Introduction
The recent work on the modern notion of “sovereignty” by Andrew Willard Jones and Marc Barnes is an important endeavor of rethinking political theory in postmodern times.
Their critique questions the possibility of realizing true integralism by wielding the power of the State to coerce people into acting for the common good, a view associated with new integralists such as Adrian Vermeule, Edmund Waldstein, Sohrab Ahmari, Thomas Pink, and Gladden Pappin. As Jones [1] and Barnes [2] have argued convincingly in a series of publications for New Polity, modern liberal states are founded upon an ontology of violence based on the writings of Enlightenment thinkers such as Thomas Hobbes and John Locke. By contrast, since the end of politics is to perfect members of the polity into social virtue, i.e. the common good, they suggest that the proper approach to politics is through the principle of subsidiarity. Jones defines this principle as the assertion that human beings are led by others into virtue most efficaciously at the most personal level possible. [3] This for instance means that where the family is apt to regulate, it should do so instead of the State. Because modern liberal states are constructed not to view the family’s authority as real, but as derivative of their “sovereignty,” modern liberal states are fundamentally opposed to the principle of subsidiarity, and thus unworthy objects of Catholic integralism.
Further interesting developments to this novel approach have been recently detailed in an exchange with Susannah Black, where she constructively critiqued the locus of politics as primarily being the relationship between a father and his son and moved the focus towards the marriage relationship. [4] Jones and Barnes took the opportunity to bring great clarifications to their political theory in a response piece emphasizing archetypes of politics in opposition to libertarianism and its worldview of atomized individual with rights, correctly defining “politics” as “the act of aiding a person in the development of virtue in and through a real power difference.” [5]
This exchange is significant because it highlights the legal pluralism inherent to the true integralist position: what Jones and Barnes suggest in their political theory is to embrace a holistic, and thus complete and accurate, understanding of law in politics — what it is and what it is for. Indeed, it is correct to assert that politics is not restricted to the State and that law is not simply concentrated at the State level (and nor should it be), as politics and law are found within a broad range of normative orders across modern society. Such legal pluralism, beyond being correct, entails that the polity must absolutely reconceptualize its current legal ontology to achieve the end of politics.
The Plurality of Organizations
The new integralists reject the separation of politics from any concern with the end or purpose of human life. For them, political rule must order human beings to their final end. Because human beings have both a temporal and an eternal end, they consequently have two powers — or if we want to avoid an erroneous Foucaldian interpretation, authority — to rule over them, one temporal and the other spiritual. Since, within Catholic orthodoxy, the temporal end is subordinated to the eternal end, so too the temporal power to the spiritual power. But, as Jones noted, the problem is not with this definition of integralism, [6] but with a certain definition of power, or authority. For the new integralists, the concept of temporal power has been confused with the concept of the modern sovereign State, which holds a “monopoly of violence” on a given people and its territory. In other words, their suggested approach is to subordinate the State to the spiritual power, the Catholic Church, in all relevant matters, in a manner similar to the confessional states of the modern period. This is an error because all power and all law are not and should not be solely contained within the State.
Certainly, some type of authority (or power) must exist to create order out of chaos, regardless of whether such authority is identifiable or not. [7] All order is created for a particular end (its telos), and the authority normatively directs the relationships within the order towards that end. Human normative orders abide by this teleological principle in constituting organizations, which are understood as the purposeful, social action of human beings to reach a common goal. Authority within organizations is needed to maintain normativity and in turn achieve their respective set of common goals. Based on this definition, modern sovereign states are without a doubt organizations, and thus normative orders, yet they are not the only organizations found in societies.
Politics allows the authority to determine the content of normativity in organizations, and law allows the authority to enforce the organizations’ determined normativity. Best conceptualized as enforced normativity, law therefore pervades all organizations. This break from a positivistic understanding of law as defended by the great jurists — the Diceys, the Kelsens and the Schmitts of our legal history — is nothing new. Maybe the most significant article on this issue is Robert Cover’s seminal “Nomos and Narrative.” [8] It was the intuition of Cover in 1983 that human beings “habit a nomos — a normative universe,” meaning that they “constantly create and maintain a world of right and wrong, of lawful and unlawful, of valid and void.” [9] Law as a system of rules, interpretations and institutions does not itself make up the entire nomos, on the contrary it is constitutive of the normative world along with “the narratives that locate it and give it meaning.” [10] For this, law and narrative cannot be separated: prescription needs history and purpose while narrative needs “its prescriptive point, its moral.” [11]
Members of modern states do not necessarily inhabit the same nomos — sometimes they do and sometimes they do not — and not everyone lives in only one nomos. Rather, everyone occupies at least one nomos. All this depends on the organizations these members take part in, with the varying force that the many narratives, rules and institutions exert over them. One thing is certain, to equate the modern State with the nomos that all inhabit, and to reduce law to that of such a State comes out as a blatant mistake. Jones and Barnes get this right.
Furthermore, an organization will often create its own law, in different degrees separated from that of the State. When this happens, it becomes what Sally Falk Moore defined a semi-autonomous social field (SASF):
The semi-autonomous social field has rule-making capacities, and the means to induce or coerce compliance; but it is simultaneously set in a larger social matrix which can, and does, affect and invade it, sometimes at the invitation of persons inside it, sometimes at its own instance. [12]
It is not the organizational structure, for example whether the organization is a modern State or not, that allows us to define a SASF, but the processual characteristic mentioned, that is, if it can generate its own customs and rules as well as coercing or inducing compliance to them. Falk Moore brought forth the garment trade of the dress industry in New York [13] and the Chagga of Mount Kilimanjaro [14] as illustrations of what SASFs are and how they operate. The important criterion, in the words of Max Weber, is that SASFs have a “legal order” that is their own. [15] Put differently, when Jones and Barnes write about the centrality of subsidiarity for politics, they refer to the ideal hierarchy of SASFs for the common good in societies.
For new integralists, the “norm” and/or the “rule” is understood as a command imposed from the top onto the bottom, from the authority onto the governed. Such a view of law is too incomplete. In truth, law is a much more bilateral phenomenon than this: in legal orders, any member is always a participant, simultaneously subject and author, receiver and creator, of norms and rules.
The End of an Organization Contra the End of the Modern Liberal State
The aim here is not to merely reiterate the de facto reality of legal pluralism in modern societies: looking at politics and law through the lenses of organizations reveals how the modern liberal State in Western societies is metaphysically at odds with all other organizations. This is demonstrable through an analysis of how the pattern of rule-change transpires in liberal modern States compared to other organizations. [16]
In organizations, formal rule changes are responses to problems. They are thus inherently purposive reactions employing rules as problem-solving tools. What exactly are problems in organizations? Most jurists acknowledge that “society needs formal ‘law’ when consensus breaks down.” [17] Consensus is order whereas absence of consensus is chaos; that is to say, problems arise from a loss of order, a chaotic situation, incentivizing the participating members to adopt formal rules to solve them by reinstituting order. Consensus is always constructed in correspondence to the telos of the organization, and problems threaten the fulfillment of this telos specifically.
One illustrative example which evolved alongside the American state and legal system is the sport organization of American football, from its college debut to the National Football League (NFL), founded in 1920. Nowadays, American football consists of playing a series of downs either from scrimmage, like runs, passes, punts or field goal attempts, or from free kicks, like kickoffs and fair catch kicks. Between each down, substitutions of players are allowed as there are only 11 players per play, hence players are specialized to a given position. The team in possession of the ball has four downs to advance at least 10 yards and the goal is to score a maximum of points through touchdowns, field goal kicks or conversions in the 60 minutes that the games are lasting. But American football was not always like described, and it will probably not remain the same forever: the rules have shaped it with the goal to better fulfill its telos.
For instance, the line of scrimmage was created in 1880 because the outcomes of rugby’s method of putting the ball in play, the scrummage, was too uncertain. This was deemed a problem because interested members preferred to eliminate any chance in the game, favoring strategy and skill. Although it did provide for certainty over the team that would be in possession of the ball, it also led to an unforeseen situation: block games, that is games ending tied zero to zero. To solve this new problem, the Rules Committee decided not to go back to scrummage, although some members wanted to, but to come up with the new rule of “yards to go.” The rule was made more stable by enacting a new one to complete it. The addition of the “yards to go” was an essential change to remedy the block games which threatened the telos of football in having no winners or losers — the end of playing football cannot be relevant if the game played is not football.
The end of playing football also cannot be fulfilled if all your players are injured or refuse to play because of the fear that they will be. The history of physical safety rules in American football shows this: when interference was officially legalized in 1888, even though it was tacitly consented to since 1879, the Rules Committee allowed tackling between the waist and the knee only to liberate the game and to limit injuries. In reality, tackling increased momentum plays, fostering more violence and brutality which was obviously not foreseen. When it was becoming evident that, despite the rules to limit momentum plays, players injuries were increasing at an alarming number, the Rules Committee chose an extremely interesting remedy: it changed focus and tried to “open up the game” aggressively by legalizing conduct in 1906 which was strictly forbidden in the past, that is the forward pass. Indeed, the game played in the United-States was initially based on rugby, in which there were strict rules on the type of passes that could be made. The Rules Committee ultimately judged that to change the game with different passes was the proper solution to the chaos arising out of the players being harmed unreasonably. The telos of American football required it.
The modern liberal State is not like other organizations we have described in this respect; it is metaphysically different. With the modern liberal State the actual telos is never defined nor known. It aims for partial consensus on what its end for specific subjects or issues is, in the hope that these determined sub-ends will remain sufficient for members of the State to identify problems and offer solutions through rule changes. When Brown v. Board of Education was decided by the Supreme Court, there was a consensus solid enough over the fact that one of the United-States’ ends as a country was to provide equal treatment to students of public schools regardless of their skin color, and as a consequence separate schools for black and white students were a problem and ruled unconstitutional. [18] Even if such partial consensus was enough to determine the outcome in Brown, the lack of defined overarching telos to the modern liberal State prevents any rule change from taking part in an orderly consistent whole.
The modern liberal State differs from other organizations in that it is characterized by a particular abandonment of teleology: its properly defined telos would be to ensure that all individuals and freely associated individuals in organizations are free to define and act upon their own ends, defined only by themselves. As a matter of fact, the telos of modern liberal States is not merely unknown or absent, which would be conceptually impossible because organizations are directed orders, but thoroughly procedural and therefore completely void of actual substance. Modern liberal States protect and promote liberal freedom, letting individuals and organizations decide for themselves what their ends are and how to fulfill them. One will search in vain for a substantive unifying thread transcending the rule changes of (i) turning “the corporate form into a right which any person or group could make use of, rather than a privilege of the few”; as the economy developed and industrialized, the corporation became an increasingly popular business structure and the demands under the special charter system increased drastically; [19] (ii) introducing no-fault divorce in California in the 1970s to remedy the collusion of those who wanted to divorce as they were pretending or omitting to have grounds for divorce when in fact they had none or some, which was technically illegal but widely tolerated by judges and lawyers, of whom some even organized schemes, going as far hiring professional actors to play witnesses before courts or photographers to take pictures of a staged extramarital affair; [20] and (iii) developing tort law to address the spread of accidents that came with the multiplication of engines and machines during the industrial revolution, and more specifically the railroad locomotive in 1840, eventually leading to modern safety and compensation laws benefiting workers. [21]
There is no substantive unifying thread transcending rule changes in modern liberal States because, as explained, they have no telos to ground such substance. There is no view of the common good except that the common good must hold all individuals, subjects of the State, atomized and free to pursue their own good, their own end. In this system, authority comes from the individual and stops with it, and the modern liberal State exists to ensure that this dynamic is maintained. This the liberal paradigm brands neutral. Despite the pretenses to neutrality however, the modern liberal State, in defining itself as a “negative” force to protect individuals from being harmed and being limited in their rights and freedoms, entails an array of hyperindividualized norms, behaviours and relationships, effectively suppressing the true common good, for there is nothing common to hold valuable. These are not the principles but the real effects of liberalism.
Closing Thoughts
The issue new integralists take with the modern liberal State for not serving the common good—that is, to fulfill the end of politics—is warranted. While this has not been fully articulated yet, new integralists must nevertheless avoid conceptualizing law in the same thought paradigm as liberalism itself. The idea of a sovereign Leviathan holding the subjects in check with a monopoly of violence is a liberal one aimed at preserving the most rights and freedoms possible with a people naturally violent. And so is the Lockean idea of natural property rights posited over and against others, where the State, as sovereign and holder of a monopoly of violence, is justified in intervening when these rights are violated. Such an ontology of violence, grounding both State sovereignty and its legitimate power to make law, stands infertile to agape, and justifies taking the responsibility of others onto oneself as sacrificial love… the love looking to protect and perfect, which should be the foundation of all law. To reiterate, the polity now must absolutely reconceptualize its current legal ontology to achieve the telos of politics; coercing people into abiding mere laws is not about virtue but mere violence.
The State as part of the temporal power must doubtlessly be directed towards the common good, but so does all temporal power found in all organizations. The integralist ideal here is the cultivation of virtue through and through, integrally. This is why the principle of subsidiarity is of utmost importance: true integralism recognizes the inherent legal pluralism of human societies, and each level of power — or better, authority — must take part in the project of realizing the common good.
See Andrew Willard Jones, “What States Can’t Do” (2020) New Polity.
See Marc Barnes, “Ahmari, Vermeule, and Burying Liberalism for Good” (2020) New Polity.
See Jones, supra note 1.
See Susannah Black, “The Temptation of Coziness: Andrew Willard Jones and the True Meaning of Subsidiarity” (2020) New Polity.
See Marc Barnes & Andrew Willard Jones, “Localism Beyond Libertarianism: A Response to Susannah Black” (2020) New Polity.
“We are all integralists, and that is a very good thing,” in supra note 1.
On this, see Friedrich A Hayek, Law Legislation and Liberty: A New Statement of the Liberal Principles of Justice and Political Economy, 2nd ed (London: Routledge, 2012) at 9–136, 169–96.
Robert Cover, “The Supreme Court, 1982 Term — Foreword: Nomos and Narrative” (1983) 97 Harv Law Rev 4.
Ibid at 4.
Ibid at 4.
Ibid at 5.
Sally Falk Moore, “Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study” (1973) 7:4 Law Soc Rev 719 at 720.
Ibid at 723–29.
Ibid at 729–46
Ibid at 721
Here the concept of “rule” refers to the official rules, or read laws even, of organizations strictly, and not to norms or behaviors, regardless of their respective normative power.
Lawrence M Friedman, The Legal System: A Social Science Perspective (New York: Russel Sage Foundation, 1975) at 304.
Brown v Board of Education of Topeka, [1954] 347 US 483, 74 S Ct 686. Chief Justice Earl Warren wrote for an unanimous court that segregation of students in public schools violated the Equal Protection Clause of the Fourteenth Amendment, because “separate facilities are inherently unequal” at 495.
See Lawrence M Friedman, A History of American Law, 3rd ed (New York: Touchstone, 2005) at 129–37.
Ibid at 577–79.
Ibid at 222–24, 357–64, 516.