December 18, 2016 by John Bruce Leonard
That Custom is the Ground of Law
THE AMERICANS are accustomed to ascribing incredible virtues to law. They tend to believe, more than not, that altering the law or the legal framework of a society is equivalent to reworking the society itself: that the panacea for political or social ills lies in the emending or writing of constitutions. The American experience would seem to some extent to legitimate this attitude: for was it not precisely our country which emerged from a bloody revolution, unformed yet politically, to frame a Constitution which has endured a quarter millennium already, carrying its people to apotheosis over all the world?
Yet—as it must be rejoined—was that not a people already disposed to yoke itself beneath the law, and to maintain that writ as if it had been God-delivered and sacred? Was that not already a people whose English and indeed Latin origins had instilled in it the greatest natural respect for the validity and binding quality of legal documents, whose Teutonic blood had readied it for love of fatherland and upright observance of authority, and whose more factious tendencies were already bendable beneath the weight of merest paper? I fear we are wont to mistake cause and effect here, in a most dangerous way—as is not peculiar to our race. The law, when it is not imposed by a willful and dominating hand, is made in a people’s own image; and a law-abiding people, perceiving the correspondence between image and original, is like to think that it has conformed itself to the law, that its own virtues are owed to the virtues of the law, and its own vices to the law’s deficiencies. That is, so far as it goes, an edifying, if not entirely proud and noble, view: for it supposes as well the possibility that a people might through its own legislation improve itself. No one should deny that this is, indeed, possible—but it would seem to be possible only to such peoples as are already in their souls malleable to law.
Examples from history can be adduced to support these claims. We might turn our attention most immediately to the nations just to the south and the north of United States borders, to Mexico and Canada, and to the destinies of the same.
Following the liberation of their country from the Spanish, and after an initial period of political confusion and uncertainty similar to that experienced by America in the years following the Revolution, Mexico framed a constitution in 1824 which established Mexico as a Catholic Republic. This constitution demonstrated a marked resemblance to the American, and in most principle matters of state agreed with the provisions of the American. It differed most strikingly from the American in its explicit adoption of the Roman Catholic as the national religion. Yet this Constitution lasted not much better than a decade, when it was replaced with the Seven Laws, which considerably centralized executive power. This in turn was replaced with another constitution in 1857, a writ which closely reflected the 1824 document, but tended decisively toward secularism. Thereafter followed a turbulent period in which the new constitution was cyclically recognized and suspended. It was replaced by the present, and considerably more socially liberal, constitution, in 1917.
It is clear on a review of the complicated and precarious history of Mexican constitutions that the legalism which the United States enjoys and presupposes has been someway absent from Mexican history. Despite Mexico’s attempts to frame a constitution which might guarantee it achievements similar to those enjoyed by its northern neighbors, no one would dare suggest that the Mexican state has been either as materially or as politically successful as the United States or Canada. Mexico suffers, indeed, severe and deep troubles of order which are not reducible to malign foreign influences, nor to any internal dearth of space or poverty of natural resources. Mexico is a vast country, the fourteenth largest in the world by surface area, and owns a territory rich in precious metals, salable elements, and petroleum. Yet its economy lags behind many European and Asiatic countries, and entire regions within its jurisdiction have fallen under the de facto rule of drug lords. The political system of the country cannot alone be held accountable for these maladies, for constitutionally Mexico does not differ so radically from many countries which have proven much less susceptible to the corruption that so often afflicts the Mexican government. The only factor that can finally be implicated to explain these differences, are the peculiar customs of the Mexicans, and whatever has brought these about (for custom does not spring of the vacuum).
The constitution of Canada, on the other hand, is markedly different from the American in a number of important ways. Put in simplest terms, Canada is a constitutional monarchy, under the radically secular (the head of state and the head of the church are identical) rule of the British crown. Its balance of powers is distributed more vertically than laterally: the prime minister, following English usage, customarily has a seat in one of the two houses of the legislature, but his powers, if they grow excessive, can be checked by the ruling monarch. Notwithstanding these essential differences, which in another country might lead at once to the most total dictatorship, Canadian society is if anything more pacific and stable than the United States, as can be seen, for instance, by rankings of crime rates in the two countries. Once again, it would appear that there is a hidden fundament underlying legal systems which is far more important in the life of peoples, than are their constitutions.
Or again—the earliest legal codes imposed over human beings, as for example those of Genghis Khan and Hammurabi, were insufficient in and of themselves to command human action. The idea of “law” is potent only insofar as human spirits are willing and accustomed to submit to it; the potency of law is a power invisible which governs the ready mind. The earliest law had to be literally incised onto the flesh, seared onto the soul by means of methods we would rightly deem unthinkably barbarous and cruel, but which were necessary to instill in man, not law, but lawfulness. Merely consider those penalties instated by the code which was given by the gods to Hammurabi: a cattle robber who cannot pay for what he has stolen will pay with his life; a son who strikes his father will lose a finger; he who groundlessly slanders the reputation of a woman will have his brow slashed. On the other hand, the Great Yassa, the code created by Genghis Khan, pledged mercilessness for all criminals and liberally applied capital punishment for matters which in our day would not even be considered crimes. The code of Genghis Khan was, moreover, a secret code: a man could be punished for transgressing a law that had never been promulgated. This seems to our modern eyes the pith of injustice and arbitrary tyrannical power, and so it was. But we must recall that this code was implemented in a time before such concepts had their right meaning in the human soul. The Great Yassa was not meant to establish rules over human beings, but rather was meant to instill in them the very concept of rule itself. This could not be done without bending all men before a long time beneath a mysterious authority, and habituating them to the very attitude of meek and complacent obedience.
The harshest penalties for the most trivial infractions—that was for long stretches of time the rule governing all human legality. It is to that fact alone that we Europeans of today have earned the right to do without any such Draconian measures. Law is binding to us: but this does not mean it will be binding to an equal extent on others. Wakeful minds will read in these words a warning.
Now, it is also precisely the recalcitrance and inconsistency of human action which has so often led to a conflation of the law of man and the law of the gods over the course of human history, or perhaps even to an embedding of the law of man within the law of the gods. For the law of the gods speaks to each new generation of human beings without interruption, and is transmitted via writings which, as they are taken to issue from divine hands or divine inspiration, are certain to be preserved and conveyed with utmost care. Their punishments or sanctions are invisible, for they occur not in this world but in the next, and so they are at once humane and persuasive. They bind the soul and not the body, which is a bond of much greater strength than that of mere shackles or cords. They establish a power in the soul which is believed to emanate from superhuman sources, and thus impose hierarchy on human life and create a center of gravity in the very heavens. And because they are believed to be superhuman in origin, they are capable of supplanting custom, or of radically sculpting it. The peculiar relation of the human law to the divine law is thus a fundamental characteristic of human laws, and determines the quality and intent of those laws.
A final example—one, as it were, “home-bred and prescriptive”: at the break of the American Civil War, the Confederacy was tasked with determining the government that would represent it. The Constitution that the confederate government settled on was identical to that of the union from which it seceded, with a very few passages interposed to make the justice of slavery explicit and to clarify the question of states’ rights. It is likely that if secession had been permitted, the North would have continued in its tendingly democratic ways, and the South would have maintained its aristocratic ones, both Republics living out destinies at once most similar and most divergent, and this despite the fact that both sides shared an almost identical set of laws. Once again, we see that alterations in the legal fabric followed the usances of the land, that they were, rather than being determinants of custom, mere declarations of it. And, had secession been successful, it is moreover likely that a good number of the citizens of both of the resulting countries would have tenaciously persisted in the belief that they owed their peculiar civilizations primarily to the special laws of their lands.
As I have said, that seems to me in some ways an edifying error—but it becomes unhappily perilous when it is wed to that peculiarly democratic dogma which holds that all peoples everywhere are equal and equally endeared of liberty and so equally governable, supposing only that their governments are adequately democratic and benevolent. For, if this equality truly exists, then it must suffice to replace bad laws with good ones, and illiberal governments with liberal ones, to make violent nations mild and restive populations restful.
If ever there were a doubt about the impossibility of such chimerae, it seems to me we have made decisive test of the question in our recent experiments of seeding democracy in radically undemocratic regions. I think only the least cautious or most bellicose observer of such events would claim that the failure of our attempts has been due predominately to flaws in the law or the legal structures that we have imposed. This would be like calling it foul of the glove maker that for a few stitches his glove will not fit both the fat man and the skinny.
The law must be fit to the people; else it must be made to fit for long and bloody years. If this basic principle is neglected, the resultant law shall simply be ignored and scorned, rendered nugatory by the daily actions of its very constituents, while its makers sit like T.H. Lawrence after the fall of Damascus, bewildered and forlorn in abandoned tribunals and parliamentary halls.
IT WOULD be wrong to conclude from these points that laws are nothing but a kind of epiphenomenon of the ethos of a people, a kind of spontaneous and largely redundant outgrowth of custom, which like mushrooms sprout more rigorously and thickly when the soil is rich. We may, however, lay it down as a general principle that just law will constrain a people only to the extent that the people itself is just: just as bad law will be as a conduit to whatever is bad in a people. The best of peoples might live some time in tranquility, even if it finds itself ruled by bad laws; but even the best of peoples will not long withstand a wholly rotten constitution, for no people is without its unscrupulous elements, and these are always favored by the defects in a political system to grasp the reins of power. The only recourse that good men will have in such a case is to fight honorably but illegally: and that is necessary corrosive to the commonweal, and to those very customs upon which the law so decisively depends. In such unhappy days, it may even become necessary for good men to seize power by force. Yet what legitimacy can the resultant government claim for itself? And even if its own nobility is sufficient to guarantee the fine actions of that first generation of rulers, what will promise their sons to a similar path?
Revolution becomes a habit with man. A first revolution, be it ever so honorable and reasonable in intent and in means, and ever so dedicated to upright principles, will nonetheless fashion a precedent, an exemplar wrought in flame, so that the second revolution comes that more easily. And, unless the people in question is abnormally peaceable and unusually law-abiding, or most particularly meek or obsequious, it is little to be hoped that a good regime born in the bloody froth of revolt will not perish in the same. The constancy of law is the only guarantor against such an internecine cycle of civil wars and coups-d’état.
It must therefore not be overlooked, the degree to which slow incremental changes of law might be the cinch by which a people’s character is elevated. It is one of the gravest errors of the lawmaker in the grand style to let his impatience pen his legislation, and he pays for his error by losing even those smaller gains he might have secured.
It is natural for him to be hasty: he is tyrannized by his vision. He would, as a shaper of men and of the destinies of men, arrive at his goal with a dash of ink, for he above all knows that he is a human being and is not destined to live forever. Nor can he with tranquil spirit entrust his vision to the future; for even if he can put his faith in some stolid member of the next generation, who might follow his prescriptions as he has laid them out, two generations on is already too distant for him to steadily cast the net of his hope. Indeed, let us suppose that he manages to pass his teaching down unaltered—and that is difficult enough in even the small space of a century!—: the circumstances of his society might have altered so substantially that his law will no longer be applicable to them.
Thus he hastens on: he errs on the side of too much, too soon, that he might preserve himself, in ignorance of the simple truth that his law will be successful only insofar as the customs of the people permit it. He believes he must inscribe his ideas indelibly, to be certain that they are heeded, and the only stone that is so stable as that seems to be—the law. He does not recognize that it is almost certainly his gravestone he has so incised.
HOW DOES a man, who would build politically, cast his will beyond the narrow horizon of his days? How does he build for the centuries? That is a dangerous question, and one which our secular democracies (if this formulation is not a pleonasm) are liable with good reason to view with suspicion. For that very reason we must consider the matter with discretion.
Now, such a man cannot scribe his will into law, save in the most fortunate of historical circumstances, and yet to do less is to guarantee his thought to death. He cannot entrust his thought to his pupils, for they, too, are human beings, and are prone to error, to reassessment, and to ambitions of their own. If he is radical (as what legislator in the grand style is not?) he cannot publish his thought, for he is liable to be punished in proportion as he is heterodox, and his time is intolerant. Nor can he, though he be pregnant with prophecies, prophecy the exact limits on the tolerance of tomorrow’s society. May be a day will come just a hundred years on that books such as his, with thoughts just such as his, will be consigned to some bonfire of the vanities by some revolutionary and tyrannical hand.
Or perhaps he goes the way of the ancient philosophers—and indeed, of all deep souls—and writes esoterically, hiding his profoundest message beneath layers of pleasanter and softer veils. His message will then be available for so long as his writings persist, to each generation of serious thinkers and careful readers. And that would appear to be the only valid solution to his conundrum.
Yet that was a solution invented by Plato, who was also its most masterful exponent, and it is best suited to the philosophers like Plato, who would seek or teach eternal truths regarding human nature and human polities. But Plato and the philosophers of the past were certainly not as ambitious as our legislator: they perceived certain limitations, at once immutable and very narrow, set upon the philosopher’s shaping of human destiny. They restricted themselves to a more modest task, of preserving philosophy against hostile regimes as much as lay in their power. Thus Plato and philosophers like him hide their greatest thoughts beneath a conventional and edifying veneer. Plato speaks to each new generation as though he had never died, and the best of each generation, only supposing they are ready to be initiated, listen to his teaching as if it came direct from Plato’s own mouth. There is a kind of punctuated continuity then to Plato’s teachings—continuity, because each generation may access his thought, and punctuated, because each new generation must do so anew, “from scratch,” eternally “for the first time.”
The classical solution to the relation between philosophy and society therefore only half address that arrogant ambition of the grand political builder. For suppose a man in a ludicrous and overweening hubris wished to carry a grandiose political vision to fruition, but could not do so without, say, two or three centuries, or even half a millennium, at his disposal? How would he proceed? This Platonic solution, as said, seems the only valid approach, the only possibility left to him of those here engaged. Yet precisely the Platonic solution, which was a solution to another problem than the legislator’s, is inadequate for him above all others. The necessary rupture between each generation of initiates would compromise the progress of his project. Each generation would have to learn his ideas anew, and begin again from nothing. And even if it could be hoped that each generation, beginning from nothing, would perceive the point at which the previous generation had lain off, this is a poor and unsteady hope. It is much more likely that a particularly ungifted or uninspired generation would fail to penetrate to the core of his teachings, and thus fail to press them onward; or else that some more complacent generation might come to believe that his vision had already been realized, mistaking the partial achievement of it for the full. The lacunae between one true pupil’s death and the next true pupil’s initiation, the stuttering quality of history, would render the realization of his final goal almost certainly impossible.
It thus appears that the conservative and intellectually moderate thinker can sigh a great sigh of relief: for thanks to the dependency of law on custom, the grand style in politics, it would seem, cannot be realized in this world.
1. David Lean’s epic film Lawrence of Arabia, most pertinent to the present essay particularly in its portrait of a grand but failed attempt to found Western political institutions on the soil of Middle Eastern customs. Peter O’Toole is brilliant in the role of T.H. Lawrence, that excellent and most ambitious man who wished to father a new nation, but knew not the road to Damascus.
2. Here one will find a thorough and enlightening discussion of the Great Yassa.
3. A most informative side-by-side comparison of the original United States Constitution with that adopted by the Confederacy. The changes to the Preamble are in particular worth noting.