Dominique Schnapper: The Democratic Spirit of Law. New Brunswick: Transaction Publishers, 2016.
Originally published in Social Science and Modern Society, Volume 53, Number 6, November/December 2016. Republished with permission.
Montesquieu directed his attention to the spirit of the laws, considering what he called “the principles of government” underlying legal codes. The principle of republican government is “virtue,” by which he meant love of the laws, love of country, and a preference of public to private interest. By democracy, as distinct from republicanism, Montesquieu’s close reader Tocqueville meant a social condition, equality—defined not as the absence of social classes or of gradations of wealth but as the absence of aristocracy, a class entitled by birth to rule. This social condition in turn engenders habits of mind and heart that incline citizens toward “self-interest rightly understood”—but also toward “virtuous materialism”—the pursuit of material pleasures in a small way. Without the spectacular excesses of aristocratic corruption, virtuous materialism enervates souls, leads them away from public life, from virtue in Montesquieu’s sense.
Tocqueville famously considers the importance of civil society as a bulwark against the overbearing government of modern, centralized states and also as a counterweight to materialistic individualism. As a sociologist, Dominque Schnapper continues this legacy; while making use of the empirical studies produced by her colleagues, she eschews the sharp dichotomy of ‘facts’ and ‘values’ that so many of them have posited in their attempts to be scientific. While Tocqueville regarded democratic or egalitarian society (whether under republican or despotic government) as the bedrock of modern political life, Schnapper sees discontent with democracy. Some discontented democrats charge democracy with being insufficiently democratic (typically with respect to race, class, and gender) or with being too democratic, too vulgar and pedestrian or ‘bourgeois.’ More deeply, other critics point to tensions or contradictions generated by the democratic way of life itself—what she calls “democratic dynamics.” Like Tocqueville, who urged upon his fellow aristocrats an intention to guide and moderate democracy against its own excesses, Schnapper both describes and warns.
She starts with Tocqueville’s observation that an egalitarian society will often derive what social cohesion it has from consent—”not on any outside structure religious or dynastic, but on the community of free and equal citizens” who join in “an abstract political society that by means of citizenship transcends the roots and specific loyalties of its members.” Having done so, those loyalties don’t go away, although they are attenuated. Over time, again as Tocqueville predicted, the modern state would take over many of the functions performed by churches and lords of the manor. The risk is that Homo democraticus begins as a citizen but ends as a “beneficiary”—a passive recipient of state-provided support. Moreover, as an ever-more-demanding client of the state, the democrat begins to lose not only civic relations with others but social relations, too. People feel as if they don’t need one another, anymore, and stop “shar[ing] common values and a common conception of the world.” This leads to the condition Schnapper calls “extreme” democracy; it is a long way from Montesquieu’s republican virtue. Such societies can no longer cohere at all, for long.
Democrats thus succumb to “the temptation of the unlimited.” Whereas Adam Smith remarked that the desires of human beings are infinite and their means limited—hence the need for “political economy”—Schnapper extends this observation to all dimensions of political life. She distinguishes “autonomy”—the virtue of the deliberative citizen—from “independence”—radical self-sufficiency that finds no standard of conduct beyond the individual’s will. (I would have reversed these terms, probably because as an American I associate “independence” with our Declaration thereof, a document which firmly upholds standards of conduct and exemplifies deliberative citizenship. But let’s respect the author’s Frenchness.) “If the individual subscribes only to his own caprice and for his own short-term interest, he will overturn the objective trust that constitutes a basic given of all societal life.” The rule of law and political institutions—broadly defined not only as ruling structures but as a way of life—can only decline into confusion. At the same time dependence on the state increases. As this new way of life engrains itself in the minds and hearts of democrats, it redefines the family into an unstable grouping headed by merely consenting adults, which in turn generates single-parent households among those who choose no longer to consent to initial union.
The democrat “is obliged to be himself, to assert his freedom by his personal action—a paradoxical imposition indeed,” and one reminiscent of Rousseau’s famous phrase, “forced to be free.” Without any transcendent standard to guide him, but with all around him equally self-assertive, the democrat finds himself mired in “the feeling of his inadequacy, emptiness and compulsion.”
Fueling this radical egalitarianism or “independence,” modern science promises not only the conquest of nature for the relief of man’s estate but the conquest of human nature for—what? The conquest of human nature requires the conquest of natural right along with it. The abandonment of human nature as a moral standard yields moral and intellectual instability, as “the democratic individual wavers between the ancient dream of eternal life through science and the catastrophism that, while asserting science’s omnipotence, reverses the idea of nineteenth century triumphant science.” The “transhuman” demi-god fears perishing in some apocalypse, whether “nuclear” or climatological. And even while he lives, he is miserable, as technology and capitalism combine to accelerate life beyond the limits of the democrats’ social nature, which requires the slow growth of mutual trust for the sake establishing and maintaining civic and political association.
Proceeding from liberty to license, the democrat’s critical habit begins to challenge not only prevailing norms but “the very idea of norms.” He goes from divine right to natural right to historical right to a radical historicism that questions the very existence of right. Even the fundamental sociobiological fact of reproduction begins to quail before the will of “the democratic individual,” who “chooses his or her partner freely”—that is, without reference to norms. Similarly, the act of eating means, as a well-know American fast-food chain so winningly puts it, having it your way, and with 24-hour drive-thru service at that. Cholesterol having accumulated, the democrat will die ‘with dignity,’ after which his self-designed funeral will be followed by remembrances designed by his survivors.
The social act of transmitting moral and political standards from one generation to the next—the problem Abraham Lincoln considered in his Lyceum Address—cannot function adequately under the regime of extreme democracy, either. Here is where a life lived in France proves highly instructive, given the French-republican insistence, bordering on obsession, with forming citizens by means of education. Under liberal democracy, “The School transformed the members of a small community belonging to a limited world into citizens.” But, having been loaded also with the economic demand for vocational training, French schools have bent themselves out of shape, ill-fitted to combat new, rival communications technologies that challenge their monopoly on French culture and civisme. How will French culture survive if contradictory cultural norms can be ‘ordered up’ by students, like the hamburgers, they consume? When children can ‘outvote’ adults regarding their own education, has egalitarianism not gone a bit far? And how will political representation—that is, republicanism—survive in an extreme democracy, the logic of which is to govern itself by lot, as Aristotle had seen more than two millennia back? In rejecting deliberative intermediaries between his will and governmental decision, will the democrat enhance democracy or only empower the state, his chosen instrument for the delivery of the goods and services he demands? But contradictorily, if the state is a mere instrument, far from the mighty and authoritative being Hegel imagined, then the more that is demanded of it the less it will be obeyed.
Equality in the public realm drives the quest for individual distinction into the private realm. Simultaneously, in asserting themselves, these individuals make demands on the public realm, on the state, which in turn invites the state to become “a negotiator or a manager, organizing collaboration between structures outside itself,” thereby blurring the “boundaries between public and private.” This only begins the process of erasing distinctions National boundaries, the sexes, public and private, high and low culture, moral and immoral, even living and inanimate, all mix together not in a grand historical synthesis but in an overheated social stew. Because “there is no real thought without distinctions” extreme democracy makes Tocqueville’s gentle remark that democracy “does not favor ‘slow and deep thought'” a gross understatement.
Socially, this character of “indistinction” shows itself in Tocqueville’s well-known description of “individualism,” by which he meant the narrowing of one’s relationships to a small circle of relatives and friends. Its symbol today is the burka, which “demonstrates the rejection of participation in exchanges among all.” While making herself anonymous, so indistinct as to be invisible, the burka-wearer sets herself apart from all around her, isolated from all. This radical effect of equality contradicts equality, inasmuch as “the hidden woman can see others who cannot see her,” challenging the “reciprocity of social bonds” or, as one might say even more explicitly, social equality itself.
The final reduction caused by egalitarianism’s indistinction amounts to nihilism. “A society is defined by a conception of the world that gives meaning, by their organization and hierarchy to the important facts of human experience: birth, filiation, marriage, alliance, death.” But a ‘post-ethnic,’ ‘post-rational,’ ‘post-mortal,’ and ‘post-human’ democracy “in which biological or inherited distinctions might be overcome,” a society in which “the reflexivity of all social norms” leads democrats to attempt to construct lives “solely by people’s will” will veer toward the absurd. In it, we read seriously proposals for giving political rights to the great apes—and indeed why stop with them?
As a social scientist, Schnapper bravely seeks to rescue the discipline from such excesses. Whereas anthropology has made cultural relativism the sine qua non of research—studying such phenomena as ritual torture and cannibalism with calm rather than revulsion—anthropology does not entail absolute relativism, the denial that torture and cannibalism are morally wrong. Cultural relativism as a (so to speak) research technique is one thing, but its extension to the realm of moral judgment quite another. Schnapper recalls the question her father, Raymond Aron, posed to Claude Levi-Strauss: “Are universal judgments on moral behavior incompatible with cultural relativism?” Many have begun to treat them as if they are, and not only professional anthropologists. Against this trend, Schnapper recalls “the classical criticism of skepticism: there is a logical contradiction in the very idea of absolute relativism,” namely, that “in asserting a doctrine, the relativist implies that it is true, that therefore truth exists.” “Like all scientists, the ethnologist believes that knowledge is preferable to ignorance, that the progress of scientific knowledge is, in itself, human progress.” But obviously, “if relativism, no longer relative but absolute, were to dominate the intellectual and moral conception of democratic individuals, which would then be founded on the indistinction of intellectual orders, there would no longer exist any difference between justice and equality, the analysis of society and political involvement, facts observed (even if they are always philosophically developed by the researcher) and value judgments.” This would make it impermissible to do what everyone must do, inasmuch as “normativity is part of the human condition,” and “one cannot think and understand the world, one cannot wish to act on it, without value judgments.” It would be to lay down a prohibition against all prohibitions, permitting only the impermissible. The dynamics of democracy would exhaust democracy.
Schapper undertakes to counter this radical skepticism or nihilism dialectically, with a critique of universalized criticism, a critique of critique. She begins by observing that any critique must not only compare a particular society to its own principles (invariably finding it, and sometimes them, wanting) but also to other real, particular societies. It is then hard to avoid noticing that “we lie in the safest societies of human history” and “also the freest, most tolerant, and most prosperous.” Complaints about the rise of super-rich ‘one percenters’ and the decline of the middle classes beg for a touch of anthropological dispassion, if not relativism: “The notion that upward mobility was stronger in the past is a myth.” Anxieties about status divergence have grown because our “ambitions have grown.” The working classes have declined as a percentage of the population not because they have dropped into a Marxian lumpenproletariat but because the many have risen into the middle classes, and especially the managerial classes; the social prophet who saw the future that worked wasn’t Marx, it was James Burnham. Statistical studies claiming to show that the numbers of the poor have increased get those numbers by defining poverty upward. But “the poor in 2012 are objectively less poor than those of 1970.”
“Homo democraticus enjoys freedoms unknown to members of other societies,” even if “the possibility of exercising those freedoms remains unequally distributed.” The real crisis in democracy is a crisis of honor, not material well-being or personal freedom. Economic globalization places working-class men and women “in objective competition with poorly paid workers of poorer societies,” removing the dignity of having a ‘trade’ or a ‘craft.’ The democratic society which honors those who, as the saying goes, ‘reinvent themselves’ as needed or as desired humiliates the single mother that same society has also produced. Not only the prosperous but also the smarter and more ambition reap the benefits. Although Schnapper writes two years before the American presidential primary elections of 2016, it’s easy to see how the condition she describes leaves our political parties vulnerable not only to the appeal of a socialist like Bernie Sanders but also Donald Trump, who avers that the least intelligent among us are also “the most loyal ones.” Thank you, my liege, you are the only one who respects me.
The humiliation of the outsider looking in also animates the enemy of Mr. Trump’s followers, the immigrant. Immigrants and especially their children, “socialized in a democratic society” assert “democratic claims for equal treatment.” “They are democracy’s children,” but “they have not absorbed [democracy’s] obligations and do not know the codes for living together.” Like all disappointed lovers, they turn to reviling the beloved, at times to the point of murderousness. Resentment resists mere social welfare, which differs from old charity precisely by lacking caritas. The state cannot match its godlike providence with godlike love, the love that turns humiliation into just and honorable humility. Welfare states can feed the bodies but not the souls of its dependents; it is scientific/impersonal, and so cannot heal wounded honor. There can be no Department of Plausible Respect—at least not in a government animated by the principles of social science. “By a tragic ruse of history, the society created to ensure equal dignity for all human beings and their emancipation could become the society of humiliation.”
“Democracy is not the society of contempt; it is a society dominated by the gap between the democratic individual’s unlimited aspiration to be fully recognized” in his “individuality unlike any other, and the reality of inevitably asymmetrical social relations.” To save his honor, the democrat recurs to “superstitions and conspiracy theories.” Because we live in a radically democratized society, many feel they are ruled by the Wizard of Oz.
Following her great forebears Tocqueville and Montesquieu, has Schnapper presented us in the end with yet another tale of historical inevitability, based on the dialectical march of the Absolute Spirit or of class warfare or racial conflict, but on an iron logic of democratization? Schnapper thinks not: “Democracies are not fated to be lost because collective destiny is never fated in advance.” Like the real Montesquieu and the real Tocqueville, she urges not resignation but deliberation. When democrats begin to think about their problems, they are no longer simply democratic, and (very much like her father) she makes thinking attractive.
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