23 March, 2021

On Laws and Gods

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It would take gods to give men laws. 

—Jean-Jacques Rousseau [1762

This is going to be one of those essays where I throw a lot of things on the wall and see what sticks. We are going to range today from the American Revolution to Cambodian spirits to hunter-gatherer conceptions of authority to the collapse of the Qin dynasty to Icelandic law disputes and back. Strap yourself in.

I have recently been reading Hannah Arendt’s On Revolution. To read Arendt is to gain an appreciation for the powers of a comprehensive “classical” education. Each of her books is a tour de force tour through the millennia. Effortlessly she leaps across time, moving fluidly from Roman law to the debates in the St. Petersburg soviet. She knows not only the great philosophers, novelists, and political theorists of this three-thousand-year span, but all of the minor writers these great writers were reading themselves. Very few thinkers today are capable of such a performance.

If there is a weakness to Arendt’s books, full as they are of untranslated quotations in French or classical Greek, it is this: she knows nothing of, and has little interest in, the world outside her own tradition. This is a bit of a shame—one of the underlying themes of Arendt’s early work is that the totalitarian upheavals of the 20th century fundamentally broke this tradition, leaving Western man with no legs to stand on. One might assume she would have more interest in looking outside it.

The problems that spring from limiting herself to the West (and a limited West at that; one finds that she systematically discounts or ignores old Germanic works—like the Icelandic sagas—even when their message is in many ways complimentary to her own political ideals) are not hard to find.

Consider Arendt’s discussion of “the absolute” in On Revolution. In the period preceding the French and American revolutions (the primary topic of On Revolution), many a European monarchy descended into absolutism. Under the absolutist schema, kings were not only given absolute power, but were conceived as a transcendent source of political authority. But then we see a funny thing: after French revolutionaries deposed their absolutist monarch they proceeded to justify their own ruling power as the expression of an undifferentiated “general will;” Lenin’s merry band of regicides would claim their crimes were the laws of universal history realized. There is an easy and ironic parallel between these revolutionaries and the regimes they overthrew. The revolutionaries’ need to base their authority in some transcendent absolute, one might argue, is simply a continuation of the old absolutist claims of Tsars and Sun Kings. The source of sovereignty changes, but the old understanding of sovereignty does not.

The trouble with this argument—at least in Arendt’s view—is the American revolution:
That the problem of an absolute is bound to appear in a revolution, that it is inherent in the revolutionary event itself, we might never have known without the American Revolution. If we had to take our case cue solely from the great European revolutions: from the English Civil War in the 17th century, the French Revolution in the 18th, and the October revolution of the 20th, we might be so overwhelmed with historical evidence pointing unanimously to the interconnection of absolute monarchy followed by despotic dictatorships as to conclude that the problem of an absolute in the political realm was due exclusively to the unfortunate historical inheritance, to the absurdity of an absolute monarchy, which had placed a an absolute, the person of the Prince, into the body politic, and absolute for which the revolutions then erroneously in vainly tried to find a substitute…

[But] the revolution grew out of a conflict with a limited monarchy. And the government of King and parliament from which the colonies broke away there was no potestas legibus soluta, no absolute power absolved from laws. [Yet] the revolutions, even when they were not burdened with the inheritance of absolutism as is the case of the American Revolution, still occurred within a tradition which was partly founded on an event in which the ‘word had become flesh’, that is, on an absolute that had been appeared in historical time as a mundane reality. It was because of the mundane nature of this absolute that authority as such had become unthinkable without some sort of religious sanction, and since it was the task of the revolutions to establish a new authority, unaided by custom and precedent and the halo of immemorial time, they could not but throw into relief with unparalleled sharpness the old problem, not of law and power per say, but the source of law which would bestow legality upon positive, posited laws, and of the origin of power which would bestow legitimacy upon the powers that be. [1]

King George III was many things, but never an absolute monarch. Yet the American revolutionaries, with no practical experience of “the absolute” were nonetheless convinced that their revolution and the new government it created needed a transcendent foundation. Thus “the Laws of Nature and of Nature's God” talk in the Declaration of Independence. Thus all those John Adams quotes about “Religion and Morality alone.” Thus the four pages of examples Arendt digs up to show just how worried the American revolutionaries were about locating an 'absolute' source of authority that might stand behind their new regime.[2]

Arendt sees the scramble for a transcendent source of authority as one of the defining features of the modern age—one of the few features that unites what we today call “early modern Europe” with the Europe of her day. The revolutionaries and the absolutist monarchs were grasping for solutions to the same problem: the problem of how to justify political authority once the Christian God has been kicked out of politics. As she writes:
European absolutism in theory and practice, the existence of an absolute sovereign whose will is the source of bold power and law, was a relatively new phenomenon; It had been the first and most conspicuous consequences of what we call secularization, namely, the emancipation of secular power from the authority of the church. Absolute monarchy, commonly and rightly credited with having prepared for the rise of the nation state, has been responsible by the same token, for the rise of the secular realm with a dignity and splendor of its own ….

But the truth of the matter was that when the Prince had stepped into the Pontifical shoes of the Pope and Bishop he did not for this reason assume the function and receive the same sanctity of a Bishop or Pope; in the language of the political theory, he was not a successor but a usurper, despite all the new theories about sovereignty and the divine right of Princes. Secularization, the emancipation of the secular realm from the tutelage of the church, inevitably posed the problem of how to found and constitute a new authority which the secular realm, far from acquiring a new dignity of its own, would have lost even the derivative importance it had held under the auspices is of the Church.[3]

This is where things get interesting. For Arendt clearly does not believe this is a universal problem in human politics, but a crisis created by the very specific path that Western Europe took in the Middle Ages. All of these problems revolving around legitimacy and authority—which in a different work she labels the crisis “of the rulers and the ruled”—did not exist in the pre-Christian age.[4] The Greek polis and the Roman res publica did not face these questions, Arendt maintains, except when they devolved into tyranny. Read, for example, her description of law in the Greek polis

So much was law thought to be something erected and laid down by men without any transcendent authority or source that pre-Socratic philosophy, when it proposed to distinguish all things by asking whether they owe their origin to men or are through themselves what they are, introduced the terms nomo and physei, by law or by nature. Thus, the order of the universe, the kosmos of natural things, was differentiated from the world of human affairs, whose order is laid down by men since it is an order of things made and done by men. This distinction, too, survives in the beginning of our tradition, where Aristotle expressly states that political science deals with things that are nomo and not physei.[5]

In the essay I just quoted Arendt is less eager to blame the Europe’s transition from human law to natural law entirely on Christianity, but her antipathy towards natural law shines through nonetheless.[6] She views it as an unhealthy understanding of authority, a deviation from human sociality as it should be, a perverse historical accident that has stuck Western politics in the wrong frame for the better part of a millennium. This is characteristic for Arendt. In many ways her project can be understood as a quest to identify the wrong turns in Western thought, trace the dooms they have led us to, and excise them from our consciousness. Only after we have cast out the intellectual baggage of the last thousand years will we be able to look back on the world that came before—the world of the Romans and Greeks—and see them for the glory that they were, instead of as the shadows tradition would have them be.

This attitude—hostility towards tradition mixed in with unabashed celebration of the past—is one of the things that makes Arendt refreshing to read. She does not fit in any of the standard 21st century culture war molds. But her mold has its own limits. By restricting herself to one tradition of politics, understood as a linear journey through time, Arendt confines her investigations in too small a compass. She has access to the time series but not the cross section. Sometimes it is the cross section you want.

Take, for example, this fuss over transcendent authority. Was this really a Christian invention? Is the problem unique to a collapsing Christian world? The truth, I suspect, is the opposite of what Arendt insinuates: modernity’s drive for a transcendent source of authority is the historical norm. It is not the Christians nor the moderns who are exceptional, but the Greek and Romans who got by on such an unusual understanding of law as an artificial creation.

Let us visit a non-Western society that I am passably familiar with: the average Khmer village out in the Cambodian countryside. Four authorities have claim on Khmers’ daily conduct. The first, and that which will be most familiar to Western readers, is the Cambodian government. But its hand is weak. Many times over the last few centuries—such as during the crises of the 1830s-40s—its authority disappeared altogether. [7] The next source is the one most embodied in living, breathing individuals: the Buddhist sangha and its precepts. These two are at times intertangled. I find it interesting that when Cambodian government officers wish to explain new laws to Khmer villagers, they do so with analogy to the Buddhist code of ethics. [8] In a country like Cambodia, the concept of religious law precedes its secular counterpart.

But both government regulations and the Buddhist dhamma are ‘more honour'd in the breach than the observance.’ The actual guiding force Cambodian life is tradition, epitomized in Khmer proverbs and in didactic poems known as chbab (ច្បាប់), on the one hand, and the dictates of the neak ta (អ្នកតា) and the other spirits that occupy the Cambodian countryside on the other. Arendt concedes the importance of tradition in making proper law abiders of otherwise unruly men, though Cambodians take the principle to an extreme that would likely surprise her. I have always found it interesting that the word “chbab” is used somewhat indiscriminately—you will hear it used to describe a didactic poem, a social code, or a government command. Once again we see government authority being piggybacked on older, less political conceptions of authority. But this makes sense really, for a country where most of its people take the following proverb as a self-evident truth: “Do not walk the twisted path. Do not take te straightest route. Follow the path that your ancestors took (ផ្លូវវៀចកុំបោះបង់ ផ្លូវណាត្រង់កុំដើរហោង ដើរដោយផ្លូវគន្លង តម្រាយចាស់បុរាណ។).”

If Arendt can meet the Cambodians half way on tradition, she has more trouble with the neak ta. There is nothing like the neak ta in her work. Khmer are for the most part sincere Buddhists, but it is a Buddhism thoroughly imbued with Hindu deities and more local powers. Some might describe these powers as the typical spirits of “animism.” Mountains, forest, rivers, lakes, villages, temples, and even individual houses all have their own—or perhaps all are—their own spirits.

The most important of these beings are the neak ta, or the “Grandfathers.” The neak ta are territorially bound, described by Khmer as "the masters of the water and the earth." Every village in Cambodia has one (or is one—Khmer I have talked to are not consistent on this point). Usually the spirit will choose to reside in an object convenient for veneration: rocks, bodhi trees, or statues made specially to hold the neak ta’s presence. The neak ta must be respected. When his will is known it must be obeyed. If one is to clear farmland or hunt in a forest, then the neak ta’s permission must be gained. To defy a neak ta is to court disaster. Those who do not please the neak ta will be punished with injury, illness, or failing crops. Those who gain its favor, on the other hand, will be blessed with good weather, bumper crops, healthy pregnancies, lucky lottery tickets, and the return of lost water buffalo.

The state may not have the power to regulate interpersonal behavior, but the neak ta certainly do. To pick one example: some neak ta frown on infidelity. If one member of a household is sick, the time has come to find out if any other member of the household has been unfaithful. To placate the neak ta the offender must admit to their crime publicly and make penance with the angered master of water and earth, usually through offerings. I am not aware of any anthropological or sociological study that has measured the total amount the average Khmer family offer to the neak ta per year, but it is not small. The neak ta of forests might be given alcohol (poured on the ground) before villagers begin hunting trips or patrol to keep out illegal loggers. The neak ta of a village might be given an offering before fields are planted or a new child is born. At least once a year, the entire village will gather together for a feast in honor of the neak ta. Villagers will also come together to build a proper home for the neak ta or hire a sculptor who can better represent him.[9]

Schiller’s longing for a world where the Naiad of each mossy fountain / played and sported in its silver tide,” is the wish of a man who has never feared the malice of a mountain stream.[10] The Greeks knew better: Even Achilles could not fight the river. The spirits of the animist may do good, but their goodness is of their own choosing. To find divinity in stream and tree is to see in every tree and every stream a potential tyrant in waiting.

But does this apply outside the Cambodian case? One might suppose that Khmer attitudes towards spirit tyrants reflect their relationship with human ones. Cambodians are intensely conscious of hierarchies, after all; I personally have never experienced another culture that puts higher value on knowing one’s place. Perhaps the Khmer have simply built a spirit realm that mirrors their social world?

Hogwash! Or so might say Marshall Sahlins, whose essay “The Original Political Society” addresses this theme. Sahlins is not writing about Cambodians. The subject of his essay are the forager and horticulturalist societies famous for their egalitarian social structure. How do a people who have no priests, no kings, no hereditary castes or governments, nor even any “big men,” conceive of the spirits? Cue Sahlins:
Human societies are hierarchically encompassed—typically above, below, and on earth—in a cosmic polity populated by beings of human attributes and metahuman powers who govern the people’s fate. In the form of gods, ancestors, ghosts, demons, species-masters, and the animistic beings embodied in the creatures and features of nature, these metapersons are endowed with far-reaching powers of human life and death, which, together with their control of the conditions of the cosmos, make them the all-round arbiters of human welfare and illfare. Even many loosely structured hunting and gathering peoples are thus subordinated to beings on the order of gods ruling over great territorial domains and the whole of the human population. There are kingly beings in heaven even where there are no chiefs on earth….
There are no egalitarian human societies. Even hunters are ordered and dominated by a host of metaperson powers-that-be, whose rule is punitively backed by severe sanctions. The earthly people are dependent and subordinate components of a cosmic polity. They well know and fear higher authority—and some-times they defy it. Society both with and against the state is virtually a human universal. [11]

  Consider, for example, the Chewong of Malaysia:

Chewong are a few hundred people organized largely by kinship and subsisting largely by hunting. But they are hardly on their own. They are set within and dependent upon a greater animistic universe comprised of the persons of animals, plants, and natural features, complemented by a great variety of demonic figures, and presided over by several inclusive deities.

Though we conventionally call such creatures “spirits,” Chewong respectfully regard them as “people” (beri)—indeed, “people like us” or “our people." The obvious problem of perspective consists in the venerable anthropological disposition to banish the so-called “supernatural” to the epiphenomenal limbo of the “ideological,” the “imaginary,” or some such background of discursive insignificance by comparison to the hard realities of social action. Thus dividing what the people join, we are unable to make the conceptual leap—the reversal of the structural gestalt—implied in Howell’s keen observation that “the human social world is intrinsically part of a wider world in which boundaries between society and cosmos are non-existent.”

“There is no meaningful separation,” she says, “between what one may term nature and culture or, indeed, between society and cosmos.” So while, on one hand, Howell characterizes the Chewong as having “no social or political hierarchy” or “leaders of any kind,” on the other, she describes a human community encompassed and dominated by potent metapersons with powers to impose rules and render justice that would be the envy of kings.

“Cosmic rules,” Howell calls them, I reckon both for their scope and for their origins. The metahuman persons who mandate these rules visit illness or other misfortune, not excluding penalty of death, on Chewong who transgress them. “I can think of no act that is rule neutral,” Howell writes; taken together, “they refer not just to selected social domains or activities, but to the performance of regular living itself." Yet though they live by the rules, Chewong have no part in their enforcement, which is the exclusive function of “whatever spirit or non-human personage is activated by the disregard of a particular rule.”

Something like a rule of law sustained by a monopoly of force. Among hunters. [12]

Sahlins continues on in this way, cycling through one example after another. Inuit hunters, New Guinean horticulturists, Australian aborigines, and Amazonian lowlanders are all considered. In all of these societies the same pattern is found. Each lives beneath the shadow of supernatural force. The spirits—Sahlins prefers the term “metahumans”—are organized in hierarchies. Some spirits rule over others; those at the highest rung have the power to order those lower down to do as they bid (say, to hurt a human who has broken the higher spirit’s rules). These spirit rulers do care about rules. They proscribe hundreds. When these groups make contact with Westerners, they are quick to appropriate the word and concept of “law” as the term best fit to describe the nature of the rules that bind them. Though nomadic and egalitarian, possessing little of their own, these societies know that the spirits do “own” possessions. This includes land: if the dominion of individual spirits is limited, it is a territorial bound. But that within their territory is theirs. Humans are merely granted the chance to use a spirit’s possessions at the spirit’s pleasure. These possessions can include humans themselves. Titles like “father,” “mother,” “grandfather,” “grandmother,” and so forth are given to these beings, not because they are the literal ancestors of any individual human who fears them, but because their shared obeisance to these rulers is what makes them all part of one community. “Family” is the natural metaphor foraging life provides for that sort of shared relationship.

All of this mirrors what I said earlier about the neak ta (and some things about them I have not said: “their name [“The Grandfahers”] suggests ancestors,” Philip Coggan notes, “but no one living is related to them and the name signifies no more than that through the neak ta the village becomes a family.“)[13] Those familiar with ancient states will see a different set of parallels. Replace offerings with taxes and you have a king. On Kings is the book Sahlins coauthored with David Graber precisely to explore the point. They argue:
As is true of big-men or shamans, access to the metaperson authorities on behalf of others is the fundamental political value in all human societies so organized. Access on one’s own behalf is usually sorcery, but to bestow the life-powers of the god on others is to be a god among men. Human political power is the usurpation of divine power. This is also to say that claims to divine power, as manifest in ways varying from the successful hunter sharing food or the shaman curing illness, to the African king bringing rain, have been the raison d’être of political power throughout the greater part of human history….

It also follows that kings are imitations of gods rather than gods of kings—the conventional supposition that divinity is a reflex of society notwithstanding. In the course of human history, royal power has been derivative of and dependent on divine power. Indeed, no less in stateless societies than in major kingdoms, the human authorities emulate the ruling cosmic powers—if in a reduced form. Shamans have the miraculous powers of spirits, with whom, moreover, they inter-act. Initiated elders or clan leaders act the god, perhaps in masked form, in presiding over human and natural growth. Chiefs are greeted and treated in the same ways as gods. Kings control nature itself. What usually passes for the divinization of human rulers is better described historically as the humanization of the god. As a corollary, there are no secular authorities: human power is spiritual power—however pragmatically it is achieved. Authority over others may be acquired by superior force, inherited office, material generosity, or other means; but the power to do or be so is itself deemed that of ancestors, gods, or other external metapersons who are the sources of human vitality and mortality. [14]

Both Sahlins’ description of forager societies attitudes towards their supernatural rulers, and his account of earliest political authority tallies well with what we understand about "early civilizations" one layer of complexity up the scale from the chieftainships and "big-men" Sahlins has made a career of studying. I am thinking here of the kind of states created by the Egyptians, Mesopotamians, Yoruba, Inka, and Maya. [15] Though separated from each other by oceans and deserts, these civilizations shared much in common with each other and with the less stratified societies Sahlins is most interested in. Here again we see a universe imbued with divinity, kings who serve as the interface between their communities’ spirit rulers and human subjects, and a plethora of laws justified by divine sanction. Remember how the world’s first recorded law code begins:
When Anu the Sublime, King of the Anunaki, and Bel, the lord of Heaven and earth, who decreed the fate of the land, assigned to Marduk, the over-ruling son of Ea, God of righteousness, dominion over earthly man…. then Anu and Bel called by name me, Hammurabi, the exalted prince, who feared God, to bring about the rule of righteousness in the land, to destroy the wicked and the evil-doers; so that the strong should not harm the weak; so that I should rule over the black-headed people like Shamash, and enlighten the land, to further the well-being of mankind. [16]

It is difficult to say, however, that these peoples we're really grounding their laws in Arendt’s “absolute.“ In Bruce Trigger’s comparative study of early civilizations, he makes clear that these deities and spirit were not ‘transcendent’ in the way we usually use the term:
In early civilizations, it was assumed that the natural world, of which humans were a part, was suffused with and animated by supernatural powers. There was no distinction between the natural and the supernatural: everything was alive, conscious, and interrelated. Humans lived in a realm composed only of other beings; there were no things. Nature functioned because it was animated by powers that behaved much like human beings but were usually much stronger and therefore could determine human destiny…. People who lived in early civilizations believed that, because the natural world, which they inhabited and were a part of, were animated by spirits, it was possible for them to interact with the natural/supernatural realm in much the same way that they interacted with other human beings, especially very powerful ones…. This meant that what we identify as the natural and the supernatural were regarded not as separate from but as intimately linked to and interpenetrating the social realm.[17]

In other words, the spirits who provided suprahuman backing to a human order were not essentially different from the humans backing it. They were more powerful and knowledgeable than humans, but still fallible and limited. They could be tricked, and occasionally, killed. Nor were the upholders of the natural order especially moral beings: “There is no evidence that in any of the early civilizations… people believed that a unified moral order pervaded the universe,” and this is abundantly clear in the actions of the spirits, who were often petty, jealous, cruel, disloyal, or outright malicious.[18] The spirits were not honored for their goodness but for their potency. But this power was contingent, not transcendent. Today there is Cronus; tomorrow there will be Zeus. One falls and one rises due to nothing more than a mismatch in force and guile.

On the other hand, Arendt occasionally admits that the transcendent source of moral authority need not be that transcendent, nor especially moral. Consider her discussion of “the absolute” as an outgrowth of Hebrew law:
The whole problem of an absolute which would bestow validity upon positive, man-made laws was partly an inheritance from absolutism, which in turn had fallen heir to those long centuries when no secular realm existed in the Occident that was not ultimately rooted in the sanction given to it by the church, and when therefore secular laws were understood as the mundane expression of divinely ordained laws. This however is only part of the story…. What mattered was that—the enormous influence of roman jurisprudence and legislation upon the development of medieval as well as modern legal systems and interpretations notwithstanding—the laws themselves were understood to be commandments, but they were construed in accordance with the voice of God, who tells men: thou shalt not. Such commandments obviously could not be binding without a higher, religious sanction. Only to the extent that we understand by law a commandment to which men obedience regardless of their consent and mutual agreements, does the law require a transcendent source of authority for its validity, that is, an origin which must be beyond human power. [19]

Now even this giver of the “thou shalts” was first depicted and understood as a sovereign not altogether different from those we have discussed already: one deity among many, embodied, distinguished from other divinities not by his goodness but by his power. [20] Neither Yahweh, lord of storms, nor any of the examples we have discussed so far seem “absolute” by modern standards, but they are sufficient for the definition Arendt gives here for a “source of authority” whose “origin must be beyond human power."

But perhaps it is no accident that modern standards of absolute emerged. The more thinking a civilization gets to doing, the less appealing rule by jealous spirit lords seems to be. The partial, petty Zeus of the Iliad becomes the steady author of Stoic law and logos. The champion deity of the Israelite tribes is elevated to an omniscient and omnipotent origin of all creation. This shift away from the arbitrary rule by self-interested divinity towards a grander moral order upheld by universal, impartial power also occurred in imperial China.

The Chinese case is interesting because it is an example of a high civilization whose journey follows a similar path and echo similar themes to the West, despite having no knowledge of Israelite commandments or Greek natural philosophy. When the Chinese emerge onto the historical stage 3000 years ago, we find them ruled by kings who believe themselves to be the link between their human community and a pantheon of deities whose favor or disfavor must be gained but through ritual and sacrifice. Over time the Chinese understanding of the suprahuman foundations of human order would grow less anthropomorphized and partial. The Zhou would claim that their authority was grounded in the choice of Heaven itself— a conception of transcendent support for earthly order badly tarnished by the five centuries of war that followed the Zhou's collapse.[20] While later dynasts “shared [this] vision of a dynamic cosmic order in which the superhuman domain and human world were in dynamic correspondence” and that Heaven and Earth “supervised and guided human affairs” by endowing China’s rulers “with the cosmic mission of bringing harmony and prosperity to the human world and transforming the hearts and minds of his subject” the nature of this cosmic order was increasingly understood in terms similar to the “laws of nature and of nature's god” proposed by the Western tradition.[21]

The solution that Chinese thinkers developed to both explain the disorder that followed the collapse of Zhou authority and to reestablish a link between the natural order and the human one when China was again in the hands of a single, stable dynasty is known as “correlated cosmology.” The exact details of this cosmology would differ over time, but Peter Bol's gloss does a good job of capturing its main tenets:
The theory supposed that all things and processes belonged to specific categories as a result of the qualities of the energy¬matter (qi) that constituted them and that things of the same category "resonated" with one another (for example, strings tuned to the same note on different instruments all resonate when one is plucked). Cosmic resonance theory held further that the categories into which all things and activities fell were valid for both the natural and the human order.

It was this last proposition that had great political significance: since the natural order was of itself constant, predictable, and harmonious, any aberration must be the result of human actions. And since the emperor was the central figure in the human order and had the power to orchestrate his own and others' actions, it followed that when those in government went against the proper order of things, heaven-and¬earth responded with unusual events (which could be taken as portents of even greater harm to come) or even with full-fledged natural calamities, such as floods and earthquakes. It was incumbent on the emperor to adhere to the rules of the natural order (which the organization of antiquity was assumed to reflect) and to ensure that all society conformed.

If properly managed, the human realm would be perfectly coterminous with nature, and all creation would spontaneously function in a harmonious manner. In effect, this made the ruler, the huang di (the term usually translated as "emperor" but more literally the "august thearch"), the master of the universe, answerable only to the cosmic order.[22]

This understanding of the divine superstructure supporting human authority lasted just under a thousand years before falling victim to crises of the Tang dynasty. Then a combination of cataclysmic political upheaval and new theories of metaphysics and physics made the old correlative understanding of the universe untenable. For century or so Heaven no longer spoke to the human world; nature did not resonate with its movements. Much as in our own time, the intellectuals of this age saw the cosmos as a cold and uncaring witness to human folly.[23] But this was a temporary interregnum: by the Song Dynasty a new understanding of natural order had arisen. This allowed human law to be understood as an extension of what Chinese philosophers were calling heaven's reason (tianli 天理):
[In the early Song dynasty there was] a transformation of the political system comparable to that in Europe between the sixteenth and early eighteenth centuries. That is, the early imperial vision of a powerful ruler who commanded the populace and kept nature on course, a ruler who mediated between heaven and man and was the center around which all revolved, whose rituals had the power to move heaven and humanity, lost credibility. Instead, the ruler became a more human figure, who was expected to cultivate himself through learning in the style of the literati and whose ability to maintain the support of the populace depended on his success in managing the government so that it served the common good….
The way of heaven¬and-earth was simply another name for li, the necessary principles of a thing's coherent operation. All things, being products of heaven-and-earth, embody li, and all things are inherently coherent. And tianli ("heavenly li''), the very coherence of the universe as a whole and all things within it, is equally endowed in all human beings can provide an innate moral sensibility. The mind mediates a person's perception of the li in things and of one's own natue. The sages, being born with minds of the purest qi, fully and completely perceived the li of things and were in accord with tianli when they responded to events. Thus, they created civilization incrementally in response to the human condition of the moment. Civilization was not in any sense an artificial construct, since, thanks to the sages, it was in full accord with li. [24]

Thus in the later half of imperial history, justice was understood as the “the alignment of heavenly reason, state law, and human relations[25], and it was upon cosmic reason earthly authority was based. Though this understanding would be challenged by various intellectuals over the next few centuries, it lasted as the metaphysical foundation for imperial order right up to the end of the Qing, China's final imperial dynasty.

This superficial survey of Chinese views of natural law demonstrates that Arendt’s intuition about the genealogy of absolute politics is not correct. All over the globe, in all states of human society, we see rules and laws resting in sources “beyond human power.” In the case of  civilizations with long intellectual traditions, like that of Imperial China, the pattern broadly follows that of the West, where the “source beyond human power” becomes increasingly abstract and universal. This is not an artifact of the Great Schism, nor even a unique inheritance of the Abrahamic tradition. Where there are laws, there are humans who will try to ground them in a great beyond.

It is worth asking why this must be so. Here I find the one Chinese dynasty that did not ever claim a divine mandate to be of interest. Qin Shi Huang was the first ruler in China's "imperial" history, the dynast who picked up all of China's warring pieces and wielded them together in one empire. He may be the sole emperor in Chinese history to have never claimed the title “Son of Heaven” (tianzi 天子). In none of the steles that he erected to celebrate his accomplishments do we find any reference to Heaven's mandate or divine support. Qin Shi Huang seemed to think that his accomplishments—ending centuries of war by forcing the entire civilized world into his new empire—were self legitimizing. The early Qin elite earnestly believed that their state had embarked on a revolutionary political project, one which eclipsed all precedents and could not rely on previous models of political authority. Through the force of their arms and the wisdom of their laws they—not Heaven!—had built a new order for the ages. [25]

Their new order lasted for 15 years.

Historians have described the collapse of the Soviet Union as the byproduct of a political system built on an "absolute" its people no longer believed in.[26] With the Qin, it seems, there never was an absolute to believe in. For both the Qin and Soviets there were of course intervening economic and political causes of collapse, but I find it hard to argue that belief had nothing to do with their misfortunes. Preceding every fallen ancien regime is a period of disillusionment with the myths that held it upThere is a rebellious twitch in every man humiliated by naked power. We gladly bow to men only when they have a god behind them.

But that still leaves open the question of those rare societies who operate on fully human theories of authority not grounded in the beyond. The Greeks were not the only exception to the rule. When Njáll Þorgeirsson warns his Icelandic countrymen “with law our land shall rise, but with lawlessness laid waste,” it is not to the consequences of divine displeasure nor to the dictates of natural law that he appeals. [27]  What else could he say? This was a people without Leviathan. The goði of Iceland met together once every two years to review and amend the laws of their society.[28] They knew these laws were made by men. Lacking kings, governors, or even a government, the laws of the Icelandic Free State could only be enforced with the consent of the community they were governed by. There was no distinction here between the rulers and the ruled: the laws of medieval Iceland were made by the ruled for the ruled. 

When reading the Icelandic Sagas one is reminded of Alexis de Tocqueville's reflections on the nature of law and authority in antebellum America:
There are countries where a power in a way external to the social body acts on it and forces it to march on a certain track.There are others where force is divided, placed at once in society and outside it.

Nothing like this is seen in the United States; there society acts by itself and on itself. Power exists only within its bosom; almost no one is encountered who dares to conceive and above all to express the idea of seeking it elsewhere. The people participate in the drafting of laws by the choice of the legislators, in their application, by the election of the agents of the executive power; one can say that they govern themselves, so weak and restricted is the part left to the administration, so much does the latter feel its popular origin and obey the power from which it emanates. The people reign over the American political world as does God over the universe. They are the cause and the end of all things; everything comes out of them and everything is absorbed into them.…  [The American] sees in the public fortune his own, and he works for the good of the state not only out of duty or out of pride, but I would almost dare say out of cupidity.
One does not need to study the institutions and history of Americans to know the truth of what precedes; mores advertise it enough to you. The American, taking part in all that is done in this country, believes himself interested in defending all that is criticized there.[29]

Toqueville, as worried  about the source of proper authority in a world stripped of the old verities as Arendt, hoped the Americans' solution to the problem would save his French homeland. This hope was misplaced. It could not even save America. In time the Americans would face their own crisis of the "rulers and the ruled." The townships of the antebellum and colonial eras preserved the spirit of the Greek polis, but that spirit was restricted by the new constitution to a certain level of American life. Arendt honors the U.S. constitution for its “capacity to guarantee constitutional liberties," but condemns it for failing to "enable the citizen to become a “participator” in public affairs." Under the constitution's federal order, "The most the citizen can hope for is to be represented.” [30]

In Tocqueville's day this mattered little, for the American Leviathan was small in size, limited in scope, and the American people's loyalties lay close to home. As the American population grew larger, more urbanized, and less regional, as the federal government increased in strength, and as international affairs came to dominate American affairs, the "public freedom" of popular rule dwindled away. Public freedom has many enemies, but few harder to slay than size. The Icelandic free state, the Greek polis, and the American townships practiced politics at a human scale. When politics grows beyond the human scale, polities must nail themselves to an authority beyond the human. In America's case, this was done through transcendent notions like "We the People" and "nature's law and nature's God."

But what happens if the people no longer believe they are a "We"? What occurs when they find nothing natural in their laws? What follows when they lose their faith in nature's God? A past America, whose sense of order was grounded in the everyday experience of order-building, might weather such moments without too much worry. But Americans no longer build. Their laws are not theirs, but someone else's. They have grown too large and unbalanced for it to be otherwise. They can no longer escape the problem of the ruler and the ruled.

 That problem looms largest when the transcendent ties connecting the ruled, their rulers, and the laws that bind them begin to weaken. Such a nation is as Tocqueville described:

Sometimes a moment arrives in the lives of peoples when old customs are changed, mores destroyed, beliefs shaken, the prestige of memories faded away, and when, however, enlightenment remains incomplete and political rights are badly secured or restricted. Then men no longer perceive the native country except in a weak and doubtful light; they no longer place it in the soil, which has become a lifeless land in their eyes, nor in the usages of their ancestors, which they have been taught to regard as a yoke; nor in the religion which they doubt; nor in the laws they do not make, nor in the legislator whom they fear and scorn. They therefore see it nowhere, no more with its own features than with any other, and they withdraw into a narrow and unenlightened selfishness.[31]

Beneath Tocqueville's veiled speech is a finger pointed straight at his own country. The moment he speaks of had already occurred, in the last years of the tottering ancien regime.  Such moments do not long last.  Laws will be had. Where laws are had, gods will be found to guide them. Let us hope our coming gods will treat us kinder than the gods of the last upheaval treated the souls trusted to them.

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If you would like to read some of my other trips through the minds of the human past, you might find the posts "Vengeance as Justice," "On Cultures that Build," "The Growth Revolution," "Islamic Terrorism in Context," "A Short History of Han-Xiongnu Relations," and "Three Centuries of American Political Culture" of interest. To get updates on new posts published at the Scholar's Stage, you can join the Scholar's Stage mailing list, follow my twitter feed, or support my writing through Patreon. Your support makes this blog possible.

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 [1] Hannah Arendt, On Revolution (New York: Penguin, 2006 [or. ed 1963]), 149, 148, 151.

[2] ibid., 177-78, 182-184.

[3] ibid., 151.

 [4]  Hannah Arendt, “The Great Tradition: II. Ruling and Being Ruled,” Social Research, Hannah Arendt’s Centenary: Political and Philosophical Perspectives, Part II, 74, no. 4 (Winter 2007): 941–54.

 [5]  Hannah Arendt, “The Great Tradition I. Law and Power,” Social Research, Hannah Arendt’s Centenary: Political and Philosophical Perspectives, Part I, 73, no. 3 (Fall 2007), 716.

[6] ibid, 718.

[7] A good examination of how failing royal power in the 18th and 19th centuries might have affected Cambodian conceptions of authority is found in David Chandler, "Normative Poems (chab) and Pre-colonial Cambodian Society," in Facing the Cambodian Past (Chiang Mai: Silkworm Books, 1996), 45-61.

[8] On p. 89 of Courtney Work's “Chthonic Sovereigns? ‘Neak Ta’ in a Cambodian Village,” Asia Pacific Journal of Anthropology 20, no. 1 (2019) we find this charming vignette:

Once the blessings and offerings [to the neak ta] were complete, the village head took the microphone. This was unprecedented, as he rarely took a leading role, even at village meetings. He read rather stiffly, from a prepared document that began by explicitly comparing the government with Buddhism. ‘The government’, he said, ‘has five precepts, just like Buddhism’.

The Buddhist precepts are the moral codes. Regular laypersons are expected to adhere to five. These are: Do not kill, do not steal, do not engage in sexual misconduct, do not lie, and do not consume intoxicating substances. More serious practitioners, like achar and elders, hold ten precepts, and monks hold 277. Few lay people actually adhere to these, and only elders are expected to observe the precepts.

The village head went on to enumerate the government’s precepts: no stealing, no trafficking in addictive drugs, no domestic violence, no trafficking in women or chidren, and no lawless behaviour. He continued, explaining how the government provides safety and services to the people, but that with the development of new roads villagers will be more at risk from strangers. The village police, he said, do not patrol in the evenings and so the people have to join together to protect each other and to warn the police if strangers are in the village.

I find it interesting to that when the Khmer Rouge imposed its rule upon the countryside it also resorted to supranatural rule as the ready metaphor for its own authority. Villagers were told that "the organization" (as the Khmer Rouge called themselves) were "the masters of the water and the earth." They were, in essence, claiming the authority of the neak ta as their own.

See Ian Harris, Cambodian Buddhism: History and Practice (Honolulu: University of Hawaii Press, 2005), 176.

 [9] This portrait of the neak ta is informed by basically every article that has been written on the neak ta in English (there is an entire book on them in French, but alas, I cannot read it). But the most useful, and from which most of these specific examples are drawn, are Philip Coggan, Spirit Worlds: Cambodia, The Buddha, and the Naga (Oxford: John Beaufoy Publishing, 2015), 27-41; Courtney Work, “Chthonic Sovereigns?,": 74–92 and “‘There Was so Much’: Violence, Spirits, and States of Extraction in Cambodia,” Journal of Religion and Violence 6, no. 1 (2018), 55-72; Ann Yvonne Guillou, “An Alternative Memory of the Khmer Rouge Genocide: The Dead of the Mass Graves and the Land Guardian Spirits [Neak Ta],South East Asia Research, Life after Collective Death in South East Asia Research: Part 1 – The (Re-)Fabrication of Social Bonds, 20, no. 2 (2012): 207–26.

[10] Friedrich Schiller, "The Gods of Greece," translated by Francis Levenson Gowan, in Translations from the German and Original Poems (London: Thomas Davison Whitefriars, 1824), p. 42.

[11] David Graeber and Marshall Sahlins, On Kings (Chicago: Hau Books, 2018),

[12] Marshall Sahlins, “The Original Political Society,” Hau: Journal of Ethnographic Theory 7, no. 2 (2016), no pg numbers.

[13] Coggan, Spirit Worlds, 27.

[14] Graeber and Sahlins, On Kings,

[15]  Bruce Trigger, Understanding Early Civilizations: A Comparative Study (Cambridge: Cambridge University Press, 2003), pp. 70-74, 79-88, 409-433, 436-456, 467-475. The main difference between those early civilizations and the less complex societies that preceded them is that these peoples believed that “the gods depended no less on the material support of human beings” (through sacrifice and offerings) just as much as “society as a whole depended on the strength and goodwill of the gods.” See p. 484.

[16]  “The Code of Hammurabi,” translated by L.W. King, available at the Avalon Project.

[17] Trigger, Understanding Early Civilizations, 412. Sahlins and Courtney work make similar points the spirits of the foraging societies and the <i>neak ta</i>, respectively. See notes 12 and 9.

[18] Trigger, Understanding Early Civilizations, 436.

[19] Arendt, On Revolution, 181.

[20] For a very concise overview of Yahweh as depicted in the earliest materials, see Jo Ann Hackett, "'There Was No King In Israel': The Era of the Judges," in Michael Coogan, ed. The Oxford History of the Biblical World (Oxford: Oxford University Press,  2001), 156-161. For a larger account, see Thomas Romer, The Invention of God (Cambidge: Harvard University Press, 2015) and Mark Smith, The Early History of God: Yahweh and the other Deities of Ancient Israel, 2nd ed. (Grand Rapids, MI: Eerdsmans, 2002).

[20] On the origins of the concept of "Heaven's Mandate" see David Pankenier, “The Cosmo-Political Background of Heaven’s Mandate,” Early China vol 20 (1995), pp. 121-176; Edward Shaughnessy, “Western Zhou History,” in Cambridge History of Ancient China, edited by Michael Loewe and Edward L. Shaughnessy (Cambridge, UK: Cambridge University Press, 1999), 292–93, 314–17.  On the difficulties posed to this theory by the collapse of the Zhou and the various attempts by Chinese thinkers to over come it, see Yuri Pines, Envisioning Eternal Empire: Chinese Political Thought of the Warring States Era (Honolulu: University of Hawaii Press, 2009), and “Contested Sovereignty: Heaven, the Monarch, the People, and the Intellectuals in Traditional China," in The Scaffold of Sovereignty:  Global and Aesthetic Perspectives on the History of a Concept by Zvi Ben-Dor Benite, Stefanos Geroulanos, and Nicole Jerr, eds (New York: Columbia University Press 2017), 80-101.

[21] Jiang Yonglin, The Mandate of Heaven and the Great Ming Code (Everett: University of Washington, 2011), 33.

[22] Peter Bol, Neoconfucianism in History (Cambridge: Harvard University Press, 2008), 66, 155. 

[23] Ibid., 113, 69. On the failing faith in old models of heaven see also Fang Li-Tian, "Liu Zongyuan and Liu Yuxi Theories of Heaven and Man" in Tang  Yi-Jie,  Li  Zhen, George F. McLean, eds., Man and Nature: The Chinese Tradition and the Future (Washington DC: The Council for Research in Values and Philosophy, 1989), 25-32; Michael Fuller, An Introduction to Chinese Poetry: From the Canon of Poetry to the Lyrics of the Song Dynasty (Cambridge: Harvard University Press, 2018), ch. 8; Peter Bol, "This Culture of Ours": Intellectual Transitions in T'ang and Sung China (Stanford: Stanford University Press, 1994).

[24] Xu Xiaoqun, Heaven Has Eyes: A History of Chinese Law (Oxford: Oxford University Press, 2020), 11.

[25] Yuri Pines, “The Messianic Emperor: A New Look at Qin’s Place in China’s History” in Yuri Pines, Lothar von Falkenhausen, Gideon Shelach and Robin D.S. Yates, eds., Birth of an Empire: The State of Qin revisited (Berkeley: University of California Press., 2014), especially pp. 268-269.

[26] Though they have sharp disagreements with each other, this is essentially the argument of Yuri Slezkine, House of Government: A Saga of the Russian Revolution (Princeton: Princeton University Press, 2017); Andrzej Walicki, Marxism and the Leap to the Kingdom of Freedom: The Rise and Fall of the Communist Utopia (Stanford: Stanford University Press, 1997);  Martin Malia. “A Fatal Logic,” The National Interest 31 (1993): 80-90

[27] Saga of Burnt Njal (ch. 70).

[28] Jesse L. Boyack, Viking Age Iceland (New York: Penguin Books, 2001), ch. 9 (Kindle Locations 2660-2670).

[29] Alexis de Tocqueville, Democracy in America, translated by Harvey Mansfield (Chicago: University of Chicago Press, 2000), 55, 227.

[30] Arendt, On Revolution, 260.

[31] Tocqueville, Democracy, 225.

8 comments:

Daniel said...

There is a strain of English conservatism - maybe it was in Oakeshott - that saw the American revolution as not a proper one at all - for, among many other things, Americans retained the common law. Although many US courthouses are adorned with depictions of the tablets of Moses, the common law doesn't come from there, or anywhere divine, really. Completely man-made and doesn't claim otherwise.

BK said...

The allusions to the practicalities of deity worship aligns with Bret over at Acoup wrote up in https://acoup.blog/2019/10/25/collections-practical-polytheism-part-i-knowledge/. Kings/chiefs being in a position of knowing how to work with the most senior gods.

Working my way through the western classics and reading through this, it does strike me how unusual concepts like the invisible hand, social contracts and other positive-sum emergent phenomena in coordination systems really are. While there seemed to be some vague hints toward it in what I've read of Plato, Cicero, Lucretius etc. there still remains some underlying appeals to cosmos in the works I can recall. Even now working through these concepts, it's easy to forget that there is a foundation of intentionality in coordinating underpinning a lot of the economic development in the last few centuries. Vitalik's recent writings on legitimacy are another interesting exploration on that topic.

In all, a fascinating write-up. The pivot to the Icelandic sagas (while forewarned!) was completely unexpected. I kept expecting a reference to the habit of Greek poleis to bring in outsiders to draft their founding laws, but you did well in averting yourself from the west.

Matt said...

Tanner, slightly critical comment; this sort of essay may benefit from reference, at least in passing, or even with critical eyes, to "Big Moral Gods" (did these precede large monarchic orders or not?) and "Axial Traits" literature. If only to note a common thread in answering these questions across all human society and across historical stages of development.

T. Greer said...

@Matt--

I thought about it. But the essay was already big as it is without me diving into a contentious anthropology debate that hasn't been settled yet!

Redbeard said...

Loved this essay. Thanks!

I consider myself something of a conscious community builder, and there is some really unique insight here about what provides communities with a sense of identity and legitimacy. Namely, gods! It seems to me that in America we tend to anthropomorphize democracy (i.e., reifying the will of the people) which may not be too different from more primitive pantheons.

So in my efforts to build/strengthen my own micro-community, it raises the question: what are the spirits that make us a family?

Anonymous said...

For a people that allegedly did not base their legal affairs on divine inspiration, the Romans sure did build a lot of humungous temples. Not to mention all that soothsaying...

Alan Xun said...

What was your experience of Cambodia? When did you visit and how long? I found that part on Khmer life the most interesting part of the essay, since it's the least well-known aspect.

T. Greer said...

@Anon-- Arendt has a good 5-6 pages on this in her book. Her basic case is not that the Romans did not believe in the supernatural, the gods, or what have you, but that they did not use them as the justification for their legal compacts.

@Alan-- I served as a Khmer speaking missionary for two years, among the Khmer refugee community in Massachusetts, which is about 20,000 large. That is how I learned the language. I have only been to the country once, in 2019, and stayed for about three months, during the dry season.