Conservative intellectuals and the invisible hand

Conservative Intellectuals

                                     The invisible hand just gave you the finger, son.

                                                           Clyde "the possum" Ridenour

                                                        

The expression “conservative intellectual” was, at least until the nineteen-fifties, an oxymoron. Conservatives, with their founder, Edmund Burke, insisted that not reason but custom was the true foundation of freedom. The rights of Englishmen, founded in long tradition and customary practice, were real. “The rights of man,” the brainchild of Enlightenment thinking, was but a chimera, a brainstorm without substance. The “reason” of the Enlightenment produced only a wind-egg and worse, the Terror. Conservatism attacked reason itself, so how could it then turn around and spawn conservative “think tanks” such as the Heritage Foundation, peopled with conservative intellectuals?

The change seems to have come with books like The Origins of Totalitarianism by Hannah Arendt. Totalitarianism was what linked the regimes of Nazi Germany and Soviet Russia together. Before that everyone thought one was extreme left and the other extreme right. No two regimes could have been more different. But no, they shared a new kind of political structure never imagined by the ancients who otherwise identified all known political structures.

Totalitarianism, it seemed, needed an ideology, a set of ideas that cling together to inspire citizens to embrace the totalitarian movement, set out for its illusory Shangri-la, and perish in confusion. The ideas within the ideology were unimportant because the ideology served the same purpose in any totalitarian structure regardless of the ideology's content. That the Soviet Union was to the far left and Nazi Germany to the far right didn't matter. The actual ideas in the ideology factored out, so to speak, leaving just the path, the unreachable Shangri-la, and the pit.

The totalitarian structure was not really a structure at all, but, perhaps an anti-structure, a whirlwind where everything changed from day to day. Its kaleidoscopic chaos hypnotized the population then led them into the maw. In its grip people turned away from lifelong friends. In politics they fervently embraced policies and motives only to abandon them a day later. Such is the instability of ideas. Under totalitarianism, in the spell of ideology, people abandoned all morality. They shoved others into gas chambers in Poland, or, bizarrely, confessed to crimes they did not commit, after which they trundling off proudly to their own executions in Moscow. Nothing held fast; everything was in flux. Oh ideas, evil ideas. Spiraling into hell, those in their grip hallucinated that they marched all together towards paradise.

The conservative intellectual's task was to raise the alarm against ideas--to persuade people that state planning, reason, ideas used to achieve some state purpose, led to disaster. Their objection was to practical reason, planning and carrying out that plan, not rhetoric. Unlike Burke, they did not object to the use of the art of persuasion. Talk away. Just don't do any non-market thing if you are in the government. State programs launched for the common good were the enemy. All plans were the germs of ideologies that pointed to some hair-brained utopia whose vision hypnotized governments and turned leaders into zombies. Indeed anything a government might do to achieve any goal was the germ of horrible ruin. The conservative intellectual wanted to point out that our own liberal democracy was itself in mortal danger to the extent that the government had ideas that led them to do things. To make policy in the hope of achieving some social program was to invite totalitarianism. Thinking to help, you create disaster. “The tyranny of good intentions” discredited all good intentions. Since ideology, ideas used to plan action, always leads to totalitarianism, government regulation was only a step away from the gas chamber.

Burke's attack on reason was incoherent. He argued against the firebrands of the French Revolution in a rhetorical war to see who could persuade the English to either embrace the ideas of the French Revolution or repudiate them. Burke argued rhetorically that the rhetorical appeal of his enemies should be repudiated because all rhetorical appeals are bad. Ideas, no matter how good, tear up custom and make the ship of state rudderless. Custom is the steady guide. But custom does not need Burke to exhort you to follow it, for then you would be following Burke and not custom. He reasoned that one should not trust reason.

His modern disciples have solved that problem. Because their quarry is not a gaggle of soap box firebrands, but the government itself, they have withdrawn their objection to rhetoric and have thrust their lance at practical reason. That is where the totalitarian danger comes from. What they object to is “government regulation” to achieve a social program. Regulations deprive us of “free choice.” The government sets up rules and enforces them -- with violence if necessary. This is coercion. The conservative intellectual includes all government regulation and all commands in the category of “coercion.” The government is identified with the highwayman. Both coerce. Thus all government regulation is bad, and will lead to catastrophe-- depressions, gulags, holocausts, totalitarianism. Government should act only as a referee to prevent force and fraud and so be a shelter for the free market, but otherwise do nothing. Individual free choice, allowing the “invisible hand” to shape the world, replaced custom as the guide through the wilderness.

The conservative intellectual does not object to the use of commands within a commercial enterprise, that is, within the free market. The workers have chosen to work in the factory. They have chosen to obey the commands of the boss. Even though their entire lives are spent obeying commands, they are free. For they freely chose to go to work. If they don't like it they can leave. Such a situation remains within the realm of “choice.”

In the Introduction to Free to Choose, Milton and Rose Friedman, make up a little bit of American history. It goes something like this. Our founding fathers created the United States of America to protect men from the encroachment of government. For quite some time Americans were largely free, and the country blossomed. But in spite of this there were still many evils. Intellectuals forgot that it was free choice that produced all the good and thought they could use government to correct all the evils. When these intellectuals were able to influence the government, the Great Depression resulted. Here, in the Friedmans' own words, is how the story ends:

However, government's responsibility for the depression was not recognized —either then or now. Instead, the depression was widely interpreted as a failure of free market capitalism. That myth led the public to join the intellectuals in a changed view of the relative responsibilities of individuals and government. Emphasis on the responsibility of the individual for his own fate was replaced by emphasis on the individual as a pawn buffeted by forces beyond his control. The view that government's role is to serve as an umpire to prevent individuals from coercing one another was replaced by a view that government's role is to serve as a parent charged with the duty of coercing some to aid others.¹

The Friedmans offers us no example of an intellectual who embraced their bizarre idea of the duties of a parent. But what Friedman objects to here is coercive social programs. Such governmental interference coerces the rich to aid the poor. The Friedmans, as usual,  assimilate such “coercion” to that of the highwayman. But given these two very dissimilar cases, just where does the boundary lie? The Friedmans do not want to say that natural limitations coerce us. “I would prefer to fly but my lack of wings coerces me into walking.” No. What is, is. Coercion is something people do and has nothing to do with our natural limitations, which are neither good nor bad but simply something an adult must live with. The starvation of a worker's children, for example, does not coerce him into taking a job that he otherwise would have spat upon. He still makes a free choice. To complain about this is to complain about not having wings. What is, is; one makes choices within the context of reality. If your children are starving that is what is. You try to fix it, but within the market place. “What is” in this case as well, is not coercion, according to Friedman. What distinguishes “what is” from minimum wage laws? Why is it not coercion when they are? No doubt it is that only people, or social institutions can coerce. No one made the children starve.

Now the worker with starving children might say that the rich man who owns all the food is coercing him when he comes to get some food. Instead of letting him take it he had guards, the police, who use coercion, even violence, to keep him from the food. The worker did not use force; He would have been happy to take the food peacefully. Force was used against him. And this coercion arose with people, namely, the police. So it is not like “just the way things are.” This is a simple case of government coercion.  “But a man has a right to protect his own property,” the conservative intellectual will say indignantly. “Protection of property is what the United States is all about. It is essential for the free market. ” Very well, but then the Conservative intellectual must admit that coercion is good in the protection of property. Since “protection of property” is an idea and the police an agency for carrying out government regulation to realize that idea, when the conservative intellectual accepts police coercion he violates his own principles.

 Coercion to protect property rights is governmental regulation to realize a social good. Why is this regulation good but not one guaranteeing enough food for your children? The answer, whatever it may be, comes from ideas, verboten ideas, and an attempt to realize them. So there is no possible justification for choosing one right, “ protection of property,” over the other,  “the right to not be hungry,” without contradiction of the principle forbidding social programs to realize ideas of the good. The conservative intellectual is left with a conceptual train wreck.

Friedman wants to say that good things happen when the umpire favors property and not starving children. But this good thing is a social good the Government uses regulation to realize. The free market is a cornucopia! Maybe so, but the poor man with no share in it might not call it a good thing. What is it to him? He would not allow that any good thing can happen while his children starve. Since we are all individuals any opinion is as good as any other. For we must not try to realize any social good through means outside the market place. What is good and what bad coercion depends upon one's point of view. The intellectual argument objecting to coercion has vanished and the conservative intellectual is revealed as simply having taken sides. Once there can be good and bad coercion “coercion” loses its place as a criterion for what is good or bad. And the conservative intellectual can offer no other criterion without violating his own principles.

The distinction between “free” and “coerced” also disappears, since freedom, The Friedmans agree, requires a coercive umpire to keep people from coercing one another. In other words freedom requires coercion to remain free. So how can “freedom” and “coercion” inhabit mutually exclusive realms? What is freedom now that coercion must be inevitably mixed in with it?  For governmental use of coercion to achieve social ends is, in his setup, identical to highway robbery. If one tries to argue that the police do not really influence anyones actual choices and thus to distinguish between good coercion that does not influence market choice and bad coercion that does, the highwayman will object. For, he will argue, his coercion does not influence market choices either. His pistol is like a deed of trust that proves that he already holds his victims life in his hand. He does not threaten his victim's life; he already possesses it and can do with in what he will. The victim can choose to buy back his life with his money or not. Whichever he chooses, he is not coerced. The highwayman offers him a deal: his money for his life. He is free to choose. The highwayman does not influence him either way. That his life is at stake is irrelevant. For lives are often at stake in the market. In the quote above the Friedmans want us to think of the citizen as [responsible] “for his own fate” rather than as a “pawn buffeted by forces.” Very well, then why shouldn't he be responsible for the protection of his own life and goods? The market is a translation of a Darwinian jungle into a paper city. It is a duel to the death fought with documents rather than with tooth and claw. But why exclude tooth and claw? The exclusion of these weapons is unjustified. Why deprive the con man or thug of his skills? No argument without an appeal to the general good is possible. Any rules restricting a jungle where the fittest survive will keep the fittest from surviving unless one assimilates the rules to “what is.”

The discourse of the conservative intellectual is really an ideology, a set of ideas that don't hold together, but set us off towards a utopia and to our doom. This utopia is perhaps different in that the conservative intellectual refuses to offer any picture of it. The “invisible hand of the market” will take our hands and lead us there, but we will not know where we are going. Just the human penchant for boredom will guarantee that if we ever think we know where we are going the enormous urge to not continue in the same direction for yet another day will set us off in a different direction. Knowing where you are going is a sure sign of not knowing where you are going. This utopia has no fixed shape. Its citizen is a man who constantly tries to peer into the future and then get there first. He tries to glimpse the next “what comes next” and point his own market activity towards it. Superior human beings, capable of guessing the desires of tomorrow, will emerge. The Conservative Utopia, the best of all possible worlds, sometimes called “whatever comes next” is just whatever emerges from the rough and tumble of the marketplace (but it will be good!). In our blind march towards the utopia of market success some find the way, but most fall by the wayside. If you do it is your own fault; you lack character or energy, stability or imagination, in short either one thing or its opposite. That is the Darwinian way of the world, and it is good. This Utopia's indistinctness, far beyond the formidable indistinctness of previous utopias, gives it plausibility in our present habitual mistrust of planning and clear goals (except within a market context). But since all such utopias are unreachable, the unrecognizablity of this one hardly matters. If an hallucination without any qualities can be called an hallucination, this utopia is as hallucinatory as any other, or even more so, since whatever happens is a step in the right direction. Recent events have revealed that this utopia is a fatal snare , but its web of ideas continues to entangle us.

What you would normally think

Has more to it than that.

Behind the surface truth

Something else appears.

When you focus there

You find a silver path

Whose forks, seeming choices,

Are outposts, points of view,

From which the beauty of the whole plan

Shows up.

But someone else is there.

A spider in that web

Views you as you flail

In the trap he set for you.

1Milton and Rose Friedman, Free to Choose:(Harcourt Brace Jovanovich, 1980) 5

The Catastrophe of Class Warfare

Karl Marx wrote The Eighteenth Brumaire of Louis Napoleon as a history of the French Revolution of 1848 in terms of class warfare. Its oft quoted first two sentences read, “Hegel remarks somewhere that all great world-historic facts and personages appear, so to speak, twice. He forgot to add: the first time as tragedy, the second time as farce.” He refers here to the French Revolutions of 1789 and 1848. The first is a tragedy because, according to Marx, power changed hands from the old aristocracy to the rising bourgeoisie. The second is a farce because power fell into the hands of the buffoon, Louis Napoleon but means of production did not change hands from one class to another. For although the Paris proletariat did hold power for a brief time in February, 1848, a counterrevolution involving almost all classes against the proletariat, allowed Louis Napoleon, the representative of the lumpen proletariat, to take power and rule for many years. Though different in kind both revolutions are stage plays, but, Marx hopes, the real revolution, the “social revolution of the nineteenth century, won't be.

Marx chuckles at the bourgeoisie for being so afraid of the proletariat that it allows itself to fall into barbarism, demolishing what Marx thinks of as the bourgeois goal, the bourgeois republic. “The French bourgeoisie had long ago found the solution to Napoleon’s dilemma: 'In fifty years Europe will be republican or Cossack.' It solved it in the “Cossack republic.” No Circe using black magic has distorted that work of art, the bourgeois republic, into a monstrous shape. That republic has lost nothing but the semblance of respectability.” Marx expects this monstrous specter to inspire the “social revolution of the nineteenth century.” He explains that the proletariat didn't revolt after Dec 2 when Louis Napoleon overthrew the vestiges of the bourgeois republic because the whole remainder of the nation ganged up against it— including the peasantry. But also, he asserts, the proletariat will not be able to replay a past stage play, but must invent itself as it goes along. In spite of this hiccup, the history fits neatly into Hegelian terms. Contradictions within the bourgeois republic lead it to throw itself into the arms of Louis Napoleon, described as what most of us would see as a proto-Nazi. With the Bourgeois Republic now revealed as a monstrosity, the social revolution of the nineteenth century cannot be far off.

Marx adopted the word “proletariat” to identify the working class and with it he describes history as, not a story about political actors, but class warfare. Aristocracy, bourgeoisie, proletariat, and lumpen proletariat—these are the actors on the world historical stage. Since then, this description has been persuasive both to the “left” and to the “right.” It is class war that allows Marx to describe the revolution of 1789 as tragedy and that of 1848 as farce. The idea that the first French Revolution, that of 1789, was the “Bourgeois Revolution,” as Marx described it, has taken root. Most on the left now think of that revolution as something of a preliminary revolution, with the final revolution, the proletarian revolution, still to be accomplished. To be sure, with Marx's demonization, the word “proletariat” can no longer be used, but the idea remains. “The people” or “the 99%” now substitute for it. The distinction is one of class.

But those who actually participated in the French Revolution did not think of it in class terms. The Marquis de Lafayette wrote the Declaration of the Rights of Man with the help of Thomas Jefferson. Neither could be accused of membership in the bourgeoisie. The Declaration of the Rights of Man spoke of universal human equality. Marx comments that classes, such as the landed peasantry, who supported the first revolution, turned against the Paris proletariat in the second because they had benefited from the “bourgeois republic.” “While the Paris proletariat still reveled in the vision of the wide prospects that had opened before it and indulged in seriously meant discussions of social problems, the old powers of society had grouped themselves, assembled, reflected, and found unexpected support in the mass of the nation, the peasants and petty bourgeois, who all at once stormed onto the political stage after the barriers of the July Monarchy had fallen.” Is this an alliance between classes or a counter revolution that is classless?

What is perhaps forgotten now is the considerable sympathy the original French Revolution had within the European aristocracy, supposedly its enemy. Lafayette was of the aristocracy. Lord Stanhope, chairman of “The Revolution Society” founded in honor of the English Revolution of 1688 expressed support for the French Revolution, as did the other members of the society in 1790. To be sure he was later ostracized for his sympathies, but their early acceptance reflects some aristocratic sympathy with the original idealism of the Revolution.

The French Revolution of 1789 did abolish privileges of the aristocracy and thus opened the way for freer commercial flow. In that sense it was a bourgeois revolution. But it also deprived the nobles of property, one of Burke's major objections, and thus was a peasant revolution. The sentiments expressed in the Declaration of the Rights of Man were of universal human equality, not class war. Even Burke admitted sympathy for these sentiments.”Those who cultivate the memory of our Revolution [the English Revolution of 1688] and those who are attached to the constitution of this kingdom will take good care how they are involved with persons who, under the pretext of zeal toward the Revolution and constitution, too frequently wander from their true principles and are ready on every occasion to depart from the firm but cautious and deliberate spirit which produced the one, and which presides in the other.”

But the word “equality” meant different things to different people. Burke's equality was what he called moral equality. He was convinced that the French Revolution betrayed the sentiments it professed to uphold. Burke understood, as anyone who thinks about it must, that an idea of universal equality in everything is a chimera. Nature bestows gifts unequally, including the gift for amassing property. Burke believed in another interpretation of these sentiments. With his “moral equality” “you would have had a protected, satisfied, laborious, and obedient people, taught to seek and to recognize the happiness that is to be found by virtue in all conditions; in which consists the true moral equality of mankind, and not in that monstrous fiction which, by inspiring false ideas and vain expectations into men destined to travel in the obscure walk of laborious life, serves only to aggravate and embitter that real inequality which it never can remove, and which the order of civil life establishes as much for the benefit of those whom it must leave in a humble state as those whom it is able to exalt to a condition more splendid, but not more happy.” Burke, it seems, hoped to convince the people that they were happy in their humble position, a sentiment that surely must have been impossible to inculcate in the bustling new-born entrepreneurial capitalism of the nineteenth century. Burke feared popular dissatisfaction and seems not to have anticipated the overweening ambition free enterprise inspired and through which the rising bourgeoisie must inevitably have destroyed the privileges of the nobility. Neither he nor Marx thought equality might mean equality of opportunity to develop one's talents.

Marx, of course, thought of these sentiments as costume.

The classic description of universal human equality is that in the American Declaration of Independence. “We hold these truths to be self-evident, that all men are created equal.” Were equality identified with equality of financial means, social position, or natural endowments the statement would be absurd, not “self evident.” The statement, couched as it is in the logical language of “self-evident truths” is clearly an expression of the Enlightenment. What it objects to is privileges bestowed upon the scions of certain families that give them unfair advantages. Those informed by the Enlightenment, as all of us now are, saw human beings as a collection of talents, the primary being that of reason. Self-evident equality at creation could only mean equality at naked birth, an equality of opportunity for “life, liberty, and the pursuit of happiness,” that is, the development of these talents for one's own benefit. Given an image of man naked in the state of nature, these truths do, indeed, seem self-evident.

Marx saw the bourgeoisie's curious political incompetence that contrasted sharply with their rise in wealth. In spite of the nobility's apparent recovery of power after the Congress of Vienna and other similar congresses following Napoleon's defeat, the bourgeoisie retained their freedom of activity under the restored monarchy. Louis Philippe was known as the bourgeois monarch. Their riches continued to grow, but curiously, they remained politically clownish, as Marx saw so clearly in the Revolution of 1848.

The boredom and corruption Marx identifies with the bourgeois republic was something of a commonplace. Moliere's Bourgeois Gentilhomme, presented more than 100 years earlier, had satirized the bourgeois mercilessly. The well-known bourgeois passion for social climbing revealed the barren nature of bourgeois life and its bad conscience. The first thing the successful bourgeois wanted to do was escape being bourgeois. He aspired to imitate the decadent nobility unless he could, through his wealth, actually join them. His excursions into the demimonde to give life spice were also well known. Marx mocked the bourgeoisie for having virtually thrown power to Louis Napoleon in fear after the brief appearance the the Paris proletariat on the stage of history. But this also shows the enormous bourgeois political inferiority complex. Statesmen were subtle, unlike the fumbling bourgeois gentilhomme. The whole Romantic movement was an attempt to find an escape through imagination to a life more alive than what bourgeois society had to offer. The “bourgeois gentleman,” an oxymoron, hardly had the courage, let alone the imagination, to take political power in spite of his burgeoning wealth.

Hannah Arendt notes the bourgeoisie's political backwardness. She writes in Origins of Totalitarianism, “The central inner-European event of the imperialist period [1884-1914] was the political emancipation of the bourgeoisie, which up to then had been the first class in history to achieve economic pre-eminence without aspiring to political rule.” She attributes this sudden arrival on the political stage to the bourgeoisie's need to use the army to rule foreign countries, a project in direct contradiction to the raison d'être of the nation state. For the nation justifies its existence as protection for the particular way of life of a “volk” or nation, as Burke would have it. The English nation-state protects the rights and customs of Englishmen, not the universal rights of men. It has no business ruling others with other customs. She recounts the state's resistance to the “megalomania of imperialist aspirations.” But capitalism set free must expand and will soon reach the borders of the nation-state and need to go beyond them. Hence imperialism. Of course the true irony was that the nation state's imperial venture infected the subject countries with the passion for their own nation, inspiring inevitable revolution.

But where did this bourgeois megalomania come from? Arendt traces it to Hobbes, and she is undoubtedly right. But there is nothing further from Hobbes than the Declaration of the Rights of Man. Nothing could contrast more with Hobbes's “nasty, brutish, short” human life than that of a man in the state of nature developing his talents to achieve “happiness.” How did Europe get from the “new dawn” of the French Revolution to absolute nihilism of the imperial bourgeois period? Well, there is not much difference between nihilism and materialism. Arendt writes, “ For power left to itself can achieve nothing but more power, and violence administered for power's (and not for law's ) sake turns into a destructive principle that will not stop until there is nothing left to violate.” And so imperialism has proved in fact. But after Marx what else was there but power and more power, wealth and more wealth.

The French revolutions of 1830 and 1848 were again in the name of the principles of 1789. But Marx's characterization of the revolution of 1848 as a farce because it failed to transfer power to the Paris proletariat changed all that. For it is through this history that Marx changed the idea of revolution from a fight for universal human equality to class warfare. Behind this is Marx's materialist philosophy, the idea that all culture and value were but disguise for the real truth, namely, the identity of who controlled the means of production. High ideals were the costume of tragedy or farce depending upon which class ended up with the means of production at the end.

Such interpretation appealed to leftist historians who could push aside all that refinement of manners they were not heir to and look only at the cold hard material facts: who controls what. But what no one seems to have realized is just what a boon such interpretation was to the bourgeoisie. They too stumbled over their clumsy manners. This interpretation set them free from the self-doubt of the uncultured and the moral qualms that might arise from their possession of “dark satanic mills” while professing a belief in universal human equality. They were now warriors in a class war and all that could be pushed aside. All that was real was money and power, and that was what they had in spades. The bourgeois's clumsiness, his lack of style, the emptiness of his life, was irrelevant. Manners, honor, morals were but window dressing. They saw through it to the truth. Boredom evaporated in the frisson of unvarnished savagery that was class warfare. Their inferiority complex had kept them away from politics, but in the late nineteenth century they commandeered the machinery of the nation state for imperialist purposes with ruthless glee. For there was nothing to hold them back.

Since revolution was class war, not a fight for universal human dignity, all was fair. Since power and wealth was everything, why should the bourgeoisie relinquish it to another class? In a war for wealth and power neither side has the moral high ground. Marx's labor theory of value does not succeed in persuading anyone of the justice of the proletariat's cause. The Congresses that followed Napoleon's defeat, through which Metternich set up the nation state system that continues in a hollowed out way today, countered the revolutionary sentiments of the French Revolution by embracing, not rejecting them. Friedrich von Gentz, Metternich's secretary, was a Burkean, and had published a pamphlet, Die Historisches Journal which was nothing but a translation of Burke's works. The Burkean nation-state system countered the inflammatory Enlightenment sentiment for universal equality by claiming it could only be achieved through the nation state. Freedoms became “our” freedoms. The nation state, the bourgeois republic, proclaimed itself the protector of human (now English) rights. At the same time the parliamentary system exhausted the revolutionary energy in procedural wrangling. The courts, too, exhausted petitioners for justice as Dickens describes in Bleak House. Nationalists did not pretend that the revolutionary sentiment was nothing but a costume concealing the reality of class warfare, but fed hopes for realizing these ideals into a system that choked them with red tape. In such a system demands for equality, when they grew too hot, could not be so easily ignored. The American civil rights movement could succeed, if only in a limited way, because it's demand for equality of treatment repeated the noble hopes of the American and first French Revolutions that the United States still clung too, however precariously.

Once revolution became class war, and the bourgeoisie became political, it's embarrassment over the “monstrous nature” of the bourgeois republic vanished. Marx thought the exposure of this monstrous character would doom the republic. What he failed to note was that his own materialism made this monstrosity as much of a costume as were the high flown sentiments of the first French Revolution. Everything was but cover for power and wealth hunger. The bourgeoisie proved quite indifferent to the horrors they perpetrated. War was, after all, war. They pursued the ever more ghastly wars with aplomb, focusing entirely on the prize, their own power and wealth. The revolutionary cry, once “liberté, égalité, fraternité,,” had become “show me the money.”

One can only wonder what might have been had the revolutions that continued through the nineteenth century remained revolutions for universal human equality. Had equality been understood not as a requirement for dispossessing the bourgeoisie, but as rather assuring fairness of opportunity, the outcome might have been different. Marx was certainly not wrong in seeing class war in the social relationships mushrooming in the nineteenth century, but class war need not have become the central theme of revolution. Dickens, who saw all the horrors of capitalism better than almost anyone, to the surprise of many, was horrified by class warfare. In his report, “On Strike,” of the Preston strike in 1854 he wrote, “Masters right or men right masters wrong or men wrong both right or both wrong there is certain ruin to both in the continuance or frequent revival of this breach. And from the ever widening circle of their decay what drop in the social ocean shall be free?”

If equality of opportunity had remained the theme of revolution, it still would have required some redistribution of property, for no one can expect children growing up in poverty to “realize their potential.” Arendt attributes the bourgeois adaptation of their rapacious ethic to their political isolation, and this does seem plausible. But in the Canut revolts in Lyon, surely events that can be seen as class warfare, the mill owners claimed the workers were violating the principles of the French Revolution. That the bourgeoisie would have acquiesced to this lesser level of property redistribution seems doubtful from our perspective. But we are looking from the well armed turrets of post Marxist capitalist society and are primed to launch our own attacks in the war of all against all. Had the bourgeoisie retained their sense of the emptiness of bourgeois existence and the rightness of the principles of the first French Revolution they might have seen the state as more than just a police force and been more inclined to use some of their wealth for the furtherance of universal human equality, seen as equality of opportunity. After all it was because of the uprising in the name of this equality that they realized their power in the first place, and the talents thus fostered would have been in their service. 

The end of law

The Dreyfus Affair

The Dreyfus Affair that started in 1894 when Alfred Dreyfus was convicted of spying for Germany in a blatantly unfair trial is misunderstood today. It is true that the Dreyfus case inspired Theodor Hertzl to launch the Zionist project that ended with the creation of the state of Israel, but antisemitism is only a small part of this trial's historical importance, and Hertzl knew it:

“The Dreyfus case embodies more than just a judicial error; it embodies the desire of a vast majority of the French to condemn a Jew and to condemn all Jews in this one Jew… In republican, modern, civilized France, a hundred years after the Declaration of the Rights of Man, the French people, or rather the greater part of the French people, does not want to extend the rights of man to Jews. The edict of the great revolution has been revoked.”

The Dreyfus case proved to Hertzl and many others, including Emile Zola, that the Declaration of the Rights of Man, that is the declaration of universal human equality, was a dead letter, not only for Jews, but for everyone. Hertzl drew the conclusion from this one trial that the Jews could never expect the law to protect them. Although Hertzl was primarily interested in the Jews he saw clearly that the entire project of “rule by law” was over.

People believed that the Code Napoleon secured the project of universal human equality. Universal human equality required legal proceedings that produced objective proof of guilt or innocence. What the law was and what the defendant did should be all that mattered in a legal proceeding. Social position was to have no bearing. It is precisely here, in the reliance on objectivity in the courts, that the Enlightenment's scientific thinking met its idealism. Hertzl recognized that the railroading of Dreyfus in a trial that was scandalously unfair, negated not just Jewish safety in civilized Europe, but the whole project of judicial procedure to determine objective facts. That one could erect a legal procedure that might insure that criminal convictions be based upon fact had been proved false.

Emile Zola, who wrote J’accuse about the Dreyfus case, also saw it this way. To be sure, he does condemn antisemitism in his letter, but it is the larger issue that troubles him far more. In the Wikisource translation Zola writes:

But what a spot of mud on your name—I was going to say on your reign—is this abominable Dreyfus affair! A council of war, under order, has just dared to acquit Esterhazy, a great blow to all truth, all justice. And it is finished, France has this stain on her cheek, History will write that it was under your presidency that such a social crime could be committed.

Zola goes on. “I declare simply that commander Du Paty de Clam, charged to investigate the Dreyfus business as a legal officer, is, in date and in responsibility, the first culprit in the appalling miscarriage of justice committed…. If I insist, it is that the kernel is here, from whence the true crime will later emerge, the terrible denial of justice from which France is sick.” Antisemitism allowed Dreyfus to be used as a fall guy for Esterhazy (the real culprit), but it is the open blatant miscarriage of justice that troubles Zola most. For if the court cannot recognize obvious lying, fabrication of evidence, and attempts to frame the defendant, what good is it?

We think of the law as setting down rails upon which the court procedure will run to provide, in the end, a just verdict. But what of fabricated evidence, false testimony and the like? Are there procedures for discovering such things or does such discovery depend upon human judgment? Who decides when such procedures are needed? Couldn’t deceptive practices circumvent procedures mechanically followed? But the opposite of following a procedure mechanically is following it thoughtfully, that is with judgment. That is: not on strict rails. Furthermore, who decides whether or not the procedures are actually being followed? Do the instructions on paper guarantee that they are, or do we still need custom and judgment and in the end someone to decide?

Wittgenstein, in an entirely different context, gives a classic expression to the problem:

“But am I not compelled, then, to go the way I do in a chain of inferences?” --Compelled? After all I can presumably go as I choose!-- “ But if you want to remain in accord with the rules you must go this way.” – Not at all, I call this 'accord'. – “Then you have changed the meaning of the word “accord”, or the meaning of the rule.” --No; – who says what 'change' and 'remaining the same' mean here?

However many rules you give me-- I give a rule which justifies my employment of your rules.

Wittgenstein exposes the problem in mathematics, whose rules are presumably the most rigid of all. Legal terms are surely even more open to interpretation. In any case, all rules are open to endless interpretation. Those who would argue against this have nothing with which to argue, but gain their point through contempt of the dissenter and the power teachers have over students.

The deepest question is this: what happens when everyone agrees that the procedures have been followed properly and the result is injustice measured not legally but in human terms. To illustrate, consider this quote from Supreme Court JusticeAntonin Scalia: "This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent." And what if the man is actually innocent? He did not commit the crime. Clearly, Scalia is saying that that would be irrelevant. The law is the law. The quotation marks around “actually” indicate that, for Scalia, innocence is a matter of judicial procedure, and is completely independent of the actual facts if they emerge outside that procedure.

The laws themselves, even when properly enforced, produce frequent injustices. But these injustices, if one restricts oneself to looking only at the laws, are invisible. According to the law they are not injustices. It is only when the appeal goes beyond the law, and rests on what we can only call our sense of justice, that we can see it. He didn't do it! Too bad, he was convicted and the law is the law. Of course these injustices are not always so extreme. A man caught smoking a joint is convicted and required to endure six months of drug therapy. The man might be quite functional, indeed a pillar of the society. He might have a family that is destroyed because of his infamy. The therapy is stupid and in his case pointless. It's cruel and inhuman punishment, but does not appear so. And the law is the law. Or two people commit the same crime, but one is rich the other poor. The rich man gets a good lawyer, finds a loophole, and escapes conviction. The poor one doesn't. That wealth can affect judicial outcome shows that the notion that the procedure determines whether or not a law was broken and that punishment depends upon that is a sham. But if our “law is the law” blinders restrict our vision only to whether or not we followed the procedures, such injustice is invisible.

The Dreyfus case surprised Zola because it revealed not only the problem with written law, but the affect this law had upon human judgment. “The law is the Law” thinking that written law forces, suppresses, if it doesn't kill, the human sense of justice. The quote from Scalia shows just how this happens. Scalia's statement, outrageous to anyone with an intact sense of justice, seems quite fine to anyone habituated to “the law is the law” thinking. If he retains this sense of justice at all it is so repressed as to have no real bearing on his opinion of what is right and wrong. And his attitude is not anomalous, but quite correct in a Supreme Court justice. Law school trains people to repress this sense of right and wrong and refer only to the legal procedures. If “due process” is followed, the verdict is the right one regardless of what crime was actually committed. Since lawyers suppress the sense of what is right and wrong, and it has no bearing on a case at law, it is irrelevant and atrophies.

This causes further damage when legislators, the preponderance of whom are lawyers, enact further laws. For whereas laws were originally supposed to codify our sense of right and wrong, those without this sense enact laws without reference to it. Drug laws enact harsh penalties upon people who have done nothing to harm anyone else. But because those who rule are so thoroughly schooled in “a law is a law” thinking, they do not even notice. Nor does anyone else who has embraced “the law is the law” thinking.

As the Dreyfus case wore on interminably into the Dreyfus affair the enormous uproar at the miscarriage of justice died away. People seemed unable to see what happened and just how decisive it was. The clear demonstration that written law could not guarantee objective criteria for judicial proceedings faded away in fuzzy thinking. And everyone continued to operate as if the law could work.

About the fall of the third Republic in 1940 Hannah Arendt comments:

What made France fall was the fact that she had no more true Dreyfusards, no one who believed that democracy and freedom, equality and justice could could any longer be defended or realized under the republic.

The anti-Dreyfusards well knew that they attacked not only the Dreyfusards, but also the principles of the French Revolution, that is democracy, freedom, and universal human equality. That Dreyfusard sentiment should have petered out is not surprising. For, as we have seen, justice under the law still depends upon judgment and the human sense of right and wrong. All one can say is, “don't you see how wrong this is!” If others disagree, if they refuse to listen to reason, if they have no judgment, what more can reason do? The sense of justice might rest, for example, on Kant's categorical imperative, but what do you do when your interlocutor simply rejects that and any other principle derived from the universalist ideas. All you can do is shrug.

The anti-Drefusards were mostly Fascists, that is, ultra-nationalists. Nationalism has always opposed the enlightenment ideal of universal human equality. Edmund Burke, founding father of conservatism, appealed to the “rights of Englishmen” in his argument against the French Revolution, and Metternich (or his secretary, Friedrich von Gentz) hoped to use Burkean nationalism as a bulwark against the enlightenment revolutions springing up all over Europe in the first half of the nineteenth century. Nationalism insists that not reason but custom is the basis for human freedom. The English, Germans, French all have a way of life and their freedom depends upon their living that way. Herder coined the term nationalism and was openly anti-enlightenment. He well knew that the opposition between reason and nationalism is ineradicable:

One of the received ideas of traditional philosophy is the

claim that human beings possess reason and that this faculty allows them to determine how they should live their lives. But from this it follows that whatever conclusions philosophers reach must be valid for all rational beings in the same circumstances, regardless of from where they come. Thus at a certain point, nationalism and national differences should be considered irrelevant. But this

is precisely what the nationalist refuses to accept.

The enlightenment seems to have two parts that its early thinkers thought were one: profession of universal human equality and reliance on the scientific method. Nationalism opposes the first, though no nation could afford to do without the rewards of the second. But are they separable? Equality before the law requires objectivity in its judgments of guilt or innocence, and thus joins the two. The nation state, which rejects the first but must embrace the second, needs them to be separable. Might we not incorporate national identity into the court's fact finding mission? The first fact in any case is national identity. A French citizen in a French court will be treated differently from a foreigner. Upon that will depend the remainder of the courts procedures. The defendant is first of all found “guilty” or “innocent” of being a citizen, that is a national. Afterwards the court procedures would continue as before.

However, the problem remains, for scientific thinking is not merely a discipline of restricting oneself to objective facts, but discernment of which facts are relevant in a situation or experiment. Post hoc is not propter hoc. National identity is clearly not relevant to whether the defendant did or did not commit a crime. Indeed it is not relevant to whether he did or did not do anything. So his “nationalist” crime, so to speak, is simple existence. Genocide lurks in the corner of any nation, whether it emerges or not. But to let nationality be a criteria that determines the legal case is to violate reason, for the legal procedures are to determine whether someone did or did not do something. One can only maintain both scientific discipline and nationalist fervor by compartmentalizing one's mind. The careful physicist becomes the rabid irrational fascist when he leaves his laboratory and goes out into the street. But nationalism can just as easily influence acceptance of scientific conclusions. Before we accept any scientific conclusion we judge its value for the nation. If it's bad we simply deny its truth. Global warming is bad for business, so it isn't happening. The compartment that includes national interest as a criteria will expand to include the whole mind. Why not? Nationalists falsify scientific findings all the time.

Western people buried what the Dreyfus affair revealed, namely that written law cannot secure, indeed makes completely insecure, justice based on the principle of universal human equality, and thus the rule of reason itself. Writing cannot secure justice with or without nationalism, but within Metternich's nation state system, which enshrines nationalism, people acquire a motive for thwarting the court's rendering of impartial justice. The deflation of the Dreyfusards was actually a waning of the fervor for the idea of universal human equality and, perhaps unwittingly, that of scientific objectivity as well. Antirational nationalism is quite consistent in subjecting the objectivity of scientific fact to the interests of the nation, race, or clique.

Although nationalism opposes universal human equality, it still needs to profess it. The way of life it is supposed to protect is just a collection of customs, by definition unreasonable, that is, arbitrary. But nationalism threatens these customs, for it threatens to break the state down into ever smaller factions, each with its own way of life. The United States fought a bitter civil war. People are obviously loyal to their class, their ethnicity, their color rather than their country. Are you French of Basque, Spanish of Catalonian. Patriotism struggles with fraternité, its emotional opposite, but also, to control its own tendency towards disintegration, embraces fraternité as a cohesive emotion-generating idea, though certainly not as a serious ambition. The sentiment of fraternité leads to stable community, patriotism to war and civil war.

Metternich devised the nation state system to counter Napoleonism, that is the aggressive sentiment of universal human equality that threatened the European Aristocracy. Since Europe was already drenched in the revolutionary sentiment and revolutions were cropping up all over the place, he saw, as Burke did, that this sentiment could not be suppressed completely. The system of Parliamentary democracy and the court system, it was hoped, would hold down the pressure for universal human equality by sending it into the complex piping of the parliaments, congresses, and courts, where its steam would be cooled. If the pressure for freedom became too strong, the rulers would yield grudgingly, letting off steam in liberalizing legislation until things cooled down, then tighten up the escape valves again.

In this way it was hoped that nationalism could tame and use its opposite sentiment, that of universal human equality as a tool of nationalism. Freedom became not universal and human, but American or English. Democracies sprang up. The nation states, those who called themselves democracies, proclaimed that they were protectors of human freedom, now freedom in one country. They insisted that the legal systems, restrictively national, would protect liberties. Hence nationalism was necessary for liberty. The Dreyfus case exposed this claim, but because nationalists are essentially anti-rational, they easily ignored the obvious conclusions. Since their commitment to universal human equality, like Burke's, was nothing but commitment to its use as a safety valve to keep revolutionary fervor from building up, they had no objection to obscuring the conclusion the Dreyfus case should have forced. They had no problem with a sham court system, since they had no real commitment to universal human equality.

Since then nationalism has been on a blind journey to nowhere. When exhaustion buried the Dreyfus case's revelation that the complex system of written laws actually harm rather than help the realization of justice, the nation state left its orbit. It is not surprising that reason wore out in the face of unreason, but without the Enlightenment project what is left? It is, indeed, dark times. National leaders can never stop using the words “democracy” and “freedom,” for nationalism bare would destroy the nation state in internal squabbling or civil war. These words, used to once again stimulate these sentiments, have become nothing more than an appeal to a kind of magic for the creation of somnolence. For their continued force depends upon a continued suppression of the revelation that within the nation state system they are meaningless.

Imperialism in which capitalist enterprises hijacked the nation state to exploit areas outside its borders, violated the principles that found the nation state. For the nations state is supposed to protect a nation justified by preservation of indigenous custom. To extend its rule outside its borders is to directly contradict its raison d'être. But the nation state had already embarked upon a project of mental incoherence in its attempt to graft enlightenment values onto nationalism, and found it quite easy to swallow one more contradiction. The monstrous wars of the twentieth century were the result.