Month: March 2024

8. Rogachevsky and Zigler, Israel’s Declaration of Independence (20 March 2024)

by kurto

Natural rights are surprisingly evident in the Israeli charter, drawn by laborite Zionists; in turn, the Israeli’s contemporary judiciary claims sole competency to interpret the nation’s ‘credo’ from the Declaration, the country having no constitution but only Basic Laws. Hurriedly drafted amid British departure and Arab warfare, the document settled on rights inhering in individuals, not emanating from the state, through David Ben-Gurion’s force of influence.

After the Zionist Action Committee dissolved itself into Moetzet Ha’Am (a People’s Council of 13), Ben-Gurion sought to declare statehood such that Jews would be ‘masters of their own fate’. Mordechai Beham’s initial version combined Anglo-American political thought, as evidenced in Jefferson’s Declaration of Independence, with Jewish tradition as evidenced in the Torah, entailing fairness, supremacy of reason, the spiritual above material (contra Zionism), and the ethical above the practical. The community’s centuries-long exile maintained fidelity to the this approach, but natural rights were a notable innovation for no signer of the Declaration was born in western Europe or the Anglosphere.

Poorly received, these views were pared back in subsequent versions. Labor Zionism, which holds to the state’s preeminent authority (and origination of rights), progress through material gain, and equality of outcomes, came to the fore. These chimed with Roosevelt’s four freedoms and the new UN charter. It was also important to repudiate the UK’s governance (notably its white paper restricting Jewish immigration (‘ingathering’) – and to enshrine a nebulous democracy. Herschel Lauterpacht’s draft, drawing on nascent, postwar views of international law ,sought to align with UN resolution 181, which envisioned the dual-state solution as well as tests for sovereign capability and sufficiency. Moshe Shertok, a Washington DC lobbyist, sought for American support, which George Marshall opposed for fear of angering Arabs but Harry Truman overrode (albeit on the basis of UN boundaries of November 1947).

Ben-Gurion sought an Israeli state above all: his goals were sovereignty, a Jewish state, and principles of political right. Holding that founding implies disregard for status quo, he surpassed fractious colleagues, for example eschewing the declaration of boundaries as artificially limiting. He located the right to sovereignty in Israel itself, established by its ‘universal significant’ of the Torah, the ‘book of books’. He (unintentionally?) followed Blackstone in viewing rights as pre-existing the state; the state is to preserve these rights. Also, his state was to be more Jewish than democratic.

Menachem Begin’s Revisionist underground came in to ally with Ben-Gurion: more opposed to mandatory rule, he too sought a Jewish state, but was more comfortable with Anglo-American rights.

It’s ironic that the Anglosphere was largely ignored at the height of its postwar influence. In the continuing lack of a constitution, the Supreme Court, which has built up ‘a potent arsenal of normative language to interpret practices (p. 245).

NB: Jefferson’s draft of the American Declaration located rights in mankind’s equal creation, not in the Creator.

7. Scruton, England: An Elegy (2 March 2024)

by kurto

England’s 20th-century decline owes to abandoning the wisdom of culture and custom derived from the countryside, common law, and the softening of power into authority. Classical Albion was a society of people desiring of privacy who could nonetheless be relied upon to act benevolently – strangers but never foes. Governed not from above (i.e., by class) but within (self-regulating order but around shared experience and compromise), it collapsed after World II not through antiquated education and honor but because English politics and law work only in English society, through reason not rationality and compromise. Urban development, homogeneity, and Continental rationality (e.g., Roman law and EU promulgations) broke the spell of enchantment.

Law and government:
Common law developed along the lines of Kant’s view that the moral law known to all rational beings, even if not all could explain it. The point was to do justice in the individual case, regardless of interests of power or cohesive rationality. Legal proceedings were primarily discovery, not invention: what was to be discovered is the solution to the case, not the law of the land. The object was not to exercise power over people but to give people relief from abusive power.
Rights were ancient prerogatives of the people, effected by custom not granted by government. Individuals possessed rights only because they were also burdened by duties, in contrast with European positive rights granted by government. Trusteeship in law (Burke’s partnership), along with trial by jury (of peers) and the common law itself, were characteristic features enabling disinterested husbandry of shared assets particularly over time.

The English cared less for the origins of the monarch than monarch’s commitment to upholding the law of the country; Protestantism was merely an exponent of lawfulness and custom. Whereas the Local Government act of 1888 eroded local interests and identity, while centralizing and corrupting authority.

When confronting power, the English questioned whatever and whenever no authority was evident, for possessing power does not entitle or recommend its exercise. England had never suffered Weber’s transition from traditional to legal-rational forms of authority. The attitude toward officialdom was: it it’s needs doing, you yourself should. So long as government service is an honor, it will attract the best minds; but it is merely a well-paid lifestyle, it degrades to power.
Imperialism’s worst crimes were committed against the Irish, during the Interregnum when politics was self-righteous, not compromising. But though the English emerged from World War II morally exhausted, no longer willing to cultivate its inheritance – to bear duties as well as rights – and to stave off its enervating critics, it didn’t think to compare its record with its Continental peers or previous empires. As Tocqueville observed, revolutionary sentiment is not borne of oppression but weakness of the old order.

The harmonization of law discovered not promulgated, the monarch as a corporation sole representing the people, and a religion tenuous but uniting was a settlement, an enchantment – Burke’s making the country lovely to its inhabitants. The key to government is not democracy but representation of the people’s interests, which requires compromise as well as solutions across generations; the political system must intend to amplify authority while restricting power.

Society and culture:
Hume thought the mind comprised of sensations, and the soul an illusion. If so, then a propos of Thatcher, so too must society be a collection of individuals.
English honor could be extended throughout society because the trust of behaving rightly did not require intimacy – it worked among strangers – and the test of virtue was in moments of real difficulty or danger, or when no one was looking. England did not turn on Mediterranean honor and kinship but honesty, fair play, and rule of law. The primary objective in morality is to act rightly in the circumstance, not to expound the principles which color one’s view of right, even / especially when principles are elusive or obscure. This was Austen’s genius to show. The gentleman was defined by manners, culture, virtue, aloofness but independent of lineage and wealth; and could be trusted to behave rightly without reducing the distance between him and you. Class worked to advance the body politic’s social objectives and aspirations. Amongst the working class, society was not a prison but a maze potentially leading to the way out. Disquiet over immigration is not ipso facto racism but the loss of a sense of home, disrupted to what end? When your primary loyalty is locality, EU or global sovereignty acts to create a crisis of identity.
Shakespeare presented England as enchanted by ethics, justice, law, authority; and always the ideal was presented as the possibility of restoration. England simultaneously believed the sacred to be a human construct, and that some things really are sacred.

The Anglican Church was a settlement, an attempt at peace, molding Christian belief to English idiosyncrasies, thereby enabling the binding of strangers. Once synthesis was achieved, doctrine became a social benefit, a transmitter of shared ethics. The people became a corporate person. Religion was a close ally of law, government, and social institutions. Contra Linda Colley, the English understood Protestantism in terms of nationality, not nationality in terms of Protestantism.
English art and literature were premised on place, demonstrating internalization of mystified (sacralized) topography. Burke in Sublime: nature is mysterious, is internalized by imagination (not rationally deducted). (Hedges were not total enclosures but permitted continuance of footpaths.) Where the French were more concerned with rural privations than fulfillments and contentments, the English gentlemen sought not to spend their money in London but in their country seats. The countryside’s decline reduced his stature, as did the abolition of hereditary peers in the House of Lords.

English money was not rational and meant to be added, but traditional and meant to be divided, shared. Imperial and metric diction is evidence of reasonable versus rational; the English system was the product of what works in life.

English empiricism rejected the need to rationalize everything – reason can never explain morality, politics, religion, and so on a priori. Negotiation, compromise, deference to tradition are valid, helpful contributors, the latter often likely to contain the essence of things. Empiricist philosophy, allied to common law reasoning (discovery of the ancient and the essential) and parliamentary government, were expressed in the ‘concrete vocabulary and compromising syntax’ of the language.
(Relevance in education is chimerical: who can guess the student’s interests in 10, 20, 40 years? So the standard is excellent and extent of current knowledge.)

What was the apex of Scruton’s England? Were its core elements synchronized or did they separately peak? Probably he would have chosen somewhere between the Georgian and early mid Victorian eras; although Brexit would likely have been welcome. Corelli Barnett emerges as Scruton’s principal opponent for misdiagnosing the cause of England’s decline.

11. Strauss, Natural Right and History (19 June 2022)

by kurto

The search for natural right, or the best way for man to live – the aim of political philosophy – has since Machiavelli been corrupted by abandoning nature as the source of right and by ‘political hedonism’, the ennoblement of benevolence.

All knowledge presupposes a horizon in which knowledge is possible, an articulated whole. All social visions of the whole, no matter how different, are the same in that reconciliation leads to knowledge and natural right. We are obliged to seek a standard of judging our ideas, as well as others, and also the competing needs within society. We cannot give a good account of human ends if they are merely desires or impulses. Natural right is the pursuit of understanding what man ought to do.
The quest to know first things is an endeavor to distinguish to naturally be (to be in truth) and to be by convention. Pre-philosophic thought considered the good life the ancestral. Nature was discovered when man understood the distribution of man-made and naturally occurring first things as observable. The discovery of nature established humanity’s capacity to determine its ends – its successes and failures – across history, society, morals, religion. It was a necessary condition for natural right.

But philosophy does not recognize nature as the standard, because philosophy answers to reason not to authority, whether natural (law of nature) or made by man.

To reject natural right is to say virtue, that which is praiseworthy, is positive or man made. Argument against natural right assumes all knowledge is inherent, that no moral effort is needed, only scientific effort. Separately, historicism attacks natural right because justice is seen as mutable. For historicism to be tenable, it must be made evident that there is no continuity in man’s nature, that there is no persistence in metaphysics. But history often concerns the same fundamental themes or problems. Historicism tries to exempt itself from its own critique – to judge of periods without itself being judged – and showing exceptions in a culture or in practice does not disprove historic norms.

Weber thought there could not be genuine knowledge of the ought (values), only the is (fact). The rejection of value judgements undermines objectivity: the historian cannot interpret the past on its own terms whenever past societies thought value judgements were possible. He contended only science or faith were legitimate grounds but left out human reason: philosophy was downgraded. His views abjured the stateman’s golden mean and encouraged political extremism: his approach to social. The secularization of understanding Providence culminates in the view that man’s ways are scrutable to sufficiently enlightened men, that they should be guided by the actual not what ought to be.

(Weber traced capitalism to a late or ‘corrupt’ Calvinism which had made peace with the world, which means Puritanism did not cause capitalism. This was to overestimate religion’s break with ancient theology [i.e., Roman-era Christianity], and underestimate the break with classical rationalism [Puritanism carrying modern views of Machiavelli, Bacon, etc.].)

Socrates’ turning to the study of human things was no rejection of the divine or the natural but a new way to understand all things, and especially human things, as not reducible to the divine or the natural. To discover the whole was no longer the study of roots but of constituent parts of sciences. Philosophy was to ascend from opinion to truth, via dialectic.

In Crito, Plato suggested duty to the city stems from a tacit social contract (which idea comes from Lucretius); but in the Republic, which addresses the best city, the philosopher is obliged to follow the city simply because the city is perfect. Government is not the same as community. The political problem consists of reconciling the requirement for wisdom with the requirement for consent. For egalitarians, consent trumps wisdom, for natural right, wisdom tops consent. The city has to reconcile wisdom with consent, which implies potential for unwisdom.

In retrospect, the historian is to settle extreme actions which were just and those that were unjust or ill-judged. This points up the Aristotelian view of natural right drawn from everyday justice and the Machiavellian view premised on extreme cases of necessity. These may be described as idealism versus cynicism; whereas Thomist natural law is free of ambiguities implied in the spectrum between Aristotle (higher purpose) and Machiavelli (higher urgency), collapsed into a simpler view of the Decalogue. Modern natural law attempts to separate the moral principles from Thomist (Christian) theology, a return to the classics. For example, Montesquieu wanted latitude for statesmanship.

Hobbes was neither public spirited nor concerned with statesmanship: his view of natural law was scientific, accelerating Machiavelli’s turn to modernity. For the classics, the state of nature was life in a healthy civil society, for Hobbes, life antedating society. Death replaced telos, the state did not promote the virtuous life but safeguarded the individual’s natural right. Where Aristotle saw magnanimity and justice as paramount – serving others – Descartes simplified moral philosophy to morality, and Hobbes to justice, rules to be obeyed in order to create peace or at least self-preservation. Justice became fulfillment of the social contract, no longer standards independent of human will; the Decalogue was no longer intrinsically valid. Virtue is but peaceability; vice is vanity of an aggressive soul not a wicked one; the severe virtues of self-restraint lose standing. The privileging of benevolence is political hedonism. Reason of state – peace – replaces the search for the best regime. Later Nietzsche, declaring will to power to be reality, replaced the study of ends with the study of power. The right institutions guarantee social order and much else.

Locke thought that private consciences are private opinions. The desire for happiness is natural right, but no duty is entailed. Then, all social or government power commences with individual right. Hobbes emphasizes right to resist society or government more strongly than Locke. Property right is most characteristic of the latter: property is natural law, natural law defines limits of the state. The poor are enriched when others acquire property, generating benevolence. Madison followed Locke in expressing the first role of government as protecting different or unequal faculties in acquiring property. From this point, nature furnishes only materials, not the results – there are no natural forms or essences. Society was to be built on low but solid ground, taking its bearings from how man lives, not how he should live.
Rousseau, the forerunner of the second wave, returned to the classics but discarded reason in favor of passion, leading to Nietzsche. The Frenchman sought to defend both the city and its virtue and nature; there is a tension. Science is cosmopolitan and the fount of universal philosophy; theoretical science must control civic virtue. As Hobbes put natural right at the service of passion, Rousseau criticized him for locating the law of nature (prescribing duties) as subservient to reason. His duties are instead directly subject to passion: man is by nature good, his passions valid, he is perfectible and so malleable. Further freedom is ‘self legislation’, replacing virtue (restraint). Not virtue makes freedom but freedom makes virtue. By result, modern society must obfuscate the telos of political philosophy. Modern man claims privileged treatment based on sensitivity not wisdom, on compassion not virtue.

Burke: the practical consequence of siding with the ancients in the milieu of modern political events explains the Anglo-Irishman using modern language of natural right, albeit within a classical or Thomist framework. The demos’ claim to political is not a right – the right is good government, and good government not guaranteed by democracy. His remarks on the juncture of theory and practice, surpassing Aristotle, are his most important original contribution; he left no corpus of theory. In both the American and French revolutions, treating the right of sovereignty and the right of man, he questioned the wisdom of exercising legally valid but politically dubious claims. Burke thought history a habit not a precept; analogies are often misleading. In Sublime, he his disagrees with the classics that beauty is perfection of proportion, virtue, order. It is not intellectual but sensual or circumstantial. Likewise, constitutions are not made by a master legislator but must grow. He derides Rousseau’s historicism.

NB: In the Ethics, Aristotle wrote the only serious part of philosophy is political philosophy.
Socrates: universal doubt leads not to truth but into a void.