One Grift to End Another

“The law firm representing the Boy Scouts... reported 14 lawyers billing more than $1,000 an hour.”

For this to be how the Boy Scouts ends, first going PC then its carcass being eaten by lawyers, feels like it encapsulates the journey of a nation. https://t.co/5BYzjod1Cl

— Richard Hanania (@RichardHanania) May 11, 2021

The Influence of Emer de Vattel on Hamilton

"The nation that dares to privilege its own interest, we are told, is one that is certain to disregard international laws and treaties, renege on its commitments, repudiate the bonds of common humanity, and aggrandize itself at the world’s expense." True? https://t.co/Wjif960TYD

— Modern Age (@ModAgeJournal) December 11, 2020

Interpreting the Constitution

A lot of people tell us you "just need to read the Constitution" to understand its original, legal meaning. And nothing more.

But like most things about the #Constitution - a lot of people are totally wrong.https://t.co/zQlWavL1tj

— TenthAmendmentCenter (@TenthAmendment) July 8, 2020

https://www.youtube.com/watch?v=BR22GpGEjf4

Jordan L. Perkins:

In some of my earlier academic writings, I attempted to lay out how this three-stage translation strikes me as in need of a great deal of explication, as there is an especially huge conceptual gap in how (2) becomes (3). But that is not my present point. My present point is that (2) itself seems to be a radically incomplete understanding of what ‘this Constitution’ means, even before we attempt to get to (3). This is because the words which were subject to negotiation in the 1787 Philadelphia Convention and then debate on the merits during the ratification process were interpreted in light of a specific intellectual tradition, that of the Anglo-American common law and constitution. ‘This Constitution’ makes sense only in light of that tradition, as interpreted by not only the Framers themselves (narrowly understood), but everyone directly involved in the ratification process. Constitutional texts are, as I would put it, enveloped within a shroud of implicature—they mean not only what they actually say, but also what they can be fairly understood to mean within the context of the social, economic, political, and legal tradition of the community to which they are addressed.

This is to say that ‘this Constitution’ cannot be merely the words on the page and/or what is specifically denoted by them. It must be something broader than this. The question is how far we must expand our net to capture the entirety of a plausible answer and if originalism, as a legal positivistic doctrine, can fully contain the answer which emerges. Again, I think not.

The strongest form of originalism for this debate, I think, is the original public meaning originalism which is largely dominant amongst contemporary adherents of the originalist doctrine. It holds that the Constitution (or any equivalent text) means, objectively, for all time, what it would have been understood to have meant by the community of speakers to which it was addressed. In other words, the Constitution means, basically, what the people who were engaged in the ratification debates thought it meant at the time.

Now, under this understanding of originalism, there’s a way of thinking that a legal positivistic doctrine might encompass the entire shroud of implicature (as I just put it) which imbues the constitutional text with its meaning. This is presumably because there is a fact of the matter as to what the political, legal, moral, and social conventions which provided the interpretive context in which the Constitution was initially understood, and these facts can presumably be unearthed, ideally through the law-office history which serves as the originalist jurisprudence's primary research tool.

and

Two things should here be noted. One is that we’ve drastically expanded the realm of meaning for ‘this Constitution’ to something which can be recovered, for the most part, through a within-the-four-corners interpretation of the text to one which requires a Quentin Skinner-esque full contextualization of the constitutional text within its complete intellectual habitat. To read the Constitution in this way properly would require fully getting inside the heads of those who wrote—reading what they read, understanding as they understood, thinking what they thought. As a conceptual matter, we might have identified a way originalism could meet the Vermeulean challenge. As a practical matter, it would be almost insane for anyone not experienced as a Cambridge School historian to try.

Or maybe a people would need a tradition with which they understood and interpreted the Constitution, and passed this tradition on to their descendants so that it would be understood and interpreted properly by them as well.
But if too many people are required to spread the tradition properly, is there any reasonable guarantee that the tradition will be kept?

If the meaning of a text could be lost so easily (and indeed even within the first generation appeals to the text alone could not suffice to prevent abuses), then maybe 1. many more things should have been explicitly written out by the ratifying conventions as addenda or the like, to be approved by all, or 2. the project of having a written constitution for a federal system should have been reconsidered. But those who ratified the Constitution were also hung up on their assumption that states were normative polities, so we should not expect them to have that much wisdom.

If the tradition no longer exists by which one can properly interpret the document, or there is no longer a shared consensus on its meaning, then is it still valid and binding as an agreement? If one cannot come to an agreement, is the compact automatically void, or does not still need to go through the motion of repealing it and replacing it with a different legal state of affairs?

Everyone Wants to Create a New Conservatism

This won't get far, either.

Welcome. Ius & Iustitium is a blog on jurisprudence and legal theory associated with @josias_rex.https://t.co/TDuaaE7Zu8

— Ius & Iustitium (@iusetiustitium) June 18, 2020

“Our aim here is to show that the classical legal tradition provides powerful justifications for the rule of law, morality, and social order, and that only this tradition can effectively combat the progressive onslaught against everything we hold dear.”

— Ius & Iustitium (@iusetiustitium) June 18, 2020

"Social conservatives must abandon proceduralism and return to the classical legal tradition. Originalism and textualism, both types of positivism, have proved impotent in opposing the liberal concept of the good."

An exciting new legal blog is born! https://t.co/3SRl2BxTlN

— Sohrab Ahmari (@SohrabAhmari) June 18, 2020

Conservative legal movement 📉
Romano-canonical jurisprudence 📈https://t.co/3zbeGVzvd7

— Gladden Pappin (@gjpappin) June 18, 2020

An Argument from Etymology

But is it sound? After all, ordering is through law, and it is possible for a liberal regime to legislate. One could argue that its laws are generally not valid, as they usually are not orderings to the common good. There is something to be rooted in a community and its culture, history, and tradition(s), which liberalism may claim to transcend through reason. That may be true as well. Is Schmitt's "illiberalism" worth investigating? I don't know yet.

Liberalism is a philosophical abstraction. It is alien to all societies. That is why liberalism cannot produce order, which is just another word for locating/rooting (Ordnung = Ortung).

— Carl Schmitt (@HomoHominiLupuz) June 4, 2020

Clueless Roman Catholic Academics

MOJ: The Constitution, Kulturkampf, Friedlander, and Vermeule by Kevin C. Walsh

Perhaps of most relevance to the recent wrangling over Adrian Vermeule's anti-originalist Atlantic essay is Friedlander's description of cultural conservatives engaged in the cultural warfare that encompasses but exceeds "the longstanding jurisprudential debates between origirialism and non-originalism or between natural law and positivism." These cultural conservatives, Friedlander contends, are "largely constrained by their positivism, if not by their originalism." 

If Friedlander is correct, then one can understand part of the alarm sounded in response to Vermeule's essay. If the jurisprudential debates are but one component of a broader kulturkampf in which what is at stake is "the survival or abandonment of the moral authority in the Constitution that is derived from Judaism, Christianity, or any other religion," then the cultural conservatives' removal of their self-imposed constraint of legal positivism should be of concern to those on the other side from them of this kulturkampf.

Contrary to the framing of both Vermeule's essay and the responses to it, more fundamental than the debate between originalism and nonoriginalism (whatever that is) is a debate between legal positivism and natural law as each is taken to undergird our constitutional order. The problem may be not that we're all originalists now, but that we're all legal positivists now. If that's right, then we can't begin to have the debate we ought to be having.

The "other side" is not worried about cultural conservatives, even if they are pointing and shrieking at Vermeule as a fascist; that's what SJWs do. Cultural conservatives have very little political power, and the Establishment will do its best to prevent anyone close to being like Trump from gaining the White House again. (And let's be clear, Trump is not the ideal but he's probably the best election winner possible.)

Too many Catholic intellectuals are stuck in the 20th ce and don't realize that their debates about the Natural Law don't matter to the changing the system.

F. H. Buckley Rejects Originalism and Favors Judicial Review

We Can Do Better Than the Framers’ Constitution by F.H. Buckley

As provocative as this is, Vermeule nevertheless pulls his punches. Rather than arguing that conservatives should reject originalism, he might have argued that they must do so if they wish to advance a morally compelling argument. For originalism, after all, is simply another form of legal positivism, the doctrine that places a Chinese Wall between what is and what ought to be the law. Originalists are the children of John Austin (1790-1859), the English legal philosopher who defined the law as the sovereign’s command backed by force. As a utilitarian, Austin thought that laws might serve the principle of utility or not, that is, they might be good or bad, but in either case they’re still laws if enacted by the King-in-Parliament.

Legal positivism? Maybe originalism is just legal interpretation 101, in so far as judges are expected to understand the law according to the mind of the legislators, and the limits of the Constitution. I don't see Buckley advocating that any of what conservatives deem unconstitutional be rejected.

Today the written Constitution includes the Reconstruction Amendments that nullified the Fugitive Slave Clause. But if we thought that Garrison was not altogether wrong in 1854, does that mean that the Framers in 1787 were something less than oracles of the law, and became so only in 1865?

Other Framers’ beliefs seem either questionable or very dated now. There are few people today, conservatives included, who share the Framers’ inordinate fear of democracy. The Framers did not think presidents should be chosen in popular elections. They thought that states had the right to secede from the union. And while they thought that a separation of powers was necessary to preserve liberty, the evidence today is that parliamentary regimes are freer than presidential ones.

This is the same author who wrote American Secession, so I don't know if he is being inconsistent or not. Don't know if I would purchase his book to find out.

Fr. Romanus Cessario, OP Reviews Kidnapped by the Vatican?

Non Possumus by Romanus Cessario, O.P.

MOJ: The Mortara Case, Pio Nono, Statism, Parents, etc.

Dreher has been writing a lot about this incident lately, but at this point I am not interested in examining it, though there are a lot of interesting issues at stake: religious freedom, the rights of Pharisees in Christian societies, the rights/powers of a Christian government, the intersection between the political community and Church...

Confederate Rule of Law

Abbeville Institute: Confederate Case Law: The Rule of Law, Not of Men by Marshall DeRosa

The mark of an advanced civilization is the rule of law, with the highest being the rule of law that protects life, liberty and property. Based upon this standard, the Confederate States of America embodied… »

"There is nothing new under the sun."

Something from 2010: The Law as a Weapon in Marital Disputes: Evidence from the Late Medieval Court of Chancery, 1424–1529

Steve Sailer Reviews The Rlule of the Clan

Kinship or Citizenship

Macmillan

Related:
Three Phenomena Encompassed by the Rule of the Clan
The Call of the Clan

Two Responses to William Cavanaugh on the Modern State

Thomas Storck, William Cavanaugh's "Killing For The Telephone Company," A Critique

A response to both Storck and Cavanaugh: Cavanaugh and the Question of the State by Joshua Bowman

The major problem with Storck's critique is that he ignores the problem of scale - perhaps an assumption about scale is implicit in Cavanaugh's critique of the modern state but he should have made it explicit. Aristotle, as I don't cease to point out, certainly had much to stay about scale and we are reminded of the fundamental importance of scale to the health of a community by 20th century thinkers like Leopold Kohr, E.F. Schumacher, and Kirkpatrick Scale.

The consolidation of power, political and economic - facilitated by improvement in communication and cheap energy. Earlier large political units (I would not call them polities) were forced by the limits of energy and communication to be somewhat decentralized, with some empires more decentralized than others (Roman and Chinese and Persian).

What of the managerial state, with the development of bureaucracy which seeks to legislate every tiny detail? What bigger violation of "subsidiarity" could there be at this point, as the bureaucracy serves those who hold power and implements their will?

Even if they claimed to be sovereign would their claim be just or right?

A Rejoinder to Straussians and Traditionalist Catholics

Both groups have accepted the Yankee nationalist myth, with the traditionalists criticizing the American founding accordingly.

Traditionalists see the United States as a "product of the Enlightenment" under the belief that rights can only be understood within the framework of liberalism, not as curbs on human legislative authority for a different reason. In this case, the Bill of Rights is a curb on the authority of the Federal Government. They do not acknowledge that the United States are more than the federal system.

Virtue, Wisdom, Experience, Not Abstract Rights, Form the Basis of the American Republic by Gregory S. Ahern

Catholics criticize the current political economy as a liberal one, probably rightly so, but it is not wholly liberal in its origin. (I will posit for now that it was inspired both by liberalism and some form of republicanism, even if that republicanism may have been deficient.) What do they offer as a solution, whether they be traditionalists or those associated with the left? CST! If everyone would just follow CST things would be better. But they've missed a big step - there can be no reorganization of community because what association that exists in most Uhmerican places are not communities. Communities must be formed from scratch, and this requires time and circumspection on the part of those involved, as they test one another. One should make laws to prevent injustice from happening, but CST is probably not a solution, not until other things are in place. The powers that be, the oligarchy, will ensure that the status quo is maintained. We can only do what we can to work outside of their system.

On voting:
Andew Haines, A Vote Worth Casting: What Makes Voting Valuable? (via CFPML)

He continues his examination of voting in line of MacIntyre's somewhat famous admonition to abstain.
The Moral Duty to (Not) Vote. Voting is an exercise of distributive justice that is dependent upon knowing the character of the candidates and their qualifications to hold office. The exercise of good practical reason should take into account whether one wells a candidate well enough to judge them to be suitable or not. Being a voter should be as serious as being a member of the Mafia: for whom can you vouch? While the personal consequences of making a bad endorsement may not be as great, a bad officer-holder can contribute to the ruin of a political community. I think Haines is on the right track, but he does not bring up the question of the proper scale or size of a community as Aristotle does (and Aristotelians worth the name do).

Haines questions, against Pahman, whether there can be a duty to consider the consequences?
"Not, of course, because considering probabilities is somehow unrelated to performing valuable actions—I argue that informed judgments are the only sort worth anything to begin with. Rather, it’s because introducing “duty” language into a thoroughly intellectual activity just doesn’t make sense."

Here I think Haines is probably wrong - if there are precepts concerning the virtue of prudence, then there are duties pertaining to prudence, and the citizen is obligated to act (and reason) prudently with respect to the affairs of the community.

Svein Sellanraa on a Different Alt Right

The Rise Of The Orthos

I think the founding idea of the orthosphere can be fairly oversimplified into this sentence: “The problem with the modern world is modernity itself”. For the orthos, the philosophical core of modernity is the rejection of the Aristotelian-Catholic idea that there are objective essences and purposes in the world. Many of the orthos trace this idea back to the nominalism of late-Medieval scholastics like William of Ockham, although they would also argue that it did not culminate until the 18th century and the Enlightenment. In philosophy, this modern nominalism gave rise to the idea that the world consists of nothing but meaningless, purposeless matter, and thence to modern atheism, materialism, relativism, and finally the complete nihilism which today is increasingly engulfing America and Europe. In ethics and politics, it produced a worship of autonomy – the idea that every individual can and should define its own purpose and destiny, unfettered by tradition, authority, or higher truth – which became the founding idea of every modern political ideology, from the classical liberalism of Locke to the redistributive leftism of the modern state.

Does the orthosphere start from a wrong premise, namely that there is such a thing as "modernity"? And that "modernity" is caused by the acceptance of nominalism? (Or voluntarism?) We can accept that liberalism is erroneous, but is it historically the problem that they think it is?

This is a radical idea, and it entails a radical conservatism. The orthos reject the Enlightenment project entirely, and espouse many ideas that are unfashionable even on the Right, including theocracy, censorship, and absolute monarchy. Their ideology centers around the defense of particular loyalties and moral communities, of traditional authority, traditional morality, the monarchy, the patriarchal family, the ethnos, and the Church. Many of them draw inspiration from the throne-and-altar conservatism of counterrevolutionaries like Joseph de Maistre, Louis de Bonald, and Juan Donoso Cortés, and seek to rescue the Middle Ages from the historical scrapheap. Needless to say, orthodox Christianity is central to the their thinking (hence the name) – in fact, I have yet to come across an ortho who is not a traditionalist Catholic or a conservative Protestant.

How much does this sort of traditionalism draws inspiration from throne and altar Europe? A limited version of monarchy is acceptable, like that of the middle ages, but not one based on royal absolutism.  (Absolute monarchy.) Setting aside the question on whether there are limits on the authority of the ruler, how can one separate the rise of the absolute monarch from nationalism and political centralization, both of which contributed to the fragmentation and ultimately, the destruction of Christendom? Then there is also state-church relations of that time, which was arguably detrimental to the freedom of the Church.

Once power has been consolidated, can it ever be given up?

It may be right to respond against the errors of the Enlightenment and liberalism, but one cannot take the arguments of traditionalists like de Bonald and others as the final say; one must return to Catholic political theology (not necessarily the same as Catholic Social Teaching).

How much of Bellarmine's development of Catholic political theology is good? (e.g. the origin of political authority) How different is English republicanism (whether in its original form or as it developed in the 17th century) from "classical" republicanism? (Against Throne and Altar: Machiavelli and Political Theory Under the English Republic [Hardcover] by Paul A. Rahe)

The common good must be a limit on all forms of human authority (not just monarchy), and tied to the common good are the limits to the size of a community. The question of whether there is a limit to authority (Is the ruler was answerable to anyone else? Is he above all human law?) was a crucial question during the history of Christendom.These traditionalists seem to prefer one answer, but I question whether it is the right one.

The group blog, The Orthosphere.

Related:
Something at Counter-Currents on de Bonald.

Am I a modern conservative?

The Pillars of Modern American Conservatism by Alfred S. Regnery

The first pillar of conservatism is liberty, or freedom. Conservatives believe that individuals possess the right to life, liberty, and property, and freedom from the restrictions of arbitrary force. They exercise these rights through the use of their natural free will. That means the ability to follow your own dreams, to do what you want to (so long as you don’t harm others) and reap the rewards (or face the penalties). Above all, it means freedom from oppression by government—and the protection of government against oppression. It means political liberty, the freedom to speak your mind on matters of public policy. It means religious liberty—to worship as you please, or not to worship at all. It also means economic liberty, the freedom to own property and to allocate your own resources in a free market.

Conservatism is based on the idea that the pursuit of virtue is the purpose of our existence and that liberty is an essential component of the pursuit of virtue. Adherence to virtue is also a necessary condition of the pursuit of freedom. In other words, freedom must be pursued for the common good, and when it is abused for the benefit of one group at the expense of others, such abuse must be checked. Still, confronted with a choice of more security or more liberty, conservatives will usually opt for more liberty.

"Ordered liberty" is often discussed by conservatives, following Edmund Burke, to distinguish liberty from licentiousness (see, for example, Patrick Deneen). But we can distinguish between liberty as it describes a political community in itself and the members of a community, i.e. political self-rule versus individual "sovereignty." One can have the former without the latter, if that sort of liberty is identified with complete self-rule (or autonomy). Those who rule in a polity should be qualified to do so on the basis of virtue.

How much liberty is necessary for the members of a community? There should be freedom from government interference with legitimate activities or the abuse of authority (legislating in those areas where it has no competence); subsidiarity vs. micromanaging.

Is the conception of liberalism given here one that is more allied to "voluntaristic" notions of law and will rather than a "rationalist" notions? Is there a sense of liberty which is not tied to certain errors which nonetheless retains the importance given to the limits upon human authority? I think so - but one must still show how the different meanings of "uncoerced" can be related with one another. (Freedom can also mean faculty or the potency to some action?)
At the end the author writes: "Conservatives advocate free market capitalism, less regulation of economic activity, and fiscal responsibility." "Free-market" conservatism. The essay is representative of the conservatism articulated by ISI. I would have to say that such a statement of principles is not sufficient as it is not explicitly tied to any particular conception of the human good (or goods).

Related: The Principles of True Politics
On Ordered Liberty A Treatise on the Free Society
Bradley J. Birzer, The Meaning of Liberty During the American Revolution (part 2)

Items of Interest, 1 December 2011

Proxy War With Iran by Philip Giraldi
Rod Dreher, Attention, Copts: Time to pack
William Lind, Reshaping the Pentagon for an Age of Austerity
Alexander Boot — Author, Critic, Polemicist, and Blogger
Daniel Larison, The Useless Moralizing of Hawkish Interventionists

Economics:
Thaddeus Kozinski, Ivory Tower Capitalism (via Patrick Deneen)
Pre-order Hound of Distributism Today
Two New Books for Distributists

How Rising Education Costs Can Lead to Incest

Counterpunch:
DIANA JOHNSTONE, Here’s the Key Question in the Libyan War
RALPH NADER, L. L. Bean and the Myth of “Made in America”
GARETH PORTER, Pak Border Post Attack a Big Loss for U.S. War Policy

Diet and Health:
Rod Dreher, Medicare fatheads
More promotion of the CW by the government, I suspect.

Low Carb Explained
Kitchen table talk. Review: Farmstead Chef
Are You Part of the Global Middle Class? Let me see your Smile......
MDA: How to Eat More Fat

Education:
Towards ecological literacy: A Permaculture approach for junior secondary science
The Thinking Housewife: Do impersonal settings prepare children for real life
"Impersonal care impedes self-restraint and the ability to form healthy relationships."
Rod Dreher, How fantasy helps us think historically

Catholic:
Holy Resurrection Monastery: Eastern rite monastery opens doors
The Family Celebration of the Divine Office by Shawn Tribe
Rorate Caeli: The Roman Rite: Old and New - VIII
The New Mass destroyed centuries of propers
Captivated by Death by Rabbi Daniel Lapin

Feminism:
The Pedestal Breaks

History:
Medievalists.net: Customary law before the conquest (pdf)

Movies:
First Image From Chilean Abortion Social Horror Movie APIO VERDE (AITH)
I can't tell if the filmmaker supports the ban or opposes it.

Items of Interest, 29 November 2011

Catholic:
Facts Prove the Existence of St. Nicholas of Myra

Rorate Caeli: Abp. Nichols praises "Civil partnerships" for "people of the same sex"

Humanum (via Beauty in Education)

NLM: Cardinal Burke's Thoughts on Mutual Enrichment

Rod Dreher, Gaudi, the Anti-Modern Modernist

Conservatism:
Jerry Salyer, With Friends Like These

Peter Hitchens, Why Do We Make Such a Fetish About Voting?

Kelley Vlahos, Don't be a Tool This Christmas

John Robb, HOW TO WIN ANY CONFLICT

Economics:
Rod Dreher, Our resilient, ‘small is better’ future

He links to a column by Bill McKibben.

Club Orlov: A Million Gardens

The Death of the Fringe Suburb

The National Defense Authorization Act:
Rod Dreher, America is a Battlefield, Oh Boy
John Robb, The U.S. is Hollowing Out Quickly




Education:
MoJ: The New York Times on the Nature of Legal Education (the op-ed piece)

Feminism:
The Prehistoric Working Woman

Music:


St. Tikhon's Mission Choir Sings with "Byzantine Brilliance"

History:
Why Men Fought in the 100 Years War


Special Forces:
"Horse Soldier" statue stands proud near Ground Zero

Family rules

Are probably necessary for the flourishing of the family as a unit. I am speculating since I am personally not that familiar with family rules in practice. I think there would be amelioration of the situation in the long run if authority was properly exercised and there was respect and obedience. But another problem is the lack of proper order in charity. Wrong-headed notions of charity do much to undermine the good, and give non-Christians a false impression that Christianity preaches some version of egalitarianism with respect to love or benevolence. (Something akin to Mohism?)

How much of the extant family rules of East Asian families are derived from neo-Confucianism? What sort of family rules existed before neo-Confucianism (or Confucianism, for that matter)? While the dynamics of East Asian families may pose its own set of problems regarding the fostering of independence on the part of children, they do seem to foster an outward appearance of harmony. (This might be a hasty generalization, that East Asian families actually experience less conflict than Anglo-American families.)

I have read the claim that the nuclear family (as opposed to the extended family) is a development in Anglo(-American) culture. Is this true? (It is also claimed that the success of Anglo societies is linked to this family structure.)

What does the virtue of piety require?

And can this virtue be enforced by human law? Filial Responsibility Laws and the Fourth Commandment

A provocative piece on the 1917 Code of Canon Law

Forty Years of Novus Dis-Ordo (But what about the Code of Canon Law of 1917?) by Brian McCall

What would canon lawyers like Ed Peters make of this?

I suspect that there are some Orthodox who would agree with Mr. McCall's critique and what it says about the Roman understanding of the papacy.

Unlike modern liberal conceptions of law dominated by floods of detailed legislative and administrative texts, the Traditional understanding of law is much richer. Gatian, the 12th century father of Canon Law, began his great textbook on Canon Law by defining law with the following general summary: “The human race is ruled by two things, namely, Natural Law and long-standing custom.” Law is comprised of two pillars, the precepts established by God which can be known by the use of right reason (Natural Law) and time honored customary norms. Notice what is missing from this definition: statue, ordinances—the very life blood of modern Liberal legal code-based systems.

The omission is not due to Gratian’s ignorance of such legal forms of rules. Just a few pages later he lists statutes and ordinances within a more detailed list of specific types of laws or leges. Yet, these ordinances are circumscribed and thus limited by the two opening categories of law, Natural Law and custom. The Traditional understanding of the role of statutes was that they merely confirmed in writing what was already known either by the use of right reason or the observance of long standing customs. Legislators did not see themselves as making laws de novo but rather of discovering, clarifying and recording with precision the contents of laws which pre-existed in the Natural Law or long standing custom. The traditional role of a legislator was jus dicere or “to speak the law.” Such a phrase implies the role is one of making known—or speaking—the law rather than creating it.

Isidore explains in a passage quoted by Gratian: “It does not matter whether it [custom] is confirmed by writing [i.e., a statute] or by reason [i.e., Natural Law], since reason also supports ordinance. Furthermore if ordinance is determined by reason, then ordinance will be all that reason has already confirmed.” Statutes are a part of a system founded on Natural Law and customary norms. Its legitimacy is dependent upon them. Gratian comments after this passage that “in part, custom has been collected in writing and, in part, it has been preserved only in the usages of its followers. What is put in writing is called enactment or law, while what is not collected in writing is called by the general term custom.”

When the ancient Romans produced their first written laws in the mid fifth century B.C., the Law of the Twelve Tables, these statutes were not seen as newly created laws but merely a written record of the ancient Roman customs that had been in use for years. It was written down so that it could be better known and so as to reduce disputes about its contents. This characteristic was common to all the great written legal products up to the nineteenth century.

The concept of a newly devised Code purporting to embody all of the law of a society being promulgated and imposed upon a society was unprecedented before the Enlightenment. Although sometimes called “codes,” the Traditional projects are more accurately described as compilations. Thus, the great Corpus Juris Civilis of the Emperor Justinian in the sixth Century A.D. was not a new Code of law (in the sense of the 1917 Code) written by politicians and bureaucrats and imposed on the Christian Empire. It was a collection of the Imperial and Senatorial enactments and the opinions and interpretations of well known Roman jurists compiled by scholars from the mass of these documents and collated into a single set of books. The law books promulgated by Justinian did not “change” the law but merely presented the laws in an organized way – a record of the pre-existing longstanding and organically developed legal system.

Gratian did the same thing for the law of the Church. His Decretum is a collection of constitutions of Ecumenical and local Councils and Synods, juridical decisions of Popes, commentaries by Father’s of the Church and writings of philosophers and theologians—all arranged topically and interspersed with introductions, interpretations and commentaries by Gratian. This monumental compilation, together with various supplements containing subsequent additional decisions and constitutions, was studied by jurists and used by canon lawyers as the living corpus of all of Ecclesiastical Law from the 12th century until 1917.

Although I have provided only a limited description of the Civil Law of Justinian and the Canon Law of Gratian, we should be able to see that it is a much more flexible, living, organic, nuanced and varied form of legal system than a modern Code. Gratian and the scholars working for Justinian did not create the law out of thin air based on pure disembodied reason. They respected law as a living system developing through the application of right reason and customary norms to new situations and circumstances and through the slow, almost imperceptible, growth and development of customs. They approached law with a humility unknown to modern Code drafters. Law was a treasure preserved yet perfected slightly by each generation. Since law involved the working out in detail of such complex penumbras as equity, goodness, rightness and justice, no single person, or even group of persons, in a particular place and time should dare claim to compose the entire corpus of law. To do so would seem the height of hubris to the classical and Traditional minded jurists for over two millennia.

Is Mr. McCall opposing the Code of Canon Law with a Anglo-American Common Law mentality?

One way to see the stark difference in approach between Traditional legal systems and modern ones (such as the Code of Canon Law) is to look at the relationship between authority and time. In the modern liberal system, authority is linked to novelty. The newer the law, the more authority it carries. Thus, the 1983 Code of Canon Law has greater authority over provisions in the 1917 Code because it has been enacted more recently.

The Traditional understanding of law was just the opposite. The older a particular law or legal norm could be demonstrated to be, the greater authority attributed to it. Customs which existed “since the memory of man runneth not to the contrary” were seen as much more reliable, and thus authoritative, than newer and novel norms. Opinions of ancient thinkers, jurists, philosophers, popes and saints that had stood the test of time were more authoritative than something dreamed up yesterday. Again the ancient attitude is filled with humility and acceptance of human failing.

A newer law carries "more authority" because it may replace or modifies the older law. Does Mr. McCall deny that the Pope (or any other ruler) has the authority to issue new and different legislation?

Authorities such as the Pope or a secular ruler have plenary authority to make statutes (particular laws) to clarify, sanction and make more particular the principles of Natural Law and Custom. Yet, even if his will makes these laws, a ruler’s will must flow from these two fonts of law. A prince who legislates outside of this legal hierarchy becomes a tyrant. Customs can be overturned by statute but such an extraordinary act is reserved for the suppression of bad customs, those contrary to the Natural or Divine Law. Rulers and authorities are thus the guardians of a slowly and organically developing human law which has its origin in Natural Law and historical Customs.

Mr. McCall then discusses the centralization of secular authority and the development in how it was understood and applied, culminating in the changes introduced by the rationalists and the French Revolution.

Yet, the Church who had been the model for virtuous jurisprudence for a millennia did an about-face as the twentieth century dawned. Rather than the secular realm imitating the jurisprudence of the Church, the Church decided to imitate, or accommodate herself, to the secular world. If Codes were the new thing, the Church needed to get with the times.

Cardinal Gaspari was appointed head of a committee that was to study the history of the corpus juris canonici with the purpose of composing a codex juris canonici, a Code of Canon Law. Written by committee it was imposed on the Church by the will of the prince, Pope Benedict XV. With this single act the enormous, intricate tree of ecclesiastical jurisprudence that had been growing up over centuries, with Gratian at its roots, was cut down and replaced by a product of a single committee of a particular time and place.

In fairness, the provisions of the Code of 1917 were fairly conservative and compromises were added that paid a nod to the validity of custom which to the extent not inconsistent with the Code was allowed to remain in force. Still the revolutionary axe had been laid to the root. Custom, tradition, Natural Law were replaced by the work of a committee and imposed by the will of the Sovereign Pontiff.

The utter futility of the project was evident, as with all Codes, to those with eyes to see. Law is meant to be a living organism, developing, growing and being pruned over time in light of new climates and conditions. As with all the European secular Codes, this rationalist work that was meant once and for all to definitively fix all the laws of the Church was revised and supplanted by yet a new definitive Code—the Code of Canon Law of 1983. As could have easily been predicted, this later creation incorporated more liberal ideology and language than its ill-begotten parent.

Critics of a certain notion of papal authority may draw a connection between the issuing of the Code of Canon Law with Vatican I. Mr. McCall himself compares the writing and promulgation of the two Codes of Canon Law with the creation and imposition of the new Roman missal.

To achieve both revolutions, a new understanding of authority needed to be promoted. It is one in which the Pope is unconstrained by Custom and eternal principles. He is the master of the Church, the sovereign prince, and can impose a new Code of Law or a New Ordo of Mass at will. Even Pope Paul VI exhibited discomfort with this novel autocratic accretion to the office of the Vicar of Christ on Earth. He could not bring himself to clearly supplant the ancient customary Liturgy of the Church with the fabricated new one.

Now what did the 1917 Code of Canon Law do to reverse or abrogate custom? And how were such changes negative? Did they damage the Church's authority and credibility? (How many people besides clerics and canon lawyers were familiar with the changes?) Do both codes sufficiently allow for the continuation of local law and custom to mitigate his criticisms?

Links:
1917 Code of Canon Law