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    The Law of Justice and the Law of Mercy

    I really have to stop reading TheraP's blog.  It gives me far too much to think about and whether or not my brain is up to the workout I don't know.  But I'm addicted, and perhaps the workout will keep the brain limber.  So read it I will and enjoy it I will.  As the title of this tidbit implies, it was stimulated by the post on Freedom and Justice.

    Like TheraP, I find the idea of Freedom pretty elusive, the folks I read in the line of duty tend to be more discursive on Liberty, and the two are not precisely synonymous.  Be warned: this is going to be a fairly erratic ramble-not quite stream of consciousness, but tending in that direction.  It is also going to be reader's digest version-if there's any interest, I may try something a little more extensive and cohesive.  Here's the task I've set for myself-to weave a bit of Hobbes on Social Contract, with Aristotle on Virtue and Citizenship, with Cicero on Law and Reason, and John Winthrop on the ideas represented in my title with some thoughts related to Social Capital and Robert Putnam's Bowling Alone.  How's that for a stew?  And where to begin?

    Maybe I should begin with a marriage of Aristotle and Cicero (unless that's unconstitutional in TPM land as it would be in California).  Although Cicero's the younger, I'll let him have the first word-youth are impetuous, after all.  Here's a nubbin to ponder:

        But with respect to civil laws, which are drawn up in various forms, and framed to meet the occasional requirements of the people, the name of law belongs to them not so much by right as by the favor of the people. For men prove by some such arguments as the following, that every law which deserves the name of a law, ought to be morally good and laudable. It is clear, say they, that laws were originally made for the security of the people, for the preservation of states, for the peace and happiness of society; and that they who first framed enactments of that kind, persuaded the people that they would write and publish such laws only as should conduce to the general morality and happiness, if they would receive and obey them. And then such regulations, being thus settled and sanctioned, they justly entitled Laws. From which we may reasonably conclude, that those who made unjustifiable and pernicious enactments for the people, acted in a manner contrary to their own promises and professions, and established anything rather than laws, properly so called, since it is evident that the very signification of the word "law" comprehends the whole essence and energy of justice and equity.

    Justice and equity, energy and essence.  Powerful stuff.  So is the first part of the sentence-G. W. Bush and cronies gob-smacked by Cicero.  Take That!!  Whump!!  Reason the balance, the weight the moral good, and from that, rather from words on paper, the validity of the law arises.

    Aristotle nods...he's in agreement (he should be, Cicero cribbed some of this stuff from him, or perhaps it would be better to say that Cicero knew wisdom when he saw it, and emulated it)-this is going to be a good match.  Aristotle wants us to understand that there's a significant difference between a virtuous person and a virtuous citizen:

        There is a point nearly allied to the preceding: Whether the virtue of a good man and a good citizen is the same or not. But, before entering on this discussion, we must certainly first obtain some general notion of the virtue of the citizen. Like the sailor, the citizen is a member of a community. Now, sailors have different functions, for one of them is a rower, another a pilot, and a third a look-out man, a fourth is described by some similar term; and while the precise definition of each individual's virtue applies exclusively to him, there is, at the same time, a common definition applicable to them all. For they have all of them a common object, which is safety in navigation. Similarly, one citizen differs from another, but the salvation of the community is the common business of them all. This community is the constitution; the virtue of the citizen must therefore be relative to the constitution of which he is a member. If, then, there are many forms of government, it is evident that there is not one single virtue of the good citizen which is perfect virtue. But we say that the good man is he who has one single virtue which is perfect virtue. Hence it is evident that the good citizen need not of necessity possess the virtue which makes a good man.

    So one is forced to choose, in certain circumstances, between being a good person and being a good citizen.  Oops.  To pursue justice (and mercy, which we'll get to in a minute) may demand actions  counter to the demands of good Citizenship.  (Socrates, looking down from the Elysian Fields, nods his agreement).  

    So bring on the Hobbes.  Hobbes was no fan of democracy, but he was a strange blend of equalitarian and pessimist.  In Nature (Hobbes didn't like nature very much-maybe he had hay fever or an allergy to bee stings), all men were equal-in strength,

        NATURE hath made men so equal in the faculties of body and mind as that, though there be found one man sometimes manifestly stronger in body or of quicker mind than another, yet when all is reckoned together the difference between man and man is not so considerable as that one man can thereupon claim to himself any benefit to which another may not pretend as well as he. For as to the strength of body, the weakest has strength enough to kill the strongest, either by secret machination or by confederacy with others that are in the same danger with himself.

    And in intelligence:

        And as to the faculties of the mind, . . .I find yet a greater equality amongst men than that of strength. For prudence is but experience, which equal time equally bestows on all men in those things they equally apply themselves unto. That which may perhaps make such equality incredible is but a vain conceit of one's own wisdom, which almost all men think they have in a greater degree than the vulgar; that is, than all men but themselves, and a few others, whom by fame, or for concurring with themselves, they approve. For such is the nature of men that howsoever they may acknowledge many others to be more witty, or more eloquent or more learned, yet they will hardly believe there be many so wise as themselves; for they see their own wit at hand, and other men's at a distance. But this proveth rather that men are in that point equal, than unequal. For there is not ordinarily a greater sign of the equal distribution of anything than that every man is contented with his share.

    In Nature, Hobbes argues, this equality is hyper-dangerous, because the Law of Nature credits every man with the right to do whatever he pleases to achieve his own ends, to the limit of his own strength.  Here's the free market, guys...and the Republican as Naturist.  (That's an image to conjure with-not). By the way, there is nothing in Hobbes' argument which would preclude women from participating in this situation, which Hobbes describes as a war of everybody against everybody, leading to lives "nasty, brutish, and short".    Enter the Social Contract by which we agree to give up "Natural" liberty for "Civil" Liberty.  A subject which much interested John Winthrop.

    Hobbes would have something approaching a despot (Charles-first-ish) to keep us from each other's throat.  Not so Winthrop.  

        For the other point concerning liberty, I observe a great mistake in the country about that. There is a twofold liberty, natural (I mean as our nature is now corrupt) and civil or federal. The first is common to man with beasts and other creatures. By this, man, as he stands in relation to man simply, hath liberty to do what he lists; it is a liberty to evil as well as to good. This liberty is incompatible and inconsistent with authority and cannot endure the least restraint of the most just authority. The exercise and maintaining of this liberty makes men grow more evil and in time to be worse than brute beasts: omnes sumus licentia deteriores. This is that great enemy of truth and peace, that wild beast, which all of the ordinances of God are bent against, to restrain and subdue it. The other kind of liberty I call civil or federal; it may also be termed moral, in reference to the covenant between God and man, in the moral law, and the politic covenants and constitutions amongst men themselves. This liberty is the proper end and object of authority and cannot subsist without it; and it is a liberty to that only which is good, just, and honest.

    This sounds not that much different from Hobbes (I spared quoting him on this, but you can look him up if you want).  But there is a significant difference: Winthrop brooks no divine right of kings- one's magistrate (we'd say governor) is chosen of the people:

        I entreat you to consider that, when you choose magistrates, you take them from among yourselves, men subject to like passions as you are. Therefore, when you see infirmities in us, you should reflect upon your own, and that would make you bear the more with us, and not be severe censurers of the failings of your magistrates, when you have continual experience of the like infirmities in yourselves and others. We account him a good servant who breaks not his covenant. The covenant between you and us is the oath you have taken of us, which is to this purpose: that we shall govern you and judge your causes by the rules of God's laws and our own, according to our best skill.

    So we get the government we deserve (someone famous said something like that)-and unless the governor doesn't try, you're stuck with him until the next election.  This brings me back to the second half of my title-and I bet you thought I had forgotten all about it.  I wrote about this in an earlier blog entry, and I won't repeat myself here.  Just let it be said that Winthrop envisioned that mercy trumped justice in most instances, and that mercy wasn't just a quantity to be applied to the poor-that's charity, but to the powerful as well, but not when through laziness or avarice they break the bonds which hold a community together.  Those bonds?  

    From hence we may frame these conclusions:

        First of all, true Christians are of one body in Christ Ye are the body of Christ and members of their part. All the parts of this body being thus united are made so contiguous in a special relation as they must needs partake of each other's strength and infirmity; joy and sorrow, weal and woe. If one member suffers, all suffer with it, if one be in honor, all rejoice with it.

        Secondly, the ligaments of this body which knit together are love.

        Thirdly, no body can be perfect which wants its proper ligament.

        Fourthly, All the parts of this body being thus united are made so contiguous in a special relation as they must needs partake of each other's strength and infirmity, joy and sorrow, weal and woe. If one member suffers, all suffer with it; if one be in honor, all rejoice with it.

        Fifthly, this sensitivity and sympathy of each other's conditions will necessarily infuse into each part a native desire and endeavor, to strengthen, defend, preserve and comfort the other.

    The religious language can be off-putting to some.  I hope it won't be too off-putting to consider the argument.  And please don't read exclusivity into Winthrop's words...elsewhere he says the same rules apply to "enemies" as well-after all, the enjoinment is to love them, too.

    To me, this sounds very much like the ideas expressed in Robert Putnam's book Bowling Alone.  He speaks about these bonds as being "social capital," and worries that social capital in America is being depleted.  I do too.  The book was written in 2000, more "the best of times" than "the worst of times", and I wonder if Americans have enough interconnections left to weather the current economic crisis.  Certainly social capital was a vital part of surviving the Great Depression.   It wasn't just government programs and the New Deal. Even before the Great Depression Social Capital created innovations like rent parties beginning in Southern Churches and continuing through the Harlem Renaissance into the 1930s and 1940s ( and which I gather are coming back).  The decline of social capital is subject for another post, when and if I get around to it.  In the meantime, do visit Bowling Alone's website and explore the interesting projects, the Saguaro Seminar, (Barack Obama is a member, by the way) and Better Together.

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