And yet more dialogue …

The exchange keeps rolling (previous parts here, here, here and here). Here’s an edited version of the most recent installment:

Liberal Lawyer: On what basis do you claim that representational democracy with divided powers and charters guaranteeing individual rights were inventions of Catholicism?

Jim Kalb: I said “representative government with distributed powers and charters of rights are all inventions of Catholic Christendom.” England before Henry’s break with Rome is an obvious example. Parliament, Magna Carta, local privileges and other forms of divided power were all medieval institutions. Similar institutions can be found elsewhere in Europe.

Medieval monarchs were not absolute. When they were crowned they normally swore a coronation oath pledging among other things that they would respect the rights of their subjects. Secular absolutism is foreign to a state of society in which there’s a universal Church with authority that’s taken seriously.

LL: Doesn’t Catholicism have problems with democracy and individual rights?

JK: It has a problem with making an ultimate principle out of democracy or individual rights (I say “or” because the two conflict, so both can’t be ultimate principles). So do I, for reasons I’ve gone into at length. That doesn’t mean Catholicism requires the extirpation of those things.

LL: There are few institutions less democratic than the Catholic Church. How can it serve as an institutional support for limiting power over individuals?

JK: Courts, armies and police forces aren’t democratic either. Does it follow that none of those things provide institutional support for limiting power over individuals?

LL: Also, historically, the Church has had no problem with the most authoritarian states as long as those states left the Church alone and did not disturb any of its privileges. The Church had no serious problem with Franco, Mussolini and, except for a few policies like compulsory euthanasia, with Hitler.

JK: The Church is not primarily political and doesn’t have detailed institutional and legal prescriptions that it insists on applying everywhere. For that reason it mostly accommodates itself to whatever the local setup is. It’s false though to say that the Church had no basic problem with Hitler. At the time the contrary was obvious to everyone, including the Nazis and the New York Times. The Church viewed Nazism as a form of aggressive paganism. Look at the encyclical Mit Brennender Sorge.

LL: The only sure way to limit government power is to create a government of formally divided powers, subject ultimately to the authority of the holder of sovereignty, the citizens. Establishing any other principle, such as sovereignty belonging to God, leads to abuse and tyranny. You can tell what the citizens want; you can count their votes. How do you know want God wants?

JK: Form can’t do much in the absence of common understandings of what the form is about, what goods it’s intended to preserve, how the goods are to be interpreted, and why they’re good in the first place so people should defer to them when they stand in the way of what they want. Also, American law and government is not settled by counting votes. Otherwise constitutional law would be a lot less important than it is. And it’s no harder to know the will of God than it is to know the requirements of the living constitution or whatever the Supreme Court thinks it goes by.

LL: Much of what you say assumes that the state is separate from the people that it governs. But, at least here in the USA, we do not have a governing aristocracy completely free from popular restraint and accountability. Elections are still held. Judges die or retire and their replacements are appointed by representatives who themselves are accountable to their constituents. Ultimately, the liberal state does nothing on its own but what the citizens either want it to or have no objection to.

JK: Rulers and ruled are obviously not the same. It’s true of course that a government that lasts any length of time always reflects its society. No state could become settled and endure without consent, loyalty, popular acceptance, voluntary cooperation, etc. Officials eventually die and there’s circulation in office. New men come in who previously weren’t officials and were formed by whatever the influences are that form people in the society. That doesn’t mean that the action of the government is the same as the action of the people. In the specific case of American government, compare popular attitudes on issues like immigration, abortion, affirmative action and school prayer to the equally state of law and public policy in the United States. What the people enduringly want on fundamental issues is one thing, what their rulers insist on is something else.

A problem with liberal ideology as it’s developed is that it conceals these issues. That should be bothersome if you care about liberty, which requires a certain suspicion of government and willingness to subject it to restraints that don’t make much sense if rulers and ruled are the same.

LL: If you have a problem with liberalism, you really have a problem with the people who choose who leads the state, not the state itself. Do you think there is any popular support in any Western country for doing away with liberalism?

JK: I don’t understand your point. Would you say that everyone everywhere who objects to any feature of an established legal order he lives under really objects to his fellow countrymen? After all, the established legal order of a country is always the net effect of the attitudes, practices, history, desires, and indifference of the people of that country. Or is it only liberal countries in which we should all agree with everything just as it is, because anything else would be antisocial? In any event, there’s plenty of popular support for things inconsistent with liberalism. Hence the constantly greater role in liberal polities of what goes under the name of constitutional law, and even the current attempt to internationalize liberal legal standards and so make it difficult or impossible for any people to escape them no matter what the majority wants.

LL: In my view, the true divide is between liberal and illiberal states. An illiberal state can be atheist, and create a KGB to enforce its atheist dogma, or Catholic, and create an Inquisition to enforce its Catholic dogma. What differentiates these states is less important than what each shares; a contempt for the individual and denial of any right to freedom of individual conscience that those states are obligated to respect.

JK: Where do you draw lines and how should the world be split up? No state run by the Republican or Democratic Party has ever been a dictatorship. The history of states not run by those parties has on the whole been a dreadful spectacle of instability, poverty, oppression, brutality, and blood—Hitler, Mao, Nebuchadnezzar. The conclusion is obvious. Ralph Nader and Ross Perot are on the side of Hitler, Mao and Nebuchadnezzar.

That of course would be a silly analysis. It seems to me if you want a better one you have to begin with more basic distinctions. Where do things come from? What supports them? Why do people constantly feel called upon to take them seriously? For individual conscience to be respected it has to be something real and enduring, and to be treated that way there has to be an understanding of things that’s generally accepted that explains why it has a place in reality.

Catholicism developed the notion of individual conscience. It’s able to give it a position in the scheme of things because it sees it as part of the overall organization of reality with a definite relation to truth and thus an importance that can’t be ignored. The position of conscience is subject to limitations because it’s a real position and real things are limited, but it’s stable and can be relied on. Protestantism inherited that understanding and the basic conception of reality to which it is tied, and so made possible the American regime as originally understood.

Contemporary liberalism, in accordance with its basic principle of eliminating restraints on human will to the extent possible, now rejects that historical understanding. It treats as public truth the same understanding of reality that gave rise to Nazism and Communism—that there is no objective moral order binding on us independent of our thoughts and choices, so it is our will and choice that make things good and bad. You believe that respect for individual conscience—which in contemporary liberalism has become indistinguishable from individual desire—has a secure position in that setting. That seems crazy to me. In the long run, people are logical.

I suppose it all comes down to what you think is essential and incidental. You believe that the relation between Catholicism and politics is represented by the Inquisition, which is part of the history of Catholicism. You also believe that Nazism, Communism and contemporary liberalism are not part of a common history of modernist nihilism, so contemporary liberalism has no connection with the other two. Perhaps you think that the atrocities of the French Revolution also had nothing to do with liberalism, even though the French Revolution was plainly a liberal revolution. That kind of view strikes me as wrong in the same way it would be wrong to claim that American Catholicism has nothing whatever to do with Catholicism in other times and places because after all the people, language, circumstances, concerns etc. are rather different.

Things have to be compared at the same level. Any great movement of civilization that involves a fundamental understanding of what the world is like is going to involve a variety of things, some of which seem good and some of which seem horrible. It would be wrong to contrast modernity—the movement that’s been going on at least since the 17th c. to replace tradition and religion with explicit secular reason in all aspects of life—with one part of Catholicism and say “the commies were secular modernists who killed 100,000,000 people, but the current Pope hasn’t killed anyone lately, so Catholicism is better than secular modernism.” And it’s equally wrong to say “well, in the 13th c. there was the Albigensian crusade, and the Spanish Inquisition killed 10,000 – 20,000 people over the course of three centuries, so obviously Catholicism is a lot worse than my (very recent) brand of liberalism.” You have to compare things of similar status to each other.

LL: By Godless states you mean Communist states, and I think that the role of the Communist Party in those states is analogous to the role of the Church in medieval states. Can you tell me the difference in how Communist states treated Trotskyists from how Catholic states treated Albigensians? Both Party and Church denigrated the individual; the one attacked “bourgeois individualism” the other attacked “selfish sinfulness” and both Party and Church put themselves forward as the genuine, sole repository of Truth, which no individual could challenge upon pain of death. Liberalism is the antithesis of that.

JK: By Godless states I mean advanced modern states—communist, Nazi, advanced liberal—that officially view moral order, to the extent it exists, as a creation of human choice and will. The alarming thing about such states is that there don’t seem to be good grounds in the understandings on which they are based for any limitations whatever on what government can do. There’s in fact an activist streak that says the world is man’s creation so the natural function of government is to remake it continually so it becomes more what’s wanted. That wasn’t nearly so true of older forms of liberalism, which didn’t attempt to break with the past to the extent the revolutionary communist and Nazi regimes did. Post-60s American liberalism seems to me fully modern in that regard though.

I don’t see why it makes sense to lump attacks on “bourgeois individualism” together with attacks on “sinfulness” in this setting. (The “selfish” is your own addition.) The first says the individual doesn’t matter, the second that the individual matters more than any practical worldly consideration. The first says that there is no standard beyond the will of the party, the second that there are standards no man has created to which all are subject and by which all should be judged because all fall short. The difference comes through even in the nature and scope of what happens when things go wrong. The Inquisition had a high standard of proof, its procedures were fairer and more orderly than other courts of the time, it didn’t punish people on suspicion or for class membership, and it didn’t routinely operate based on evidence everyone involved knew was fabricated. The opposite of all that was true of Soviet courts trying political offenses. One result was that the number of those punished by the Inquisition was absolutely minuscule in comparison to the Soviet case.

The relation between Church and State during the medieval period was nothing at all like the relation between say the Communist Party and the Soviet government. The Church couldn’t force the state to do much of anything. They were two separate jurisdictions, and the king almost always had the upper hand because when there’s a difference of opinion men in armor with swords are usually more persuasive than clergymen. The king for example had far more control over who got to be a church bigwig than the other way around. The specific things you mention, the Spanish Inquisition and the Albigensian Crusade, mixed ecclesiastical and state interests in complicated ways. The Church couldn’t simply order such things and had varying degrees of control or influence over what happened. The Spanish Inquisition for example was an initiative of the Spanish state.

Actually, I wrote a couple of papers in law school that touch on some relevant issues:

• “Fulminations and Contempts”, on jurisdictional disputes between royal and ecclesiastical courts: “By the end of the thirteenth century the great battles over the power of the king to determine authoritatively the limits of ecclesiastical jurisdiction had all been fought. Thereafter this power was generally recognized in practice, even though the theoretical claims of the church remained unchanged, and a occasional churchman still acted on these claims.”
• “A Legal and Constitutional Account of the Destruction of the Ecclesiastical Immunities of the Benefit of a Clergy and the Privilege of Sanctuary”, on the benefit of clergy and right of sanctuary, ecclesiastical immunities rather like diplomatic extraterritoriality that would not even make sense if the Church dominated the state.

LL: For all its faults, political, classical liberalism is the best principle that humanity has yet found to organize a state. You have put forth theoretical objections but no contrary examples from history of illiberal states which did not degenerate into some form of corrupt tyranny. Why can’t you agree with Churchill who said (paraphrasing) “Democracy is a terrible form of government. It’s only advantage is that it’s better than any other form that’s been tried”. What other states in history have been more just, honest, more fostering of prosperity and peaceful relations with neighbors, practicing more the principle of a nation of laws, not men, than Western liberal states?

JK: You treat classical liberalism as something definite, self-contained and self-sustaining, so it can just be chosen as a way of organizing a state and it will remain whatever it was when chosen.

I don’t think that’s realistic. Political attitudes, habits, arrangements etc. depend on other aspects of life. Classical liberalism doesn’t exist any more and can’t be restored just by saying it has advantages. It’s been out of favor in intellectual circles for at least 100 years. By the 30s it had been fully replaced in practical political life by welfare state liberalism, and since the 60s by a form of liberalism that claims a yet more unrestricted mission to remake all aspects of social life and even human nature. What sense can classical liberalism make when government spends more than a third of national income, much of the population is in its custody or economically dependent on it, and it feels entitled and even obligated to remake cultural habits and standards on fundamental issues? It seems to me sensible to judge what contemporary liberalism is likely to do by looking at what it is, and maybe at its tendencies and development and its relation to other modern political philosophies, rather than by talking about classical liberalism and Winston Churchill.

As to the fate of non-liberal governments—in the Western world they’ve mostly given way to liberal governments. I don’t know if you would classify that as a form of degeneration into corrupt tyranny. And I think justice, honesty, legality etc. are most to be found in governments like say Victorian England that combine liberal features with features that from a current standpoint are decidedly illiberal. I think that those things were probably more common in classical liberal societies than in other settings I know of. They rely on the same habits of restraint and rule-abidingness that classical liberalism requires. The question though is whether liberalism in and of itself generates and supports those habits or whether it undermines them if the idea of a standard higher than the freedom and equality of individual wills is taken away. You can’t get them simply by announcing you want them.