Posted on by Marc O. DeGirolami

Gray on Machiavelli and the Weakness of Law

This is a bracing essay by the skeptical philosopher John Gray about legal scholar Philip Bobbitt’s new book on Machiavelli. Way back in the stone age, I studied Machiavelli and Guicciardini (whose immense Storia d’Italia is a relatively unknown masterpiece) in graduate school and wrote my master’s thesis about contemporary misinterpretations of Machiavelli’s writing (I called this “Machiavellianism,” and I argued that the aristocrat Guicciardini had a much more acute understanding of Machiavelli than did most contemporary commenters). But Gray’s piece actually says something larger about the comparative weakness of law as against politics. And what he says has direct application to the way in which it is fashionable to discuss many legal issues–from religious freedom to international human rights. Here is a fragment of the essay:

One of the peculiarities of political thought at the present time is that it is fundamentally hostile to politics. Bismarck may have opined that laws are like sausages – it’s best not to inquire too closely into how they are made – but for many, the law has an austere authority that stands far above any grubby political compromise. In the view of most liberal thinkers today, basic liberties and equalities should be embedded in law, interpreted by judges and enforced as a matter of principle. A world in which little or nothing of importance is left to the contingencies of politics is the implicit ideal of the age.

The trouble is that politics can’t be swept to one side in this way. The law these liberals venerate isn’t a free-standing institution towering majestically above the chaos of human conflict. Instead – and this is where the Florentine diplomat and historian Niccolò Machiavelli (1469-1527) comes in – modern law is an artefact of state power. Probably nothing is more important for the protection of freedom than the independence of the judiciary from the executive; but this independence (which can never be complete) is possible only when the state is strong and secure. Western governments blunder around the world gibbering about human rights; but there can be no rights without the rule of law and no rule of law in a fractured or failed state, which is the usual result of western sponsored regime change. In many cases geopolitical calculations may lie behind the decision to intervene; yet it is a fantasy about the nature of rights that is the public rationale, and there is every sign that our leaders take the fantasy for real . . . .

If Bobbitt misreads Machiavelli, it is because Machiavelli is as much of a heretic today as he ever was. Resistance to his thought comes now not from Christian divines but from liberal thinkers. According to the prevailing philosophy of liberal legalism, political conflict can be averted by a well-designed constitution and freedoms enshrined in a regime of rights. In reality, as Machiavelli well knew, constitutions and legal systems come and go. According to Bobbitt, “The lesson of Machiavelli’s advice to statesmen is: don’t kid yourself. What annoyed . . . Machiavelli was the willingness of his contemporaries to pretend that quite simple formulations were adequate to the task of governing in the common interest.” Plainly, the market state is a formula of precisely this kind.

The true lesson of Machiavelli is that the alternative to politics is not law but unending war. When they topple tyrants for the sake of faddish visions of rights, western governments enmesh themselves in intractable conflicts they do not understand and cannot hope to control. Yet if Machiavelli could return from the grave, he would hardly be annoyed or frustrated by such folly. Ever aware of the incurable human habit of mistaking fancy for reality, he would simply respond with a Florentine smile.

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The Top Five New Law & Religion Papers on SSRN

From SSRN’s list of most frequently downloaded law and religion papers posted in the last 60 days, here are the current top five.  Since last week, Alvare has remained at #1, Perry has remained at #2, Newman has remained at #3, Smith & Corbin’s exchange joins the list at #4, and Berg’s “Progressive Arguments” article moves down to #5 replacing Perry’s “Freedom of Conscience” article.

1. No Compelling Interest: The ‘Birth Control’ Mandate and Religious Freedom by Helen M. Alvare (George Mason U., School of Law) [206 downloads]

2. The Morality of Human Rights by Michael J. Perry (Emory U., School of Law) [203 downloads]

3. On the Trinity Western University Controversy: An Argument for a Christian Law School in Canada by Dwight G. Newman (U. of Saskatchewan, College of Law) [147 downloads]

4. Debate: The Contraception Mandate and Religious Freedom by Steven Douglas Smith (U. of Miami School of Law) and Caroline Mala Corbin (U. of San Diego School of Law) [82 downloads]

5. Progressive Arguments for Religious Organizational Freedom: Reflections on the HHS Mandate by Thomas C. Berg (U. of St. Thomas, St. Paul, School of Law) [82 downloads]

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Edelman, et al., eds., “Performing Religion in Public”

This September, Palgrave Macmillan will publish Performing Religion in Public edited by Joshua Edelman (University of London), Claire Chambers (Sogang University), and Simon du Toit (University of Windsor).  The publisher’s description follows.

From a South African Passion Play to Turkish Sufi tourism, from contemporary street preaching in America to public Hindu rites in India, from cloistered prayer in 17th century France to the queer politics of ‘the closet’ today, Performing Religion in Public brings together an international array of voices that grapple with the important role of religious performance in our secular public lives. Because traditional notions of the public sphere have emphasized rational discourse in a secular setting, religion has often been excluded. But religious life is not impersonal argument; rather, it is passionately performed, crossing boundaries between public and private, the personal and the political, and claiming a significant role in modern democracies, from everyday cultural interactions to political advocacy. By focusing on the performative nature of both religion and publics, this timely volume offers a fresh and fruitful re-conception of the relationship between religion and the public sphere.

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Rinaldo, “Mobilizing Piety: Islam and Feminism in Indonesia”

mmThis September, Oxford University Press will publish Mobilizing Piety: Islam and Feminism in Indonesia by Rachel Rinaldo (University of Virginia).  The publisher’s description follows.

Islam and feminism are often thought of as incompatible.  Through a vivid ethnography of Muslim and secular women activists in Jakarta, Indonesia, Rachel Rinaldo shows that this is not always the case.  Examining a feminist NGO, Muslim women’s organizations, and a Muslim political party, Rinaldo reveals that democratization and the Islamic revival in Indonesia are shaping new forms of personal and political agency for women.  These unexpected kinds of agency draw on different approaches to interpreting religious texts and facilitate different repertoires of collective action – one oriented toward rights and equality, the other toward more public moral regulation.  As Islam becomes a primary source of meaning and identity in Indonesia, some women activists draw on Islam to argue for women’s empowerment and equality, while others use Islam to advocate for a more Islamic nation.  Mobilizing Piety demonstrates that religious and feminist agency can coexist and even overlap, often in creative ways.