Ius & Iustitium is pleased to present this guest post by Ricardo Calleja, lecturer in ethics at the University of Navarre. This is the second and final part. The first part may be found here.
At the risk of repeating some ideas, let me clarify why a call to exercise authority, including forceful coercion, does not foster or endorse arbitrariness, authoritarianism, or decisionism.
Arbitrariness
Arbitrariness, in our modern language, is the condition of decisions based on “random choice or personal whim, rather than any reason or system,” and the characteristic of “power or a ruling body unrestrained and autocratic in the use of authority” (Oxford Dictionary).
Imperare aude, the call to command, is not a call to arbitrariness. For the act of the will to be rational, the acts of consilium and iuditium must precede that of imperium. These acts contain the informative and evaluative deliberations that seem to us more obviously to be acts of reason. However, as I have discussed in Part I, imperare is itself also an act of reason because reason commands the intention to certain goods as ends and the will to act accordingly. Hence, random choice or personal whim ought not be the grounds or motivations for any decision by an authority. An arbitrary decision is contrary to the proper exercise of imperium.
The requirements of prudence in the exercise of authority can be translated into informative and deliberative steps in decision-making procedures. However, most of the time deliberation will not reach a single, rationally necessary course of action or an unanimously approved choice. Someone has to decide and end the discussion. This is what crucially distinguishes the deliberative process of decision-making from a theoretical disputation. While authority should aspire to be convincing and to garner consent, it is impossible to gain universal support. The authority’s act of imperium in ending the deliberations bridges the gap between the result yielded by rational discourse and actual action. And it ensures that the decision will always be based on some reason — a kind of reason that is not valid universally, but only in this and similar cases. This remains true even if sometimes it is inconvenient to disclose the reasons that justify a decision (arcana imperii), at least for some time. Such discretion may pose the risk of serving to conceal arbitrary intentions, but this risk is unavoidable in practice.
No institutional setting, however well designed, can guarantee that those in positions of power do not seek their own good. Thus, restraining arbitrary authority demands more than just giving all stakeholders a vote, voice, or exit power. As the history of the 20th century illustrates clearly, a ruler can be arbitrary while satisfying all the formalities required for the legal validity of his decisions. Advisory and participative institutions should contribute with relevant information and evaluations from all the parties affected or capable of assisting, but cannot replace the act of imperium by those in positions of authority, and the unique, personal responsibility attached to it.
Authoritarianism and autocracy
Authoritarianism can be understood as a way of treating subjects. The Oxford Dictionary defines it as “showing a lack of concern for the wishes or opinions of others; dictatorial.” It is a style of governing (or a disposition to obey), especially as regards the ruler’s relationship with counselors and collaborators and the procedures established for their participation in decision-making. An authoritarian or autocratic regime neglects the role of consent by the ruled and the respect due to the people’s freedom.
A father might be authoritarian, thus harming the education of his children, but that fact says nothing against paternal or maternal authority. Abusus non tollit usum is the maxim of the law. Bad experiences, corrupted cultural role models, etc., may incline some people to this excess, but we should not downplay the risk of the opposite defects in the exercise of power—pusillanimity, timidity, cowardice, etc.—and the role that authoritarianism plays in compensating for those defects.
Authoritarianism might manifest itself in a ruler’s lack of docility and respect for informative and deliberative processes. This is usually an offense to the virtue of prudence, but also an injustice to others, and a cause of misgovernment. However, practical reason, aiming at the common good of the governed, might exceptionally require the legitimate authority not to follow the advice or legitimate decisions of collaborators and subordinates. This possibility is part of what defines, for example, the character of the suprema potestas of the Roman Pontiff over his collaborators, brother bishops, synods, and councils (can. 331).
In the civil realm, most political systems recognize explicitly the possibility of exceptional powers being exercised by the executive authorities. After all, there are situations in which general rules cannot capture the requirements of justice and the common good, or in which participative institutions are gravely corrupted or compromised. The responsibility of rulers in those contexts, and the dangers associated with them, are obvious and unavoidable. The proper exercise of imperium, in obedience to truth and the demands of the common good, is particularly critical in such situations.
Autocracy, as a political theory or regime, grounds authority in some source independent of the rational consent of the people. The classical tradition has sometimes been misinterpreted as providing the grounds for absolutism, relying, for example, on Ulpian’s princeps legibus solutus (Digest 1, 3, 31). But the Protestant theories of the divine right of kings, which are truly absolutist, are deviations from the classical doctrine as found in Aquinas and others. They are closer to a despotic regime than to a political community of free individuals ruled by reason.
By contrast, a preference for some form of mixed regime is pervasive in the tradition (cf. ST Ia-IIae q. 105 a. 1 co.). In such a regime, the rectitude of authority is not dependent solely on the personal virtue of the ruler and is also not liable to be undermined by powerful private interests or the manipulable base desires of the masses. In this regime, all citizens are engaged in civil governance in different ways, and most positions of authority tend to be temporary. In this respect, the regime of the ecclesiastical body, as constituted by divine revelation and its positive laws, is less that of a properly mixed regime and closer to paternal and maternal dominion within a family (by life-tenured bishops governing and nurturing their flock with doctrine and sacraments). Of course, this paternal authority ought to avoid an “authoritarian” style (cf. 1 Peter V, 1-5) and respect the rights of the faithful (can. 208-233).
Decisionism
Decisionism is, according to Carl Schmitt, the doctrine that understands law as essentially a decision by an authority. It is the manifestation in legal theory of a typically modern voluntarism. While Schmitt is usually described as the paradigmatic decisionist, he in fact defended an understanding of law as fundamentally a “concrete order.” In this conception, legal decisions and legal rules are ordered to the conservation of a pre-positivistic, but still properly “juridical,” order. In On the Three Types of Juristic Thought, his work delineating these concepts, Schmitt opposed his own position to legal positivism, which he defined precisely as the combination of decisionism—law being the result of political decision in the absence of a previous order—and normativism—laws reduced to a logical system of norms heedless of their social and institutional conditions of possibility.
With the idea of a “concrete order,” Schmitt was trying to avoid any reference to universal principles of reason, probably motivated by his conflation of the universality of the ius naturale et gentium in the classical legal tradition and the liberal universalism that he considered anti-political. On the other hand, he clarified that even if the suprema potestas of the Roman Pontiff “contains strong juristic-decisionist elements,” “the infallible decision of the Pope does not establish the order and institutions of the church that presupposes them.” In other words, he realized that the classical tradition was not decisionist, even in the extreme case of the suprema potestas of the Pope.
Imperare aude, a call to command, is not immediately intended to debunk the formalities of liberal legalism and proceduralism. The classical tradition is not decisionist and does not ground the validity and legitimacy of the political and legal order in an original framing decision. Consequently, this tradition does not promote revolutionary coups to restore justice. It always inheres in an existing political community with a functioning legal system that entitles authorities—inasmuch as they can preserve the basic conditions of political peace—to rule for the common good, ordinarily and to the extent possible with respect for the existing laws determining competences and procedures.
A call to common action, under legitimate authorities
As Pierre Manent writes in Natural Law and Human Rights, “to recover law’s intelligence thus cannot consist only in carefully rereading Saint Thomas, as indispensable as this effort may be. We cannot proceed as if nothing had happened for seven or eight centuries.” It is necessary to go beyond law as simply a limit on power to “recover the fullness of law as practical reason motivating and regulating action, specifically action aiming at the common good.” This demand to engage in common action for the common good necessarily involves legislative and executive commands by legitimate authorities. It requires the will to rule according to reason.
This call to command applies to all types of authority: domestic, academic, ecclesiastical, military, and civil, each with their particular characteristics, although I have civil authorities chiefly in mind. It obviously also concerns those of us who are circumstantially not in authority and are ruled by others. We should learn anew how to relate to active authorities that intend not only to respect our rights, but also to guide us to the common good. The ruled should put in practice the virtues of their condition: political prudence, contributive initiative, obedience, patience, lawful resistance to unjust authority.
Sometimes, the inability to rule and the consequent injustice, disorder, and violence are the result of indecision and a lack of courage to use one’s own mind and will to be another’s guide. This is not only caused by personal moral weakness, but also by theoretical and cultural confusion. However, clarity in matters practical does not come only from reflection and dialogue. As human beings, we need to deliberate about the specific possibilities of action. Hence the call to those in positions of power at every level: Imperare aude! Dare to command, even at the risk of committing mistakes and excesses! Move yourselves and move us, so that we can deliberate about the justice and prudence of our common actions for the common good, and finally get beyond the suffocating strictures of modern legal and political thinking. “Have the courage to use your authority”—imperare aude!—is therefore the motto of the restoration of the classical legal tradition.
Ricardo Calleja. University of Navarra.