Tuesday, May 08, 2007

Conservatism against law

The question of the relationship between contemporary conservative ideology and the rule of law that I have considered earlier is addressed by Glenn Greenwald in reference to an article by conservative intellectual Harvey Mansfield. Says Mansfield:
Now the rule of law has two defects, each of which suggests the need for one-man rule. The first is that law is always imperfect by being universal, thus an average solution even in the best case, that is inferior to the living intelligence of a wise man on the spot, who can judge particular circumstances. This defect is discussed by Aristotle in the well-known passage in his "Politics" where he considers "whether it is more advantageous to be ruled by the best man or the best laws." The other defect is that the law does not know how to make itself obeyed. Law assumes obedience, and as such seems oblivious to resistance to the law by the "governed," as if it were enough to require criminals to turn themselves in. No, the law must be "enforced," as we say. There must be police, and the rulers over the police must use energy (Alexander Hamilton's term) in addition to reason. It is a delusion to believe that governments can have energy without ever resorting to the use of force. The best source of energy turns out to be the same as the best source of reason--one man. One man, or, to use Machiavelli's expression, uno solo, will be the greatest source of energy if he regards it as necessary to maintaining his own rule. Such a person will have the greatest incentive to be watchful, and to be both cruel and merciful in correct contrast and proportion. We are talking about Machiavelli's prince, the man whom in apparently unguarded moments he called a tyrant.
The ghost of Carl Schmitt’s exceptional sovereign stalks the White HouseAs Greenwald points out here; American conservatives have come to embrace models of flexible constitutional interpretation that they purport at other times to reject. We are reminded of the interwar German judiciary, contrary to Hayek’s claim that a supposedly hegemonic ideology of legal positivism legitimated the capitulation of the German legal establishment to Hitler it was actually their tradition of flexible interpretation, when turned to the right, which justified their conduct. Hitler seemed not just any sovereign but a plebeian and sometimes crude bearer of the good old cause of conservative illiberal nationalism. On German law see Stolleis . Here too we see a linkage across to WorkChoices, the absolute authority of the employer, who has shown himself to be superior, must be defended. Capitalism as Ellen Wood argues privatises political power.

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