Cardinal Mercier and the Natural Law, Part 19: Rights of the State

THE TERM RIGHTS OF THE STATE has an unfamiliar ring to it, but it is shorthand for the ensemble of "juridical [legal] relations which unite the governed to the governing power in the civil society." [325(106)] Within this division, and under the guidance of a natural law philosophy, Mercier explores the nature, origin, and end of the State. He asks what the functions of public authority ought to be, and in what form those functions ought be assumed and exercised. Mercier addresses the rights and duties of citizens to the State, the principles that ought to govern international relations, and the relationship between the civil society and the religious society. "All these questions . . . belong to the sphere of the philosophy of Natural Law." [325(106)] The answers to those questions are all predicated upon the theory of the State that one adopts.

The first matter addressed by Mercier is the various theories of the existence of the State. He reviews some of the main theories that are outside the classical natural law tradition: (1) a pantheistic view of the State (Plato, Hegel, Schelling, Fichte); (2) the view of the State as an institution of positive divine right (such as that advanced by Filmer or Bodin); (3) the view that the State is a creature of social contract alone (Hobbes, Rousseau); and (4) the view of the State as a social organism (Lilienfeld, Schäffle, Spencer). Finally, as against all these other theories, he discusses the rival Christian, that is natural law, conception of the State.

The pantheistic theory of the State is probably not much held modernly, and it is difficult to conceive that it was ever advocated in earnest. But it was. In some sense, Plato may be viewed as being its originator. In our day, we can trace this view largely to the philosopher Georg Wilhelm Friedrich Hegel (1770-1831).

Plato's philosophy, specifically his ontology, had the "germ of pantheism." He saw the entirety of the cosmos informed by "a kind of psychic principle," of which individual's soul was "but an emanation." This view, coupled with the notion that universal ideas correspond to universal essences in the divine wrap up all things in a pantheistic blanket. These underlying metaphysical presuppositions inform his ideal state in his Republic. After all, the state is viewed as the cosmos writ large, and the state as the soul of man writ large. Thus they are all intimately joined and linked in one pantheistic chain of being. For Plato, justice was tied to harmony and unity. "Liberty and the traditional philosophy of man's spiritual nature stand or fall together."
--Cardinal MercierAccordingly, the role of reason was to harmonize and unify the various human faculties. Similarly, the role of the city state was to harmonize and unify its citizens into one body corporate of the City-State. This required a subordination of the individual to the City-State. Anything that could present itself as a threat to the unification was suspect, and so intermediate institutions such as the family, private property, and idiosyncratic activities such as poetry and so forth had to be banned from Plato's ideal state. (It is this tendency in Plato, noted by Mercier, that led Karl Popper to identify Plato (along with Hegel and Marx) as one of the traditional enemies of the "open society".) But even Plato, in his extremity, cannot be said to have "identif[ied] the State with the deity of the universe," though he came awful close. [326(107)] The same cannot be said for Hegel.

Portrait of Hegel by Jakob Schlesinger (1792-1855)

"With Hegel, who here follows Schelling and Fichte, the case is otherwise. . . .[I]n his later writings he professed the completest pantheism." [326-27(107)]

'The State', he says, 'is the social substance that has arrived at self-consciousness . . . . It is the rationnel* of itself and for itself . . . it is a terrestrial divinity.' Here we find the State has become an aspect of the Absolute which, according to Hegel, is the common substrate of all things, the universal substance, of which individual beings are but so many modes or determinations.

[327(107)] (quoting Hegel's Philosophy of Right) For Hegel, the State, being in essence divine, lives for its own ends, and not for the common good. "Hegel's answer is that the State must be viewed as an organic and living unity having its own subsistence as its one end." [327(107)] Similarly, the State is the source of all right:

[S]ince [the State] is the divine being, its will must be the sovereign law, the source of all rights and all duties. Therefore against its decisions no individual right founded on nature can be of any avail.

[327(107)] This divinization of the State is a serious lapse into paganism because it absolutizes the State. One of the boons of Christianity was to force a separation between the secular State and the religious life of man (the Church). Christianity thus demoted the pretensions of an absolute State, and it would seem that the State, like a man with a heart darkened by the bitterest desire for vengeance, has been unforgiving since that time, biding its time and nursing its wounds until it could destroy the Church and re-assume the powers that Satan would give it.

Charles I by Unknown Artist Receiving His
Divine Right to Rule Immediately from God
(National Portrait Gallery, London)

Another theory of the State is what may be called the "divine right" theory. Stemming from 17th century jurisprudence, it held the monarchy to be appointed by God himself in an office of divine right. Thus the prince was responsible not to his subjects, but to God alone. As if by divine election, the monarch was chosen from the mass of men and given special authority by God. Not only was he given authority directly from God, but apparently as part of it the power to cure his subjects of scrofula, known thereby by the moniker "the King's evil."**

The political interest of the monarch, namely, the consolidation and extension of his power, dominates all other interests. He is known as the 'raison d'Etat' Before his superior claims the rights of the individual must yield.

[328(108)] Such a theory of government is largely Eastern in inspiration. "Its origin is not Christian." [328(108)] Obviously, such a theory is not held by anyone modernly. One need only read the work of Sir Robert Filmer (1588-1653) to see the risibility of such a theory. Another advocate of the theory was Jean Bodin (1530-1596). It is of merely historical interest currently.

The social contract theory of the State is probably the view held by a majority of political theorists currently since it is at the heart of political liberalism. Although there is great variety among advocates of this theory, the essential kernel shared among all of them is that "civil society owes its rights to a contract, either expressed or tacit, that has been freely entered into by its members." [328(109)]

Hobbes is an early advocate of the concept, but his theory has a decided monarchical slant, although his theory may be translated and mutated to the power of an absolute State of other stripes.

Portrait of Jean Jacques Rousseau in Armenian Dress

Rousseau was the theory's great popularizer and democratizer. Rousseau's writings, however, resulted in a dichotomous interpretation. On the one hand, Rousseau gave birth to an individualistic notion of the social contract theory, where the State's role was by common agreement or contract stipulated to be one that would allow men to express their autonomy, free of any extrinsic influence. What was originally the fruit of rationalism in thought (philosophy) and morality and religion (i.e., autonomy), found its expression in political theory. "There it fostered liberalism, and drew conclusions from the theory of the social contract which were directly opposed to those of Hobbes." [329(111)]

Essentially, any social contract theory of the State makes the institution's origin entirely human. It is formed by consent of men, and God has nothing to do with it. The social contract theory is the basis for the modern school of political liberalism, as from this theory it has borrowed two fundamental tenets. The first principle liberalism has borrowed is the legal basis of public authority. The second principle borrowed from the social contract theory relates to the purpose of the State.

Liberalism, along with the social contract theory, believes that the "free consent of individuals is the one and only source of all lawful authority." Thus the State and law finds its ultimately source in human consent, human contract, and it is therefore independent of any divine law. Public authority is viewed as limited by agreement or compact. Its role is to assure the greatest possible freedom among its citizens, without regard to morality or to nature.

As it is contrary to the principle of rationalism to accept any guidance from constituted authority alike in matters intellectual as well as moral, so it is consistent to assert that the function of the State is not in any way to direct the action of individuals as regards any ideal whatever, but simply to safeguard them from all obstacles that would hinder their free development. Accordingly the function of the State is not to civilize, but only to guarantee that the rights and liberty of the citizens shall be protected.

[330(111)] This is the path that Kant took: "As an advocate of the principle of the autonomy of reason, he gives us the conception of the State as the mere guardian of the rights of the individual." [330-31(111)] All this liberalism, shunning the World's enchantment, ignores God's Grandeur. But:

The world is charge with the grandeur of God.
It will flame out, like shining from shook foil;
It gathers to a greatness, like the ooze of oil
Crushed. Why do men then now not reck his rod?
Generations have trod, have trod, have trod;
And all is seared with trade; bleared, smeared with toil
And wears man's smudge and shares man's smell: the soil
Is bare now, nor can foot feel being shod.

And for all this, nature is never spent;
There lives the dearest freshness deep down things;
And though the last lights of the black West went
Oh, morning, at the brown brink eastward, springs--
Because the Holy Ghost over the bent
World broods with warm breast and with ah! bright wings.***

Liberalism has trod, and trod, and trod, and has lost its sense of truth and freedom. It wallows in self-indulgence, and revels in pollution of all sorts, especially social pollution like pornography, homosexuality, dead babies, ruined families, and ruined marriages, the empty shells of which are found anywhere it has had some say. Its expression in classical liberalism, of the laissez faire type, has not been particularly edifying either. The waste, the disregard for the world's resources, the disrespect for nature and the environment, the social and chemical dross left behind by Adam Smith's "invisible hand" is disheartening. How much beauty been have the grasping industrialists destroyed by careless exploitation of the world's resources?

My aspens dear, whose airy cages quelled,
Quelled or quenched in leaves the leaping sun,
All felled, felled, are all felled;
Of a fresh and following folded rank
Not spared, not one
That dandled a sandalled
Shadow that swam or sank
On meadow & river & wind-wandering weed-winding bank.

O if we but knew what we do
When we delve or hew —
Hack and rack the growing green!
Since country is so tender
To touch, her being só slender,
That, like this sleek and seeing ball
But a prick will make no eye at all,
Where we, even where we mean
To mend her we end her,
When we hew or delve:
After-comers cannot guess the beauty been.
Ten or twelve, only ten or twelve
Strokes of havoc unselve
The sweet especial scene,
Rural scene, a rural scene,
Sweet especial rural scene****.

The other prong of Rousseau's thought took a decidedly less liberal path, and expressed itself in the notion of the "General Will" and the absolutism of a democratic state. Rousseau attributes to the general will qualities of absolute sovereignty, indefectibility, and infallibility, and by a sleight of hand, though it is but the will of the majority, makes it by transference the will of each individual. As it turns out, under this branch of Rousseauism, it is "law or, more accurately, the will of the majority, that creates rights, and especially the right of property." [331(112)] The seeds of collectivity are already present:

By becoming a citizen a man has even lost his own individual existence. For Rousseau informs us that 'the mission of the legislator is to transform each individual, who by himself is a solitary unit, into a part of a larger whole from which this individual in a certain measure receives his life and being.' . . . Christianity in asserting the independence of religious from civil authority had liberated the human conscience form the yoke of the State. Rousseau would replace that yoke.

[332(112)] Like a dog, it would seem, man left Christ and then returned to his own earlier pagan vomit. This is in keeping with proverbial wisdom: "As a dog returneth to his vomit, so is the fool that repeateth his folly." Sicut canis qui revertitur ad vomitum suum sic inprudens qui iterat stultitiam suam. (Proverbs 26:11).

Herbert Spencer by John McClure Hamilton (1853-1936)

The last theory addressed by Mercier before launching in the natural law way of things is the theory of the "social organism" or organicism. Though it has some Platonic roots, and was present in the teachings of the Physiocrats, and even in a form in Hegel and his disciples, this now-forgotten theory was advanced by the likes of Paul (Pavel) von Lilienfeld (1829-1903), Albert Eberhard Friedrich Schäffle (1831-1903), and the social Darwinist Herbert Spencer (1820-19

We are told by Spencer that all phenomena are governed by a law of evolution. . . . Now under this same law of evolution individuals are brought together to form social organisms. . . . For he viewed the life of society as not essentially different from the organic life of man . . . .

[333-34(113)]. Mercier cuts to the quick: this theory "is simply a restatement of the old-world materialism." Like all materialism it denies the human personality. [334(113)] Ultimately, the question revolves around whether "the individual, who is also the social unit, is not something more than a mere aggregation of cells, such as materialists would have us believe." Their denial of any further principle other than atomism or cell-aggregation, "when applied to political science," leads to "the most radical absolutism." [335(113)]

"Liberty and the traditional philosophy of man's spiritual nature stand or fall together." [335(114)] And it is to that conception of man and to the State, that Mercier directs his attention and ends his foray in the natural law in his A Manual of Modern Scholastic Philosophy. That will be the subject matter of our next, and also last, posting on Cardinal Mercier and the natural law.

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*Rationnel (adjective) is French for rational.
**The "King's Evil" (le mal du roy) or Scrofula (Tuberculous cervical lymphadenitis) is essentially tuberculosis of the neck. Popular belief held that the "royal touch" of the monarch of France or England could cure the unfortunate subject of the disease. It was viewed as a power collateral to his right of rule. Apparently, the power respected the Salic law in France, but not in England, where Queens apparently claimed it.
***Gerard Manley Hopkins, "God's Grandeur."
****Gerard Manley Hopkins, "Binsey Poplars."