Wilhelm Sen

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THE POLITICAL SCIENCE REVIEWER
The Political Philosophy of Alvaro d'Ors

The subject of this essay, don Alvaro d ' Ors, is almost totally unknown to the American academic world, salve a small group of specialists in Roman Law. Although the author of more than a dozen books and several hundred articles,' practically nothing of his writing has been translated into English. In departments of Spanish Literature in this nation, the name d'Ors suggests his illustrious father, Eugenio d'Ors, who brilliantly expressed a classical and Mediterranean vision of Spanish existence for a generation of writers who flourished in the years prior to the Spanish Crusade against Communism. But the authority of his son, don Alvaro, is recognized on the European continent in the highest circles of jurisprudence. He is cited everywhere in scholarly articles given over to issues ranging from Roman Law to modern constitutional theory. In Rome itself he is a legend. A thoroughly "university man, " almost quintessentially the type itself, his studies were interrupted by the Civil War when he enlisted as a Carlist volunteer. With the war won in 1939, d'Ors returned to university life and he has never left the academy in his long and distinguished career, first at the University of Compostela and later at the University of Navarre. Seventythree years old at the writing of this paper, he still spends time each day at the University of Navarre where he lived the larger part of his academic career, as Professor of Roman Law and as chief librarian. His formal retirement a few years ago was marked by the publication of studies honoring him, a lengthy Festschrift, as well as the appearance of several studies dedicated in whole or in part by his grateful students. Years ago the late Willmoore Kendall spotted something "curiously new"I wish to thank the Earhart Foundation for a grant rendering it possible that I do this research. 1. Rafael Domingo, Teoria de la "auctoritas" (Pamplona: Ediciones Universidad de Navarra, S.A., 1987). This is a thorough study of d'Ors teaching on the subject of "authority" which follows his teacher' s thought from authority in general, juridical and philosophical theory through to its application in Roman Law; in the sources of justice; applications of the power/authority structure in political justice; authority and power in Canon Law; the University; and a general theory of authority itself. Dr. Domingo lists most of the significant writings of Professor d'Ors and the following list has been taken from his book (24-29). Those works used by myself are cited in the app ropriate places. Above and beyond these academic studies, d'Ors has a rich body of literature published in the semi-clandestine Carlist press during the regime of Franco. They have not been included or used here because of their immediate political import which d'Ors himself does not include under his understanding of "theory" or "political philosophy." The list of d'Ors' works begins on p. xxx.
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or so he expressed it to me personally-in d'Ors' mind which made him not only a man erudite in matters concerning Roman Law and Jurisprudence, but an original political philosopher. Kendall died years before the Spanish professor's thought had flowered into its fullness, Again, in our country, M. E. Bradford has long admired d'Ors, and only recently did I discover that d'Ors today is recommending Bradford's A Better Guide than Reason to his friends and disciples. D'Ors generously admits his debt to the German Karl Schmitt, "who so sagaciously has infiltrated a juridical vision in the interpretation of political reality."' But d'Ors is by no means uncritical of Schmitt. I am personally convinced that Alvaro d'Ors is among the half dozen or so first political philosophers of this century. His speculations are as original as are those of Leo Strauss and Eric Voegelin, to mention the two contemporary political philosophers best known in this country. My hope, in writing this introduction to d'Ors' thought, is that his work will be translated soon into English and thus given the chance to compete in an intellectual marketplace progressively dominated by the English language. A characteristic of d'Ors' thought is a suspicion of the purely abstract and a preference for the concretely juridical, for laws as interpreted by judges who seek out "the just" in the contingencies of human existence. But this emphasis is by no means monolithic. The subjects he has written about are bewildering in their analogical complexity: the differences between Greece and Rome as traceable to differences between seafaring and an earthbound society; the sharp antagonism between the modern State and other political forms in which men have lived their corporate existence; the roles of Empire and Church in Western history; the innocent but incipient secularization implicit in the birth of International Law in Francisco de Vitoria; the ecumenic Empire and the impossibility of a World State-and the list goes on and on. Don Alvaro in his very last book expressed his conviction that all philosophy, at bottom, is metaphysics. In his judgment that is as it ought to be, D'Ors himself is no metaphyician nor has he ever pretended to be. But it is one thing to be a professional metaphysician and it is something else-in the last analysis, something more important-to have a metaphysical grip on the world. "Juridical and political thought must seek the primogenitive law in every institution, the etymos nomos as we might call it, which lights up some intimate necessity justifying the historical development of that institution." 3 D'Ors adheres to a thorough-going realist understanding of the world and in the following essay I have ticked off a number of themes that dominate his thought. Some of them reveal a realism which is almost brutal, as evidenced by his reflections on violence.
2. De la Guerra y de la Paz, 195. 3. Forma de Gobierno y Legitimidad Familiar, 12.
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Violence No matter how far back we trace the written history of man, no matter how distant are his archeological and numismatic remains, we always seem to find at the origin of his story some act of violence. Some might be tempted to find in d'Ors a latter day Hobbes in Spanish form but, granted the likeness, a crucial difference remains. Hobbes postulated a jungle out of which man emerged into society but d'Ors never speaks of any such jungle anterior to political history. Wherever we look, no matter how far back we take the adventure of any race or community, we always discover some older political order which is expelled, usually by the sword, yielding to a newer order of things. 4 The Hobbesian postulate of a pre-civilizational jungle is a scholar's hypothesis with no corresponding historical evidence to buttress it. If we stay within the boundary of history, one society gives way to another, and it does so by violence: the new order usurps the old. This observation is one with Professor d'Ors' insistence that violence is not an epiphenomenon for political theory: violence is constitutive. Violence, even war itself, are consubstantial with man's life in history. Our author neither deplores nor exults in this truth. He simply accepts it as being one with human life as we have known it since human records marked down man's progress through time. The word "violence" in the Spanish language suggests physical force. (It does so as well in English). But the Latin violencia has as its root vis, or "Power." All political power guarantees order and the more "powerful" the polity in question, the better the order. Hence the liberty of the subject is the better achieved when the power is "powerful," capable of violent activity against any threat to the order in question. A weak polity offers impoverished order and little hope against chaos. s The violent origin of political power, hence, is prolonged in the preservation of order. The enemy of chaos, therefore, is lodged in political power which is-the reader will pardon the tautology-powerful indeed. (The author is reminded of a remark made by Thomas Molnar when Washington was burning in the late Sixties. When we ran across a street in a neighborhood going up in flames, Molnar said to me: "I escaped Communist tyranny when I came from Hungary but at least we had Communist order over there and that is better than no order at all.") D'Ors says the same in any number of writings. Without order there is no justice, and order, both in its primitive constitution and in its actual maintenance, reposes upon violence. Withdraw the police and society collapses. My thesis that d'Ors in his realism is utterly unsentimental finds here both confirmation and elucidation. Possibly the late Yves Simon would have added as an addendum
4. Cf., e.g.: La violencia y el orden, ( Madrid: Ediciones Dyrsa, 1987), 73-82. 5. Ibid., 74-76.
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to Alvaro d'Ors' contention that in moments of total collapse in a society we often can find islands of virtuous men who will not revert to savagery.' But Simon's exception simply reaffirms d'Ors' thesis. Violence suggests war, both external against the enemy from without and internal, against treason. A universal commitment to pacifism, according to don Alvaro, is a contradictory posture taken up against exigencies located in human nature itself. He finds, incidentally, this to be an aberration marking American "imperialism"-a war against all wars. When all pacific methods have been exhausted in adjudicating serious differences, the only recourse is war-or surrender to the adversary which is simply a war lost, even without bloodshed. To outlaw war is itself an act of war against any and all litigants. The anti-war thesis, one with an abhorrance of all violence, is itself a contradiction in terms. D'Ors' realism is severe in that it cuts through all sentimentalities and bruises every tendon of the liberal sensibility. Custom A second instance of "Orsian"'realism is his teaching on the authority of customary law. (I postpone d'Ors' elaboration of the concept of authority until later in this paper and I simply use the term here as it is usually understood in English discourse.) He neither differs much from Cicero, the scholastics, and the Common Law tradition of the English experience nor does he spend much time-so far as I can determine-in expanding on this classical and scholastic inheritance. However, don Alvaro sharply parts company with nineteenth- and twentieth-century "romanticism" (his term) which looks upon custom as something that grew up slowly and corporately out of an "organic past.' D'Ors insists that there are no corporate acts. "Organicism" is a myth buttressed by the Hegelian contempt for the human person. Every custom had its origin, its principium, in some concrete human being. It could have been some tavern keeper now long forgotten. What was to become a living tradition is rooted in some personal authority which was accepted, sooner or later, by a given community. Any other position involves personifying society and converting a relation into a human substance. Traditions grow but this historical enlargement is never the result of some Zeitgeist: it is an accumulation taking place in individual men whose authority came to be accepted by the body politic. Were you able to trace back your customary way of life, at its origins you would find some sage uttering a truth, be it practical or speculative, a truth listened to and accepted by a community. Anything else is idealism or romanticism and d'Ors will have nothing to do with either.
conviction expressed in private conversation with the author in 1948. 7. The neologism, "orsiano" and "orsianisnw" is now common in Spanish intellectual circles. 8. Autarquia y autonomia, IX; Una introduccion al estudio del Derecho, 23, 26; Domingo, op. cit., 110-112; Una introduction al estudio del Derecho, 63-73.
6. A
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D'Ors' realism' synthesizes with his insistence on the importance of the origins of all political institutions. As a jurist our author is keenly interested in juridical structures but as a political philosopher he adds to these considerations the note of efficient causality. All political and juridical structures grow out of origins that configure their subsequent development." I elicit here in verification of the above the Orsian theory of legitimacy."
Legitimacy
The reader will note how don Alvaro moves from historical data to theoretical principles capable of illuminating them and then back again from the theoretical to its verification in political reality. In so doing, don Alvaro puts into practice what he considers to be his profession: that of the "hermeneuticist." The subject of legitimacy, teaches our author, emerged vividly to trouble the West as a result of the unquestioned legality imposed by the French Revolution-a network of univocal legislation that aimed at covering every aspect of human existence even as it flattened and suppressed all diversity, a legality in sharp contrast to the older dynastic legitimacy of the House of France that was murdered in the legal assassination of both King and Queen. Legality killed Legitimacy on the guillotine. Weber was a political philosopher who valiantly tried to disassociate the concept of legitimacy from dynastic considerations; d'Ors noted that Kelsen himself attempted to locate legitimacy in legality. 12 But, adds d'Ors, if legitimacy equals legality, the former term is drained of any philosophical interest. It loses any precision of meaning it might have had. In fact-again the Orsian realism-"liberal democracy was able to prescind from the term legitimacy and it ordinarily did so." 13 Weber, in turn, brought back the concept of legitimacy by distinguishing three types: charismatic legitimacy which reposes upon the personal power of a man who enjoys quasi-sacral prestige; traditional legitimacy which grows up with the passage of time (dynastic legitimacy is thus a species within that genus); and "rational" legitimacy which is simply another way of expressing Kelsen's democratic legality. The only non-legal or pre-legal legitimacy left for Western man once he had shed Divine Revelation and the sacral authority of the Tradition founded thereon was a putative legitimacy pertaining to the
9. For a study where d'Ors formally addresses the question of realism and juridical study, cf. "Principios para una teoria del Derecho," Anuario de Filosofid del Derecho I, 1953; Una introduccie al estudio del Derecho. 10. Cf., note 3. 11. My treatment of Alvaro d'Ors' theory of legitimacy is gleaned principally from: Forma de gobierno y legitimida familiar, Ensayos de Teoria politica, 135-152. 12. Ensayos de Moritz politica, 135. 13. Ibid.
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Natural Law. So much for the thesis of Weber. In practice, however-points out d'Ors-this usually means that when a positive law on the books is opposed by the people (or by a significant majority or minority), they appeal to the "legitimacy" of what they desire over against the positive legality they oppose. This is the meaning of so-called "legitimate concerns or claims." Legitimation is thus reduced to abrogating an old law or order and imposing a new one, often by democratic means. It follows that if the populace adheres to a law or legal system, the law or system is legitimate. If the populace opposes that law or system, both lose their legitimacy. In both cases legitimacy is reduced to the will of the majority and any possible distinction between legitimacy and democratic legality dissolves. What then happens to the difference, let us say, between a legitimate and illegitimate child? Is the issue here settled by the will of the parents or the will of society? And the glaring truth remains that the Revolutionary Law killed the Legitimate King! Even the French Revolutionaries (here I gloss the text) admitted that Louis XVI had been their legitimate King. In deposing and executing him they abolished his legitimacy and thus legitimacy was absorbed into legality. Better yet, legitimacy ceased to be. The very execution of the one by the other was a crooked way of admitting that they are not identified. D'Ors attempts to weave his way out of this thicket by noting that today, a la Weber, the appeal to a supra-legal Natural Law often takes the form of an appeal to a Charter of Human Rights (i.e., the one laid down by the United Nations) which is understood to be superior to all positive law. But this putative legitimation runs contrary to the basic presupposition of the modern State: the State is Sovereign and in its essence there are concentrated an identity of both Power and Authority. If the State seriously and not just ceremoniously submits to some Law anterior and superior to itself, then the State abdicates its claim to Sovereignty. An ambiguity thus lies at the heart of the modern political experience. The Soviet Union and other totalitarian regimes signed the Charter of the United Nations and then went their own ways violating Human Rights in every conceivable fashion. And what are we to think, then, of those sovereign states that have complied, more or less, with the Charter? Do they comply because they want to? If so, they can withdraw that act of the will-at will. Thus the supposed legitimacy of the Charter of Human Rights or of the Natural Law reposes upon the will of the Sovereign State and hence ceases to be a Law anterior to positive legality which is presumed to be its legitimation. Everywhere we turn legitimacy is swallowed into political will. D'Ors adds that above and beyond these anomalies there remains the oddity of a Natural Law floating in the air, a series of abstractions which do not know themselves and cannot interpret themselves because no law, not being a person, can interpret anything. Abstractions cannot judge. The reader will note here our author's profound distaste for all things Platonic. The Natural Law needs an
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authoritative interpretation. Intrepretation by definition calls for an interpreter which is not the Law itself. When Christendom was itself and before it became "The West" or "Europe" that interpreter was the Magisterium of the Church, a teaching Voice above all political power but itself the possessor of the revelation of God on earth. The Natural Law forms part of the Divine Law and the revelation of that law was made by God through His Church. The Natural Law is thus legitimated not in itself but in its Author. The very etymology of auctoritas suggests an auctor. It is no wonder that d'Ors, possibly the most prestigious scholar of Roman Law living, is often followed up to this point but is then abandoned. His orthodoxy is too rich for the desiccated secularized intellectuality of the day. Some Spanish scholars have complained to me that at this point the Catholic in d'Ors swallows up the jurist. An analysis of the complaint lies beyond the scope of this study but the dilemma don Alvaro sets forth is loaded with implacable logic: unless Law be legitimated beyond itself, then it is reduced ultimately to the will of the Sovereign State and this last leads implacably to a positivism whose savage cruelty has ravished this most unhappy of all centuries. Professor d'Ors concludes, hence, that neither the concept nor the reality of legitimacy make any sense within a liberal democracy. Using the Church as his paradigm, our author adds to the Magisterium the living Tradition which breathes life into any people. He conceives Tradition-better yet, traditions, because the concept is analogical-as a felicitious mingling of laws and customs:
Not the legality of a written constitution but the authentic style of life persisting within its own Tradition: in other words, the laws and the customs conserved by successive generations ... in this fashion the naturality of the divine law is joined to the naturality of the appropriate Tradition ... whereas the natural law is always given us as a limit, the law of the Tradition is given us as something positive."
This perspective renders intelligible the contemporary opposition, experienced everywhere in the West, between positive legality which often clashes with both natural and divine law. D'Ors cites legislation concerning divorce and, especially, abortion as instances. The State can legalize both but can legitimate neither. The Christian, I might add, thus lives in an intolerable tension between laws which he cannot accept as legitimate and his own moral decisions on these issues which often convert him into an outlaw in his own nation. Don Alvaro discovers the ontological heart of legitimacy in a principle of its origin. Most profoundly that principle of origination is paternity. God is
14. Ibid., 147-148.
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Father of Natural Law as He is Father of us all. Even in countries with little or no monarchical tradition, we discover the legitimacy of the family, the legitimate origin from whence come forth legitimate children. Familial legitimacy is the primal source of all legitimacy and it is anterior, insists d'Ors, to all legality. No positive law makes a marriage: a marriage is made by vows exchanged between two persons before God. The best legality can do here is to recognize a pre-existent state of affairs for the legal consequences or effects that follow therefrom. In a brilliant essay published in 1959, Forma de gobierno y legitimidad familiar, d'Ors approached a very old and classical topic-forms of government. Granting that the subject seems to have lost interest for our time, d'Ors insisted that this loss of interest is due, at least partially, to the defective Greek formulation of the issues involved. The original tripartite division of political forms into monarchy, aristocracy, and democracy was merely numerical. D'Ors discovers the earliest formulation in Herodotus. The dialogue is carried out by Persians, one defending democracy, another aristocracy, and Darius, monarchy. 15 The text, according to our exegete, suggests that the three-fold division was already in existence before the fifth century B.C. but its original source has been lost. Amateurish in its development, the dialogue already insinuates the subsequent division of governmental forms into "good" ones and their corruptions. Tracing the doctrine through Xenophon to Plato, d'Ors notes the Platonic myth which spoke of the time of Cronos when men were governed by the gods. But after Zeus made the world turn around the old order was overthrown and men had to govern themselves. The best government would be, according to Plato, government by a wise man. D'Ors adds-"naturally, Plato was thinking of himself." 16 Such a royal government would need neither the consent of the governed nor the guidance of laws.
The Republic corresponds to this basic idea, an utopian archetype of a perfect city, organized in a strict hierarchy, a regime of matrimonial communism marked by the dominance of the upper classes. It is interesting to note the prohibition against travelling and, above all, the prohibition against praising whatever a man has seen outside the City-a city with a hierarchical culture and an official religion and education. l'
Plato, of course, knew that such a city was impossible to actualize and it remained simply a model between government by the gods and government by men. Men themselves must not govern but only the Laws, the nomoi which, in turn, ought to be above all personal will. The three-fold division now
15. Forma de gobierno y legitimidad familiar, 15-16.
16. Ibid., 19. 17. Ibid., 19-20.
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doubles, The corrupt governments-Tyranny, Oligarchy, "Bad" Democracy-are those that violate or prescind from the laws because evil men who govern do so in the service of their own desires. For Plato, consent by the governed to their governments is not the mark of monarchy, aristocracy, and democracy, Legality is what separates relatively "good" governments from their opposites. We might add to d'Ors' observations that a mark of Platonic politics is its suppression of all extra-legal factors in the body politic: e.g., the suppression of the family. Aristotle did not significantly alter Plato's six-fold division of governments but he refined it by downplaying legality and emphasizing an allegiance by good rulers to the interest or well-being of the entire commonwealth. Having done so, the traditional tripartite division loses all interest for Aristotle who introduces, possibly for the first time in Western theory, the "class struggle" as definitive inunderstanding political life. The greed of the rich and the envy of the poor can only be mitigated by some "mixed" polity and most of Aristotle's Politics is a book of recipes for avoiding revolutions triggerd by economic factors. Aristotle's shelving of the traditional three-fold division of political forms is analogous, says d'Ors, to the contemporary lack of interest in the subject. Nonetheless, d'Ors accuses both Aristotle and modernity of intellectual laziness on this issue: "pereza intelectual." 18 D'Ors became convinced at this still fairly early development of his own thought that the ancient doctrine contained in itself a germ of truth, "an authentic etymos nomos for the political science of all times. "19 D'Ors insists, paradoxically, that the introduction of the consideration of corrupt forms of government is itself a corruption. The grafting of moral considerations-altruistic and egocentric rulers-is extrinsic to the issue. Equally defective is the arithmetical government by "many" or "few" because "any observation conformed to reality leads to the conclusion that every government is in the hands of a few which renders illicit any excessive generalization of the concepts of aristocracy or oligarchy." 20 These historical considerations having been made, d'Ors sets forth his own thesis: what is of enduring worth in the traditional tripartite division reposes upon a criterion of the legitimacy of power in relation to the familial structures discovered in all political societies. Although the point seems muted in the text, d'Ors is actually going to validate the ancient doctrine by introducing a new theory of political repre-
18. Ibid., 33. Permit me to warn the reader that I have severely condensed d'Ors' historical treatment for reasons of the economy of this paper. 19. Ibid. 20. Ibid., 34.
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sentation. A society composed basically of isolated individuals with little or no familial traditions represents itself in a liberal democracy-one man, one vote. A society divided into a majority of men whose families do not count socially or politically, families with little or no weight in social life, and an aristocratic minority based on families marked by their family names, represents itself naturally in an aristocratic republic. D'Ors finds a model here in the Roman Republic with its patrician and plebian classes. This does not mean that a plebian cannot rise to political preeminence but when he does so he is not the representative of a family. The business is easily illustrated in the American experience: a Kennedy is elected because he is at Kennedy, the scion of an illustrious family. A Dukakis becomes governor of a state and a candidate for presidency because of who he is, not because of his family. Dynasties often emerge in liberal democracies because the formal structures of the latter have not yet eliminated familial and hence aristocratic pretensions. D'Ors' paragon is Rome. We might add as well the example of England in the past few centuries. A Churchill arises to prominence because he is a Marlborough. A Disraeli arises to prominence because he is himself. That both were brilliant men is irrelevant. Senator Kennedy is not a particularly brilliant man and not even his friends would argue the contrary. But he represents an illustrious family and that is his ticket of admission to American political power. A society in which every family is a dynasty unto itself represents itself naturally in a dynastic monarchy. Legality dominates democracy; legality balanced by legitimacy marks aristocracy; and legitimacy as anterior to and legitimative of legality seals monarchy. Monarchy is thus less government by one than government by a family. The professor adds, in a sage aside, that a sign of democratic individualism is its permanent attack on the differences between legitimate and illegitimate children, its attempt to equalize both legally. This is not done out of tender charity toward these unfortunate youngsters but out of a deep resentment for the family as an institution incapable of being really at home in a society that recognizes legally the existence of nothing more than the solitary individual. I might add, as a deduction of my own from the above: where the family lacks political representation, monarchy is an unnatural form of government, the superimposition of a crowned dynastic mummy upon a body foreign to its essence. Where fathers are kings in their own families, one of their own-a dynastic king-is father of all the fathers. The charge of paternalism would not bother Professor Alvaro d'Ors in the least. Indeed his adherence to the Carlist monarchical ideal where the king governs as well as reigns and his contempt for contemporary European constitutional liberal monarchy is a faithful echo of a theory which is thoroughly philosophical. The concept of Republic is not the contradictory of monarchy. There have been transitional republics and transitional monarchies. The enemy of legitimate monarchy is illegitimate monarchy, usurpation in the strict sense of the term. D'Ors points out that the moral considerations advanced by Aristotle to
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distinguish tyranny from monarchy do not truly reach the heart of the problem. A tyrant, de facto, might govern well and a "good" dynastic king might govern poorly. The formal difference between the two of them must be sought elsewhere, in the origin of their power. The legitimate king inherits from his father as does the legitimate son from his. When events go badly for the legitimate king-as well as for the legitimate father of any decent familyhis own gather all the more around him. Louis XIV had his back to the wall when the armies of the continental alliance threatened to push deeply into France unless he withdrew his grandson's claim to the Spanish throne. The French King called a Council of The Blood Royal to advise him on his duty. When the guns were roaring and Marlborough was at his gates, Louis forgot his absolutist pretentions and remembered that his power was founded not in himself but in his family. D'Ors is fond of pointing out that after the defeat at Austerlitz the Austrian Emperor, Francis II, was cheered in Vienna by the populace but that very Emperor wondered whether the same reception would be accorded Napoleon in Paris had he lost such a crucial battle. The tyrant exercises power which is not received. There is nothing behind him, He must go from victory to victory-or die. We might evidence here as proof the late Adolph Hitler. Factually, of course, every dynasty at its origin was imposed by violence, but its legitimation does not depend upon the founder but upon his descendents who inherit.
The virtue of a king does not reside in his being one; unity can be achieved in other ways as well; that virtue reposes upon the king's being legitimate, in being the supreme personification, living and enduring, of all loyalty and every legitimacy,"
It follows that the classical tripartite distinction, although badly articulated by the Greeks, contained within itself a series of principles of enduring truth for political philosophy. They are even insinuated, insists d'Ors, in the very Greek words used to designate the three governmental forms.
Cracia as in `democracy' orin the 'autocracy' of the tyrannt, or in 'aristocracy' simply means the fact of political power; arguia, on the contrary is essentially the origin of a power, that is to say, familial legitimacy. Thus, in monarchy the power of the royal family; also in oligarchy the power of families of noble origin. 22
The Orsian treatment of the theme of legitimacy is an admirable instance of his genius for handling philosophical considerations with their historical
21. Ibid., 21. 22. Ibid., 39.
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incarnations which include, but are not exhausted by, the very language we use in discussing matters political. Authority and Power In his Ensayos de teoria politica, d'Ors ends a lengthy study on legitimacy with a warning: do not confuse legitimacy with authority. Authorities are neither legitimate nor illegitimate. The adjectives pertain to powers. We tend to confuse the concept of authority with that of power for a series of reasons. The difficulty of rendering the Latin auctoritas by any comparable Greek word and the absence in Greek of any term corresponding exactly to the Roman auctoritas blurred the concepts and tended to turn the "authentic," authenticum, into the sense of a superior authority. This degenerated into accepting as an "authority" any superior power. 23 Hence he who is delegated power tended to think of it as coming from a "superior authority." The policeman thus refers to his "authority" as something delegated to him. D'Ors is fond of recalling the literary critic who exploded in a theatre in Madrid, disturbing the whole house, screaming that the play was a disaster. When accosted by the police who insisted that they were the "public authority" and could not abide this disturbance of order, the critic insisted that, no! He was the authorityin matters theatrical. He was right! He was the authority! The police were wrong: they had no authority, but they did have power to enforce order and hence to expell him from the theatre. In what, then, consists the distinction between power and authority? Here we reach the most original and certainly the heart of Orsian political theory. Refined, corrected and expanded through some forty years of intellectual life, 24 d'Ors' theory matured slowly, even nervously as he corrected, amended, refined. Henri Bergson once wrote that when two intuitions cross in the mind of a thinker a new philosophy is born. The two notions that crossed, we might say collided, in the thought of Professor d'Ors, were those of power and authority. As suggested and illustrated by this study, d'Ors often begins with historical or etymological roots; sometimes he begins at the beginning, with principles consubstantial with human nature. In the elaboration of his power/authority doctrine, d'Ors takes as a given the truth that the human soul has two faculties, intellect and will. This places don Alvaro firmly in the broad classical and Christian tradition of which he is a latter day representative. The professor never pauses to argue this truth. Presumably such a defence pertains to the metaphysician. D'Ors, nonetheless, constantly uses and illustrates this
23. Auctoritas-authentia-autenticum, 379. 24. Cf., Rafael Domingo, Tern-fa de la "auctoritas," 34-51.
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division of faculties. To the faculty of understanding there corresponds knowledge, science, sometimes wisdom. To the faculty of the will there corresponds power, often the exercise of liberty. It is proper, therefore, for the intellect to know-and only to know: intelligence does nothing; it simply understands what is there to be understood. It is proper to the will to act: the will qua will does not understand anything, it desires; it commands. 25 In life, however, these two faculties cooperate and without that cooperation intellection would bear no fruit and volition would be blind. So far, so good: nothing that was not already well known and articulated in the broad classical and scholastic tradition d ' Ors inherits, along with the rest of us, from the past. But the Spanish theoretician now adds the following: the intellect answers questions put to it by the will; the will, in turn, questions the intelligence as to what ought to be done. He who understands answers; he who can act, asks questions. "Pregunta el que puede; responde el que Babe." 26 "He questions who can act; who answers is he who knows." Early in his development of this duality of concepts themselves reflective of a duality in human nature, d'Ors tended to link knowledge with truth and truth with authority: the man who possesses some truth-or body of truthsabout some defined subject of being. If I would know something about that determined and defined dimension of the real, I ask questions of the sabio, the sapiens, the expert, the sage. In ordinary speech, I go to the authority. Don Rafael Domingo, in summing up d'Ors' teaching on the issue, notes how don Alvaro traces the concept of authority to its Roman roots. 27 The Latin term augeo denotes the notion of expanding, adding to, aiding, amplifying, fulfilling what is not yet fulfilled, What is correspondingly fulfilled is some power or potestas which questions him who possesses the authority, "knows the truth," The ontological structure is readily identifiable in day to day living. If I am ill, I consult a physician, an authority on matters of health, My power to follow his council remains free. There is no freedom in authority, only in power. Authority thus answers power and this is true not only in the trivial details of daily life but throughout the entire gamut of social and political existence. When both power and authority are recognized socially, they are formally constitutive of corporate political life. Professor d'Ors notes that very often a man's authority is not recognized until after his death-this sometimes occurs in advances made in science and it always occurs in the case of unemployed but aspiring young PhDs. Society itself must seal authority by recognizing it publically. Refining his conception, d'Ors sometimes distin25. Ibid, et passim. 26. This Orsian aphorism stands on the page marked "Introduction" to Rafael Domingo ' s study, Teorla de la Auotoritas. " 27, Ibid., 215; cf. Auctoritas-authentia-authenticum, 375; Doee propositions sobre el poder,n. 8.
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guishes a mere "knowing" from "authority," restricting the latter notion to a truth, a knowledge, lifted up by society before itself. 28 Among his models is the Roman Senate during the full flowering of the Republic. Bereft of power, the Senate was consulted by the instruments of political power as to "what ought to be done," what is the truth (more often practical than speculative) concerning this or that proposed course of action. In a court of law, the witness, testis, possesses an authority over the facts of a case which is recognized by the court. With age, knowledge often takes on the character of wisdom and society frequently recognizes the authority of the prudent: D'Ors carefully distinguishes authority from prestige, a characteristic with which authority is often identified. A university professor who does his work sloppily will lack prestige but he still enjoys authority. Prestige is moral, a recognition of virtue, whereas authority pertains to knowledge, but to knowledge "socially recognized." A knowledge which is not recognized is not operative. Somebody must recognize that I know something; otherwise he asks me no questions and I can give him no answers. It follows that unrecognized knowledge does not answer and the mark of authority is that it answer questions put to it by those in power. As suggested, in the matters of day-to-day living, the Orsian thesis seems almost self-evident. A knowledge which is not sought, which is unknown or unrecognized, is sterile, thus violating the very communicability which is one with human knowing. In the light of d'Ors' distinction between recognized and unrecognized knowledge, the tragedy of the forgotten or ignored sage is heightened. It would seem that all knowledge aims at converting itself into authority and when this does not occur-as frequently happens in life-some ontological violation has wounded the person in question. The genus in this regard is "social recognition" which bifurcates into two species, "power" and "authority." If an unrecognized possession of knowledge lacks authority, so too does an unrecognized "power" lack potestas. Power, in the sense of mere force, is without delegation. The town bully has force but nobody gave it to him. Genuin, political power is always received, delegated, never "originating" unless it be the Power of God. Behind all political power on this earth there reposes some source that gives power, ultimately God but proximately any number of factors operative within a society: i.e., a written or unwritten constitution, , a living Tradition incorporating customs and laws, privileges and rights (fueros in the Spanish context), etc.
auctoritas prudentium.
28. D'Ors' theory of power and authority runs through most of his writings. Those used by the author to synthesize the doctrine in the text are principally the following: Ensayos de Teoria Politica; Una introduccin at estudio del Derecho; Auctoritas-authentia-authenticum; El profesor; Potestad y Autoridad en la organizacion cle la Iglesia; La violencia y elorden.
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But whereas power is always delegated and can be re-delegated in a descending scale of political institutions, authority is never delegated. Not received, authority is acquired and subsequently it is recognized socially. The university does not delegate to me my authority as a professor of philosophy: the university recognizes that authority by hiring me. The causality is mutual. Nor can I, insists our author, delegate my knowledge and hence my authority. If I miss a class somebody can substitute for me but I do not delegate to him my authority. As a substitute he enters the classroom with an authority of his own even if it lasts only for a day. Although united in their being recognized socially, auctoritas and potestas are distinguished not only by the mark of "responding" and "questioning" but as well by the note of nondelegability and delegability. These last are, using Aristotelian terminology (rarely used by d'Ors), properties of the essences in question. The confusion of authority and power is today built into the structure of many Western languages, including English. Whereas the essence of authority is well attested by phrases such as "I go to the authority" when I ask questions about my health, my automobile, my moral obligations, my taxreturns, the term is used poorly in such ceremonial phrases as "By the authority vested in me, I the Mayor of this town, name you first assemblyman." It is quite obvious that we are using a word, "Authority," equivocally: to confer is one thing; to give advice, something else. The mayor has the power to name this functionary, a power delegated to him by whatever higher power stands behind his political office and in a cascading series of acts he delegates power to the assemblyman to exercise certain limited activities in the township. The mayor's power "is vested," that is conferred upon him by some more ample and fundamental power. But authority cannot be "vested," insists our author. Authority can only be recognized and recognition is not an act of conferring or giving. Once recognized, authority is heeded as it responds to those in power. I do not give a man his authority nor can any authority give anything save its knowledge. These distinctions sometimes are finely honed in ordinary language and sometimes they are lost altogether. D'Ors often points out that the scriptural tradition inherited from the Hebrews, the philosophical tradition from the Greeks, and the juridical from the Roman do not easily translate into one another but all three are of the very essence of our common inheritance. D'Ors' propositions must be understood as balanced judgments to be taken in a relational sense. Social recognition need not be, indeed practically never is, univocally monolithic, totalitarian or majoritarian.. My authority as a university professor need not be recognized by the township surrounding my university. A scientist's authority need not be recognized by the Sunday newspaper. These last neither recognize nor fail to recognize the authorities in question because they fall outside the scope of the truths incarnated therein. Presumably it is one thing to know that someone is an authority and it is something else to be able to question that authority. The
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mark of power, as indicated, "is its capacity to act in the light of intelligent questions posed to those in authority." If both potestas and auctoritas are united in their being recognized socially, they are united as well in their being personal. D'Ors insists-this is crucial to his entire thesis-that there are no impersonal powers and authorities. That conviction leads back to his realist understanding of man. Only individual men possess intelligence and will; given that authority and power are extensions of these faculties, it follows that both are the exercise of human agents. Don Alvaro insists that authority, properly understood, is totally bereft of power. It follows that the expression "moral" authority is a tautology. All authority is "moral" if by moral we mean that which is counterposed to "powerful." D'Ors rarely employs the scholastic distinction between power and its two instruments, persuasion and force, but I find nothing in his thought hostile to that conception. Authority, if I understand d'Ors correctly, neither persuades nor forces: it states the truth when asked by the competent power to do so. In an interesting essay given over to the role of the university professor, El professor, 29 d'Ors develops what might be called a test case of his theory. The "holder of a chair"-the Spanish rough equivalent to our American full professor-is licensed by the university to teach his discipline. This very licensing is the social recognition which seals his knowledge with authority. But if all authority answers and all power questions, what is the potestas corresponding to the auctoritasof the professor? d'Ors unhesitatingly answers that the Power in question is the Student. The student, by enrolling in the university, is empowered to receive an education and this power is socially recognized. When he commences his university life-his "carrera," as the Spaniards call it-he can ask only the broadest of questions. These questions sharpen, become more finely tuned, as the student is introduced gradually into the discipline in question. Although the professor can pose questions to the students, he does so only in order that the student can come to formulate ever more precise and profound questions to the professor. The Authority of the Faculty thus finds its corresponding Power in the Student Body. For d'Ors the university administration is an extention of the Power of the Student Body. It handles or ought to handle the Parmenidean doxai of academic life and it ought to do nothing else. The best a rector can do, according to d'Ors, is give his inaugural address at the beginning of the school year and remain silent thereafter. D'Ors' theory will seem chaotic to American academicians and administrators but their shock simply testifies to the truth that the confusion between authority and power is so deeply
29. "El Profesor," previously unpublished and added as an appendix to Tern-1a de la by Rafael Domingo, 303-317.
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embedded in Western life that their proper ordering which ensures the liberty of the professor must look like chaos indeed. There is a radical quality to don Alvaro's "traditionalism" which makes the liberal university produced by modernity an intolerable infringement on intellectual liberty in the classroom. As an aside, d'Ors notes the temptation of scholars to convert themselves into administrators and he warns that administrative tasks ought to be taken up by them reluctantly and then for only short periods of time. To administration there pertain a cluster of skills which are antithetical to those marking the man of wisdom. The pride implicit in authority's yearning to convert itself into power-in this case petty power-is as old as Plato's
Republic.
Knowledge is not Power and Bacon's insistence that it was marked the beginning of the technologizing of learning that today has become government by technocrats. The issue leads d'Ors to comment on the question of "academic liberty." What is to be taught pertains to the university as such and to its sponsors: in the case of a Catholic University, the Magisterium of the Church will act as guide and limit. But this issue is one our author rarely addresses. He is more interested in what he calls "the formal liberty" of the professor to teach as he sees fit without any outside interference. If he is the authority, then outside meddling, administrative or otherwise, is an infringement on his liberty. The imposition of readings and texts by departments are perfectly proper for the teaching of infants but on the university level they are a violation of the very essence of professorial authority. Summing up what I have called this "test case," the gradual transformation of the professor into a functionary of the State who prepares students to take their roles in society has blurred his essential role of being an authoritative voice of a knowledge, often a wisdom. In his Twelve Propositions Concerning Power, 30 Professor d'Ors speaks of a pluraity of "powers" hierarchically organized which all participate in a directive or guiding role for a government the very name of which comes from the helm of a ship. 31 When the power of government involving the social acceptance of those who are governed is merely conventional and subject to constant change, then we confront democratic power or potestas. This last, as pointed out earlier, is exclusively legalistic and presupposes nothing more than a society of individuals 3 2 "To the degree to which potestas is derived from a natural exigency imposed traditionally which does not depend on the hereand-now conventional will of the group, power manifests itself as a community
30. Ensayos de teoria politica. 31. Ibid., 32. Ibid., 111-112; cf., Una introduction al estudio del derecho. 57-58.
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ruled fundamentally by a principle of legitimacy."33 The social recognition of both powers, thus converted into forms of potestas , "depends on a conviction expressed by a wisdom itself socially recognized which is called authority." The multiplication of powers within any society-all governments aiming at man's social well-being harmonized by one or more,of the classical "forms of government " or, presumably, by their many combinations opens the door for the crucial role of the famous principle of subsidiarity, "the very first principle of all social organization according to Catholic doctrine." 34 This principle when first developed by Popes Leo XIII and Pius XI envisaged the modern State's returning to society those autonomous organisms that the State had emasculated during four centuries of modernity. The papal documents hence tend to speak of a movement "downwards" in which the State empties itself of this usurpation. In a non-Statist polity, however, the movement would be "upwards, " from the less powerful or "inferior" entity to the higher. Our author understands subsidiarity as involving a synthesis of liberty and charity. Liberty: every social institution ought to exercise its own freedom in pursuing ends consubstantial to itself. When the institution in question is capable of achieving its goals, it must be left alone by all otherpresumably "higher" and more powerful-social and political entities. Charity: when an institution-family, municipality, etc.-is simply incapable of fulfilling its own finalities, then the organism closest to it in superiority ought to aid the inferior. But, warns d'Ors, this principle is often misunderstood even by its putative supporters. Subsidiarity has little to do with technical efficiency. A higher social group might be able to do the work of a lower group or person more efficiently in a technically superior way, but this consideration is no warrant for interference. If the lower society achieves its goals, even in a sloppy and haphazard way, then let it alone! Do not violate its liberty. (I am reminded of the charming Viennese Schlamperei and of Chesterton's crack that somebody else might be able to make love better to my wife than I can, but this is no reason why he should!) Only a serious breakdown of the institution in question warrants the intervention of the higher social organ. It is interesting that d'Ors sees this as an act of charity. Charity, in turn, must not be confused with the meddling of busybody technocrats.
33. Ibid., 112; emphasis in original. D'Ors here and elsewhere broadens his understanding of ' legitimacy. Although the father/son relationship remains the paradigm of legitimacy, d Ors broadens the theory to include any society that is not governed merely conventionally, any society that enjoys a vivid Tradition that has been inherited. Hence d'Ors grants the validity of applying the predicate of legitimacy even to republics provided that they are not pure democratic republics. The application of the word itself would seem to be an instance of what Thomists call "an analogy of participation": in this case, dynastic and familial legitimacy operates as the prime analogue which admits, however, of differing degrees of participation, Legitimacy, of course, is totally absent in regimes which are merely "conventional" and "legal." 34, Ibid.
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All politics is a meshing of lesser powers by an overarching potestas which is government par excellence. When Power, warns d'Ors, is confounded with Authority, Authority ceases to be the check or limit on Power that it is supposed to be. Authority, thus, not only answers but these very answers function as well as limitations, specifications, of Power's range of activity. Although our professor admits that at times Power and Authority might reside in the same person, (he does this rather nervously) he insists that they must not do so within the same dimension of the real. D'Ors thus teaches, as indicated throughout this study, that the authority/ power relation is thoroughly natural, rooted in man's two spiritual faculties of intellection and volition. Nonetheless, human nature exists in a fallen state and what is perfectly natural, normal, mo)re often than not is blurred in historical existence. The Blurring of Authority and Power Political philosophy-I speak here in my own name for a moment-is a tension lived by a man who is tempted, at least potentially, toward political praxis on the one hand and toward pure metaphysical speculation on the other hand. His success as a political philosopher is often measured by his ability to live within this tension, yielding to neither temptation. His speculation must transcend historical reality but it must both take its point of departure from, and be capable of, illuminating history. As classical instances, we might note Plato's and Aristotle's speculations on the Greek polis and Cicero's on the Roman Republic. Speaking as a Thomistic philosopher, I might point out here that from an epistemological point of view the issue can be elucidated in terms of the duality found in all judgments: whereas the thing understood, often an historical complexity itself disengaged in previous judgments, plays the role ofsubject, that thing is understood in terms of universal predicates.35 These "formalities," intelligibilities-are first discovered in, then predicated of, the "things" themselves. When the thing, the res, is political, the res publica, then the mind is engaged in a subject moving through historical time. Political philosophy, hence, always manifests an historical and singular reality understood in terms of universal necessities. This scientia is engaged in universals discovered in some historical existence. Otherwise we are dealing with ideology, not philosophy. The overarching tenure of Alvaro d'Ors' teaching on political philosophy leads me to think that he might agree with the late Yves Simon's definition of ideology: a philosophy crafted to defend some concrete political position. Marxism immediately comes to mind. D'Ors' careful distinction between his
35. Cf., Frederick D. Wilhelmsen, Man's Knowledge of Reality, Preserving Christian Publications,3d ed., esp., 122-156.
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scientific work and his occasional writings in defense of Traditionalist or Carlist polities-indicates that the ideology-political philosophy distinction has always been operative in his thought. D'Ors is almost alone in Spanish academic circles in this severe intellectual objectivity. It is more common than otherwise in Spain today to use a university position as a stepping stone to political power. Don Alvaro has never been minister of a government or candidate for political office. In a profound sense, he is a living incarnation of his own insistence that authority never commands: it only answers and counsels. D'Ors' theory of authority and power must both render history intelligible while transcending any concrete moment thereof. I have already pointed out that don Alvaro discovers, philosophically and hence as something natural, the authority/power polarity. Let us move, now, to a consideration of how he locates these intelligibilities in historical existence. As a jurist whose expertise is Roman Law and Jurisprudence, we are not surprised to find d'Ors disengaging from the Roman experience the theory he has elaborated through a life spent in speculation. More accurately expressed, the theory emerges from its historical concretion. A kind of Aristotelian induction is at play in the Spanish theoretican's thinking. The most primitive instance of the distinction between authority and power, within our civilization, lies at the remote origins of the Roman Order. The college of augers who read the signs of the will of the gods in the passing of birds and other natural phenomena was consulted by the kings, repositories of political power. At this dawn of our inheritance there was already present a lived, vivid awareness that political power must respond to something beyond itself. 36 The sacral authority of the augers and the political power of the kings mixed into a kind of felicitious unity at this birth of Rome. The gradual militarization and hence secularization of the royal power in the Etruscan period stripped the kings of augural authority. Roman tradition, coming into its own thanks to a kind of logic worked within the alchemy of time, gradually sealed with a corporate approval the distinction between he who has power and he who has authority, between he who commands and he who authorizes. Reaching its apotheosis in the high period of the Roman Republic, authority was centered in the Senate and it acted as an effective break upon the power of the magistrates even as it served as a beacon guiding its decisions. The auctoritas of the Senate controlled morally the imperium of executive power. The role of the earlier college of augurs was expanded by the somewhat newer authority of the Senate. The magistrates, questioning as to what ought to be done, and the Senate, answering out of its wisdom, formed a crystalization of the permanent and natural relationships found between the will and the intellect. 37
36. Inauguratio: La teologia pagana de la Victoria legitima; Ensayos de teoria politica, andpassim (the theme appears in many of Don Alvaro d'Ors' writings). 37. Ibid.
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A very early blurring of the power/authority distinction can be discovered in the gradual replacement of the augurs by the haruspices who predicted the future, read the omens of the gods, at the command of the magistrates. The haruspices became functionaries of political power, men personally subordinate to magistrates, generals, and others to whom pertained the power of the Roman political order. Catering favor with their chiefs, they often read the omens of the times as their masters wished. Cicero said of them that they were "fakes having nothing to do with real augers." In this, as in many other things, Cicero lamented the passing of the ancient order. Nonetheless, the decline of the sacral authority of the augurs, as indicated, did yield to a more secular authority, that of the Senate. The independence of the Senate-at first suffused with an authority to which political power appealed-was first menaced by Octavius, Caesar Augustus, who blurred further the power/ authority distinction. By the Middle and Late Empire the Senate had virtually lost its real authority although the power of Roman tradition was so strong that the fiction of an independent Senate was maintained until the very last days of the Empire. The old-and very natural-distinction between power and authority was reborn in the medieval tradition where the royal power was counterpointed by papal authority. A vivid "inauguaration"38 of political power by ecclesiastical authority was the imperial coronation at the hands of the Pope, an act beginning when Leo III crowned Charlemagne emperor on Christmas Eve in the year 800 A.D. The modern State, the creation of the French monarchy whose apologete was Boclin, effectively identified Authority with Political Power in the late Renaissance and early decades of the Modern Epoch. The loss of independent divine authority was dramatically staged by Napoleon when he seized the crown from Pius VII, the crown the pope was to have used in crowning Napoleon himself, thus authorizing, inaugurating the new empire, blessing it with his authority. Napoleon crowned himself. I rather imagine that don Alvaro would agree with me that it was better this way: the pope washed his hands, albeit unwillingly, of the horrors that were to follow upon Napoleon's coronation. Napoleon, in crowning himself, thus signalled to the world what it had already known-Rome had no authority any more in the affairs of state in what was once a Christian community of nations. The Will of the Prince was the last word spoken in matters political. That the French Revolution converted the Will of the Prince into the Will of the Majority was simply a democratic flourish to a document whose history had already largely been written. Napoleon was the first soldier of the Revolution. Western man has suffered the consequences of this abomination in the totalitarianism of our century.
38. "Inauguratio," Ensayos de Teorfa Polftica, 79-94. Here d'Ors traces the ontological sense of "inauguratio"-the blessing, so to speak, of authority to the commencement of some political labor.
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The classical liberal divison of powers into three was a tactic to avoid tyranny and assure the liberty of the subject. D'Ors points out that Montesquieu's division has never worked. Long before don Alvaro, Donoso Corts noted that the supposed tripartite division in England, the quintessential example cited by Montesquieu, masked the truth: 39 Power in England since the Protestant Succession in 1688 resided in Parliament and nowhere else. Parliament, until very recently, has been the representative of a broad aristocracy based upon the loot of the monastery lands, and that class governed the United Kingdom for more than four hundred years. Professor d'Ors points out the essential flaw in the liberal tripartite division of powers. If power is so divided into three that any one or two of these powers can check excessive encroachments by the third, then that power-be it legislative, judicial, or executive-is both what it is as a constituted power, plus its being an authority over the neighboring powers that it pretends to judge. D'Ors does not exactly subscribe to Donoso's insistence that political power is necessarily one which is subsequently limited by a host of "hierarchies," authorities. But then again d'Ors does not exactly reject the thesis. He largely ignores it because his focus is elsewhere: the unnaturalness of any power being confounded with authority. In a word: the professor does not so much object to political powers being tripartite as he objects to their supposed capacity of "checking" or "limiting" encroachments of one power by the other branches of government. The triplification of political power simply confounds the same problem we encounter when any power, be it one or many, is identically an authority. This presupposition of the modern State reduces all authority to some univocally conceived Authority/Power, "The Prince" or "The Will of the People." In fact, d'Ors reads Polybius' understanding of the constitution of the Roman Republic as the misunderstanding of a Greek of what was quintessentially Roman: Roman "powers" did not check one another; they were checked by "authorities," principally that of the Senate which was no power at all, Donoso Corts' insistence on the unity of power can be explicated, perhaps, in terms of the Thomistic metaphysics of being. Power must lie on the side of existence; power is a "poder ejercer. In God, Power is one with
39. Donoso Corts, Textos Politicos ( Madrid: Ediciones Rialp, 1954), esp. 461 ff. D'Ors rarely cites Donoso and the famous nineteenth-century Traditionalist thinker seems to have had little influence on him. D'Ors' traditionalism, in fact, owes very little to nineteenth-century Traditionalist thought. His Carlism was forged in a lived personal experience in the Spanish Civil War, what he prefers to call "The Crusade," but his thinking is composed of a political philosophywhich grew out of his juridical expertise and historical reflections. Most Carlist thinkers distinguished between "the Social Sovereignty" of Christ and a "political sovereignty" pertaining to the State. D'Ors, as indicated in the text, denies all sovereignty to political power. Also, the critique of the modern State made by d'Ors cuts much deeper than that found in writers such as Vazquez de Mella. However, an elucidation of this theme would require another study.
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Being, but nowhere can we discover-within Being itself-any specification or determination of Power. This specification, itself always some limitation, must come from a principle not identically Power: i.e., the order of essence or the determination of existence. An unlimited Power, which is not God, is a metaphysical monstrosity. Don Alvaro d'Ors, holding with Donoso but in independence of his speculation, that Power cannot be specified from within itself, sees no difficulty of speaking of many powers in a cascading order of delegation. These powers respond to authorities because they question what is to be done. Thus don Alvaro's Power/Authority duality corresponds as well to St. Thomas' esse/essence duality. As essence determines, limits, and specifies the act of existing, so too does authority determine, limit, and specify power. The difference between Donoso and d'Ors on this issue has nothing to do with whether power is always determined by a principle not itself, the "hierarchies" in Donoso and the "authorities" in don Alvaro. The difference would seem to lie-my suggestion is provisional-in Donoso's insistence that not only is power unitary but that there is only one such unitary power in the political order. I find nothing in Professor d'Ors corresponding to that proposition. Power is always delegated from some one primal source but there are many powers. Don Alvaro's many examples are drawn from Spanish and other European constitutional situations, but his theory applies as well to the United States of America. In this nation the judiciary attempted to assume the prerogatives of the legislature for many years during the ascendency of the so-called `Warren Supreme Court." All manners of social policy, some beneficial and others possibly not so, were juridically legislated into existence-altogether without regard to the legislative branch of government and very often in total disregard of the will of the respective states making up the American Union. More recently the Congress set itself up as the authority concerning the behaviour of the President and "His Men." At the moment of the writing of this paper the same Congress, itself the ultimate repository of American Political Power, has taken upon itself the role of Authority in attempting to police its own conduct. The Congress forced the Speaker of the House to resign because of supposed malfeasance of funds garnered for his reelection. Moving back somewhat in history, we might recall the political experience of King George III in England who was not content, apparently, to be a mere servant of the aristocratic class to which his house owed the throne. Bereft ofpolitical power but possessed as the executive of immense financial wealth, the King attempted to buy Parliament, the repository of Power in England. His experiment failed because influence, be it royal or otherwise, is one thing and power is something altogether different. George III was what we nowadays in the United States call a wealthy lobbyist, but a lobbyist who failed. The ensuing confusion has always been intolerable because no one of the three branches of power can claim an independent authority. The result in
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these last generations has been an increasing technologizing of government in that political power has found itself constrained to fall back on the authority of its own tee nicians. Power in our modern states tends inexorably towards technoc acy./The natural order of things is reversed. Political prudence, gnome, is irndence for government. But the business of government is so vast that no man or body can govern without council, the prudence known as eubulia. The wisdom proper to political power includes the sagacity needed to choose advisors wisely. But these councillors, possessed of knowledge and hence of a certain authority, ought not to govern. Their role should be sharply restricted to answering questions put to it by the competent political power in question, In fact, however, power is slipping away from government and politics increasingly follows the dictates of technical efficacy, possibility. One American astronaut said to a journalist who asked him why we are going to the moon, that we are going there because we can go there! This is a technical answer to a prudential political question that confounds the issue. Technical possibility, attested to by technical authority, has been turned into a political dictate. D'Ors often notes that this confusion between political and technical prudence is a two-headed sword. Either authority yearns to be power (as in the university situation in which professors lust after administrative posts) or power dreams of converting itself into authority as in the modern State. The first temptation is Platonic; the second is Baconian. When the "wise" man, even if he be wise only about computers and statistical curves, takes on the mantle of political power, liberty is destroyed. When mathematics becomes politics, politics attempts to demonstrate rather than to judge. There is no liberty in scientific demonstration. Liberty is consubstantial with power but with a power that not only consults higher authorities such as the Church but lower authorities with technical expertise. Politics must not be absorbed into either. Conversely, the absorption of technics into political power violates the nature of the latter. This time, however, the haruspices cannibalistically devour the power that gave them birth. This is the essence of technocracy. This blurring of the roles of authority and power is complemented by a further confusion noted by Professor d'Ors. As already indicated, d'Ors holds that authority has nothing essentially to do with legitimacy. Authorities are neither legitimate nor illegitimate. Whereas legitimacy is inherited-to repeat the thesis-authority is the acquisition of a knowledge subsequently recognized socially. Strictly speaking nobody can be "loyal" to an authority unless it be the authority of God. Loyalty suggests a willingness to obey. Obedience pertains to the will and hence lies on the side of power. This is well illustrated by the paterpotestas. 40 The son is loyal to his father even if his father is a perfect fool, altogether bereft of any significant authority. Loyalty thus
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40. Doce propositiones sobre el poder, 120.
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pertains more properly to legitimacy. The issue is muddied when loyalty is attached to legality. Loyalty is a natural dimension of human nature and pertains to persons. In the political order these persons are legitimated in their power, their potestas. All Law is general, abstract, and aims ( though often confusedly-at universality. No man can be loyal to an abstraction even if he tries. Loyalty, hence, follows a descending hierarchy of delegation. A man obeys the laws but he does not adhere to them with the loyalty a soldier gives his commander. The Orsian theory is tested by himself in his historical speculations concerning the Roman experience but his thesis, if it is to enjoy the status of political theory, must apply as well to historical situations thathehas not tested personally. I suggest that recent American history validates these propositions of the Spanish scholar. The United States of America in its inception was not a liberal democracy. At its inception the United States was an aristocratic Republic which admitted certain democratic and monarchical principles within its constitution. Since President Jackson and definitively since the Civil War, the American Republic has moved toward a democratic Republic. Increasingly democratic in the past decades, American politics today lives within a tension, even a hostility, between older aristocratic and monarchical formalities and newer democratic incursions. Presidential pretentions reached their apotheosis in the early years of the administration of Richard Nixon and the phrase "An Imperial Presidency" was heard everywhere. These pretensions were effectively exploded as a result of the Watergate scandal. The nation soon came to now what the late Willmoore Kendall had insisted on all along: the spectrum of the so-called "imperial presidency" was a fake! Power in this nation reside effectively in Congress; at times that power sleeps but it always is there to be aroused from its slumbers as though it were a recumbent lion. Nixon resigned. Nonetheless, the Constitution has vested the presidency with all executive functions. Being a person, the American President has gathered around himself an ever increasingly large body of functionaries who sense-rightly or wrongly, constitutionally or not-that their loyalty belongs to "The Chief." (An anecdote here might illustrate the point: when President Kennedy was asked what was his favorite piece of music, he answered "Hail to the Chief' which is often played when the president makes a ceremonial entrance.) Exercising their diverse political roles which have been delegated to them by the President, these loyal servants-"The President's Men" they were called by a famous book bearing that title-have given their allegiance to The Man, The Chief. And they have tended to do so above any adherence they might have given to the written Legality imposed by Congress. The Orsian distinction between personal loyalty to superiors by men with delegated power and the abstract imperative of the law could not be illustrated more vividly. In a pure democracy of the liberal stripe there is no role for
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either legitimacy or its response in loyalty. But the United States of America is not a pure democracy. The President is elected democratically (in fact if not in theory: the Electoral College is an aristocratic mummy, a shell), but his election is independent of the fate of his party. Unlike most European democracies, the American President is not selected by a parliament dominated by the party to which he belongs. He can win at the polls and his party might lose. This, of course, is what has happened in the last forty years-a Republican President and a Democratic Congress. Popularly elected, the President nonetheless is invested with a role and certain attributes that are reminiscent of a medieval king. In a regime in which a quasi-monarchical presidency squares off against a potentially hostile and democratically elected Congress, repository of ultimate Power, a potential clash between Legitimacy and Loyalty is already an inbuilt possibility. From a purely formal point of view, abstracting from the substantive issues in question, the American president today can be compared to the English kings Charles I and II, even James II, as these last faced a hostile Parliament. Just as the English kings looked back upon an older power that had by now slipped from their fingers, so too does the American president look back-his tradition, of course, is much shorter-upon the imperial presidency of Franklin Roosevelt. Just as those royal personages in their purple robes admonished Parliament from the throne to do its duty by the common good, so too does President Bush lecture Congress on its duty. The only road opened to these long dead Stuart monarchs and open to the very much alive American presidents is the immense influence of their offices, their capacity to buy, cajole, and threaten their policies into effective legislation. In both the older English political experience and its contemporary American counterpart, Power resides in a legislative body that not only is the fount of legality but also the holder of the purse strings. The ambiguity is patent: the President of the United States is "under the law" but he is The Chief, especially the Commander in Chief of the Armed Forces-and this last attribute is not ceremonial as in certain European states: it is effective, real. Don Alvaro d'Ors, fairly early in his academic career, wrote a remarkable essay called "Silent Leges InterArma."' I Since he has referred to it in his more mature writings, it is clear that d'Ors considers the study to be important for an understanding of his political philosophy. "The Laws, Among Arms, Are Silent." The sentence is Cicero's. D'Ors asks rhetorically what is a man to do at night if thieves accost him on an unlit road? He cannot call on the police, representatives of political power. He cannot talk his assailants out of their criminal intentions. He will not let them murder him. He has a gun and he uses it. No law authorizes him to do this. Indeed the laws insist that nobody
41. De la guerra y de la paz, 23-44; Ensayos de Peoria Politica, Cicern, sobre el estado de
Excepin,153-175.
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can take unto himself the role of policeman or magistrate. But he shoots because he is authorized by a higher law, self-preservation. But so too in all war: the Laws are "silent" when the guns roar. The very deliberation and solemnity, the rhetorical flourishes of lawyers, the careful meticulousness with which laws are written, the thicket of exceptions and distinctions-all of this is swept away when the enemy swarms over the walls of the city bent on plunder and submission to an alien will.
The laws are silent when the State is impotent before a danger facing an individual; the Laws are silent against a threat to the State: legitimate defence in either case: public here and private there. In both cases the State faces a crisis and its laws prohibit an act founded on the very instinct of conservation. The laws are silent because there is no organization of the 2 State capable of confronting this danger 4
Sometbing like this motivated "The President's Men" in the Irangate crisis. They had learned nothing from Watergate. The formal peace between nations recognized by the Congress did not jibe with their perception that the United States was at war with International Communism in Nicaragua. They judged-rightly or wrongly is not the point-that they were carrying out the Chief' s will. After all, Ronald Reagan had long denounced the Sandanista victory in Nicaragua and had declared it a potential threat to the security of the United States. But the Laws prevented the Arms from achieving the victory these men thought theirs to win. Lt. Col. North and Vice Admiral Poindexter and the rest of them circumvented the Law in supporting the so-called "contras," freedom fighters in the jungles on the Nicaraguan border. In fact they violated that law out of loyalty to the Commander in Chief and his obligation to protect the nation from all enemies, internal and external. The Irangate affair is a test tube verification of d'Ors' thesis, an Aristotelian "exemplar" in which the intelligibility of the professor's thesis can be "read" and "validated."' The President constitutionally directs foreign policy but the Congress sets limits to that direction legally. The Irangate soldiers, most of whom were professional warriors, one of them at least highly decorated for heroism in combat, carried out what they conceived to be President Reagan's vigorous anti-Communist foreign policy in Central America. Their loyalty was given as a soldier's sword to their Commander in Chief. But that loyalty was illegal. The fact that legality won out over loyalty is a vivid proof of how far along the road to a pure democracy the United States has gone. Loyality and its corresponding link with Legitimacy is a
42. De la guerra y de paz, 43. 43. e.g., my own treatment in: Man 's Knowledge of Reality (New York: Preserving Christian Publications, 1988), 122-134.
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declining factor in American politics. Don Alvaro d'Ors is not a moralist. He is a political philosopher. His "oficio," as he might modestly put it, is not that of the ethician. It follows that the reader must ponder what I have written about the Irangate scandal in terms of political theory, not in terms of constitutionality and whatever moral response is elicited thereto. The Irangate men acted naturally but the naturality of their action was illegal. Legitimacy and Loyalty are ontological factors anterior to Legality but Legality can outlaw them. Although the moral considerations are radically different, the situations discussed here are not formally distinct from the Chinese Communist government's insistence that children report their parents to the commissars when these last show less than enthusiasm for the going regime. If the youngsters remain loyal to their parents, they act illegally but they act naturally out of loyalty. If they betray their parents, they act legally but unnaturally. Positive law cannot legislate legitimacy into being: this law either recognizes the anterior principle of legitimacy or denies it. North and his companions behaved naturally as soldiers are supposed to behave: they obeyed-or thought they obeyedsuperiors in a chain of command. Their conduct can be adjudicated favorably or unfavorably depending on a man's existential convictions but their conduct cannot be judged to have been unnatural. This is the way soldiers act! Their activities followed a certain curve inscribed in the very nature of man. If there was an aberration in their modus actuandi , it is to be sought in constitutionality and not in human nature. That d'Ors has traced this principle in its development is a sign of the genius of his political philosophy. He has not confounded the study of Constitutional Law (of which, incidentally, he is a foremost expert on the European continent) with that of Political Philosophy. In so doing, he has not confused conventional morality with ontological principles deeply at work in every human being. These two recent constitutional crises in American history cost one president, Mr. Nixon, his office and almost did the same to Mr. Reagan. Both illustrate the confusion between power and authority in the liberal division of powers. Congress judged (a role of authority) the actions of the Watergate "plumbers" and the Irangate soldiers to be illegal and Congress had the power, through a judiciary subservient to itself, to punish the wrongdoers. But the very American Judiciary, even unto the Supreme Court, is not an independent authority. Since ending its legislative spree when headed by Earl Warren, the Supreme Court now interprets the going law but never rises above its positive character. It has no authority to declare some written law wrong because it violates a higher law, Natural Law. It can only interpret a positivity there to be interpreted. Should the individual states incorporate the natural law in their legislation, the Supreme Court must note that incorporation. Should they fail to do so, that Court is incapable of declaring anything contrary to a higher Law it can only recognize if the states or "the people"
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recognize it. It follows, as argued, that there is no Authority anterior or superior to the Will of the People. Nowhere in the United States can we find an Authority independent of Political Power, an Authority recognized socially to the extent that it is questioned and heeded by those in power. The business is illustrated dramatically by the abortion issue. Condemned by the Natural Law as murder-no pro-abortionist argues in favor of his thesis by appealing to any putative natural law; he argues in favor of a presumed right over her own body possessed by all women-an interesting argument but one totally foreign to the entire tradition of Natural Law in our civilization. Condemned by the Natural Law as murder-first or second degree is not to the point-abortion in this land can be outlawed only if an existing positive law can be found capable of overturning Roe v. Wade or if a constitutional amendment is crafted favoring the life of the unborn. This process itself is elaborate and lengthy. If successful, it could be overthrown as was the amendment outlawing the drinking of spirits. In this country, in any event, a dictate of the Natural Law needs the crutch of the Positive Law in order that it be respected. Authority, in all cases, dissolves in Democratic Will, in Power. One is reminded of Bodin's pious hope that the Prince respect the Law of God. But if he does not, too bad! He is the Sovereign. So too today in the United States: if the courts respect the Natural Law, itself part of the Divine Law, very good: but if not, too bad! Obey-or go to jail. Many today do just that. Professor d'Ors has suggested that a common adherence to the Natural Law acted partially as a moral check on the political order even after the breakup of religious unity in the sixteenth century. He has also pointed out, the issue was referred to earlier, that a Natural Law, unbuttressed by the Divine Law and the Church as God's Voice on earth, tends nonetheless to become diffuse, watered away, vague, and subject to a host of differing and more often than not contradictory interpretations. Your opinion on what that Law states is just as good as mine! This means, of course, that neither opinion is worth anything. A secularized Natural Law ceases soon enough to be itself. We might note here how Fr. John Courtney Murray, S.J., in his We Hold These Truths, thought he had found a consensus in the United States unifying Catholics, Protestants, and Jews in a common allegiance to a Natural Law ascribed to by all and sanctified, authorized, by the very founding documents of the Republic. A certain plausability attached to Murray's thesis when it was launched in the fourth and fifth decades of the century. 44 But even granting that plausability-itself dubious-history has rendered it obsolete. In the United States today a secularized religion of democratic "values" is the only common orthodoxy publically proclaimed by politicians, educators, most
44. Cf., Frederick D. Wilhelmsen, "Religion and the State," The World and I, forthcoming.
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religious leaders, and the immensely prestigious mass media. 95 A mark of this truth is the need that even religious leaders seem to have in justifying traditional moral convictions by their ability to conform to and serve democratic norms. The worse that can be said of any polity or proposal is that it is "undemocratic." This reduction of The Good to the Democratic is one with the reduction of Authority to Power and Power to Democratic Power: vox populi, vox Dei, a proposition no orthodox Christian could subscribe to were he aware of its implications. Permit me to hazard the guess that this state of affairs cannot last because the Democratic Ethos itself lacks any infallible Interpreter, any Authority sealing its pretensions with personal wisdom. I am reminded of the "man sagt, man tut" of Heidegger, of inauthentic human existence based on rumor and unfounded opinion widely spread on television and press; of the "anonymous" spoken of by Guardini, a power which seems to us to be anonymous but which at bottom is as personal as all power is personal. 46 In the prophetic words of Hilaire Belloc pondering the loss of Christian Faith in the nations of the West: "Their Faiths turn to legend, and at last they enter that shrine whose God has departed and whose Idol is quite blind."47 When God vanishes from the household shrines of the West, the drums are muted and men worship abstractions, new idols. But behind them there is Power indeed but it comes from another World. The Modern State These somber considerations direct me, finally, to don Alvaro's critique of the Modern State. His conclusions, as might be expected, are deductions from his own convictions concerning the unnatural identification of Authority and Power in the State that came into being iri the Renaissance and early modernity. The theoretical justification of the Modern State, insists d'Ors, was the work of
45. The common rhetorical acceptance of the language of "values," as indicated, moves from the metaphysics of being, in which all goods are located in existence, to a quasi-idealist "value system" in which moral decisions refer to an order of"values," not quite identified with being which stand between the human person and reality. Cf., Etienne Gilson, Realisme methoclique. 46, Romano Guardini, Dos Ende der Neuzeit, Im Werkbund-Verlag Wurzberg, 1950, esp. 59 fl. Guardini's remarkable analysis of Power as being essentially personal and only masked under the rubric of "anonymity" parallels that of Alvaro d'Ors, but I find no evidence that d'Ors has been influenced by Guardini. D'Ors himself speaks of a supra-national Power that seems to embrace both Western consumerism and Eastern communism that is occult, hidden, but still very personal indeed (de la violencia y el orden, 100-106). I am reminded here of the late Willmoore Kendall's constant advice given me in years past: "Seek out the Power; where is it? Who has it?" This is the key to all political evaluation and critique of any given polity. 47. Hilaire Belloc, Esto Perpetua (London: Duckworth, wnd, impression, 1925), 177.
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Bodin. If Bodin built the roof under which the modern State flourished, I might add that Hobbes gave us the servant and Machiavelli, the master. Although these considerations are true, it remains valid as well to note-d'Ors emphasizes it-that the Modern State would not have come into existence had Europe not been torn asunder by the Protestant Reformation. The Reform denied the Authority of Rome in matters doctrinal and moral and this hastened the subsequent identification of Power and Authority in the hands of the new national State. Had Christendom not been destroyed, it seems highly possible that the State as we have known it would not have flowered into the subsequent perfection it achieved. The world in which we all have lived is one marked by fixed boundaries; high tariffs; centralized power; passports and visas; capitals and outlying insignificant provinces; highly organized armies with troops marching in mathematical order, cannon fodder; national languages that have suppressed the older supra-national Latin; religious indifference; elaborate conditions for citizenship; mechanization of industry and the subsequent drying up of agriculture; xenophobic nationalism; massification of urban life; anonymity of social life. Such has been and continues to be the Modern State. Alvaro d'Ors signals its immense success by noting that few of us have the imagination to conceive of any other forms of organizing political existence. But that State, reaching its apotheosis in the nineteenth century and consumating its evil genius in two immense World Wars in this century, is today dying. D'Ors' critique, of course, is by no means unique. Based as it is initially on an observation of what is happening today in the West, many perceptive scholars have noted for some time that the State as we have known it is declining. The very technical basis of modern political existence has been washed away: centralization of power in an urban capital, a nucleus of information and command; the dominance of the written word-dating from Guttenberg-and the necessity of a chain of command transmitting orders from above to the most remote corners of any political order; the drying up of regional and local autonomy; the absorption of all power and authority into the hands of a center-these presuppositions of modern political life are being eroded due to a new electronic technology which renders centralization obsolete. But this erosion of the technical basis of the modern State parallels an erosion of its theoretical basis. At this point the Orsian critique becomes an original addition to a large body of literature dedicated to the issue. The essence of the Modern State is located by d'Ors in the early modern identity of Power and Authority in the Prince, be he One as in the absolute monarchy of the Bourbons or be he Many in the parliamentary democracies of our day. D'Ors points out frequently the parochialism which consists in identifying political existence with the State as though the State were as natural as the rising and setting of the sun. The State
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assuredly is one way in which political life can be organized but it is not the only way, nor is it away conformed to human nature. The Sovereignty of the State is the apotheosis of the confusion between Authority and Power. That presumed sovereignty is the cause of the misery of our age, of the savagery with which man has treated man in our time, and with the progressive decline of human liberty-itself often achieved by liberal democracy under the banner of Liberty itself. We no longer live within the boundaries of the modern State, themselves territorial in structure. D'Ors has paid more attention to the history and meaning of territorial limits than any scholar known to me. Don Alvaro sees in national boundaries a continuation of the Greek understanding of the polis, itself a political form crafted into existence by seafaring men who interpreted political life after the pattern of life at sea: within the ship, safety; beyond, death by drowning. Just as the "walls" of a ship are sharply defined and everything beyond is the enemy, so too everything outside the polis is the "barbarian." But the Roman sense of limits was altogether different. Essentially a land-rooted people, Rome did not interpret political life after the paradigm of life at sea. Indeed the very "limits" of the Empire were limes, trenches, and the trench was manned when the enemy without was close at hand. When he melted away into the forests of the north, the trench was abandoned. The whole notion of political existence as being limited and bounded by frontiers reaches way back to Greece but it came into its own only within early modernity. Political life for centuries has been traced by boundaries taught in schools to children who saw these boundaries on colored maps. But the map, insists our author, involves a visualization of politics (the Greeks were highly visual people) that breaks down today under the pressures of a new technology that respects neither territorial limits nor their political centers. The telegraph, the telephone, the computer, the whole range of electronic technology simply bypasses frontiers and thus renders them obsolete, if not at this moment non-existent. A concentration of Power which assumes unto itself all Authority is less and less possible. Scientists talk to one another through congresses and journals that recognize no territorial limits. Authority increasingly decentralizes as it is diffused away from centers of Power. Half forgotten languages come back as they herald regional revindications and separatisms. National unities are threatened from within even as they are menaced from without. A new order of things settles upon the West. What does a center of Power mean anymore when a demented skipper of a submarine loaded with atomic hardware could blackmail the whole world from any point in the vast waters that cover our planet? The very concept of a "great" power based on mere physical size begins to give way to the fear that smaller political units, little countries, could craft the same deadly weaponry in their modest backyards. The presuppositions of the State that began at the Renaissance are dying
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and man gropes toward new political forms that transcend the older mold. The State today is obsolete but by no means dead. Very much alive indeed, the State thrashes about in the last throes of its death agony-these are often more dangerous than the full flexing of muscles in the glory of high maturity. The State is more dangerous today because it is dying than it ever was in the full flowering of its nature in the hayday of modernity. The modern State could destroy itself and us as well by returning us to primitivism in an atomic holocaust. This is not likely to happen but its very possibility has paralyzed the West in its response to Communist aggression ever since World War II. The State thus has become an intolerable burden, an aged but powerful hull covered all over with the barnacles of centuries. It needs to be retired to a museum. But political philosophers do not become futurists. Indeed, as d'Ors points out, political philosophy always flourishes in moments of decadence when men look back, Plato and Aristotle to the glory of the polis even when it was giving way to the Empire of Alexander the Great, and Cicero when the splendor of the Republic was slipping away beneath his very fingers and when time heralded the coming of Empire and the Eagles of Rome marching through every byway of Europe. There will be no World State, insists our Spanish philosopher. Every projection into the future depicting a "World State" is, according to d'Ors, what Marshall McLuhan might have called a "rearview mirror." I might add that all "futurisms," today a very profitable profession, involve that very "rearview mirror" because future projections must be made out of existing materials. These materials are gleaned from the past because the present moment is a fugitive that cannot be articulated conceptually. This past furniture, discovered in an old house, is spread about in a new house still to be built. But this is a trick. If the popular series "Star Trek" were really about the future, the television screen would be a blank. We can only project forward by backing up with our eyes rivoted on the past. We simply do not know anything else! The future is a mystery. To articulate the very possibility of a putative future World State forces us to look to past approximations of that dream. There is-I repeat-no other way of talking about the issue in question. It follows that Professor d'Ors, in approaching the topic of a possible World State, locates it within approximations toward a World Empire made in the past. The insistence of that Persian king that he was "king of the Persians" and also, as an afterthought, "king of everybody else," totally lacked the political and intellectual precision needed to come to terms with the issue. What was lacking was any understanding of the difference between where a society begins and where it hopes to end. If everything is Persian, then a notion of "The World" loses all intelligibility. I can understand "The World" only in the light of what is not "The World," namely some partial polity which may stand within but which is in no way identified with the totality of political existence found within this planet.
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That past grasp of Empire, according to d'Ors, first emerged with the Greece of Alexander the Great. He is adamant in his contention that neither Plato nor Aristotle could look beyond the City, the polis, in their political speculations. 48 A kind of xenophobia inherent to the early Greek spirit halted the political horizons of Hellenic man at the walls of the city. He simply could not envisage any decent life beyond them. This very limitation teaches us something: within the Walls, order; without, chaos; within, salvation; without, damnation. The City was the Ship of State and beyond that ship there was the menace of a vast ocean of barbarism.49 The early Greeks, according to our philospher, "distinguished themselves from the barbarians because the Greeks were aware of barbarian collectivism, their lack of any sense of humor and every spiritual impulse toward generosity, all of these characteristics of the Greek world. "50 The very Greek military tactics against the Persians counted on an enemy that considered its own subjects to be little more than robots, anonymous sheep under arms. Civilization knew itself to be what it was because of the hordes from without. The Walls fence in Order and both are one with the mythos making our civilization to be what it is, The barbarians were outside of the oikumene, outside of what the Romans were to call the ordo orbis. Alexander the Great inherited this notion of an oikumene but expanded it beyond its parochial limits of the polis. The very concept of the Alexandrian Hellenic Empire was identified with pushing the civilized order "outward," in a strict territorial sense, and thus forcing the barbarians to retreat. Empire, continues d'Ors, involves a sense of expansion against an external enemy. Men now had a vivid understanding that the world was one but it was divided into "our" versus "their" world. The Greek oikumene was transfigured by the Roman ordo orbis, that part of the world which was ordered and in which justice, civilization, reigned; beyond-the barbarian. Whereas the Greeks, until Alexander, defended the Walls, the Romans sensed a mission to convert, in a secular sense, what was outside, to civilize. Imperial expansion demanded, thus, an enemy beyond. The very awareness of Empire, as it grew up in our Western world, was both positive and negative; "the positive is the recognition of a World and the negative is the SI exclusion of, and discrimination against, the barbarus." The discovery of a world peopled by the barbarian, "the outsider," and an Empire destined to expand outward, thus conquering the barbarian, the hostile menace, and admitting him to the benefits of civilized life, form a point and counterpoint to the meaning of empire in Western political speculation. A World Empire or State would lack this negative dimension. Quite literally,
48. 49. 50. 51. Forma de gobierno y legitimidad familiar. De la guerra y de la paz, passim. Ibid., 98-99. Ibid., 97.
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it would have nothing to do. With the Christianizing of the Roman Empire the barbarian was transformed into the infidel, the pagan, the man not yet baptized in Christ admitted to the fullness of life in The Mystical Body. Schism in the east and heresy in the West split the older community of Christian nations represented, if but imperfectly, by the Holy Roman Empire. The older communitas cristiana gave way to the concept of "The West." "The East came to symbolize `the exotic,' the barbarian. . . . The Turk is quintessentially the barbarian. War against the infidel, hence, according to the doctrine of the theologians, was holy war, a war perpetually just as was war against the barbarians according to Aristotle." 52 D'Ors admits, however, that this very notion was challenged by Aquinas and others, albeit hesitatingly, long before the advent of modernity. D'Ors is convinced that the discovery of America did two somewhat contradictory things. It evangelized the Indians and thus opened the door to an immense burst of Spanish energy which sealed that nation's identity with what might be called The Catholic Enterprise. But the discovery and evangelization also seeded the conception of International Law, a law first sketched by the Dominican Francisco de Vitoria who innocently secularized that law by distinguishing it from the res publica cristiana. Vitoria converted the World into a "kind of gigantic State" 53 governed by a Right of Nations, iusgentium, from which no nation can absent itself. This "Law of the Nations" reposed upon "an authority of the Whole World." 54 From the standpoint of the Orsian conception of the inseparable unity between authority and personhood, it follows that he considers International Law to have been vitiated at its heart in its failure to respond to a concrete Authority. Spain and Portugal might do so in appealing to the Pope to set boundaries to their respective claims but the rest of Europe did not follow suit. "The authority of the whole world" lacks the concretion to which political Power ought to respond. The Age of Treaties was marked by the rise of the tricks of a diplomacy which was often characterized by its capacity to by-pass or smother the supposed dictates of International Law. In a word: Professor
52. Ibid., 100-101. 53. Ibid., 102. 54. Alvaro d'Ors spent much time in disengaging and critically evaluating the thought of Vitoria. Vitoria insisted that Spain had no exclusive right to evangelize the Indians; this task was Open to all nations. The Imperial title of Charles V was an empty pretention bereft of any significant meaning. If Charles as emperor could not even command his own Holy Roman Empire, how could he pretend to power over the Americas? His titles in Spain were no more universal than those of any other king. The Natural Law gave the Spaniards (and everybody else) "the right to voyage," the "right" we might say, to move around the new continent. This right was, in Vitoria's mind, something "universal," subject to no national or even religious interpretation or limits. Here, d'Ors discovers an incipient secularization in the mind of the illustrious Spanish Dominican.
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d'Ors insists that "the World" cannot judge itself. It is no Authority. The distinction between Christian and Infidel yielded to a secularizing process (almost a reversion, we might add, to the classical period) in which "the infidel" became the "uncivilized." D'Ors cites Article 38 of the International Court in 1907 which spoke vaguely of "the general principles of 55 justice recognized by civilized nations." The reader will note here, along with d'Ors, the absence of any universal authority heeded by both "civilized" and "uncivilized." The resulting confusion gives us a world divided into two super powers, one motivated by a secularized religion bent on submitting the earth to its yoke: the Soviet Union; the other motivated by a kind of universal pacifism mixed with the democratic ethos: the United States of America. Neither recognizes any common authority to which both could appeal for a settlement of differences. No such Authority can be found because neither great power shares any common orthodoxy, to which that Authority could appeal even were such an Authority to be recognized. That Authority, insists d'Ors, must be religious. The religious authority in question is the Catholic Church in its Magisterium and in the Supreme Pontiff in Rome. D'Ors unhesitatingly affirms this proposition in the face of the massive secularist rejection he knows he will meet. The reader, whatever his theological persuasion, must not take this teaching to be the opinion of a believing Roman Catholic who has confused theology with political philosophy. Political Philosophy reposes upon Political Theology just as, Etienne Gilson insisted, all sound Philosophy reposes upon Christian Philosophy. The proposition advanced by our author is by no means self-evident. Requiring elucidation, a careful reading of Professor d'Ors' writings suggests that this elucidation and validation moves forth from his own authority/power distinction. Theoretically, the reader will recall, every authority, as humble or grand as it might be, is based on knowledge. Knowledge and Truth are inseparable. At this stage of the game, the Spanish Professor of Roman Law is one with a broad scholastic tradition whose foremost spokesman is St. Thomas Aquinas, but whose more remote ancestor is Aristotle. Opposed to Plato who objectified Truth and thus capitalized it, Aquinas understood the truth as knownto be propositional truth, the conformity of the intelligence in judgment with being as it is . n But truth as said of being-I continue here at this point to speak
55. Ibid., 115. 56. For a textbook statement of the Thomistic position, cf., Frederick D. Wilhelmsen, Man's Knowledge of Reality, new ed. and 6th. printing (Albany, N.Y.: Preserving Christian Publications, 1988,134-157; fora classical textual analysis, Peter Hoener, S.J., Reality and Judgment According to St. Thomas Aquinas, (Chicago: H. Regnery,1952); cf. also, Etienne Gilson, Being and Some Philosophers (Toronto: Pontifical Institute of Mediaeval Studies, 1952 2nd. print.), 190-215.
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in the name of St. Thomas-is said "improperly" or "broadly. Strictly speaking, being is truein itself only if it conforms to the Truth of God, a Truth identically the Being of God. Thus St. Thomas' three-fold division of truth: properly "and in the first instance," Truth is the Divine Intelligence; properly speaking and in the second instance, truth is the conformity of the human intelligence to being; loosely or improperly, truth is being. It follows that "the truth of being" is The Truth of God, things conforming themselves to the Divine Mind. (An analogue of this is the truth of art: reality as conformed to the artist's intention.) It follows that every truth known in judgment ultimately points to a Truth beyond all human truth-God's Truth. These observations seem to synthesize with d'Ors' insistence that all human truth-and hence human authority-because partial only approximates Divine Truth in which it is validated. His conclusion is that the Divine stands at the heart of Authority. Political philosophy thus shades into what our author calls "Political Theology." The augers of Rome spoke in the name of the divine and thus very early in our history the sacral was discovered at the very heart of the secular. Lifted to the supernatural thanks to the Redemption, Authority was now discovered in its Origin, God, whose Incarnation in this world is His Son, Our Lord Jesus Christ, Second Person of the Blessed Trinity made Man. Christ does not have the Truth but He is the Truth. And, as a deduction, it is that Truth, Christ, who makes us free. Most proximate authorities, such as the authority of the physician over the health of the body, have no need to appeal to the Divine in the exercise of their professions, in the counsel they give. As d'Ors insists, authority is not delegated but acquired but that about which authority speaks, being-reality-is always a participation in God's Truth. Cut both man and God out of the picture and there would remain-the hypothesis, of course, is impossible-only being. There would be no truth nor would there be any authority. Add man and we have propositional truth about being-reality and the possibility of Authority. Add God and we have both Divine Truth and the Truth of Being: Authority validated in its origin. It follows that all authority participates in God's Authorship of Being. If Power and Authority are themes consubstantial with political theory, then political theory is completed by political theology. All authority, thus, is rooted in God's Authorship, but so too is all Power. We cannot prescind from the concept of a Political Theology because even the negation of God somehow implies a degenerate recognition of His existence. The issue becomes quite vivid when we ask why any one man should obey
"57
57. Aquinas, De Veritate, 9, 1, A.4, C. "Ergo est in intellectu divino quidem veritas proprie et primo; in intellectu vero humano proprie et secundario; in rebus autem improprie et secundario, quia non nisi in respectu ad alterutram duarum veritatem."
181
another. Ultimately, the delegation implicit in all power must terminate in either God as Supreme and First Power or in some man who assumes that role and thus divinizes himself and his power. Power is always delegated. This last is integral to the Orsian proposition and the recognition of a delegated power implies the recognition of causality. The only way to avoid tracing all power back to God is to suppress the concept of cause, says d'Ors. But the very notion of cause is so ingrained in man that its suppression can only be arbitrary. Even Hume would agree with that proposition. Although all recent political theology insists on the impossibility ofprescinding from the religious substratum holding up every political order, this theorizing tends to dissolve into what d'Ors calls "metaphor," some vague recognition of a shadowy divinity floating behind every polity. This lacks the existential concretion needed to soundly base political power upon a genuine natural foundation. What is demanded is a basis truly theological and dogmatic, hence existential: the Kingdom of Christ as the actual and historical Incarnation of the Kingdom of God on earth. Christ, being King, is "the originating Power" of all other powers which are delegated by Him. All other supposed "sovereignities"-be they autocratic or constitutional, oligarchical or democratic, even monarchical-are delegated powers. These Powers are called to obey Him and His Law because their Power has been given them. Professor d'Ors' realism, emphasized earlier, could not be more powerful. There has never been a political order that did not anchor itself in some divinity. This may offend secularists but the historical truth is massive. Ultimate Authority, wheresoever we might find it, reposes in some Divine Principle-even fake divine principle-which validate everything else. In an ironic and somewhat wry colophon ending his last work, Violence and Order, d'Ors advises perplexed librarians to catalogue his book under the rubric of "Political Theology." After all, he was the librarian of the University of Navarre for many years. Possibly our author's final-but certainly only his final-critique of liberal democracy is the impossibility of harmonizing national, "statist," sovereignty with the Catholic doctrine of the Sovereignty of Christ the King. When the will of the people is divinized, God is dethroned. The history of modern Western man could be written illuminated by that very proposition. The denial of the Authority of the Christian God-and there is no other-always implies investing whatever secular authority emerges as ultimate with a kind of fake or quasi-divinity-such as the "authority" of the democratic ethos which cannot be attacked in respectable circles and which hence takes on the aura of "the holy." But only God is Holy from whence comes all holiness. Behind Alvaro d'Ors, the jurist and the careful scholar, the quintessential
58 59
58. La violencia y el orden, 50-52.
59. Ibid., 135.
182
academician, there lies that young man who took up arms for the sake of Christ the King, a requet of the Spanish Tradition who said "no" with thousands of others when Spain was swamped by Communist hatred and violence. I can do no better in concluding this introduction to the thought of Professor Alvaro d'Ors than cite his final words to his latest book, La violencia y el orden. It rings with the memories of a man who took up a cross which was a sword a half century ago:
Through an experience under arms reaching back a half century in a war which was not a civil war but a crusade, political theory has never ceased being for me in my intellectual life something constantly woven into my work, stitched into the historical and juridical themes imposed upon me by my profession. I have given here, in a resume, the results of these reflections, and I must recognize that the first spur of everything I have been able to write or could write is that cry of `Long Live Christ the King!' on whose lips died so many of my companions in The Crusade, as well as so many other victims of terror, many of them martyrs. This was not simply a cry of Faith and of bravery in moments of an heroic sacrifice, but something more profound as well: an affirmation of the first principle for any Christian political theory. For me this has been a high message which I could not permit to be forgotten. 60
There then follows his dry advice cited above to libraries and librarians to list his "little book " on a shelf called "Political Theology." University
of Dallas
FREDERICK D. WILHELMSEN
60. Ibid.
Bibliography
All citations to d'Ors' works are from first editions unless otherwise noted. Translations from the Spanish are my own. All works cited are those of Professor d'Ors unless otherwise indicated. -De la Guerra y de la Paz ( Madrid: Rialp, 1954), 217 pp. -Papeles del of cio universitario ( Madrid: Rialp, 1961), 356 pp -Escritos varios sobre el derecho en crisis, Cuadernos del Instituto Juridico Espanol 24 (Roma-Madrid: CSIC., 1973) 165 pp. -Ensayos de Teoria Politica (Pamplona: EUNSA, 1979) 306 pp. -Nuevos papeles del officio universitario ( Madrid: Rialp, 1980) 495 pp. 1943: Presupuestos criticos para el estudio del Derecho Romano (Salamanca: CSIC, 1943), 150 pp. 1945: La teologia pagana de la Victoria legitima, Boletim da Faculdade de Direito (Coimbra, 1945); Tres temas de la Guerra Antigua, Arbor 20 (1947), 185-202; De la Guerra y de la Paz, 69-88. 1947, 1: Silent leges inter arena, Arbor 20 (1947) 155-170;De la guerra y de la Paz, 23-44.
THE POLITICAL PHILOSOPHY OF ALVARO D O ORS
183
1949,
1950: 1951:
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184
1964,
1965,
1966,
1968,
1969,
1970,
1971:
1972,
1973,
1974,
Derecho, 161-186. 1: Filologia y Derecho Romano, Actas del II Congreso espanol de Estudios Clasicos ( Madrid: Sociedad Espanola de Estudios Clasicos, 1964), 191-213; Nuevos papeles, 165-191. 2: Autoridad y potestad, Lectures Juridicas 21(1964), 23-35; Foro Gallego 131(1966), 255-265; Escritos varios, 93-105. 3: Las declaraciones juridicas en Derecho Romano, AFIDE 34 (1964), 565-573. 4: Le origini romane della collegialita, Studi Cattolici 43 (1964), 25-31; En torno a las raices romanas de la colegialidad, en El Colegio EpiscopalI (Madrid: CSIC., 1964), 5770; Tres estudios sobre la colegialidad episcopal (Pamplona: EUNSA, 1965), 15-30; Ensayos de Teorla Political, 95-109. 1: Sobre el no estatisnw de Roma, Estudios Clasicos 44 (1965), 109-164; Atlantida 19 (1966), 82-88; Ensayos de Teoria Politica, 57-77. 2: Simbolismo ancestral, La Actualidad Espanola de 24-VI-1965. 3: La signification de l'oeuvre d'Hadrien clans l'histoire du droitromain, Les empereurs romains d'Espagne (Paris: CNRS., 1965), 147-161. 4: Seneca, ante el Tribunal de la Jursiprudencia, Estudios sobre Seneca ( Madrid: CSIC, Instituto de Fllosofia Luis Vives, 1966), 105-129; Nuevos papeles, 192-224. 1: Politica en la Universidad, La Actualidad Espanola de 5-V-1966. 2:Volgarismo giuridico odierno, Bollettino informativo dell'Istituto giuridico spanolo in Roma 53-54 (1966), 3-14; Antologia giuridica romanistica ed antiquaria I (Milano: Giuffre, 1968) 287-302; Lecturas Juridicas 36 (1968) 5-12; Escritos varios, 27-34. 1: La ley ronianris acto de magistrado, Emerita 37 (1969), 137-148; Nuevos papeles, 312-329; Das romische Gesetz als Akt des Magistrats, Epirrhosis Festgabe fur C. Schmitt (Berlin: Dunker-Humblot, 1968), 313-323. 2: DerechoPrivadoRomano (Pamplona: EUNSA, ed. de 1968,1973,1977,1981,1983, 1986), 542 pp. 1: Retrospectiva de los XXV anos, Atlantida 42 (1969) 620-627; Retrospectiva en las bodas de plata con la catedra, Nuevos papeles, 147-160. 2: La formazione universitaria del giurtsta, Bollettino informativo dell'Istituto giuri dico spagnolo in Roma 59-60 (1969); 3-6. 3: Sistema de las Ciencias I (Pamplona: EUNSA, 1969), 88. 1: Sistema de las Ciencias II (Pamplona: EUNSA, 1970), 104 pp. 2: Derecho es lo que aprueban los jueces, Atlantida 45 (1970), 233-241; Escritos varios, 45-54. La perdida del concepto de excepcin a la ley. Preleccin de 1971, Escritos varios, 147159; La perdua del concepte d'excepcio a la llei, Llibre del II Congres Juridic Catala (1971). 1: Ministerium, Teologia del Sacerdocio 4 (Burgos, 1972), 317-328; Escritos varios (Addenda a Autoridad y Potestad), 105-107. 2: El problema universitario espanol: cambio de estructura o cambio de conducta? (Oct. 1972) (Pamplona, 1972) 8 pp.; Nuevos papeles, 106-115. 3: El regionalismo juridico, Boletin del IlustreColegio de Abogados de la Coruna 7 (1973), 1-9; Escritos varios, 75-86; una version gallega Estudos de Dereito Civil de Galicia (La Coruna: Sept, 1973), 239-248. 1: Derecho y Ciencias Sociales, Escritos varios, 19-26. 2: Lex et ius en la experiencia romana de las relaciones entre auctoritas y potestas, Escritos varios, 87-92. 3: Hacia un nuevo Derecho Comun, Inchieste dei Diritto Comparato de Mario Rotondi II (Padova: CEDAM.;1973), 175-177; Nuevos papeles, 361-365. 4: Inauguratio (Santander: Publicaciones de la Universidad Internacional Menendez Pelayo, 1973) 36 pp.; en Ensayos de Teoria Politica, 79-94. 1: Sistema de las Ciencias III (Pamplona: EUNSA, 1974), 150 pp. 2: Launiversidad espanola en los ultimos 25 anos. Nuestro Tiempo 246 (1974), 24-49;
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1975: 1976,
La universidad espanola de 1943 a 1973, Nuevos papeles, 81-105. Notas para una recension de Jose Zafra Valverde: Poder y Poderes (Pamplona: EUNSA, 1975) (inedito). 1: Una introdueein al estudio del Derecho ( Universidad de Valparaiso, Chile 1976 y Rialp, Madrid, ed. de 1976, 1979 y 1982).Una introducein al estudio del Derecho
(1963).
1977,
1979,
2:Autonomia de las personas y senoria del territorio Preleccin de 1976, Anuario de Derecho Foral 2 (1976,) 9-24; Ensayos de Teoria Politica, 241-260. 3: Teologia Politica: una revisiOn del problema, Revista de Estudios Politicos 205 (1976), 41-79; de las Ciencias IV, 86-135. 1: Una releccin del fascieulo I, Sistema de las Ciencias IV, 9-76. 2: Derecho, Politica, Organizacion, sociologia: un ensayo de ubicacin sistematica, Estudios en honor del Prof. Cort. Grau (Valencia, 1977), 89-99; y Ensayos de Teoria Politica, 13-28. 1: Tiranicidio y democrdcia, Ensayos de Teoria Politica, 193-199. 2: Las traducciones de exousia en el Nuevo Testamento, Ensayos de Teoria Politica, 3: Legitimidad, Ensayos de Teoria Politica, 135-152. 4: El problema de la representacin politiea, Ensayos de Teoria Politica, 223-240; Revista deDerecho Publico ( Universidad de Chile) 28 (1980), 11-25. 5: Doce proposiciones sobre el poder, Ensayos de Teoria Politica, 111-121. Belagua. 6: Caput y Persona: Comunicacin al I Simposio Internacional de Teologia, Etica y teologia ante la crisis contemporanea (Universidad de Navarra, 1979), 251-253; Nuevos papeles, 377-381. 7:La formacion de ius novum en la epoca tardoclasica, Revista de Estudios Historico Juridicos 4 (1979), 35-59; Nuevos papeles, 225-248. 1: Universidad y sociedad, Nuevos papeles, 17-37: 2: Esas reglas que ley no deroga (A proposito de una sentencia laboral espanola , La Ley (Buenos Aires) 62 (1980), 1-4. 3: rec. de Filippo Cancelli; Ed. trad. introd. di M. Tulio Cicerone, Lo stato (Firenze: Mondadori 1979), en SDHI. 46 (1980), 574-593. 4: Los imperativos legales, La Ley ( Madrid) 28 (1980), 1-4. 1: El Epistolario de Capograssi, Verbo 199-200 (1981), 1152-1168. 2: Autarquia y autonomia, La Ley (Buenos Aires) 76 (1981) 1-3. 3: Retrospectiva; La Ley (Buenos Aires) 153 (1981), 1-3. De nuevo sobre la ley meramente penal, La Ley (Buenos Aires) 200 (1982), 1-3. La nueva idolatria, Verbo 217-218 (1983), 799-814. 1: Auctorita-authentia-authenticum, Apophoreta philologica. Homenaje, al Prof. Fernandez-Galiano. Estudios Clasicos 88 (1984), 375-381. 2: Cicern: sobre la Republica. Introduccin, traduccin, apendice y notas (Madrid: Gredos, 1884), 193 pp. 3: Objetividad y Verdad en Historia, Verbo 223-224 (1984), 315-336. 4:Cuarenta an"os despus (una reflexion sobre la crisis de la Universidad). 5: Derecho y ley en la experiencia europea desde una perspective romana (not published). 1: Cambio y Tradicin, Verbo 231-232 (1985), 113-116. 2: IntroducciOn civil al Derecho Canonico IV : De corpore ficto et repraesentato, capitulos 2 y 3. 3: Preleccion jubilar (Publicaciones Universidad de Santiago de Compostela, 1985), 33 pp. 4: El profesor (Published as an appendix to Domingo's study). 5: Potestad y autoridad en la organizacin de la Iglesia (a proposito deuna importante tesis doctoral), Verbo 235-236 (1985), 667-684. Las sugereneias del Sinodo de 1985, Verbo 245-246 (1986), 545-555.
123-133.
1980,
1981, 1982: 1983: 1984,
1985,
1986:

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144

THE POLITICAL SCIENCE REVIEWER

The Political Philosophy of Alvaro d'Ors

THE POLITICAL PHILOSOPHY OP'

ALVARO D ' ORS

2. De la Guerra y de la Paz, 195. 3. Forma de Gobierno y Legitimidad Familiar, 12.

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16. Ibid., 19. 17. Ibid., 19-20.

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TIDE POLITICAL SCIENCE REVIEWER

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40. Doce propositiones sobre el poder, 120.

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58. La violencia y el orden, 50-52.

59. Ibid., 135.

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1955: 1956: 1957: 1959,

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1981, 1982: 1983: 1984,

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