Obamacare and the Task of Responsible Opposition, Pt. 1: The Law of the Land

 Last week, flush with the successful defense of my Ph.D, disgusted with the news I heard trickling out of my country, and tickled to re-discover the perennial relevance of Richard Hooker’s political wisdom, I lobbed a 2,500-word grenade 3,500 miles across the pond, exposing the stubborn self-indulgence of the GOP’s stance vis-a-vis the government shutdown.  Hooker’s message struck a chord with many readers, but also elicited some predictable protests.  Since returning to my homeland a few days ago, I have immersed myself in the resulting discussions, and in reading whatever would shed light on the current fiscal crisis.  The situation, of course, is too complex, too rapidly-evolving, and too obscured with duplicity and half-truths, to offer anything like a full statement on the debate here.  Indeed, in a salutary development, the posture at which my post last week was aimed—demanding the overthrow of Obamacare—seems to be being rapidly abandoned by Republican leadership, to the outrage of the hard-right agitators who were dictating terms until recently.  It remains to be seen whether the new direction will hold momentum, and if so, whether it will mark the final abandonment of the Obamacare fight by conservatives—though I am doubtful they are ready to throw in the towel just yet.  Inasmuch, however, as the Obamacare question continued to dominate discourse up through early this week, and remains an extremely live issue in many conservatives, I want to use the following trilogy of posts today to expand upon my “Open Letter from Richard Hooker,” clarifying the object of my critique and to answer some common rejoinders I have received.  (Some of the same principles, incidentally, apply to the broader budget-deficit concerns which now dominate debate, but I will leave it to readers to draw those applications). Read More

An Open Letter from Richard Hooker to the Republican Party of the United States

The following is adapted, with small changes, glosses, and additions (for clarification and contemporary re-specification), from sections of the Preface to Richard Hooker’s Lawes of Ecclesiasticall Politie. Any modifications or additions are in italics; omissions are marked with ellipses. Key passages are marked in more prominent typeface.

A Preface to them that Seek (as they term it) the Repealment of Laws, and Orders Regarding Obamacare in the United States of America

Notwithstanding, as though ye were able to say a great deal more than hitherto your interviews on Fox News and denunciations on talk radio have revealed to the world, earnest challengers ye are of trial by some public disputation regarding the merits or demerits of the Affordable Care Act. Wherein if the thing ye crave be no more than only leave to dispute openly about those matters that are in question, the schools in universities (for any thing I know) are open unto you, as are the airwaves, the press, the daily and hourly opinion columns of the internet news media and blogs. . . wherein the several parts of our own healthcare laws and regulations are oftentimes offered unto that kind of examination; the learnedest of you, and the not-so-learned, have been of late years noted seldom or never absent from thence . . .  and the favour of proposing there in convenient sort whatsoever ye can object . . . neither hath (as I think) nor ever will (I presume) be denied you. Read More

Deliberation, Obedience, and Scripture

Another gem from the O’Don, this time on the relation of Christian ethics to Scripture:

“Ethics reflects on the conditions of good moral thinking .  Were it to posit an ideal relation of text to action which, in the name of obedience to scriptural authority, effectively abolished thinking, it would abolish morality, and thereby abolish itself.  There is a necessary indeterminacy in the obedient action required by the faithful reading of the text.  Acts are ordered in a basic repertoire of kinds and types, and of these kinds and types Scripture has a great deal of normative force to tell us; but Scripture does not determine the concrete act itself , the act we must perform now .  If Scripture totally determined our actions, there would be no obedience, for there would be no deliberation.  Deliberation does not simply repeat what it has heard; it  pursues the goal of faithful and obedient action by searching out actions, possible within the material conditions that prevail, which will accord with the content of the testimony of Scripture.  On the conditions of success in this pursuit Ethics as a theological discipline reflects.  Those Anglicans between the Reformation and the English Civil War who took issue with the Puritan use of Scripture, did so in defense of faithful and obedient discipleship as they understood it.  Hooker’s advocacy of ‘reason,’ often misunderstood in later generations, saw it as a hermeneutic servant of the text, giving concrete deliberative form to the normative demand:

‘For whereas God hath left sundry kinds of laws unto men, and by all those laws the actions of men are in some sort directed; they [the Puritans] hold that one only law, the Scripture, must be the rule to direct in all things, even so far as to the “taking up of a rush or a straw.”  About which point there should not need any question to grow . . . if they did but yield to these two restraints: the first is, not to extend the actions whereof they speak so law as that instance doth import of taking up a straw . . . the second, not to exact at our hands for every action the knowledge of some place of Scripture out of which we stand bound to deduce it, as by divers testimonies they seek to enforce; but rather as the truth is, so to acknowledge, that it sufficeth if such actions be framed according to the law of Reason; the general axioms, rules, and principles of which law being so frequent in Holy Scripture, there is no let but in that regard even out of Scripture such duties may be deduced by some kind of consequence.’ (LEP II.1.2).”
—O’Donovan, Self, World, and Time , p. 77

(See also “Obedience Without Cost: The Necessity of Moral Thinking“)



Coercion and the Nature of Authority

In his incredible chapter on “Authority” in Resurrection and Moral Order, O’Donovan offers this incisive summary of the relationship of coercion and moral authority as constituents of political authority, capturing much of what I sought to get at in my series on coercion a year and a half ago.  

“…political authority certainly owes something to two elements of natural authority, might and tradition (which are forms of strength and age respectively).  When law cannot be enforced, losing the authority conferred by might, it becomes a dead letter which people do not obey.  When law is changed too often and too drastically, losing the authority conferred by tradition, it forfeits public respect, so that people obey it cynically and without conviction.  From this some thinkers have thought it plausible to conclude that the authority of law derives exclusively from ‘power’, i.e. from an established structure of forceful domination.  But this is to overlook an important feature of the relation between authority and might.  Although it is true that the possession of might is an indispensable condition of political authority, so that one who cannot enforce cannot command, it is also the cause that an excessive dependence on might will destroy authority.  One who will only enforce, cannot command either.  Violent regimes lose authority, however much additional support they may claim from tradition.  For true political authority to flourish, there must be a stronger motive of obedience than is furnished by fear of sanction and habitual conformity.  People obey political authority because they think they ought.  It exercises a moral authority which can command a critically reflective obedience.” (127-28)

“Even Your Own Deed Also”: Law and Corporate Moral Agency

How can we be free even in the midst of obedience to laws with which we do not agree?  In a recent post, I expored the conundrum of law and liberty in the Reformation, and how we might be free even in submission to law when we recognize that obeying the law is a means of loving the neighbor.  Hooker, in seeking to persuade Puritan consciences that the laws of the English church were edifying, rational, and had in their favor the approval of centuries of church practice, and of the wisest among the Church of his own day, seems to be smoothing the way for such a free and voluntary law-obedience:

“Surely if we have unto those laws that dutifull regard which their dignitie doth require: it will not greatly need, that we should be exhorted to live in obedience unto them . . . . The safest and unto God the most acceptable way of framing our lives therefore is, with all humilitie lowlines and singlens of hart to studie, which way our willing obedience both unto God and man may be yeelded even to the utmost of that which is due” (III.9.3). 

Nonetheless, what about when we don’t think the laws in question are edifying and rational?  What about when we, and others, heartily disagree with the decisions taken by those in authority?  Given the breadth and depth of the Puritan protest, it seems a bit audacious for Hooker to declare, “To them which aske why we thus hange our judgmentes on the Churches sleeve, I answer with Salomon, because two are better then one. . . . The bare consent of the whole Church should it selfe in these thinges stop theire mouthes who livinge under it dare presume to barke against it.”  After all, the “consent of the whole church” was precisely what was lacking, and had been for decades, as Puritans in the churches, among the gentry, and even in Parliament continued to oppose the judgments enshrined in law.  Indeed, not just some few, but “thousands, yea and even of those amongst which divers are in publique chuarge and authoritie,” as Hooker would quote Cartwright in his Preface.

To this Hooker responds, in a crucially revealing sentence, “As though when publique consent of the whole hath established any thing, every mans judgement being thereunto compared, were not private, howsoever his calling be to some kind of public charge.”  The distinction drawn here is one key to Hooker’s political thought, as well as that of many of his contemporaries, between singulis and universis, citizens considered individually and considered as “the whole.”  Neither the number nor the status of dissenting voices counts against the “consent of the whole” inasmuch as this has been enshrined in law.  

More, then, than merely an appeal to corporate rationality, to the wisdom found in tradition, underlies Hooker’s argument for submission.  Indeed, immediately after his remark in I.10 that laws must be made by wise men, he cautions, “Howbeit laws do not take their constraining force from the qualitie of such as devise them, but from that power which doth geve them the strength of lawes” (I.10.8).  This power is sovereignty, the moral agency exercised by a collective through its authorized representatives, as he discusses at length in Book VIII.  To be sure, laws thus made can be overturned, but only by the same exercise of corporate agency that created them, not by the dissent of individual members, no matter how numerous.  “Lawes that have bene approved may be (no man doubteth) again repealed, and to that end also disputed against, by the athors therof themselves.  But this is when the whole doth deliberate whtat lawes each part shal observe, and not when a part refuseth the lawes which the whole hath orderly agreed upon.”  For Hooker, to speak of our “consent” to these laws is no mere metaphor, but an expression of the fact that we really do act not merely through our private wills, but through others: 

 As in parliaments, councels, and the like assemblies, although we be not personallie our selves present, notwithstanding our assent is by reason of others agents there in our behalfe.  And what we do by others, no reason but that it should stand as our deed, no lesse effectually to binde us then if our selves had done it in person.” 

As members of a body politic, our agency simply is constituted by our participation in this public action, and it is meaningless to pretend that we can exempt ourselves:

“[It is] unmeet that laws which being once solemnly established, are to exact obedience of all men, and to constraine therunto, should so far stoup as to hold themselves in suspense from taking any effect upon you, till some disputer can perswade you to be obedient.  A lawe is the deed of the whole body politike, whereof if ye judge your selves to be any part, then is the law even your deed also.” 

This statement, though it comes at the beginning of the Lawes, could be considered the capstone of Hooker’s argument.  Here we have the logic of God’s own action—a law to himself, completely free although bound to observe his eternal law, because this law is the most perfect expression of himself, and of rationality—mirrored in the logic of the human agent: we remain free even in being bound by law, because this law is our own rational action.  This is Hooker’s final argument—if all else fails, if the Puritan conscience refuses to see the edifying value of the laws, refuses to see their basis in the law of reason, refuses to defer to the judgment and wisdom of antiquity, persists in stubborn conviction that these laws are badly-made, his obedience is still, Hooker maintains, congruent with Christian liberty because he is simply obeying himself.  


Of course, we will have some concerns about this line of argument.  To what extremity could this go?  Perhaps the particular laws that Hooker defends really were fairly reasonable, but could the same logic be applied to underwrite meek acquiescence to true tyranny and injustice?  Hooker does not wish to leave things quite this stark.  Certainly, this trump card is not one that he wants to play lightly: “Neither wish wee that men should do any thing which in their hearts they are perswaded they ought not to do,” he says in 6.3 of the Preface, and again, in 6.6, “Not that I judge it a thing allowable for men to observe those lawes which in their hearts they are stedfastly perswaded to be against the law of God.”  But he does not think that the present case is one in which this “Here I stand, I can do no other” can be legitimately invoked: “your perswasion in this case ye are all bound for the time to suspend, and in otherwise doing, ye offend against God by troubling his Church without any just or necessary cause.  Be it that there are some reasons inducing you to think hardly of our lawes.  Are those reasons demonstrative, are they necessary, or but probabilities only?”

A demonstrative argument, Hooker grants, “dischargeth . . the conscience, and setteth it at full libertie.”  But where is this demonstrative argument?  “But if the skilfullest amongst you can shewe that all the bookes ye have hitherto written be able to afford any one argument of this nature, let the instance be given” (Pref. 6.6).  In the absence of an utterly compelling reason to disobey the laws, the Puritans must be willing to suspend the judgments of their conscience for charity’s sake, for, whatever their concerns about the harm to be done by bad laws, they must surely recognize the greater harm that will be done by contentiousness and disobedience: “of peace and quietnes there is not any way possible, unlesse the probable voice of every intier societie or bodie politique overrule all private of like nature in the same bodie.”  

Hooker’s first route of reconciling law and liberty has been to show that the particular laws in question are such as to advance the common good, so that to support them and obey them is in fact to love the neighbor.  Failing this, however, he will advise the Puritans that disobedience, founded merely on probable private opinion, cannot but harm the commonwealth, so that neighbor-love requires suspension of judgment, since there will be “no end of contention without submission of both parts unto some definitive sentence.”