Now that Saddam Hussein has been
captured, and the long process of restoring the Islamic world to
full participation in the human community has begun, perhaps we can
take note of the very strange period through which we have just
passed -- a period in which it is as if many among the old elites of
the West seemed almost to be taking the side of the dictator against
his people and against their liberator.
Observers of the mysterious ebbs and
flows of cultural emotion have been almost at a loss, for example,
how to account for the recent toppling of a makeshift statue of
George Bush in London during the President's visit to our old
ally. The symbolism is rich and strange indeed -- it would seem to
mean a desire to bring about the restoration of Saddam Hussein,
whose statue was pulled down by Iraqi supporters of George Bush. How
could such decent humane people as the pacifist protesters want such
a restoration? Were they just clumsy in their iconography? But the
semiotics of the act are complex and not entirely unambiguous. There
is an odd echo of the liberty statue at Tiananmen Square that will need to be explained if we are
to understand what is happening here. That this cultural current
runs deep needs no more indication than the recent British movie Love, Actually in which the
hero is a British Prime Minister who defies a bullying American
President to great applause, a movie which begins by pooh-poohing
the importance of the destruction of the World Trade Center, and
stars -- as a Prime Minister who dates a smitten junior employee --
an actor once caught in America in an act of
fellatio.
Thomas Friedman, in a column in the New York Times, expressed
sheer bemusement at the anti-American demonstrations -- despite his
evident fear, confessed in his piece, of his own wife's disapproval.
What he found astonishing is that this symbolic cancellation of the
Baghdad toppling took place on the same day the
British Consul General and several other compatriots of the
protesters had just been murdered by the very people who are even
now trying to reinstate Hussein.
The same phenomena are occurring, more
amazing still, in the United States of
America, where many once temperate liberal
commentators have cheerfully declared their hatred for George Bush.
This rage has been accompanied by an open contempt for and dismissal
of the 2/3 of the Iraqi population who, by the evidence of the
polls, welcome the overthrow of Saddam Hussein. Again, the semiotics
point to an intense though repressed sympathy for the former Iraqi
regime and a profound fear of what Bush intends to bring to
Iraq -- that is, an empowerment of its people
and a proof of the efficacy of freedom.
How to explain what is going on? The
resurgence of anti-semitism in itself can only be part of the
answer, despite Abraham Foxman's perceptive analysis in his recent
book Never Again? The
deep psychological markers of mourning for Saddam and hatred for his
destroyer are found quite as frequently among American liberal Jews
as among gentiles. Usually if we cannot understand something by the
arrangement of its parts at any given moment, we will find the
explanation in its history.
The Nature of
Law
So let us take a look at history,
especially the history of our most fundamental intuitions about the
nature of law. Laws seem, as many philosophers have opined, to be
based on one of two foundations: what is good, and what is right.
Very roughly, the distinction can be found in the difference between
our own two traditions, of Roman law, and English common law;
further back, between the ancient Hebrew ritual law, and the code of
Hammurabi. Legal experts will, I hope, forgive the many exceptions
to these generalizations for their usefulness as an analytic tool of
thought.
The distinction, even more generally, is
between what is commanded of us by the gods or God (or, in later
ages, by Humanity, by Nature, by Reason, or by Popular Will) on one
hand; and what is required of us in the honest fulfillment of a
contract, on the other. The former, which finds its Western origins
in ancient Israel (and can be found also in the Confucian legal
system of ancient China), sees law as a way to enforce the good --
the good as a transcendent endowment of human society that we can
partly intuit, especially if we are talented, trained, learned, and
morally upright. The latter, which can be identified roughly with
the Hammurabic, Solonic, and English Common Law traditions, sees
laws as the way to make sure the humble contracts that human beings
make with each other have the support they need over and above the
natural sanctions built into our families, our markets, and our
practical agreed systems of mutual trust. The first emphasizes the
good, the second, the right.
The Jewish moral law was, for a time,
enforced by the civil authorities of ancient
Israel. But with the destruction of the
Israelite monarchy in 587 BC, a profound reevaluation of the laws of
goodness began, one that is still continuing in the Jewish
community. God had evidently found something lacking, the Prophets
said, in the literalism and the abuses of a law that afforded so
much power to the authorities and left so little to the spontaneous
free choice of just individuals. Perhaps the law of goodness was to
be kept, not in the hands of armed enforcers, but in the human heart
and soul enlightened by the inner voice of Adonai. Thereafter Jews
found and punctiliously obeyed the laws of contract they found among
other peoples, and kept their free ethical observance of the law of
the good to themselves -- until the coming of the Jewish State in
the twentieth century, when with the revival of secular power the
enforceability of orthodoxy once more became an
issue.
Roman law, though again it was based upon
a transcendent conception of the good, made many concessions to the
low demands of commerce. It gave much authority over to local
magnates, capos, and dons, so that in exchange for a local return to
the patriarchal customs of the tribe, there would be a general
concession to the legal supremacy of the Senate (and later, the
Emperor). However, such laws did not provide for the increasing
numbers of helpless indigents that are spawned by mercantile padrón
systems everywhere.
Christianity, which began with a purely
internal and voluntary law of the good -- love thy neighbor -- had
inherited the inner ideals of the old Jewish moral law. But it was
purged now, Christians believed, of a great burden of its literalism
and legalism, and reinforced by the blazing hope of salvation and
faith in the redemption. This new religion gradually created for
itself the role of the Empire's welfare system. Finally the Empire
itself simply could not manage without it, and was itself forced,
under Constantine, to become the secular enforcer of
Christian moral law. As the Roman Empire crumbled, the ideal of a
society in which the highest moral precepts, enjoined by God, would
be enforced by the State, burned brighter and brighter in the
imagination of the world. The result was finally the birth of
Islamic law, or the Sharia, in the seventh century AD. Sharia
systematized and perfected the law of the good, and embodied one of
the most beautiful, and tragically flawed, visions of society that
our species had yet achieved.
All societies based on the enforcement of
a law of good have tended to stagnate, wither, and eventually die.
The Soviet
Union is a nice
test case: based on noble principles of humane goodness, and
enforced by a perfect system of coercion, it lasted exactly one
lifetime, full of unbelievable carnage, before cracking and falling
into dust. It took the Holy Roman Empire much longer to collapse, because it was
still "corrupted" by the contractual pragmatism of the right, and
was so inefficient and far-flung that it could not fully enforce its
own principles. It took even longer for the Islamic empire of the
Ottomans and the Confucian empire of
China to sink into their long decay, but decay
they did.
The Law of
Right
Meanwhile another conception of law was
gaining ground: the law of right, rather than of good. The code of
Hammurabi had arisen at around 1700 BC to protect the golden goose
of Mesopotamian business enterprise. Its practical wisdom would
eventually leaven the mysterious prescriptions of Leviticus and the
pollution-and-purification ritual of Roman law, and give Roman and
Jewish civilization the tools to prosper economically. However, in
its homeland Hammurabic law could not control the political
ambitions of the Persian Empire, which overreached itself and fell
victim at last to the Greeks under Alexander. Hammurabi's core ideas
had been incorporated into the new and improved version, the Greek
laws of Solon, where the laws of contract turned out not to need an
emperor to preserve them, but to be equally enforceable by a
democracy, a republic, or a legally constrained monarchy of free
men. The principles of Hammurabi took on a new lease of life. But
Greek law of right was adapted only to the city, and was fatally
vulnerable to strict limits of size: it consumed itself in
inter-city conflict, was undermined by elitist Platonic yearnings
for a law of the good, and was overwhelmed by the more pragmatic
ecumenism of the Roman Republic. With the Greek city-states died the
first great attempt at a law of right.
The second great attempt at a society
based on a law of right -- one that succeeded -- arose in the north
with the slow maturing of the neolithic laws of the Germanic tribes
into a haphazard and populist collection of rules to secure and
sanction the boundaries of a marketplace. As it evolved with its
juries, its torts, its precedents, its limitations on monarchic
power, its defense of the local rights of civil society, and its
astonishing capacity for commercial and technological innovation, it
came to dominate the world. Finally the Christian Church was forced
to acknowledge the secular dominance of the law of right. After the
agonizing upheavals of the Reformation, Christianity was able to
internalize the law of good, as the Israelites had been forced to do
two thousand years earlier, and abandon the inquisitorial attempt to
enforce it externally by secular means. Render unto Caesar that
which is Caesar's, and unto God that which is God's; and now that
Caesar made no claim to a law of the good, but wanted only to
enforce the right, the way was open for the Enlightenment
compromise, in which the Church could have men's souls if the State
could claim men's bodies and enrich -- and tax -- men's
pocketbooks.
But the yearning for an enforced law of
the good could not be eradicated from men's souls, and though two
great regimes -- Britain and
America -- had largely freed themselves from the
law of good, Romanticism and the age of revolutions saw a massive
swing toward the ideals of the higher moral law. The result was all
the various contenders for the role of secular enforcer of world
morality -- Jacobinism, Communism, democratic socialism, Nazism,
Fascism, and so on. Almost all despised Judaism and Christianity for
having abandoned, as they saw it, the role of secular enforcer of
goodness. They hated Judaism especially for having, in their view,
succeeded so very well economically and culturally without the help
of a state at all, and for having been able, they felt, to combine
an inner, voluntary, community solidarity with an adroit and
profitable expertise in the outer realm of
contracts.
In the last few decades, however, in the
light of the huge economic and cultural success of the nations that
clung to the law of right, there has been a decisive swing back in
that direction. Dozens of regimes have adopted free market policies,
have at least in theory signed on to Hernando de Soto's drive to
give poor people the legal right to their own property (thus freeing
them from moral peonage to a paternalistic government), and have
submitted themselves to the contractual discipline of the IMF, the
WTO, and the World Bank.
Goodness and
Freedom
Let it be said at once that this essay is
not an attack on the law of good, nor simply a paean to the law of
right. The laws of good apply still more strongly to the individual
conscience as the secular enforcement of them diminishes. They apply
also to the free institutions of civil society (protected from each
other, as they must be, by the law of right). The absolute claims of
the law of good that make it so dangerous when armed with secular
power are precisely what generate the decent conduct without which a
good society is impossible. If the enthusiasts of the religious
right were to abjure any claim to govern by legal coercion the
conscience of the citizen, I would be in agreement with almost the
whole of their cultural program for our country.
But goodness is, in my view and that of
almost all ethicists, essentially bound up with freedom. We cannot
praise a coerced virtue, nor blame an enforced crime. The very core
of morality, enjoined by God himself in almost all religions, is the
spontaneous assent to divine grace. Paradoxically, to enforce the
law of good is to destroy it. Paradoxically, the freedom to do evil
-- as long as it does not violate the right -- is required for the
freedom to do good. The law of right is at its center the law of
freedom, and is thus, paradoxically again, the only thing for which
one can rightly resort to coercion and war. All of this is not to
say that the law of good must bottle itself up within the individual
and the closed community, and render itself impotent. Instead it
means that the law of good must win the world the hard way, by the
noncoercive means of persuasion, gifts, and the marketplace -- must
win the population one by one by one. And it can only do so under
the wing of the law of right.
Certainly, the laws of right do not make
a perfect world. Adam Smith's Invisible Hand, the miraculous pricing
mechanism praised by Mises and Hayek, that directs resources to
where they are most needed, does indeed work, in the large
statistical aggregate, when it is protected by the law of right. But
it cannot deal with local tragedies, and it cannot by itself create
the social and cultural capital that renders people capable of
exercising political freedom in a responsible and objective way. And
it cannot per se engender
the marvelous overplus of heroism, sanctity, generosity and
scientific and artistic integrity that society needs to advance. But
neither can the law of good do so when enforced by coercion, for
these things are free gifts and cannot of their nature be
coerced.
The Hatred of President
Bush
At this time in the world's history a
great turning point is imminent. And here we begin to see why there
is this strange and unholy alliance between idealistic liberalism,
the vestiges of the old socialist left, traditional third world
authoritarians, and the unrelenting forces of Islamic
totalitarianism, theocracy, and terror. However various their ideas
of what is the good, all
are united in their desire for an enforced law of the good. Even
elements of the human rights movement, much of the anti-globalist
community, and a large swatch of the philanthropic world -- the
so-called NGOs -- still yearn for a government that, through
sumptuary laws, high taxation, political correctness, and
entitlements, would force to happen what people ought to, but do not
make happen of their own free will. Much philanthropy has the stated
goal of eliminating itself when through its advocacy and lobbying it
has given government the power to compel what was once freely given;
at which time the employees of the Foundations would presumably take
over the powerful role of government civil servants. If the law of
right is to become the only enforceable law of the human race, all
these constituencies will have suffered what will feel to them to be
a mortal setback, and will have to accept the humble and weaponless
position of Judaism and Christendom.
In a sense the regimes of Sharia, of
Islamic law -- in spirit and in many of its provisions, as I have
insisted, one of the noblest codes of human conduct ever invented --
are the standard-bearers of enforced goodness. Baathism, which
combines the enforced goodness of socialist secular humanism with
the enforced goodness of Islam, is in theory the most perfect of all
regimes of the law of good. The Wahhabism of al Qaeda and the
traditional code of the Taliban are purer still, abjuring any idea
of secular profit in their pursuit of the morally perfect
society.
Thus there is a huge unconscious
reservoir of sympathy for the likes of Saddam Hussein among the more
secular enthusiasts for a law of the good, and even for the likes of
Osama bin Laden among the more religious. And Bush-hatred suddenly
becomes deeply understandable. He threatens their whole world. And
the annoying thing about Bush is that he is simultaneously, in his
own private self, a passionate believer in the law of good, while in
his outward actions a staunch upholder of the law of right. If he
were merely an advocate of the right against the good, he would be
easier to disagree with but harder to hate. For believers in the
enforced law of good, anyone who believes in the good but does not
seek the power to bring it about is a hypocrite.
And hypocrisy is the most fundamental and
most heinous charge that the good have to bring against Bush. He is
a defender of people who freely believe in different goods than his
own, as long as they do not seek to enforce them. He is willing to
keep his hands off people who, though they may be offending all the
laws of goodness, have managed to stay on the windward side of the
laws of contract. He will enforce contracts, while leaving people
free to exploit each other if they can do so without breach of
contract. He will refuse to enter into contracts that he knows he
may not be able to keep (or that he knows that his own country might
be the only one to actually keep), even if goodness requires him to
give lip-service to the ideals of nuclear disarmament, global
environmentalism, and a global legal system.
Like Abraham Lincoln -- another president
widely accused of hypocrisy in his own time and since -- he is
willing to go to war to enforce a regime of right and to overthrow
what at least bills itself as a regime of good. He will hold a
tyrant to his contract even if the upholders of the law of good
disagree, as long as he himself has won a contractual agreement with
a legal legislature to do so. He will hold the United Nations itself
to its contract, even if that means offending the sensibilities of
his allies. These positions appear monstrously inconsistent,
mendacious and hypocritical to people who believe that something
obviously good should be forced to happen, and that something
obviously bad cannot be right. But in the grand perspective of
history, the positions Bush has adopted from his pragmatic
Anglo-Saxon predecessors constitute the only policy that has
consistently led to large-scale peace, a rough approximation to
individual if not social justice, the general prosperity required to
make social justice increasingly a moot point, and the freedom that
makes goodness possible at all.
So when the protesters in
London tore down Bush's effigy they were,
unconsciously, expressing not only the opposite of the destruction
of Saddam's statue -- that is, a desire to reinstate him -- but also
the motivations behind the smashing of the statue of liberty erected
by the students in Tiananmen Square. The symbolism of the Bush fragging was
not, as many commentators believed, semiotically incompetent, but
strikingly accurate. And the good, pacifist destroyers of the Bush
statue were unconsciously leaguing themselves with the army tanks
that massacred the Chinese students and trampled their poor plaster
version of Lady Liberty -- and declaring war on the students
themselves. Like their colleagues on this side of the
Atlantic, the anti-American protesters stood in
solidarity with the Confucian enforcers of the good that gave the
order to clear the square of Heavenly
Peace, and with seekers after the role of
moral enforcer everywhere.