Opinions and Legal Insights

The Return of Strong Law?

We should be astonished. For years now, the epicenter of New Year’s celebrations in England has been the tens of thousands of revelers who gather around the pillar in Trafalgar Square atop of which is the statue of Admiral Horatio Lord Nelson. A segment of the British public now wants him removed. Nelson led, fought, and died in the war that made possible the abolition of the slave trade, but he was not an abolitionist. For this, he must pay and be removed.

What is astonishing is not the irony involved, but that anyone cares. According to the official ideology of the West, no one is supposed to care. Beginning in the Renaissance, Pierre Manent contends, the West developed a theory of politics in which individuals are not rule-bound. In a long line of essential books, Manent has built his reputation as Europe’s principal chronicler of Western political thought. His latest, Montaigne: Life without Law explores how Michel de Montaigne (1533-1592) helped shape the Western belief that it is the law that obeys us, not the other way around. Montaigne articulated one of the essential holdings of modernity: polities can make law but cannot compel citizens unreservedly; neither word nor action can be required; a quiet life is guaranteed. Along with other modern thinkers, Montaigne argues that where there is no truth, there is no law. Ultimately, modernity has been a dispute with pagans and Christians about the reach of truth, not liberty. 

In light of Montaigne, for 500 years we have believed that there is no rationally agreed-upon account of a good human life, no common understanding of the meaning of justice, and so the law cannot command. Rather, as Manent puts it, Western law is dedicated to laissez-faire, designed to facilitate “the movement without-rule of goods, persons, and lives.” Modern law takes up a minimal stance, prohibiting any criterion of judgement (necessarily an impostor claiming access to unavailable truth) constraining the free circulation of beliefs, sentiments, preferences, or values. The West is the place where the idea was worked out that a human life “has the right to be without law.” Are we now seeing the return of a new form of strong lawlaw that demands from us specific words and actions?

Ancients and Moderns

Montaigne: Life without Law illuminates Montaigne’s position that we are not like the ancients, who thought civil law made its citizens virtuous. Nor are we medieval Christians, who assumed that natural law specified good acts, which were in turn codified in national and church law. Those people wanted perfection or sanctification, but we are moderns, who believe a private, self-directed life to be the most worthy.

At least we did until a placard told us that “Silence is Violence.” Or, as my own university chose to frame it, “White Silence is Violence.”

If you lived during the French religious civil war (1562-98) in which 3 million died of war, famine, and pestilence, you might think keeping schtum and retiring to a fortified home in the countryside was the thoroughly sensible thing to do. Disagreeing with the placard, this is what Montaigne decided. One of the leading lights of the Renaissance—along with the likes of Saint Thomas More, Erasmus, and Martin Luther—Montaigne developed an account of the human condition that subverted pagan and Christian claims of law. He had the wealth to isolate himself from the terrors of civil war but wrote his Essays to promote an ideal of private life so you and I could escape persecution, too.

Montaigne: Life without Law is not a biography, but a close reading of the Essays, translated from the French by Paul Seaton (who is well-known to Law & Liberty readers). Leo Strauss was an early influence on Manent, and his exegesis is a probing distillation of political ideas found in a complex, voluminous work divided into three books of over 100 chapters. The reading is minimally embellished with Manent’s own theoretical commitments, though a metaphysical divergence between the two Frenchmen is plain.

“I want death to find me planting my cabbages, but nonchalant about death, and still more of my unfinished garden.”

Michel de Montaigne

Though a theorist of the retired life, Montaigne’s is a remarkable biography by any standard. Aristocratic, his father was a soldier who fought on the Catholic side in the period’s wars and a man with very decided views about his son’s education. Only servants who could speak Latin were to be employed, and Latin was the language of the house. Taught by the Scottish humanist and great Latinist, George Buchanan, Montaigne himself entered politics, became a courtier to the French king, Charles IX, was present with him at the siege of Rouen (1562), when the Catholic King Charles prevailed over the Huguenots. He would later earn France’s highest state honour, the Order of Saint-Michel. But despite what would seem to be a very Catholic life, in the Essays, Montaigne relays that “transcendental humors frighten me” and he sought “to overcome the Catholic disorder.” As Manent explains, this disorder assumed a “relaxed play between words and actions.”

The framework of the Essays is a set of intellectual options, all rejected. In the Middle Ages, rituals, liturgies, festivals, and protocols of church courts mediated between divine law and human action. Instead, Luther proposed that the ceremonies of ritual be replaced by the crystal-clear adequation of the mind to divine law: human actions are to follow the words of Scripture. Conversely, Machiavelli proposed that the word of God be reduced to the action of a prince: in a state that flexes, divine law is whatever the civil law says. These new ideals of reform, Manent argues, sought “to suppress the play and overcome the distance between action and word.” Aiming to fuse politics and the law, the reforming ideals had the goal of ridding Europe of an institution that relaxed the grip of both on human life: without getting rid of rulership, the Catholic Church’s sacramental rituals suspended the total reach of politics and the law into human life. Doubling down on neither religion nor the state, Montaigne proposed dispatching the demands of both politics and law.

The “Catholic disorder,” and the reactions to it, are defused when great and good actions are no longer required. Montaigne captures the charm of the classical liberal ideal of a private life thusly: “I want death to find me planting my cabbages, but nonchalant about death, and still more of my unfinished garden.” The import of the word nonchalance could not be greater. Manent stresses how unique its use by Montaigne is. We moderns escape the total grip of politics and law because we have human rights. “They belong to the individual before he has begun to speak or to establish any relationship whatsoever.” In this sentence, Manent explains the metaphysics of nonchalance: Montaigne did not give us the lexicon of human rights, but he did provide the moral epistemology that undermines any sweeping vision of the moral and legal foundation of our political life.

Virtue, Vice, and Cannibalism

The stated aim of the Essays is to make a record of Montaigne’s reveries. This effort will articulate the moral epistemology justifying a quiet life. “Our faculties are no doubt more active when awake than in sleep, but not to the point that our wakefulness is truly awake,” and Montaigne’s dreams are full of “chimeras and fantastic monsters.” Like a psychoanalyst, he thinks our dreams voice the master form of our personality which resists education. Acting like a law of gravity, this master form includes our “consubstantial vices.” “Our being is cemented with sickly qualities: ambition, jealousy, envy, vengeance, superstition, despair, dwell in us with a possession so natural . . . whoever would remove the seeds of these qualities from man would destroy the fundamental conditions of our life.” What is true of Montaigne is thus true of a reforming legislator.  As we are an “undulating object,” “man as the object of knowledge steals away from the knowing man.” Reminiscent of Adam Smith’s warning that it is unjust for legislators to presume persons are chess pieces to be maneuvered around a grid, our fantastical cognitive life means just legislation is always beyond our capacity:

Now laws remain in credit not because they are just, but because they are laws. That is the mystic foundation of their authority; they have no other… They are often made by fools, more often by people who, in their hatred of equality, are wanting in equity; but always by men, vain and irresolute authors.

Pagans and medieval Christians thought human nature could be crafted: Their culture put before their eyes admirable objects to imitate. But our master forms mean admiration and repentance are ultimately superficial. Moral epistemology shows that we are not clear-eyed and high-minded mimics. Law, to be anything other than accusatory and condemning, must vacate its commanding heights, live within its means, and be pleased with recognizing “a merely excusable life.” Against moral idealism, such a life is not to be disdained. It permits living, as Montaigne puts it, with an open face. Montaigne abhorred dissimulation. Accusatory law necessarily provokes skulking, lying, and evasion. Our master forms are never good enough for such law, and in an atmosphere of persecution, we are all condemned to a low, cunning life of looking over our shoulders.  

Montaigne took what seemed so obviously wrong, so axiomatically grotesque, and shook that assuredness, arguing that the Tupinambá cannibals were simply living with an open face.

As Montaigne’s biography suggests, his advocacy of the retired life must not be confused with cowardice. Whilst mayor of Bordeaux he had to pass in review troops whose loyalty was suspect. He determined to live as he thought and meet the questionable soldiers with an open face, surrounded and exposed. His is an epistemological and metaphysical account of human limitation (for me, it finds significant repetition in the work of another great French writer, Albert Camus). The idea of a dignified life lived with an open face explains his chapter Of Cannibals.

Manent points out that the two great collective experiences of Montaigne’s contemporaries were the European religious civil wars and the discovery of the New World. Prominent in this latter experience was the shock of learning about nations practicing ritual cannibalism. It sparked natural law thinking back to life, with that tradition finding its most elaborated form in the work of the great scholastic jurist, the Thomist Francisco de Vitoria (1483-1546). In one of the most consequential innovations in international law, the Spaniard developed the idea of regime change: a nation could exhibit behaviours so contrary to justice that other nations, with no jurisdiction in that land, could militarily replace the foreign institutions supporting the offensive practices. Of Cannibals takes a different tack entirely.

Montaigne does not try to justify himself, which also means he does not accuse others. He steers between Pascal’s “hateful I” and Rousseau’s human innocence. His critique of moral idealism means there is no fleeing the human condition, not even one of its permutations, cannibalism. On the basis of the testimony of an eyewitness, Montaigne relays that cannibalism is a way for a warrior to exact his ultimate revenge on an enemy. The eyewitness had lived in Brazil, amongst the Tupinambá, and claimed that that nation had no numbers, property, commerce, or cupidity. Montaigne took what seemed so obviously wrong, so axiomatically grotesque, and shook that assuredness, arguing that the Tupinambá cannibals were simply living with an open face—living a life of courage without law. It is one possibility of the human condition, though Montaigne thinks the Brazilians’ single-minded commitment to a life of action itself problematic. Still, he insisted the dignity of cannibals far excelled the lot of citizens forced by strong law into living calculating, tactical, and shifty lives. Moral epistemology simply cannot deliver absolutes and strong law means persecution and the collapse of dignity. Montaigne felt vindicated when, later in life, he met some Tupinambá visiting France and they expressed their disgust at French life. 

Montaigne holds immense prestige in France, and Manent clearly admires him. However, the metaphysics of nonchalance—otherwise known as human rights—misstates the autonomy of human standing and gives short shrift to the great ideal of law, “its high finality, which is to regulate action,” as Manent puts it. Put differently, Manent does not think the “Catholic disorder” can be dodged. As recent protests show—and, yes, riots, too—we cannot live without rituals, ceremonies, and “high finality.” Montaigne is right to be frightened by “transcendental humors,” and appreciates better than the protestors that what is at stake are human rights. Ironies abound then, and likely Montaigne always gets the last laugh. But it looks like, with strong law back on the menu, we aren’t going to have our cabbage patches much longer.