —with the Living God.
We ask you to weigh seriously with the Spirit the matters we have put before you, —in your own silence; —in your families; —in your work; —in your parishes. We ask you to share
Page 166 in dialogue and testing with the leaders of your local church and with us bishops what we have presented here. There will be different views, but let us test them together —with the people, —with one another, —and with the Spirit.
When I speak of giving the church its place in the legal firmament, what I have in mind is a continuing institutional voice of the kind manifested in such a document as this. C— Institutional Patterns Ideally, such a voice would have both Erastian and High Church components. The Erastian would contribute to the accountability of the ruling class by proposing a workable agenda for the exercise of its powers, the High Church by witnessing to the limits of all such powers and the calling of every human person to a freedom outside those limits. 1— Erastian Elements The Erastian component is often embodied in traditional forms of preaching and teaching—the pulpit, the pamphlet, the church newspaper, the charges of Anglican prelates to their clergy, papal encyclicals, and, increasingly in recent years, specific local pronouncements such as This Land is Home to Me. There are also in this managerial age groups, organizations, and bodies specifically set up for Erastian purposes. These include official bodies such as the United States Catholic Conference, the Catholic Committee of Appalachia, referred to in This Land, various diocesan Justice and Peace Commissions, Church World Service, and the Christian Coalition. There are also secular organizations with a substantial ecclesiastical presence formed to advocate causes such as those of
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the poor, the homeless, minorities, or the unborn. Also Erastian are institutions that extend the scope of social services by performing functions that the state cannot or will not undertake, or that the state performs but not sufficiently. Church related schools and hospitals are obvious examples. Shelters for runaway children or derelicts, counseling centers, and sports leagues are also examples, as indeed, are most of President Bush's points of light. I see three main functions attaching to this complex of institutions making up the Erastian component of the church's presence. The first is to rationalize and coordinate those genuine values that the society avowedly pursues. These, as we have seen, will include both class values and whatever nonclass values the ruling class continues to support. The second function is to monitor the implementation of these values, and confront the society when it fails to implement them. This function can become delicate where church bodies are themselves involved in the implementing, as they are in our own society in education, health care, and relief of the poor. Some values to which a society is fully committed may be better carried out by the church than the state. On the other hand, for some politicians, turning a value over to the church may be a way of marginalizing it: I see this happening to a good many concerns for the poor at the moment. It is important that this kind of recognition not blunt or deflect the work of monitoring and witness. The third Erastian function is to seek out what has been lost from the prevailing value system, give recognition to what has been ignored, emphasize what has been marginalized. In managerial society, a range of personal and family values will fall into these categories—those that are hard to implement without more resources than the poor have available; those that members of the ruling class cannot implement without taking the edge off their careers. Meaningful employment, solicitous health care, safe surroundings, esthetic experience, education, chastity, and marital fidelity all come readily to mind. Giving Erastian embodiment to
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these values is tricky. If they are overly institutionalized, they will be displaced by related class values that extrude any aspects that make the ruling class uncomfortable. Church related schools and hospitals go this route as readily as secular ones. But if the values are not institutionalized at all, the church's embodiment of them will be merely High Church—important, as we shall see, but incomplete. Different organizations will have different ways of striking the necessary balance. In looking at This Land is Home to Me, we have seen how it can be struck by those who exercise the teaching office of the church. The economics pastoral of the American bishops also strikes it effectively; the Canadian bishops' 1983 Ethical Reflections on the Economic Crisis is, I believe, even better. Organizations such as Right to Life or Bread for the World or the Salvation Army all have different constituencies, different values to salvage, and different ways of striking the necessary institutional balance. 2— High Church Elements The High Church component of the church's presence is manifested in signs of transcendence. Because human destiny is in fact transcendent, we cannot do without such signs. They need to be set off by a vigorous Erastian component or they will be open to the familiar pieinthesky reproach. But alongside such a component they have important work to do. Perhaps the most important High Church signs are liturgical. The place of worship and reception of the sacraments in the private lives of individuals and congregations is obvious. Beyond that, actions such as the ringing of church bells and the procession of the Eucharist through the streets on Corpus Christi serve as an important reminder that God's claims are not limited to the private sphere. Institutions through which people commit themselves to lives of special devotion can be an effective High Church sign if they maintain solidarity with the people whose transcendence is belied in the society around them. It has been aptly noted that a life of voluntary poverty can and should be (though often it is not) led in
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solidarity with the involuntarily poor. Given the forms of restraint and coercion affecting powerless classes in our society, there are also plenty of people who are involuntarily obedient, and, given our social fragmentation, there are people who are involuntarily celibate. Obedience and celibacy, then, like poverty, can be undertaken voluntarily in solidarity with people who have no choice in the matter. I believe the same is true of nonviolence, which is generally considered part of the life of special dedication, and which some ecclesial bodies regard as incumbent on all Christians. Looking at the victims of crime and injustice, I think we will see a good many people who are involuntarily nonviolent—who would with very good reason punch somebody out or worse if they could safely do so. Voluntary nonviolence could well be undertaken in solidarity with such people. Advocacy organizations, as we have seen, shift between Erastian and High Church emphases depending on what happens to the cause they advocate. To advocate a real loser is High Church. It is a sign that God uses a different scoreboard from the world. Through its High Church component, therefore, the church can maintain an intractable witness against intractable evils. By operating outside the practical limits of power, it witnesses those limits. Moreover, it gives that witness an institutional, a juridical form. It refutes legal theories that see law as no more than a systematic description of how power is deployed, and it provides a framework for those who, for whatever reason, find their commitment to justice placing them on the wrong side of the power structure. Most important of all, it witnesses that freedom is not destructible by power. The human being is created free. The misuse of power does not take away the radical freedom of our creation; it belies it. The liberation to which God calls us is not so much a restoration of freedom as a recognition of it. God recognizes it already. It is this recognition that undergirds the High Church witness. It is a witness to the Kingdom of God that
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Gaudium et Spes tells us is ''already present in mystery." And however oppressed people may be in the world as they experience it, in that Kingdom they are free. IV— Conclusion: "Church and State" In sketching out this legal position for the church (or for the prevailing complex of ecclesial bodies), I have intentionally avoided the issues usually characterized as "church and state." I see both institutions as part of a single nexus, and if the values I would have prevail throughout that nexus are Christian, I believe they are fully human as well: The Church knows that her message is in harmony with the most secret desires of the human heart when she champions the dignity of the human vocation, restoring hope to those who have already despaired of anything higher than their present lot.
The state comes by these values not through subservience to the church, but through reflection on its own historical experience of the human condition. In many places, the church will be a part of that historical experience. But it has no mandate to impose its teachings coercively or even authoritatively on the state. On the other hand, it is neither necessary nor desirable for the state to undercut its own history in order to assert its independence of the church. Separation of church and state is a good doctrine—even a venerable one—to the extent that it means that the two bodies politic must be kept juridically distinct. But to the extent that it means that neither should have anything of importance to say to the other, it is both false and pernicious. Churchstate confrontations in history have sometimes involved serious ideological disagreements (Bismarck's Kulturkampf; Pius IX's resistance to the unification of Italy). Other times they have been pretty ephemeral (the refusal of St. John Nepomucene to tell Duke Boleslas whether his wife had confessed to having a lover). Sometimes they have involved Christian
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principles the secular powers did not wish to be reminded of (Oscar Romero, Archbishop of San Salvador); other times the church has been, on the whole, in the wrong (unification of Italy). But whatever their immediate subjects and issues are, they tend most often to arise when the church is in the process of finding its position visàvis a new ruling class. The first such confrontation in Christian Europe is the one called the Investiture Controversy by people who look at kings, emperors, popes, and high prelates, the Gregorian Reform by people who look at local landholders and the working clergy. Its concern was how to organize and deploy the church in a society that was rapidly crystallizing under the hegemony of a feudal landholding class. The church of the Roman Empire had been organized around urban centers that had lost their political importance and often their populations during the upheavals of the sixth through the tenth centuries. With the rise of a feudal power structure based on rural landholding and peripatetic administration, it became impossible for the old church organization to control the arrangements laypeople made for providing themselves and their followers with the ministrations of religion. A king would have a bishop in his entourage just as he might a lawyer or a scholar (they might be the same person). And a landholder might build a church and hire a priest in the same way he might build a mill and hire a miller or build a smithy and hire a smith. The upshot of the confrontation was that these miscellaneous priests and prelates were given assured positions within the developing feudal structure, and were made accountable to ecclesiastical superiors for what concerned their work as God's ministers. The churchstate confrontations that followed the Reformation in northern Europe and the French Revolution in southern Europe occurred because capitalists were succeeding feudal landholders in the state faster than they were in the church. From the reign of Elizabeth I on into the nineteenth century, the squires and nobles of England were mostly Anglican, while the merchants and manufacturers were Protestant Dissenters committed to the
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Voluntary Principle. One confrontation after another pitted these two forces against each other. In France, the Voluntary Principle came up against the Declaration of the Rights of Man, which precludes the exercise of any authority that does not emanate from the state. So the state's first attempt after the Revolution was to turn the clergy into public functionaries. Later efforts were on the model of licensed and regulated private companies. The church generally resisted being reorganized out of its traditional polity, and various modi vivendi were arrived at, with reluctance on both sides. The United States had a relatively peaceful history of churchstate relations because it recognized both the Voluntary Principle and freedom of association, and no church had a significant claim to be recognized on any other ground. Other countries had different historical evolutions, but however it came about, the church achieved an assured place in capitalist society only on the basis of the free private enterprise of its adherents. The confrontations that we experience (or are about to experience) today come from the fact that the private church cannot deal effectively with the managerial state. A church based in the private sector can call the capitalist class to account because the whole class is based in the private sector. But the managerial class exercises power through public or quasipublic organizations and needs to be called to account through organizations of the same kind. Where managers resist accountability, they use the power of the state to relegate the church to the private sphere. This tendency explains a good deal of Establishment Clause doctrine in the United States Supreme Court. In other places, notably Latin America, the church, or some part of it, has brought on churchstate confrontations by embracing managerial agendas or styles in opposition to the residual feudalism of the state. But it appears that even where the church contributes to the establishment of a managerial state, the work of coming to terms with it is still to be done. One way or another, the work will eventually be done. In managerial society as in capitalist and feudal society, a way will
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eventually be found to give effective legal structure to the presence and witness of the church. I have given some indication of what form I would like to see this structure take; what form it will in fact take it is too soon to say. Whatever form the adjustment takes, the important point is this: Churchstate confrontations are basically ephemeral. They are a product of the shift in values and dominance from one class to another. When the shift is complete, the enduring problems of nature and pilgrimage will still be there, albeit in a different form. Class instrumentalism, false consciousness, and the preferential option for the poor will be experienced within the ruling class or between the ruling class and the wider society. Either way, they will affect church and state in pretty much the same way.
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VIII— Conclusion In these chapters, I have sketched out a role for law, and supported it with historical examples. I have argued that law serves as a bridge between a society and its values, that legal dispositions arise from a perception of values that require additional implementation, that the dispositions as they arise bring new classes into power, and that those classes, once in power, appropriate the values behind the laws that empowered them. My claim is that within the framework of this historical process it is possible to deploy the skills of our profession to make the current ruling class in any period accountable to the wider society for the implementation of the values that need implementing. But to make this deployment effective, we must discern how the relation between class and value is distorted by false consciousness and must restore it to equilibrium through a preferential option for the poor. The values whose presence in history is supported by this process fall under the two heads of natural law and pilgrim law. I have argued that natural law is incomplete, first, because it looks to the condition from which we are fallen rather than to the higher state to which we are called in response to our redemption, and, second, because it does not take adequate account of our manifold failures to live up to either our nature or our calling. Pilgrim law makes up for what is lacking in natural law by keeping us open to the unknown destiny to which we are called, and by picking us up when we fall and setting us on our way again. To situate this analysis within a general framework of Christian doctrine, I have drawn on the principles of liberation theology. My
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dependence on these principles has been obvious in a few places and implicit everywhere. As I said at the outset, I regard pilgrim law as the jurisprudential manifestation of liberation theology. It does for our jurisprudential pursuits two things of which we are badly in need. First, it teaches that the reform of unjust institutions liberates the beneficiaries of those institutions from their role as oppressors just as it liberates the victims from their role as people oppressed. It therefore permits us to take class struggle seriously without departing from the universal values of human solidarity required by our commitment as Christians. Second, by teaching that the pursuit of social justice has eschatological value even if its historical fruition is problematic, it rescues that pursuit from the futility and discouragement to which it is so often subject. Building on this theological foundation brings us into an equivocal relation with a God Whose will to liberate from oppression cannot be made to conform to the contours of anybody's jurisprudence. To put an obvious example, although liberationists pay a great deal of attention to the paradigm of the Exodus, a law imposing capital punishment on the firstborn sons of slum landlords or employers who pay substandard wages would be clearly unacceptable. For a less farfetched illustration, here is the reflection of a Midwestern lawyer who gave a good deal of urgent thought to both liberation and divinity, although he was not a liberation theologian: The Almighty has His own purposes. "Woe unto the world because of offences! for it must be that offences come; but woe to that man by whom the offence cometh!" If we shall suppose that American Slavery is one of those offences which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South, this terrible war, as the woe due to those by whom the offence came, shall we discern therein any departure from those divine attributes which the believers in a Living God always ascribe to Him?
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In other words, there are times when God puts up with injustices we would prefer Him to abolish, and other times when He abolishes them by means we would prefer Him not to use. As Lincoln said in commenting on his own speech: "Men are not flattered by being shown that there has been a difference of purpose between the Almighty and them." But if God has His own ways of dealing with injustice, and they are different from our ways, how can we claim eschatological validity for our own efforts, as liberation theology teaches us to do? The answer is simple enough: Although we cannot know when or how God will establish His Kingdom, we know our own part in His doing so. To free the oppressed is just, and it is to justice that God calls us. He is not limited by our understanding of justice, but we are. One of the great Gospel parables shows us that, while we are not to know when the Lord will come, we are expected to know what He wants to find us doing when He does come. Gustavo Gutiérrez, the doyen of liberation theologians, addresses himself at length to the problem of relating the efficacious pursuit of justice on our part to total freedom and gratuitousness on God's part. It is important in all his works, and is the main theme of his commentary on the Book of Job. He shows how Job, in dialogue with his friends and wouldbe comforters, rejects indignantly every claim that his suffering is in some way deserved. God, appearing in answer to Job's complaint, says he was right to insist that his suffering is undeserved, but wrong to try to hold God accountable for allowing undeserved suffering to happen. Job becomes reconciled to his situation after being kindly but firmly informed that God's purposes are beyond his comprehension: What is it that Job has understood? That justice does not reign in the world God has created? No. The truth that he has grasped and that has lifted him to the level of contemplation is that justice alone does not have the final say about how we are to speak of God. Only when we have come to realize that God's love is freely bestowed do we enter fully and definitively into the presence of the God of faith.
Page 177 Grace is not opposed to the quest of justice nor does it play it down; on the contrary, it gives it its full meaning. God's love, like a 11 true love, operates in a world not of cause and effect but of freedom and gratuitousness. This is how persons successfully encounter one another in a complete and unconditional way. . . .
Gutiérrez sees Job as paradigmatic of the world's poor, who suffer undeservedly as Job does. He insists that we must act effectively on their behalf: Concern for effective action is a way of expressing love for the other. The gratuitousness of the gift of the kingdom does not do away with effective action but rather calls for it all the more.
To be sure, the Almighty still has His own purposes, and they may not always be the same as the ones we are trying efficaciously to pursue. But there is no reason why they should have to be. Our service to our neighbors is less an implementation of God's love for them than a response to God's love for us. The effective deployment of the skills at our command is a measure of the seriousness of our response. Whatever its relation to the purposes of the Almighty, He calls us to it and blesses it. But when it comes to law, there is a little more to be said. Those of us who make and administer laws have our commissions from God, and our work, if we do it well, is a sign of His governance of the world. Law, as Jacques Ellul puts it, "nullifies itself" when it is false to that significance, whether by allowing death to have the last word in human affairs or by claiming that last word for itself or the social conditions it supports. Conversely, if we are faithful to our commission, we can trust that God will make use of our work in carrying out the governance it signifies.
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Notes and References The most important expression of the teaching of Marx and Engels is of course the Manifesto of the Communist Party, which has been published in many different editions. I have used the version in Marx and Engels, Basic Writings on Politics and Philosophy, L. Feuer ed. (Garden City, N.Y., Anchor Books, 1959), 1–41 (hereafter, Communist Manifesto). Other relevant writings of Marx and Engels are gathered in Marx and Engels on Law M. Cain and A. Hunt ed. (New York, Academic Press, 1979) (hereafter, Cain and Hunt). I have made extensive use of Hugh Collins, Marxism and Law (Oxford, Oxford Univ. Press, 1984) (hereafter, Collins). The specific references do not adequately express my debt to this work. For economic history, I have turned repeatedly to Ephraim Lipson, The Economic History of England (3 vols., London, Black, 1956) (hereafter, Lipson). It is admirably lucid and succinct in covering an enormous amount of material. The various teaching documents of the Catholic Church are divided into numbered sections, and are available in many editions and compilations. I have therefore cited them by title and section number only. My understanding of liberation theology is based mainly on Gustavo Gutiérrez, A Theology of Liberation, C. Inda and J. Eagleson trans. (Maryknoll, N.Y., Orbis, rev.ed., 1988) (hereafter, Gutiérrez). Preface p. xiii Jacob refers to his life as a pilgrimage in Gen. 47:0, and Christians are referred to as pilgrims in Heb. 11:13 and 1 Pet. 2:11. The reference to the kingdom as present in mystery is in Gaudium et Spes, § 39. The reference to the Last Supper is to John 14:5. "Eye has not seen nor ear heard" is from 1 Cor. 2:9. p. xiv The epistemological privilege of the poor is
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discussed in Thomas L. Schubeck, "Ethics and Liberation Theology," Theological Studies, lvi (1995), 107, 110, and works cited there. I found considerable light shed on the concept by Richard Wasserstrom in Philosophy and Social Issues (Notre Dame, Univ. of Notre Dame Press, 1980), 59, where he points out that black jurors, for very good reasons, are less apt than white jurors to believe that police witnesses are telling the truth. The call for solidarity with the poor is eloquently stated in Gutierrez, pp. xxx–xxxi. The reference to the Epistle of James is to 1:10. I— Pilgrim Law p. 1 The St. Germain reference is to Doctor and Student, Dialogue I, c. xxi. p. 2 The Hart reference is to The Concept of Law (Oxford, Oxford Univ. Press, 1961), 171–73 pp. 4–5 This formulation of Pound's doctrine appears in his Social Control through Law (New Haven, Yale Univ. Press, 1942), 65. pp. 6–7 The instrumentalist view is elegantly articulated by Karl Llewellyn in "Law Observance Versus Law Enforcement," in his Jurisprudence: Realism in Theory and Practice (Chicago, Univ. of Chicago Press, 1928), 399. Frankfuter's language is from his concurring opinion in Sherman v. United States, 356 U.S. 369, 380 (1957). pp. 8–9 The Theodosian Code, Clyde Pharr, ed. and trans. was published by Princeton Univ. Press in 1952. The order regarding runaway magistrates is 12:1:16. Medieval canonists are further discussed in my Ecclesiastical Administration in Medieval England (Notre Dame, Univ. of Notre Dame Press, 1977), 68–72. Macaulay's remarks are in his "Comic Dramatists of the Restoration" in his Miscellaneous Works, Trevelyan ed. (Harper, 1880), 109, 121, 126. pp. 12–13 The reference to the Second Vatican Council is to the opening paragraph of Gaudium et Spes. On the call to liberating service, see Gutiérrez, 139–40. The medieval
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understanding of liberty referred to in text is explored in Gerd Tellenbach, Church, State and Christian Society, R. Bennett trans. (Oxford, Blackwell, 1959). II— Social Justice and Liberation pp. 14–15 Blackstone's poem appears in David Lockmiller, Sir William Blackstone (Chapel Hill, Univ. of North Carolina Press, 1938), 193. The lines about officiously keeping alive are from Arthur Hugh Clough's ''The Latest Decalogue" (1862), quoted in The Oxford Dictionary of Quotations (4th ed., 1992). pp. 16–17 For an alternative, Kantian approach to the problem of assignability, see Onora O'Neill, "Justice and the Virtues," American Journal of Jurisprudence, xxxiv (1989), l. pp. 17–18 The reference to Butterfield is to The Whig Interpretation of History (London, Bell, 1931). Maritain's Law of the Ambivalence of History is in his On the Philosophy of History (New York, Scribner, 1957), 52–53. p. 19 Bierce's definition is in The Cynic's Word Book (New York, Doubleday, 1906), and in The Oxford Dictionary of Quotations (4th ed., 1992). pp. 19–21 The Javins case is 428 F.2d 1071 (D.C. Cir. 1970). American Textile is 452 U.S. 490. Note that the law and economics argument referred to in text may be flawed on its own terms. If the cost of not reducing the amount of cotton dust were determined on the basis of what a fully informed worker would require to accept the risk, there would be no way to make sure all workers were fully informed, and therefore no way to make the employer pay that much. Hence, the workers would be parting with something (their freedom from the risk in question) at less than their own asking price, and the transaction as a whole would be inefficient. pp. 21–23 See my "Law, Social Change, and the Ambivalence of History," Proc. of the Amer. Catholic Phil. Ass'n., xlix (1975), 164, and my "Law, History, and the Option for the
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Poor," Logos, vi (1985), 61. The reference to the Kingdom as "present in mystery" is in Gaudium et Spes, § 39. The point that the liberation of the oppressed is also a liberation of the oppressor is made explicitly in Gutiérrez, (1st ed., 1973) 275–76. The second edition (1988), although to the same effect, is less explicit. The hymn, "All Things Bright and Beautiful," is by Cecil Alexander, dated 1848. It appears under his name in The Oxford Dictionary of Quotations (4th ed., 1992). For obvious reasons, it tends to be left out of modern hymnals. But the first stanza has gained new currency by providing titles for James Herriot's books on veterinary practice. p. 26 The quotation from Rerum Novarum is in § 22. p. 27 The reference to St. Bernard is to his "Apologia to Abbot William," c. XII, § 28, in Works of Bernard of Clairvaux (Cistercian Fathers Series, 1970), 33, 65. pp. 28–29 The references and quotations are: G.M. Trevelyan, English Social History (London, Longmans, 1944), 379; T.B. Macaulay, Speeches on Politics and Literature, (London, Everyman's Library, 1909), 352; Basil Williams, The Whig Supremacy (Oxford, 1939), 143; Elie Halévy, England in 1815, trans. E. Watkin (London, Benn, 1961). III— Class and History pp. 33–34 The book referred to here is Milovan Djilas, The New Class (New York, Praeger, 1957). pp. 34–36 The book referred to is William H. Whyte, The Organization Man (Garden City, Doubleday, 1957). John Kenneth Galbraith, The New Industrial State (2d ed., Boston, Houghton Mifflin, 1971) generally supports the conclusions drawn in this section. p. 35 On the Odessa Bread Trust, see Boris Konstantinovsky, Soviet Law in Action, H. Berman ed. (Cambridge, Mass., Harvard Univ. Press, 1953). The Sverdlovsk Motor Works is a paradigmatic entity of my own invention. pp. 36–39 On class instrumentalism generally, see Collins, 17–
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34. On wages and prices, see Lipson, i, 113–18, 335–39. On enclosures, Id., i, 175–77; ii, 395–418. On the evolution of real property law, see T.F.T. Plucknett, A Concise History of the Common Law (5th ed., London, Butterworth, 1956), 506–627, and Lawrence M. Friedman, A History of American Law (2d ed., New York, Simon and Schuster, 1985), 412–38. Id., 467–87 deals with the fellow servant rule and other doctrines protecting entrepreneurs against tort liability. On the use of taxation to force Africans into the labor market, see Robert B. Seidman, "Law and Economic Development in Independent, English Speaking SubSaharan Africa", Wisconsin Law Review (1966), 999, 1013. The observations of Marx and Engels on the role of law in the transition from feudalism to capitalism are collected in Cain and Hunt, 69–84. Marx's discussion of the 1844 Factories Act is in Id., 254–57. On corporation law, see Friedman, supra, 511–25. The transition to a managerial version of the corporation has been noted in a good deal of literature, of which the seminal work is probably Adolf A. Berle, Jr. and Gardner C. Means, The Modern Corporation and Private Property, (New York, Commerce Clearing House, 1932). There is also of course an extensive literature on administrative law. The historical and theoretical material in Kenneth Culp Davis and Richard J. Pierce, Jr., Administrative Law Treatise (3d ed., Boston, Little, Brown, 1994), i, 1–106 brings it together pretty effectively. The view that the lawyer's role should be considered ancillary to the autonomy of the client has been consistently and vigorously advanced by Monroe Freedman, whose most recent book on the subject is Understanding Lawyers' Ethics (New York, Matthew Bender, 1990). It has evoked strenuous disagreement from a number of scholars, myself included. Examples of cases extending the First Amendment are Keyishian v. Board of Regents, 385 U.S. 589 (1967) (educators); Board of Education v. Pico, 457 U.S. 853 (1982) (librarians); Finley v. National Endowment for the Arts, 100 F.3d 671 (9th Cir. 1996) (art
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critics). For a discussion of the tension between Congress and the "arts community" behind the Finley case, see John H. Garvey, "Black and White Images," Law and Contemporary Problems, lvi (1993), 189. On the history of family law, see my Law and Liberation (Notre Dame, Univ. of Notre Dame Press, 1986), 153–60, 179–82, and, regarding the medieval period, my Lay Authority and Reformation in the English Church (Notre Dame, Univ. of Notre Dame Press, 1982), 48–49. Bankruptcy law is discussed in Friedman, supra, 269–75, 549–51. The somewhat tendentious interpretation of the effect of modern provisions for corporate reorganization is of course my own. pp. 39–41 Plucknett's The Legislation of Edward I was published at Oxford by the Oxford Univ. Press in 1949. The remark about consternation is on p. 26. Duke of Buccleugh v. Cowan and Sons is 5 Sess. Cas. 214 (1866), L.R. 2 A.C. 344 (1876). It is dealt with at length in the discussion of objections to class instrumentalism in Collins, 77–93. The Medical Committee case is 432 F.2d 659 (D.C. Cir. 1970). The applicable SEC rule is 14a8;. p. 42 The quotation is from Collins, 43. pp. 43–44 This description of feudalism is based mainly on F. M. Stenton, AngloSaxon England (2d ed. Oxford, Oxford Univ. Press, 1947), especially pages 302–3 and 626–29. See also Lipson, i, 21–3; Marc Bloch, Feudal Society, L.A. Manyon trans. (Chicago, Univ. of Chicago Press, 1964), chapters 11, 12, and 14, and my Ecclesiastical Administration in Medieval England (Notre Dame, Univ. of Notre Dame Press, 1977), 3–4. p. 45 The 1660 statute abolishing feudal dues was 12 Car. 2, c. 24. Blackstone's interpretation appears in Bl.Com., ii, 77, Marx's in Cain and Hunt, 73. For further discussions of commutation, see Lipson, i, 88–95; G. M. Trevelyan, English Social History (London, Longmans, 1944), 7–10. pp. 45–46 On the law merchant, see Harold J. Berman, Law and Revolution (Cambridge, Mass., Harvard Univ. Press, 1933), 333–56. On the action of assumpsit, see T.F.T.
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Plucknett, A Concise History, of the Common Law (5th ed., London, Butterworth, 1956), 637–56. p.46 On commons and early enclosures, see Lipson, i, 83, 137–38. The 1236 statute referred to is 20 Hen. 3, c. 4. On water power, see W.S. Holdsworth, A History of English Law, (London, Methuen, various editions and dates), vii, 338–39; Anon., Bro. N.C. 3, 73 Eng. Rep. 848 (1533). pp. 46–47 On fairs, guilds, and monopolies, see Lipson, i, 306–7, 415–17; ii, 172–73; iii, 359–86. pp. 47–48 On the corporate form, see Max Radin, Handbook of AngloAmerican Legal History (St. Paul, West, 1936), 472–85; Holdsworth, supra, iii, 484; viii, 206–22; xiii, 366–70; Lipson, i, 550, 572–77; ii, 193–370. The Bubble Act is 6 Geo. 1, c. 18. pp. 48–49 On the development of factories and capitalist power, see Lipson, i, 468–80; ii, 1–12, 103–4; Ephraim Lipson The Growth of English Society (London, Black, 1959), 75–109; Elie Halévy, England in 1815, E. Watkin trans. (London, Benn, 1961), 256–337. Cain and Hunt, 233–34 has an excerpt from Engels's treatment of the Corn Laws. Id., 69–78 indicates Marx's view of the part played by law in the etablishment of the capitalist system. p. 51 The Statute of Merchants is 13 Edw. 1, St. 3. For later developments of the same ideology, see my "Due Process and Social Legislation in the Supreme Court — A Post Mortem," Notre Dame Lawyer, xxxiii (1957), 5. IV— False Consciousness pp. 55–56 Macaulay's speech on the People's Charter appears in T.B. Macaulay, Speeches on Politics and Literature (London, Everyman's Library, 1909), 189–99. The quoted passage is on p. 196. The Marxist understanding of false consciousness is stated in Collins, 40. My own understanding is somewhat different, as will appear at the end of this chapter. p. 57 The case of the knight not doing public penance is in "Some Early Visitation Rolls Preserved at Canterbury,"
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Archeologia Cantiana, xxxii (1917), 143, 164. pp. 58–59 See my "Due Process and Social Legislation in the Supreme Court — A Post Mortem," Notre Dame Lawyer, xxxiii (1957), 5. The Coppage case is 236 U.S. 1, and the quoted passage is on p. 17. p. 62 On the general, see Felix S. Cohen, Ethical Systems and Legal Ideals (New York, Falcon Press, 1933), 61. p. 63 The traditional Catholic doctrine regarding private property is nicely set forth in Drostan Maclaren, Private Property and the Natural Law (Aquinas Paper No. 8, Oxford, Blackfriars, 1948). The rhyme about the goose and the common crops up in a number of places with different attributions and wordings. This version is from Christopher Hill, The Century of Revolution, 1603–1714 (London, Nelson, 1961), 151. pp. 64–65 Buckley v. Valeo is 424 U.S. 1. The English translation of Vyshinsky's book by Hugh W. Babb was published in New York by Macmillian in 1954. The critique of bourgeois rights is mostly in Chapters 1 and 9. The corporate free speech case is First National Bank of Boston v. Bellotti, 435 U.S. 775 (1978). The quoted passage is on p. 778. Justice White's dissenting opinion, joined by Justices Brennan and Marshall, expresses the real question very clearly: "The Court . . . holds that the First Amendment guarantees corporate managers the right to use not only their personal funds, but also those of the corporation, to circulate fact and opinion irrelevant to the business placed in their charge. . . ." 435 U.S. 802, 803. Chief Justice Burger's concurring opinion, 435 U.S. 795 and Justice Rehnquist's dissent, 435 U.S. 822, are somewhere between Powell's anthropomorphism and White's realism. The anthropomorphic view seems generally to prevail in the literature. L. Tribe, American Constitutional Law (Mineola, N.Y., Foundation Press, 1988), 796, says "the view that corporate speech is constitutionally protected remains controversial." The much less tenable view that it is possible seems to remain unquestioned. Thurman W. Arnold, The Folklore of Capitalism was published by the Yale University Press in
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1937. The quotation is from p.118. The references to theology are pervasive; for examples see pp. 184, 348, 378. p. 68 Estate of Thornton v. Caldor, 472 U.S. 703 (1985) invalidated a state statute requiring empoyers to allow their employees not to work on days when their religion forbade them to do so. The statute was considered an unconstitutional establishment of religion because it favored people staying away from work for religious reasons over people staying away for other reasons. The case on cohabitation on military bases is Shaap v. Canada (Canadian Armed Forces), 56 D.L.R. 4th 105 (F.C.A. 1988). Miron v. Trudel, 100 D.L.R. 4th 693 (1995) indicates that the Supreme Court of Canada would agree with the holding in Schaap. pp. 68–74 This discussion of freedom and equality owes a good deal to chapters 5 and 6 of Lloyd L. Weinreb, Natural Law and Justice, (Cambridge, Mass., Harvard Univ. Press, 1987). See my review in American Journal of Jurisprudence, xxxiv (1989), 256. The classical and medieval understanding of freedom is elaborated in Gerd Tellenbach, Church, State and Christian Society, R. Bennett trans. (Oxford, Blackwell, 1959). It is also implicit in Leo XIII's Encyclical, Libertas Praestantissimum (1888). For a Marxist view of freedom under capitalism, see A. Y. Vyshinsky, The Law of the Soviet State, H. Babb trans. (New York, Macmillan, 1954), 610–18. p. 70 Lincoln's words come from an address to a Sanitary Fair in Baltimore on April 18, 1864. They are in J. Bartlett, Familiar Quotations (15th ed., Boston, Little Brown, 1980), 523. The quoted authority on legal ethics is Monroe Freedman, and the quotation is from his Understanding Lawyers' Ethics (New York, Matthew Bender, 1990), 57. p. 71 The quotation is from Leo XIII, Quod Apostolici Muneris (1878), § 5. pp. 72–73 The Jefferson quotation is from a letter of 1816. The Portable Jefferson M. Peterson ed. (New York, Penguin
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Books, 1975), 555. Maine's dictum is in Ancient Law (London, Murray, 1861), 170. The quotation from Marx and Engels is in Communist Manifesto, 9. For rhetorical effect, I have been a little free in my translation of Anatole France's: "Dans tout Etat policé, la richesse est chose sacrée; dans les democraties elle est la seule chose sacrée." It is in The Oxford Dictionary of Quotations (4th ed., 1992), 292, where it is attributed to L'Ile des pingouins (1908), pt. 6, c 2. pp. 73–74 Michael Young's book is The Rise of the Meritocracy, 1870–2033 (London, Thames and Hudson, 1958). The Kaus quotations are from "The End of Equality," The New Republic, June 22, 1992, p. 21. Kaus's views are developed in a book of the same name published by Basic Books in 1992. pp. 75–77 Ulysses's speech is in Act I, Scene III of Troilus and Cressida. The first quotation from Rerum Novarum is from § § 10–11, the second from § 45. The quotation from Marx and Engels appears partly on p. 21 of Communist Manifesto, partly on p. 23. pp. 78–79 Quadragesimo Anno deals with the Fascist state in § § 88–98. The quoted passage is from § 95. In the other documents referred to, note particularly Mater et Magistra, § § 59–67, Pacem in Terris, § § 147–56, and Gaudium et Spes, § § 40–44, 56, and 72. The quoted language is from Gaudium et Spes, § 43. pp. 80–82 The language about expertise is from §43 of Gaudium et Spes. The first quotation from Centesimus Annus is in § § 32–33, the second in § 25. The language about having no models is in § 43. p. 84 The Communist Manifesto quotation is on p. 20. pp. 84–85 See my critique of the CLS movement in Journal of Legal Education, xxxix (1989), 141. pp. 87–88 Prise de conscience is introduced in Jacques Maritain, On the Philosophy of History (New York, Scribner, 1957), 69. See also the discussion of the progress of the moral conscience in Id., 104–11. The quotation is from p. 107. pp. 88–89 The quotation is from Collins, 40.
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V— The Preferential Option for the Poor p. 95 See Abraham Joshua Heschel's definition of freedom as openness to transcendence: "The Religious Message," in Religion in America, J. Cogley ed. (1958), 244, 260–61. I was present when Rabbi Heschel delivered this paper the year before it was published, and his definition has had an important place in my thinking ever since. pp. 96–97 On the antecedents of the preferential option terminology and its adoption at Puebla, see Gutiérrez, pp. xxv–xxviii. See also Rerum Novarum, § 37. The term is used in § 52 of the American bishops', pastoral, Economic Justice for All (Washington, National Council of Catholic Bishops, 1986). The two quotations are taken from the same section. The term is used in § 57 of Centesimus Annus. The quotation from Gutiérrez is from an address at Notre Dame on March 16, 1989. The text was distributed and I have a copy, but as far as I know it has not been published. pp. 98–99 This Gutiérrez quotation is from the same address. Ellul's phrase is in The Theological Foundation of Law, M. Wieser trans. (Garden City, Doubleday, 1960), 103. p. 100 The 1834 Poor Law, 4 & 5 Will. 4, c. 76, is discussed in Elie Halévy, The Triumph of Reform, E. Watkin trans. (London, Benn, 1961), 119–29. pp. 100–1 There is of course an extensive literature of law and economics. A. Mitchell Polinsky, An Introduction to Law and Economics, (Boston, Little, Brown, 1983) makes the subject nicely accessible. So does Richard A. Posner, "Wealth Maximization Revisited," Notre Dame Journal of Law, Ethics & Public Policy, ii (1985), 85. pp. 101–2 Rawls's A Theory of Justice was published by Harvard Univ. Press in 1971. Amy Gutmann, in Liberal Equality (New York, Cambridge Univ. Press, 1980), 124–35, offers a criticism of the difference principle rather similar to mine. She also suggests that even if the principle is useful in some contexts, it must give way before a welfare right that she refers to as "basic effective
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liberty." Some people's basic needs exceed their pro rata share of the available resources, yet no one else is better off for those needs being met. The obvious example is a person with a serious physical disability. In addition, the difference principle is open to an objection that relates to Rawls's whole enterprise. He derives it from his theory that a just ordering of society is one that would commend itself to a person who did not know what his or her own position would be in that ordering. For the theory to work, the hypothetical person in question must be neither risk preferring nor risk averse, and must feel neither envy nor pity nor vicarious pleasures or pains—must be, in other words, something different from a real human being. p. 103 The quotation from Yeast is in Chapter 6. It is on p. 108 of the volume in the 1899 edition of Kingsley's collected works. p. 107 There is an entry on Alinsky, with references to several books about him, in the Ninth Supplement to the Dictionary of American Biography. VI— Law and Accountability p. 114 The case of the felon who learned to read while in jail is from 1384, and is referred to in a note in 2 Dyer 205, 73 Eng. Rep. 453. pp. 115–16 See C. Curran, "Epikeia," New Catholic Encyclopedia, v (1967), 476. St. Thomas Aquinas discusses the city gate question in Summa Theologica, I, II, Q. 96, art. 6. J.R. v. M.P. is Y.B. 37 Hen. 6, 13, pl. 3. I have used a translation in Cases and Other Materials on Civil Procedure, A. Scott and R. Kent ed. (Boston, Little, Brown, 1967), 107. On dispensations, see my Ecclesiastical Administration in Medieval England (Notre Dame, Univ. of Notre Dame press, 1977), 84–86. Hudson's Treatise of the Court of Star Chamber was not printed until 1792. That edition was reprinted by the Legal Classics Library, Birmingham, Ala. in 1986. The quoted language is on p. 4. As it takes some work to get through Hudson's convoluted syntax, I offer the following
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paraphrase: England has always had an extraordinary and expeditious court to conserve the peace of the kingdom as well as an ordinary form of prosecution where there was no situation in which the bleeding state required a speedy remedy.
pp. 116–18 See my ''Due Process and Social Legislation in the Supreme Court," Notre Dame Lawyer, xxxiii (1957) 5. On unenforceability of contracts, see Restatement of Contracts, §§ 367, 492–99; Restatement of Contracts Second, §§ 208, 166–69, 177. The section of the Uniform Commercial Code referred to is 2–302. On intrafamily tort liability, see Restatement of Torts Second, §§895F and 895G, with accompanying notes. The values involved in intrafamily tort liability are, of course, greatly complicated by the presence of insurance. See Woodruff v. Tomlin, 616 F.2d 924 (6th Cir. 1980). pp. 119–20 The Pound quotation is from The Spirit of the Common Law (Boston, Marshall Jones, 1921), 81. pp. 120–24 The Unger quotations are from The Critical Legal Studies Movement (Cambridge, Mass., Harvard Univ. Press, 1980) in the following order: 7, 21– 2, 117, 112–13, 104, 104. p. 129 Rights Talk was published in New York by the Free Press in 1991. See my review in American Journal of Jurisprudence, xl (1995), 411. pp. 129–30 See Parkinson's Law (Boston, Houghton Mifflin, 1957). p. 134 The shaved head ruling in the Citadel case is reported in a number of newspapers, including the New York Times, August 2, 1994, page A14, col. 6. It does not appear in the law reports, but it is referred to in Faulkner v. Jones, 51 F.3d 440, 443n (4th Cir. 1995), where the shave is euphemistically called a haircut. The woman's lawyer pointed out that she was being teated as French women who collaborated with the Nazis were treated after World War II. pp. 135–37 The quotations are from Catherine A. MacKinnon, "Pornography, Civil Rights, and Speech," Harvard Civil
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RightsCivil Liberties Law Review, xx (1985), 1, 18, and 19. p. 139 The quotation is from Gaudium et Spes, § 76. VII— The Second Sword pp. 140–43 The analysis of the churchstate nexus in terms of Erastian and High Church elements is further developed in my "The Last Days of Erastianism—Forms in the American ChurchState Nexus,"Harvard Theol. Rev., lxii (1969), 301 and "Pluralist Christendom and the Christian Civil Magistrate," Cap. U.L. Rev., viii (1979), 413. p. 143 Some cases on the assimilation of prayers and masses to feudal dues are collected in my Lay Authority and Reformation in the Engish Church (Notre Dame, Univ. of Notre Dame Press, 1982), 250, n.8. pp. 146–48 The quotations are from Leonardo Boff, Church: Charism and Power, J. Diercksmeier trans. (New York, Crossroad, 1985), 6 and 116. Boff's discussion of base communities is on pp. 125–37, that of charisms on pp. 154–64. He deals with talent as a charism on p. 161. p. 150 The quotations are from Rotuli Parliamentorum (6 vols., London, 1783), i, 1219a (1307) and iv, 158a (1421). The first was repeated in the preamble to the Statute of Provisors, 25 Edw. 3, St. 6 (1350). The second was in a petition by the physicians against unlicensed practitioners. pp. 151–52 The quotation is from H. Carroll, The Religious Forces of the United States (New York, Christian Literature Co., 1893) pp. 152–55 The quotations, in order, are: T. B. Macaulay, Speeches on Politics and Literature (London, Everyman's Library, 1909), 288–89; Wiliam H. Whyte, The Organization Man (Garden City, Doubleday, 1957), 418; Gerd Tellenbach, Church, State and Christian Society, R. Bennett trans. (Oxford, Blackwell, 1959), 1; Marc Bloch, Feudal Society, L.A. Manyon trans. (Chicago, Univ. of Chicago Press 1964) i, 232. p. 156 Buber addresses the opportunity for dialogue within
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the managerial world especially in the "Conversation with the Opponent" at the end of his essay, "Dialogue," in Between Man and Man, R.G. Smith trans. (New York, Macmillan, 1965), 34–39. p. 157 On the elite character of the spiritual life, see Gustavo Gutiérrez, We Drink from our Own Wells, M.J. O'Connell trans. (Maryknoll, N.Y., Orbis, 1984), 13–16. The quotation is from Elie Halévy, England in 1815, E. Watkin trans. (London, Benn, 1961), 284. pp. 159–160 Audi's doctrine is set forth in "The Separation of Church and State and the Obligations of Citizenship," Philosophy & Public Affairs, xviii (1989), 258. The quoted language is on p. 278. pp. 160–166 This Land is Home to Me appears (among other places) on pages 472–515 of Renewing the Earth, O'Brien and Shannon ed. (Garden City, Image Books, 1977). The excerpts here are taken from the following pages, in order: 483, 485, 473–74, 498–99, 473, 496, 490, 473, 513. p. 163 The idea of authoritativeness and specificity as tradeoffs is one I owe to the Rev. J. Bryan Hehir. It has been developed in a great many of his speeches and writings (though not in those terms). See for instance his "From the Pastoral Constitution of Vatican II to the Challenge of Peace" in Catholics and Nuclear War (New York, Crossroad, 1983), 70. p. 168 The American bishops' economics pastoral is Economic Justice for All (Washington, National Council of Catholic Bishops, 1986). The Candian bishops' Ethical Reflections (actually, a document not of the whole episcopate but of their Social Affairs Commission) was published in Origins, xii (1983), 521. p. 169 "Already present in mystery" is from Gaudium et Spes, § 39. p. 170 The quotation is from Gaudium et Spes, § 21. p. 170 The status of St. John Nepomucene as martyr to the seal of the confessional is in some doubt. Compare the article by J. Kirsch in Catholic Ency., viii (1910), 467 with that by B. Sczeczniak in New Catholic Ency., vii (1967), 1062.
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VIII— Conclusion pp. 175–76 Lincoln's speech and his comment are both quoted in Carl Sandburg, Abraham Lincoln (One volume ed., New York, Harcourt, Brace, 1954), 664– 65. The speech, the Second Inaugural, has of course been published and quoted in many other places. pp. 176–77 The Gospel parable referred to is Matt. 24:44–51; Luke 12:35–40. The two quotations from Gutiérrez are On Job, M.J. O'Connell trans. (Maryknoll, N. Y., 1987), 87–88 and We Drink from our Own Wells, M.J. O'Connell trans. (Maryknoll, N.Y., Orbis, 1984), 108. Ellul's reference to law nullifying itself is in The Theological Foundation of Law, M.Weiser trans. (Garden City, Doubleday, 1960), 101.
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Index A Abortion, 71 Accountability, xiv–xv, 52–54, 112–39 and preferential option for the poor, 107–11 Alinsky, Saul, 107 American Legal Realist school of jurisprudence, 66 American TextileManufacturers Institute v. Donovan (1981), 20–21 Antipoverty program, 107, 153–54 Arnold, Thurman, The Folklore of Capitalism, 65 Assignability, problem of, 16 Audi, Robert, 159–60 B Bentham, Jeremy, 5 Berman, Harold, 45 Bierce, Ambrose, 19 Blackstone, William, 45 poem by, 14 Bloch, Marc, Feudal Society, 155 Boff, Leonardo, Church, Charism and Power, 146–48 Bubble Act (1720), 47–48 Buckley v. Valeo (1976), 64–65 Buber, Martin, 156 Butterfield, Herbert, 17 C Canada, bishops of, 168 Federal Court of Appeals of, and cohabiting couples, 68 Canon Law 9, 115, 144 Capitalist class accountability of, 52–53 church under, 150–53, 144, 145–56 equality under, 72–73 freedom under, 79 jurisprudence under, 113, 116–17 laws limiting, 40 laws supporting, 37–38, 58–61 rise of, 44–49, 51 Centesimus Annus, 80–82, 96 Church, the, 138–39, 140–73 establishment of, 152–53 and pluralist state, 158–62, 170–73 suburban, 153 teaching authority, 162–66 under capitalism, 144, 145–46 under feudalism, 143, 145, 150 under managerialism, 144, 146–48 Citadel case, 134
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Civil rights, 7 Class instrumentalism, 36–43 Class structure and class conflict and accountability, 124–32 as fact 23–24 and false consciousness, 85–90 and divine Providence 24–25, 57 evolution of, 27–30, 42–43, 43–54, Marxist doctrine regarding, 83–84 and responsibility of ruling class, 25–27 and values, 91–93 see also Capitalist class, Feudal landholding class, Managerial class, Values Collins, Hugh, 42, 88–89 Common good, 5, 86 Communism in China, 49 in Eastern Europe, 43, 49, 80–82 Communist Manifesto, 72–73, 84, 148 Constantinianism, xv–xvi Contracts, 45–46, 117, 120–21 constitutional protection of, 59 unconscionable, 59, 117, 120 Coppage v. Kansas (1915), 58–59, 64 Corn Laws (1815), 48 Corporation law, 38, 40–41, 47–48 Costbenefit analysis, 21, 99–100, 109–10 Critical Legal Studies, 84–85, 94, 120–24 D Debtors, laws regarding, 38–39 Djilas, Milovan, The New Class, xi, 33–36, 84, 105–6 Duke of Buccleugh v. Cowan and Sons, 40 E Economic Justice for All (American bishops' pastoral), 96–97 Economics, law and, 5, 19–21, 100–1 Ellul, Jacques, The Theological Foundation of Law, 98–99, 177 Enclosures, 27, 37, 46 Engels, Friedrich, see Marxism,Communism, Communist Manifesto Entrapment, 7 Epikeia, 115–16 Equality, 71–74, 93, 95 Erastianism, 141–42, 166–68 under capitalism, 150–53 under feudalism, 150 under managerialism, 153–54 Eschatology, xii, 10–11, 21–23, 95, 176 Ethical Reflections on the Economic Crisis (Canadian bishops' pastoral), 168 F Factories Act (1844), 38 False consciousness, 55–93 Marxist definition of, 88–89 my definition of, 85–86 Family law, 38, 117 Fascism, Quadragesimo Anno and, 78–79 Feudal landholding class, accountability of, 52–53
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church under, 143, 145, 150, 171 equality under, 71–72 freedom under, 68–69 jurisprudence under 113, 115–16 laws limiting, 39 laws supporting, 37, 57–58 rise of, 43–44, 51 First Amendment, 38, 42, 64, 66, 172 Frankfurter, Felix, 7 Freedman, Monroe, 70 Freedom, 13, 68–71, 93, 95 see also First Amendment G Gaudium et Spes, xvii, 4, 12, 23, 80, 130, 169, 170 Glendon, Mary Ann, Rights Talk, 129 Gorbachev, Mikhail, 34 Gutiérrez, Gustavo, xi, 13 97, 99, 176–77 H Halévy, Elie, 29, 157 Hart, H.L.A, 2 Health care, 104 High Churchmanship, 141, 142–43, 154–58, 168–9 under capitalism, 155–57 under feudalism, 154–55 under managerialism, 156, 157 Historical school of jurisprudence, 4 History, 94, 95–96 ambivalence of, 18 intractability of, xii, 17–19, 22 Holmes, Oliver W., 59 Homelessness and social justice, 16 I Ideology, 65–85 "end" of, 9 Investiture controversy, 171 J J.R. v. M.P. (1459), 115–16 Javins v. First National Realty Corp. (1971), 19 Jehovah's Witnesses, and blood transfusions, 159 Jefferson, Thomas, 72 Jurisprudence, xiii, 1–3, 112–24 Justice 14–17, 22 commutative, 119 social, see Social justice K Kaus, Mickey, 73–74 Kingdom of God, 8, 11, 23, 169–70, 176 Kingsley, Charles, Yeast (novel), 103 L Labor and laborers, status and rights of, 45, 58–61, 76–77 Landlord and Tenant law, 19–20 Law class instrumentalism of 36–43 didactic operation of, 6–8 and economics, see Economics instrumental operation of, 6–8 moral basis of, 50–52 Legal profession 38, 70, 89–90, 105, 130, 132–34, 177 Model Rules of Professional Conduct, 133 Liberalism, 66–74, 93 Liberation, theology of, xi–xv and eschatology, 22–23
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and pilgrim law 13, 94–96, 174–77 Lincoln, Abraham, 70, 175–76 M Macaulay, Thomas, 9, 28, 55–56, 152–53 MacKinnon, Catherine T., 136–37 Maine, Sir Henry, 72, 114 Managerial class, accountability of, 53–54, 66, 127–31 church under, 144, 146–48, 172 equality under, 73–74 freedom under, 69–71 jurisprudence under, 114–15, 117–20 laws limiting, 40–41 laws supporting 38–39 rise of 49–50, 52 Maritain, Jacques, 18, 87–88 Market, the, 53, 58–61 Marx, Karl, see Marxism, Communism, Communist Manifesto Marxism, 27, 31–32, 36–37, 39–42, 87–89, 93–94 and false consciousness, 84 see also, Communism, Communist Manifesto Mater et Magistra, 80 Medical Committee for Human Rights v. SEC, 40–41 Medieval law, 9, 37, 39–40, 43–48, 51, 150 Merchants, law of, 45 Statute of (1285), 51 Meritocracy, 74 Monopolies, 46–47 N Natural law, 4, 5, 74–82, and eschatology, 10, 95 and hierarchy, 75–76 and pilgrim law, xv, 13 and politics in Massachusetts, 9 and property, 76 requirements of, 15, 109–11 and rights of workers, 76–77 P Pacem in Terris, 80 Parkinson, C. Northcote, Parkinson's Law, 129–30 People's Charter (1842), 55–56 Pilgrim law applied, 11–13, 94–96 defined, 11 requirements of, 15, 110 Plucknett, T.F.T., Legislation of Edward I., 39 Poland, Solidarity movement in, 33–34 Poor, the as clientele, 105 definition of, 97–99 as power base, 105–7 preferential option for, xiii–xv, 96–99, 102–11 and voluntary poverty, 97–98 Poor Law, English (1834), 100 Pornography, 42, 134–37 Pound, Roscoe, 4, 5, 9, 17, 119–20 Populorum Progressio, 80 Prise de conscience, 87–88, 92–93, 110, 131–32, 134–37 Process, law and, 53–54 61–63 Property, 59, 63–65, 76–77 Q Quadragesimo Anno, 78–80
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R Rawls, John, A Theory of Justice, 101–2 Rerum Novarum, 26, 71, 76–77 Rights, 129 Roman Empire, 8, 171 S St. Germain, Christopher, 1 Shakespeare, William, 75–76 Social justice, 16–17, 18–19, 22, 119–20 and class, 26–27 Sociological school of jurisprudence, xii, 4, 17–19 Star Chamber Hudson treatise on, 116 T Tellenbach, Gerd, Church, State and Christian Society, 154–55 Theodosian Code, 8 Theology and false consciousness, 82–83, 93 liberation, see Liberation theology, This Land is Home to Me (Appalachian bishops' pastoral), 160–66 Trevelyan, G.M., 28 U Unger, Roberto, 120–24 United States Supreme Court and Establishment Clause, 172 and Sunday observance, 68 See also particular cases Utilitarianism, 100 V Values, 3–10, 51–52, 85–90, 109, 112–37 church and, 144–50 class, 91, 112–14, 125–27 inchoate, 91–92, 131–32, 134–37 independent, 92–93, 114–20, 127–31 subjectivity of, 66–68 Voluntary Principle, 151–52, 171–72 Vyshinsky, Andrei, The Law of the Soviet State, 64 W Water power, law regarding, 46 Whyte, William H. The Organization Man 34–35, 153 Williams, Basil, The Whig Supremacy 28–29 Wright, Skelly, 19–20 Y Young, Michael, 74