Double Aspect

In my last post I recount Martin Rady’s description of medieval central European legal systems in The Middle Kingdoms: A New History of Central Europe. As promised, this is the follow-up that describes what happened after. In short: a rediscovery of what latter-day reactionaries like to call the classical tradition, i.e. Roman law seasoned with natural law; the worship of government regulation as the path to the common good; ruin; and mass murder.

To be clear, I don’t know how au fait of contemporary debates about common good constitutionalism Professor Rady is. If I had to guess, I’d assume not very. If I’m right, then, unlike this blog, which has long criticized that strain of right-wing thought (here, here, and here, and also here by co-blogger Mark Mancini), Professor Rady is not an interested party in these debates. His account, then, is all the more interesting.

It begins with, of all things, a sausage ― the kind of eye-catching detail for which Professor Rady has a special talent, as I mentioned in the previous post. The sausage in question caused the husband of a woman in whose possession it was found during Lent to be arrested at the Hague in 1523. This was, Professor Rady explains

an early occasion when city magistrates undertook a public prosecution. Up until the early sixteenth century, accusations were mainly laid by the victim, in the manner of a private action … But now, something new was happening in the law—public prosecutors and representatives of the ruler were appearing as legal agents. This … was the work of the Renaissance. (188)

More precisely, it was the consequence of the growing adoption of the Roman law, which, Professor Rady points out, “fitted in with the Renaissance interest in the classical tradition [and] was also scholarly, composed in elegant Latin, and thorough: indeed, everything a humanist might want”. (189)

But in addition to its intellectual attractions, Roman law came with political and indeed social consequences. It “reinforced the authority of rulers and magistrates” and ousted private actions in cases where “magistrates considered an offence to have been committed”, (190) starting the process of weakening civil society which would unfold over the next four centuries. And, notwithstanding the common stereotype of the Middle Ages as more violent than the ever more humanist times that followed, the reception of the Roman law meant an increase in official brutality: “The new Roman Law courts were not only in the business of judging crimes—they were now killing people too.” (190) Beyond this,

Behind its glittering façade of marble statues, Italianate arcades, and earnest scholars, the Renaissance state born of Roman Law nourished despotism. This was not evident at first, but over the sixteenth and seventeenth centuries many Central European rulers rid themselves of diets and assemblies, often using the language of Roman Law in justification. … But the powers that rulers claimed were not only legal ones. Increasingly, too, they pried into consciences and conduct, demanding spiritual obedience to their own faith and conformity to their own moral codes. The religious Reformation completed the legal Renaissance, and in Central Europe its beneficiary was the ruler. (191)

This was happening under “Protestant and Catholic rulers alike”, because both

were equally concerned that people should lead godly and moral lives, for the good of their souls. Across the Holy Roman Empire, they launched inspections of churches, schools, and universities, censored books, and instructed village elders to examine and report on the faith of countryfolk. Most of all, they published ordinances or decrees that minutely regulated personal conduct. Bans on premarital sex, job shirking and vagrancy, gambling, and casting spells were as much the subject of these ordinances as injunctions to attend church, to take communion weekly, and in Protestant areas to go to Bible classes. Proclaimed from pulpits and read out in marketplaces, these ordinances dug increasingly deep into personal conduct, affecting the clothes people might wear, the alcohol on sale in taverns, the time villagers should be in bed, and the just wages to be paid to labourers. (206)

The Enlightenment might have dialled down the brutality, but certainly not the intrusiveness of the rulers of Central Europe. As Professor Rady explains, “[i]n Britain and North America, the Enlightenment tended towards the extension of popular sovereignty, curbs on government, and the enlargement of individual liberty and of the rights of the citizen.” (300) This is the sort of thing Jeremy Waldron describes in his article on Enlightenment constitutionalism, which I have discussed here. But “[i]n Central Europe, the Enlightenment tended towards the reverse—towards regulation and the subjection of the individual to the common good, as the ruler understood it to be”. (300)

Central European Enlightenment did, however, add another plank to the rulers’ intellectual platform. This was the idea of natural law as a justification for their pervasive powers:

Enlightenment thinkers tried to base their philosophies on what could be known for sure and what might be deduced rationally from it. In considering the state and society, philosophers in Central Europe subscribed overwhelmingly to the theory of Natural Law. Natural Law theory rested on two principles … The first was that society and sociability were implicit in the human condition. The second was that government existed for the benefit of society—kings did not rule because God had appointed them; their dominion was for a purpose that lay in the society of their subjects. From this, it followed that rulers should have as their goal the welfare of subjects. (300)

The rulers ― assisted by a cadre of public-spirited bureaucrats ― embraced this thinking:

[T]he capacious philosophy of Natural Law became a bureaucrats’ charter, justifying all manner of top-down interventions for the benefit of society and subjects alike. …

Habsburg officials found Natural Law theory compelling, publishing manuals of good governance that taught that the ultimate end of the state was the common good and general happiness, and that individuals were only free to the extent that the law allowed. The opening paragraphs of the most celebrated of these textbooks spoke of the state as a “moral person” and explained that private interests should be limited by the public good and that the welfare of the parts should be considered secondary to the whole. (301)

Nor did the practice lag behind the theory:

Spurred on by her advisers, the [Habsburg] Empress Maria Theresa was a prodigious meddler, publishing decrees on everything from the advertisements in apothecaries’ shop windows to the correct blowing of horns, the design of tobacco pipes, and the qualifications needed to visit a library. Her interference in private lives extended to separating Protestant children from their parents in order to save their souls and unleashing a Chastity Commission on the streets of Vienna to crack down on immorality. …

It was the same elsewhere in Central Europe. Indeed, the prize for overregulation that historians so frequently award to [Maria Theresa’s son] Emperor Joseph II surely belongs to Karl Theodor of the Palatinate, who in just thirty-five years (1742–1777) published 120,000 decrees, including bizarre rules on the five acceptable ways to measure the length of a fish.

All, you must remember, was for the common good. Only it didn’t turn out this way. Instead of the “bliss” and “completedness” that the philosophers had promised, “the state was swallowing society, through regulation, taxation, and conscription, and converting subjects into the ratchets and wheels of its apparatus”. (306) The result was “the substitution of human relationships with mechanical ones”, promptly “decried” for ” its ‘abstract rationalism’, artificiality, and despotism”. (306) Even the ostensibly independent and, in some ways, egalitarian freemasonry

was still tied to the state, drawing its membership from state employees serving in either the administration or the army. In their internal organization, the lodges even mimicked the bureaucracy, with the higher grades going in the main to the more important state servants. Freemasonry reinforced the bureaucratic, top-down management of society. But more than that, it added to the conviction that change was best introduced from above, by the masonic men of virtue who were now charged with operating the machine of state. (310)

It got worse. Denunciations did not stop the bureaucratic metastasis, and while absolutism of 18th-century rulers was seemingly checked when they ran out of money and were forced to restore a measure of Parliamentary consent to taxation and oversight of spending, the administrative state marched on.

Where the law was silent, “administrative discretion”, or freie Verwaltung, prevailed, which meant that the government and bureaucracy might fill in the gaps with decrees, which bypassed the parliaments altogether. Indeed, administrative discretion was often built into the legislative process. So, laws were left ill-framed and vague, with the intention that ministerial decrees would in time flesh them out. In filling the gaps in the law, ministries of the interior were the most solicitous, regularly issuing instructions that were injurious to freedom. (391)

For instance,

because the law said nothing about behaviour on the street, police chiefs issued directives on manners, including in Hungary such nonsenses as a prohibition on flirting with well-born ladies. Since the regulations had no legislative basis other than the right of state agencies to enact and enforce them, they could not be appealed against in courts of law.

The Rule of Law, meanwhile, was taking a beating:

Sometimes, government decrees were kept secret, so citizens were unaware that they were committing offences until the decrees were retrospectively published in special collections of “hitherto uncirculated decrees”. Or the published decrees came with exclusions that were not advertised. At least in Germany, most “police notices” were ostentatiously displayed (as they still are) to announce both the regulation and the scope of the policeman’s power, including the famous notice in Baden “It is permitted to travel on this road.” (392)

It’s all very well to denounce Dicey’s smugness about the virtues of the English constitution in comparison to those of Europe, but he wasn’t just making things up either.

That’s not to say that no good ever came of the central European administrative state. Professor Rady describes a number of examples: the successes of the imperial administration in Croatia, for example, and even in the territories of the Russian Empire that German and Austrian troops occupied during the Great War. (I have a grim personal connection to this last part: apparently, after Hitler and Stalin went from being buddies to enemies, my great-great-grandparents who lived in Belarus were warned that the Germans are coming and killing Jews. They wouldn’t believe it, on account of the Germans having been there 25 years earlier and behaved themselves in a much more civilized manner than the Russians ever had. Weeks later they had perished.)

The war finally revealed the weakness, rather than the strength, of central Europe’s post-Enlightenment states:

against any benchmark, the failure of the militarized bureaucratic regimes in Germany and Austria-Hungary was stark. Both had bent the economy and society into their service by regulation, requisition, interference, and coercion. They had built on a centuries-long tradition of officialdom and meddling. But they had not won the war; nor, in the end, had they shown themselves even capable of keeping people fed. War had pumped up the Central European tradition of bureaucratic rule. But bureaucracy had not brought the frictionless efficiency imagined by Max Weber, only disintegration and chaos. (429)

And the worst, for all that, was yet to come. For, Professor Rady argues,

The Holocaust was born of intellectual trends and moral predispositions that were rooted not just in the German past (as is often maintained) but also in Central European history. Ideas deriving from the Enlightenment that the state was an agent of human betterment and that a professional bureaucracy might treat individuals as mindless cogs or as anonymous numbers were taken to industrial perfection. The intended result was a radically different and “better” society, which united race and nation in a state that was now purged (in a commonplace trio of the time) of “vermin, lice, and Jews”, and so made virtuous. The urge to accomplish this new society made many ordinary Central Europeans into murderers. (463)

Echoes of the current campaign for a “common good constitutionalism”, or indeed for using the power of the state to reorder the public realm and orient it towards the “highest good” are unmistakable in all this. So much so that I think we can draw some lessons, however perilous such an exercise invariably is. Now, the point is not something as crude as “common good today, genocide in 250 years”. History doesn’t work like that. There is contingency; people make choices. The genocide, and even the mass misery of the Great War before that, may well have been at the outer bounds of where these bad ideas could have led, though this too is no more than speculation. But even if that is so, much of what Professor Rady describes is no world-historical fluke, but the playing out of the logic of the ideas in question.

If you believe that the common good matters more than individual life, liberty, and pursuit of happiness, and further that is something that the ruler of the state, perhaps with the guidance of his religious teachers and expert officials, can identify and translate into regulation, you will overregulate and increasingly debilitate if not destroy private and civil society initiative. You might not prescribe the ways of measuring the length of fish; you might find some other outlet for your beneficent wisdom and unceasing care; but you will always know better than your subjects, and thus feel not only entitled but positively obliged to boss them around. You will use an unconstrained bureaucracy and police force to do so ― because how else can your all-important aims be implemented? And you will achieve that which you may well be blaming liberalism for, the triumph of “‘abstract rationalism’, artificiality, and despotism”. You might profess belief in subsidiarity and in the importance of associations, but will want to ensure that they are committed to your understanding of the common good ― or else.

It of course ironic that an intellectual current that poses as a force of resistance to the Enlightenment is, in reality, determined to repeat the mistakes of a particularly unfortunate version of the Enlightenment. I am, I confessed, insufficiently well versed in the common gooders’ thought to say whether it actually draws on the thinkers Professor Rady describes; but I assume not. They think they are bringing back to light an older and more pristine tradition. But be that as it may, the reality is that what they are proposing has been tried, and failed disastrously. They may not wish to learn from this failure. But the rest of us must.