This idea of law as the law of the strongest, or, in other words, the pure and simple existence of the law of the strongest, which unfortunately, but understandably, has gained ground in some sectors of the New Right, is a distant echo of the eternal debate between Socrates and Thrasymachus in the first pages of The Republic. It is a temptation that befalls us all, especially us jurists and lawyers: in the face of prevailing disorder and injustice, to let ourselves be taken over by the spirit of the times and become cynical like Thrasymachus. We must always be on guard against this temptation, even though we can well understand the reasons that lead people to mistakenly disbelieve in the inherent reality of law and justice. Thank you very much for the timely reminder, professor.
Thank you for this illuminating piece, Professor. I am new to this world and am trying to figure out what to read, and, perhaps just as importantly, what not to read. Do you have any recommendations for a treatment of Schmitt that accurately captures the nuances you lay out in your piece? Thanks!
“For the classical lawyer, law is an ordinance of reason for the common good, not merely an ordinance simply, and authority is not will alone, although specification of principles of legal justice into operative legal rules is in part an act of will. Rather genuine authority is the happy union of power with legal justice, ultimately founded on intelligible reason.” It is striking how we’ve never escaped the tension between power & justice in the Platonic corpus, try as we might!
The study of history in both the macro- and micro- sense, traversing all cultures, peoples and yes religious faiths too, does help illuminate a common theme - the one Professor Vermeule writes about so eloquently and convincingly here. Law is not and cannot be a popularity contest.
> This is a non sequitur, akin to saying that if I discover that the judge before whom I appear has corruptly taken bribes from the opposing party, therefore there is not and never has been such a thing as honest judging. The New Right law-skeptics erroneously over-generalize, deriving speculative theoretical views from the grim realities of the unusual practical situation in which they find themselves.
, isn't their position. They're not entirely reactive to the legal liberals. They're primarily a grassroots political movement that falls in line with many predispositions of the progressives (but they're metamodernist instead of whatever abomination of post pomo the left has (it is metamodernism, but it has institutional support so it's a bit weird)). They have a metanarrative which includes a lot of rudimentary political theory like the "might makes right" and bap and weird stuff. They haven't really developed their own actual legal theory yet. Fascism never really developed much past liberalism either, but I feel like there's actual room here for something really "postliberal". I'm not postliberal, though, and I think (super?)natural law is a way better foundation.
“But it is worth saying that just by reading Political Theology, The Concept of the Political, and perhaps a few other of Schmitt’s most famous works at the boundary of political theory, one will have no understanding whatsoever of Schmitt’s properly juristic views.” This would appear to be a weakness in Schmitt’s presentation of his own views, no?
Why? Not every book has to be about every topic. He was perfectly clear about his juristic views. It’s just that the political theorists read his books about political theory and don’t read his properly legal stuff. And they make the mistake of seeing him as primarily a political theorist instead of a lawyer.
by MAGA we mean least-restrictive-means for all amendments. All aspects of life should be self-chosen and self-directed, not just those in the bedroom or doctor's office.
saying "no one is above the law" means that whatever laws the police are exempt from, so are the rest of us. If the police can carry semi-automatic firearms for self-defense in public, then so can the rest of us--the law applies the same to everyone by treating everyone the same everywhere at all times
by textualist, we don't mean that the law doesn't apply to modern technology (medium-neutrality) or to obscenity and misinformation (content-neutrality)
by textualist we mean that rights are individual civilian rights and not merely institutionalist (NYT) or collective (in the militia) rights
Professor: I disagree w/your framing of originalists as positivists. And calling those who "fold" natural law into originalism "ersatz originalists" doesn't seem accurate. Nevertheless, I very much appreciate this essay for its main thrust: which is to distinguish your arguments from those of the "new right law-skeptics," as you term them. The idea that law is simply an instrument of power is what I find repellent about many on the left, and I find it just as repellent when those who claim "the right" wield the argument. I think there is much common ground with your position-- at least as articulated here -- and the position of those who you call ersatz originalists.
This idea of law as the law of the strongest, or, in other words, the pure and simple existence of the law of the strongest, which unfortunately, but understandably, has gained ground in some sectors of the New Right, is a distant echo of the eternal debate between Socrates and Thrasymachus in the first pages of The Republic. It is a temptation that befalls us all, especially us jurists and lawyers: in the face of prevailing disorder and injustice, to let ourselves be taken over by the spirit of the times and become cynical like Thrasymachus. We must always be on guard against this temptation, even though we can well understand the reasons that lead people to mistakenly disbelieve in the inherent reality of law and justice. Thank you very much for the timely reminder, professor.
Well said — thx sir
Fantastic and well-articulated, Professor!
There might be a small typo: “or that or that (negative) liberty“ … unless, this is appearing only on my device.
-Dody (we met once when I was an undergrad at Harvard and you spoke to the Catholic Student Association)
Right you are! Eagle eye, thanks much
Thank you for this illuminating piece, Professor. I am new to this world and am trying to figure out what to read, and, perhaps just as importantly, what not to read. Do you have any recommendations for a treatment of Schmitt that accurately captures the nuances you lay out in your piece? Thanks!
The book by Montserrat Herrero, it’s great. Cheers!
“For the classical lawyer, law is an ordinance of reason for the common good, not merely an ordinance simply, and authority is not will alone, although specification of principles of legal justice into operative legal rules is in part an act of will. Rather genuine authority is the happy union of power with legal justice, ultimately founded on intelligible reason.” It is striking how we’ve never escaped the tension between power & justice in the Platonic corpus, try as we might!
This is why a page of history is worth a volume of philosophy — we’ve seen it done! St. Louis, ora pro nobis.
🙏🙏
Can you define reason? I think the issue is in the episteme there.
The study of history in both the macro- and micro- sense, traversing all cultures, peoples and yes religious faiths too, does help illuminate a common theme - the one Professor Vermeule writes about so eloquently and convincingly here. Law is not and cannot be a popularity contest.
I 100% agree with you, but, this:
> This is a non sequitur, akin to saying that if I discover that the judge before whom I appear has corruptly taken bribes from the opposing party, therefore there is not and never has been such a thing as honest judging. The New Right law-skeptics erroneously over-generalize, deriving speculative theoretical views from the grim realities of the unusual practical situation in which they find themselves.
, isn't their position. They're not entirely reactive to the legal liberals. They're primarily a grassroots political movement that falls in line with many predispositions of the progressives (but they're metamodernist instead of whatever abomination of post pomo the left has (it is metamodernism, but it has institutional support so it's a bit weird)). They have a metanarrative which includes a lot of rudimentary political theory like the "might makes right" and bap and weird stuff. They haven't really developed their own actual legal theory yet. Fascism never really developed much past liberalism either, but I feel like there's actual room here for something really "postliberal". I'm not postliberal, though, and I think (super?)natural law is a way better foundation.
“But it is worth saying that just by reading Political Theology, The Concept of the Political, and perhaps a few other of Schmitt’s most famous works at the boundary of political theory, one will have no understanding whatsoever of Schmitt’s properly juristic views.” This would appear to be a weakness in Schmitt’s presentation of his own views, no?
Why? Not every book has to be about every topic. He was perfectly clear about his juristic views. It’s just that the political theorists read his books about political theory and don’t read his properly legal stuff. And they make the mistake of seeing him as primarily a political theorist instead of a lawyer.
by MAGA we mean least-restrictive-means for all amendments. All aspects of life should be self-chosen and self-directed, not just those in the bedroom or doctor's office.
saying "no one is above the law" means that whatever laws the police are exempt from, so are the rest of us. If the police can carry semi-automatic firearms for self-defense in public, then so can the rest of us--the law applies the same to everyone by treating everyone the same everywhere at all times
by textualist, we don't mean that the law doesn't apply to modern technology (medium-neutrality) or to obscenity and misinformation (content-neutrality)
by textualist we mean that rights are individual civilian rights and not merely institutionalist (NYT) or collective (in the militia) rights
The US has never applied law justly or equally.
Also, China and Iran have beenpretty stable for decades - must mean they have some divinely moral laws yes? Everyone is happy and safe?
Professor: I disagree w/your framing of originalists as positivists. And calling those who "fold" natural law into originalism "ersatz originalists" doesn't seem accurate. Nevertheless, I very much appreciate this essay for its main thrust: which is to distinguish your arguments from those of the "new right law-skeptics," as you term them. The idea that law is simply an instrument of power is what I find repellent about many on the left, and I find it just as repellent when those who claim "the right" wield the argument. I think there is much common ground with your position-- at least as articulated here -- and the position of those who you call ersatz originalists.