Let's face it: Pierre Poilievre is outstanding on the climate crisis

 

What’s in an Oath? Some medieval origins and selected readings

Roman law was centralized law, but with the fall of Rome beginning at the time of St. Augustine (AD 354-430), Western Europe witnessed the disintegration of all things centralized, unlike the Eastern half of the Roman Empire, Byzantium, which persisted for yet another millennium, until the fall of Constantinople in 1453.  Spurred on by invasions of Germanic and other tribes, what was considered ‘local’ came to be the focus of society in Western Europe.[1]  Any impetus to centralization that persisted could only be found in the Papacy, which encouraged a collective sense of belonging in what was known for a period as “Christendom.”[2]

The invasions of Vikings and Magyars in the ninth and tenth centuries reinforced a particular need to seek out local strong men as a means of protection, thereby highlighting the importance of the lord and vassal relationship, which is key to understanding “feudalism” as it developed in the Middle Ages.  The lord offered protection and the vassal his oath of loyalty, or fealty, in what can be regarded as a reciprocal – but asymmetrical - relationship.  There subsequently developed a sense of vast interconnectedness in feudal society, based on the trinity of so-called cooperation between ‘those who prayed’ (priests), ‘those who worked’ (peasants on the land), and ‘those who fought’ (lords and knights).  This interconnection is best expressed by the immortal phrase of Arthur Lovejoy as “the great chain of being.”[3]

It is worth noting that the English word “king” originally derives from the Germanic “cyning’ – a term etymologically close to “kin”.[4]  In other words, feudal society was one based on “kinship”, and the king – in an idealized term – was viewed as chief of his “family”.  But most importantly, the king – not unlike the vassal – saw himself as under the law by virtue of being bound by oath, a term which also has Germanic origins.[5]

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Here are two historical studies, which demonstrate the consistent pattern of the king regarded as figure who operates under oath, under the law, and under God: 

This ideal of royalty found expression in the various ceremonies of anointing, enthronement and coronation which spread to all the western kingdoms during the seventh and eighth centuries.  These ceremonies, controlled and performed by the Church hierarchy, incorporated the secular Germanic idea that the king’s chief duty was to be guardian of the community’s law; in all the rituals the king promised to perform his duty faithfully.  But the important thing was that his promise was made to the Church as well as to the secular community of his subjects and was confirmed by a religious oath.[6]

 

As early as the end of the eight or the beginning of the ninth century, Smaragde, Abbé de Saint Mihiel, defines the king as the representative of God, entrusted with the duty of “facere justiitiam et judicium” [to do justice and judgment].  By a daring etymology, he explains the word rex [as derived from Latin] by the duty of governing rightly: “Rex a recte regendo vocatur” [A king is called by ruling rightly].  When he comes to give the detailed duties of the king, he prohibits him from committing any abuse of his power and obliges him to render justice according to the law and without any consideration of the personalities of the parties.

One century later, Hincmar, Archbishop of Rheims, also very clearly placed the king under the law.  He expressly writes that nobody, king included, may disregard the law.  The principle applies not only to the king “as a man,” but to the king “as a king.”  According to the view that he takes of the positive law, nothing can be changed or added to the customs without the consent of the people: “Lex consensus populi et constitutione regis fit” [The law is made by the consent of the people and by the constitution of the king]. We will see this principle repeated by the Parlements and by the Etats Généraux of the people of France as long as France was a kingdom.  The principle was not challenged by the kings themselves.  Pepin, son of Charlemagne, will say, “Inasmuch as we shall observe law towards everybody, we wish everybody to observe it toward us.”  Charles the Bold will swear, “I shall keep law and justice”; and Louis the Stammerer, “I shall keep the customs and the laws of this nation.”  In modern terminology, it might be said that the power of the king was more executive or regulatory in nature than legislative, and this will remain a basic principle of the French monarchy, even under Louis XIV.   And even when the king exercises his regulatory power, he cannot do it alone.  Up to the thirteenth century, he cannot make any decision without the advice and the consent of the “plaids”, gatherings of important lords, bishops and high civil servants, which will later become the Conseil du Roi.  Of course, the king is not the beneficiary of power, but the trustee of it: Hincmar always writes in terms of duty for the king, according to the divine law and to the customs.[7]

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As was made clear in the above selections, even the remarkable rule of Louis XIV - with its absolutist pretensions - made him far from being a despot.  In 1667 he decreed: “Let it not be said that the sovereign is not subjected to the laws of the State; the contrary proposition is a truth of natural law; what brings perfect felicity to a kingdom is the fact that the king is obeyed by his subjects and that he himself obeys the law.”[8] The famous phrase “L’Etat, c’est moi” is also apocryphal.  It is likely misattributed to Louis XIV, as its first known appearance was in the mid-eighteenth century by an unimportant writer.[9]

Beginning in 1789 with George Washington - including Donald Trump in 2017 – every US President has pronounced the following words: “I do solemnly swear that I will faithfully execute the office of the president of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.”[10]

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     There is a reason why people serving in our government take an oath to the Constitution.  As our founding fathers recognized, democracy is fragile.  People in positions of public trust are duty-bound to defend it – to step forward when action is required.

     In our country, we don’t swear an oath to an individual, or a political party.  We take an oath to defend the United States Constitution.  And our oath must mean something.  Tonight, I say this to my Republican colleagues who are defending the indefensible: There will come a day when Donald Trump is gone, but your dishonor will remain.[11]

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[1] John B. Morrall, Political Thought in Medieval Times (London: Hutchinson, 1958), p. 27. Reprint

[2] Ibid., p. 57.

[3] See Arthur O. Lovejoy, The Great Chain of Being: A Study of the History of an Idea (London: Transaction Publishers, 2009).  Originally published in 1936.

[4] Morrall, Political Thought in Medieval Times, p. 13.

[5] The concept of “the rule of law,” which places all of government under the law, first originates with the Code of Hammurabi, which has yet to be discussed here in this blog space.

[6] Morrall, Political Thought in Medieval Times, p. 24.

[7] Andre Tunc, “The Royal Will and the Rule of Law,” in Arthur E. Sutherland, ed., Government Under the Law (Cambridge: Harvard University Press, 1956), p. 404.  Translations from Latin into English by Google Translate.

[8] Ibid., p.  408.

[9] Ibid., p. 403.

[10] See especially Brian Z. Tamanaha, “Functions of the Rule of Law,” in Jens Meierhenrich and Martin Loughlin, eds., The Cambridge Companion to the Rule of Law (Cambridge: Cambridge University Press, 2021), p. 226.  For the text of the Oath go to Article II, Section 1, of the US Constitution.

[11] Liz Cheney, Oath and Honor: A Memoir and a Warning (New York: Little, Brown and Co., 2023), pp. 279, 280.

Montesquieu's Thoughts on Hong Kong today

Just as the sea, which seems to want to cover the whole earth, is checked by the grasses and the smallest bits of gravel on the shore, so monarchs, whose power seems boundless, are checked by the slightest obstacles …. [1]

Montesquieu, The Spirit of the Laws (1748)

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[1] Montesquieu, The Sprit of the Laws, ed. and tr. Anne Cohler, Basia Miller, Harold Stone (Cambridge: Cambridge University Press, 1989), p. 18. [Part I, Book 2, Chapter 4]

News Flash: Trump is not God – maybe look to Chinese (not Roman) Emperors as his model

In these pages I have written previously of how Trump – who, with the help of Steve Bannon - aims to “deconstruct” the American rule of law.  “Deconstruction” is a term massively popularized by Derrida and his many followers, and it served as a left-wing surrogate for Marxism while that particular ideology waned under the revelations of Aleksandr Solzhenitsyn’s Gulag Archipelago, first translated in 1974.  With the fall of the Berlin Wall in 1989 and the collapse of Soviet Communism in 1991, Derrida’s anti-authoritarian “deconstruction” became de rigeur in academic circles, particularly in theory-starved – and sometimes woefully uncritical - North America.

The term “deconstruction” actually derives from Heidegger’s concept of “Destruktion”, which, originally appearing in Being and Time (1927), was likely inspired – if that’s the right word – by the experiences of the First World War.[1]  Heidegger was quick to point out that “to bury the past in nullity is not the purpose of destruction; its aim is positive.”[2] However, in light of his notorious Black Notebooks, published in 2014, Heidegger may have been dabbling in sophistry here by suggesting that his term was more evocative of setting “limits” than any actual demolishing.[3] What appears as a transformative concept for Heidegger, the eventual Nazi-philosopher king, came to be adopted by the Left under Derrida, with both sharing fundamental anti-humanistic assumptions.  How suitably ironic that today’s academia and popular media still proudly brandish a term that came to fruition in a war that profoundly altered the course of world history.

The circle of “deconstruction” is made complete by Trump when he repeats his mantra that he has “immunity” from any actions stemming from his provocation of insurrectionary violence on 6 January, 2021.  It speaks volumes that the conservative majority of “justices” at the U.S. Supreme Court, three of whom, in record form – otherwise known as hook and crook - Trump had brought into office during his term, is dragging its heels in dealing with the former president’s preposterous claims.  Have they obliterated from memory the entire Anglo-American legal tradition stemming from the famous Magna Carta, which determined – so it is said - from even earlier practice that the Crown was not above the law?  Apparently so!  Trump’s claims should be laughed out of all courts of law.  And a great many of his lawyers should be roundly penalized for their pretenses and helping to legitimate an evident conspiracy against the American Constitution.

By claiming “immunity”, Trump is not preparing for a wicked variation on Divine Rule, for which he is sometimes ridiculed, certainly given his many character and intellectual flaws which make him monstrously too human. Any aspirations to so-called divinity could invite rival pretenders across the globe, or in the U.S.A. where anything goes. Rather, Trump’s statement of “immunity” is made simply to the effect, perhaps a bit like Napoleon who crowned himself Pope (well in advance of his march on Moscow), that all authority emanates from his own self.[4]  Napoleon had modelled his eponymous Code on Roman precedents, despite saying otherwise.[5]  Put another way: the toga – for example - is not a part of Trump’s wardrobe, as it was with Napoleon; instead, the former president’s unadorned “immunity” claims serve as the naked follow-up to a “deconstruction” of the rule of law as we know it. 

If Trump gets re-elected, the chances are more than likely, to my mind, that he will pardon himself for the events of 6 January (and for everything else he has done).  He thus makes himself resistant to the written “rule of law” which applies to everyone else, except himself - for whom any apparent “law” is unwritten. [6]  In this regard, he makes himself largely akin to a traditional Chinese Emperor, save for the fact that a division of powers is still extant in the U.S.A.  Nowadays we do see aspirations to a “rule by law,” and the Chinese example may serve best as a living model to Trump, who shows no sign of historical depth. 

To return to my earlier theme, Derrida is representative of a significant split from the humanist tradition among recent French theorists and philosophers.  Thus, prevailing systems of thought organized around the illiberal principle of nonhumanism – as exemplified by China – may appear as more fashionable to wannabe supporters of Trump.  Or have we gone full circle in yet another respect?  Did the Destruktion of the First World War, which spawned the fascism of the Second World War, end up reviving a latent fascism today which appears implicit in the assumptions behind Derrida’s “deconstruction”?  Has the cultural memory of fascism, in other words, been prodded by Derrida’s clear praise for both the Chinese ideogram and the unrepentant Mussolini supporter Ezra Pound?  In any event, Derrida’s central work, Of Grammatology (translated 1976), celebrates a “break in the most entrenched Western tradition” for which we are now paying consequences.[7] The Age of Trump was prefaced by postmodernism, and he could not have asked for a better introduction to his set of so-called “rules.”

Another way of illustrating my point is to consider Trump - as I have already hinted - against the light of Roman law.  As Fernanda Pirie explains in her book, The Rule of Laws (2021), “A sense that [Roman] law, ius, represented higher principles, that it should provide resources for citizen and constrain the ruler, was not eclipsed by even the most autocratic emperors.”[8] Thus, Trump is clearly outside the foundations of the Western legal tradition and stands apart from “a sense law was made by and for Roman citizens and that it held the promise of justice for all.”[9]

 

 

 

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[1] Vincent Descombes, Modern French Philosophy, tr. L. Scott-Fox and J.M. Harding (Cambridge: Cambridge University Press, 1990), p. 79.

[2] Martin Heidegger, Being and Time, tr. John Macquarrie and Edward Robinson (New York: Harper, 2008), p. 44.  The index in this book – at least under the heading for Destruktion – is unworkable.

[3] Ibid., p. 44. See also Descombes, Modern French Philosophy, p. 79, as well as Richard Wolin, Heidegger in Ruins: Between Philosophy and Ideology (New Have, Yale, 2022).

[4] To put Napoleon’s unprecedented move (taking the crown from the Pope in 1804) in greater context, Charlemagne was crowned by the Pope in the year 800.  See Fernanda Pirie, The Rule of Laws: A 4,000-Year Quest to Order the World (New York: Basic Books, 2021), p. 154.

[5] Ibid., p. 336, 337.

[6] Ibid., pp. 95, 96.

[7] Jacques Derrida, Of Grammatology, tr. Gayatri Chakravorty Spivak (Baltimore : Johns Hopkins University Press, 1976), p. 92.  Originally published in French in 1967.

[8] Pirie, The Rule of Laws, p. 122.

[9] Ibid., p. 97.

Sergeant Schultz (“I know nothing”) follows from Thomas Mann’s novel ‘Doctor Faustus’

Having spent a year with Adrian in Leipzig, I know how he lived during the other three of his stay there; his manner of life being so regular and conservative that I found it rigid and sometimes even depressing.  Not for nothing, in that first letter, he had expressed his sympathy for Chopin’s lack of adventurous spirit, his ‘not wanting to know.’  He too wanted to experience nothing, see nothing, actually experience nothing, at least not in any obvious sense of the word.  He was not out for change, new sense impressions, distraction, recreation.  As for the last, he liked to make fun of people who were constantly having ‘a little change,’ constantly getting brown and strong – and nobody knew for what.  ‘Relaxation,’ he said, ‘is for those it does no good.’  He was not interested in travel for the sake of sightseeing or ‘culture.’  He scorned the delight of the eye, and sensitive as his hearing was, just so little had he ever felt urged to train his sight in the forms of plastic art.  The distinction between eye-men and ear-men he considered indefeasibly valid and correct and counted himself definitely among the latter.  As for me, I have never thought such distinction could be followed through thick and thin, and in his case I never quite believed in the unwillingness and reluctance of the eye.  To be sure, Goethe says that music is something inborn and native, requiring no great nourishment from outside and no experience drawn from life.  But after all there is the inner vision, the perception, which is something different and comprehends more than mere seeing.  And more than that, it is profoundly contradictory that a man should have, as Leverkühn did, some feeling for the human eye, which after all speaks only to the eye, and yet refuse to perceive the outer world through that organ.  I need only to mention the names of Marie Godeau, Rudi Schwerdtfeger, and Nepomuk Schneidewein to bring home to myself Adrian’s receptivity, yes, weakness for the magic of the eye, the black and blue.  Of course I am quite clear that I am doing wrong to bombard the reader with unfamiliar names when the actual appearance of the owners in these pages is still far off; it is a barefaced blunder which may well make one question the freedom of the will.  What, indeed, is free will?  I am quite aware that I have put down under a compulsion these too empty, too early names.[1]

Thomas Mann, Doctor Faustus (1947)

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[1] Thomas Mann, Doctor Faustus: The Life of a German Composer Adrian Leverkühn as Told by a Friend, tr. H.T. Lowe-Porter (New York: Knopf/Everyman’s Library, 1992), pp. 179, 180.

Letter to The Globe and Mail on MAID for the mentally ill

The Editor:

My fundamental question: Are mental-health services equally available across the country?

Ontario has the Centre for Addiction and Mental Health. Its apparent equivalent here, the BC Mental Health and Substance Use Services, struggles for name recognition both within the province and nationally (I hadn’t heard of it until recently).

Will a person with an “irremediable” mental illness in Saskatchewan or Prince Edward Island find the same psychiatric resources as someone located in, say, Hamilton, a major university city? Why seek an escape clause for mental illness without thinking in the first place of the vast disparity in the quality of services (not) at the disposal of people? Will there be more “irremediable” cases in have-not provinces?

Mental-health resources, it seems, are far from fair across the country. So why then talk about medical assistance in dying?

Joerge Dyrkton Anmore, B.C.

 

Published in The Globe and Mail, Tuesday February 6, 2024

 

Canadian university overseas student tuition fees as medieval “Indulgences”

 

Before the Reformation – most notably before Martin Luther – the medieval Catholic church came to accept gifts of money, or Indulgences, from peasants and religious men in return for salvation, also known as blessedness in Heaven.  The above engraving illustrates such activities by the Pope while holding an audience.

What, may I ask, is the difference between the above scenario and our present-day universities known to be so highly dependent on revenue from exorbitant external student fees?  Just like the medieval Church, Canada's universities today see themselves as offering the lucky a path to Permanent Resident status here, in other words, a route to heaven.