Anti-Climacus

LINK: I recommend, without reservation, Jacob Levy's article "Not so Novus an Ordo", which discusses the extent to which the theory of constitutionalism has become inseparable from social contract theory, and argues instead for a constitutionalism which remains aware of law, practice, and society as existing before, and somewhat continuously after, the formation of any particular constitution (I hope I've summarized it appropriately).

The article was of particular interest to me because this issue is one in the background of Grotian scholarship. For Northeast this past year, I wrote a paper on the right of resistance in Grotius, arguing (contra Tuck, among others), that Grotius articulated both a full, meaningful sense of sovereignty, but also an appropriately-sized right of resistance. The issue overlaps with constitutionalism, because, as one might expect, at stake is the question of what the political unit is, how it comes into being, and how the conditions underlying its legitimacy might be challenged. At the time, I took the position that it was an attempt to demystify the state, as it were, by replacing a non-specific sense of tradition (very much akin to revisionist British ideas of common law and constitution) with an explicit history; one accepts social contract (or the idea that law, sovereignty, and institutional structure are not arbitrary and so cannot be replaced at whim) in order to reject state-of-nature thinking (one engages first in legal, not philosophical, analysis, to determine the obligations one owes to one's own state), which serves the cause both of those who would rebel whenever they thought they could get away with it, and those who would arrogate unlimited power to themselves.*

Reading Levy's article, I am slightly more unsettled in that opinion. That Grotius' is a social contract model is hard to deny (though it does not focus all that much on consent and does not really worry about how consent plays out in any generation past the first one), as is its general hostility to change (there are mentions of the possibility of revision, and, embedded in the idea of multiple forms sovereignty can take, the idea that change might look different in each). However, there is also a great deal of past opinion and law, and in Prolegomena 38-39, Grotius identifies the inability of past authors to properly distinguish between types of law, and their unwillingness to use examples from history, as signs their work can only be, at best, incomplete. The answer to these new thoughts, I would expect, is that he has a foot in the old and the new; but it's an interesting set of problems on which to think.


*It's also this which has led me to the belief that a conservatism of history might be even better than a conservatism of tradition.