Brett Williams's Reviews > The State and the Rule of Law

This is a book about the evolution of the state under the rule of reasoned law, guarantor of individual liberty, to its perversion as the absolute state dismissive of law, guarantor of despotism and its fawning cult. Defending the state’s original cause the author chronicles hostility towards it from liberals (Romanticism to Marxism) and conservatives (classical liberalism to Libertarians), with an unelaborated notice that international corporations also destabilize rule of law states. This book was excellent the second time after 21 pages of notes made coherence from what for me was the author’s “inside baseball” academic approach with perhaps 300 pundits and philosophers I never heard of (a measure of my ignorance), their positions often a mystery, embroidered with untranslated French, German, or Latin that as a typical American was “Greek to me” (another measure of my ignorance).

“It seems we are all slouching toward the totalitarian state, the end product of political entropy,” writes the author, “magnified by technology and the public-opinion machine that amplifies defects and confounds criticism.” The end point is despotism. “Despotism exhibits political weakness and juridical anemia, an absence of deliberation; power is all, politics proper is absent; commandments are absolute, laws are worthless; implacable oppression and inept administration are the order of the day. Extreme simplicity and massive confusion share the same space… Palace intrigues and family quarrels take the place of public hearings and collective debates… A government not stabilized by limits is volatile; domination not circumscribed by laws is evanescent.” Well understood in the Trump era. (The book’s copyright is 1995, so despotism has a common formula.)

States under rule of law began formation in the late Middle Ages, claims the author. Justice came to be the business of the state, pacifying society. Hegel maintained there is no state without a public morality. “The principle of public morality is not love, appropriate to family and faith, but law.” Then along comes classical liberalism, its emphasis on freedom, preoccupied with economic problems, where politics is reduced to an individualist philosophy of human rights restricted to a guarantee of those rights. Beyond calls to relax state control and defending free enterprise, classical liberalism seeks not to destroy the state but to do without it. Partner to liberalism is modern democracy, its emphasis on equality, with its power of the people (not the person) and the general will. The contract idea evolved in both the social and economic arenas. Just as citizens surrender some political liberty in the social contract, so too in a labor contract, trading some freedom for remuneration. Unlike the body enslaved, actions can be bartered, “alienating liberty for a certain period.”

Romanticism arrives with its counter-Enlightenment surge of warm feelings over cold reason. With surprisingly little to say about Rousseau (1712-1778), the author focuses on Germany. Articles by Möser (1720-1794), Herder (1744-1803), and Goethe (1794-1832), invoke sentiment against reason, exalting the Middle Ages over Greek antiquity. Philosophers dismiss the moral eminence of law, like piety, which looks down on law of the here and now in favor of an afterlife. A century and half before postmodern relativity we begin to hear that all power is equivalent; politics equals force, domination, and servitude. The popular will based on passion takes the place of mediating laws based on reason. Soon, the will of the people can be taken over by one who acts as its oracle who transforms that will into the whim of a despot. (See elaborations on this primate-tribal psychology here .) For Fichte (1762-1814), “Nationalism absorbed all forms of transcendence and the fatherland became the Christ.” Ludwig Feuerbach (1804-1872) then recasts politics as a kind of religion, giving back to Man what Man gave to God.

Feuerbach’s effect on Marx (1818-1883) was pronounced. Marx appears here highly impressionable as a boy, wanting to “transform history rather than understand it.” For Marx, politics is an illusion, appearance, alienation (per Feuerbach’s alienation of Man for God). Politics is for Marx a kind of mysticism to be secularized. The state, like religion, impoverishes and divides Man. (Notice we could re-spin this: Each is born impoverished because they must die, but religion unifies us by embracing death’s entry to paradise, making us whole.) Rather than the old idea where a state under the rule of law emancipates Man from the “all against all” of “natural man,” Marx’s anti-statism preached emancipation after the political state as oppressor is ended. And yet “Marxist socialism’s opposition to the state locked arms with a despotic buildup of the state.” Marxism and nationalism—products of romanticism—gain steam under the new “public-opinion machine,” where consensus passes as political action. With law and the state weakened, authority shifts from law to controlling public opinion, watched over and corrected.

A dense but informative book.