Wolfgang Waldstein’s Jurisprudence

Wolfgang Waldstein with Cardinal Erdő in Hungary

Ius & Iustitium is a new blog on legal and juridical matters associated with The Josias. I was very happy to be able to get a text posted there by my grandfather, Wolfgang Waldstein: “The Significance of Roman Law for the Development of European Law.” I believe that my grandfather exemplifies precisely the sort of realist common good jurisprudence, founded on the natural law and enriched by the centuries old tradition of the application of natural law in the Roman law and the legal traditions based on Roman Law that Ius & Iustitium is trying to promote.

Wolfgang Waldstein at the summit of the Dachstein

Racial Justice and Social Order

Do we Live in a Society? This question came up in a recent Josias Podcast episode. Serious doubts were raised about whether we do. The discussion focused on the United States, where my interlocutors live. I lived almost half of my life in there, but it has now been almost 14 years since I left. In another sense, however, as a German rock band says, “we’re all living in Amerika.”

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Adrian Vermeule’s Brilliant Essay on Common Good Constitutionalism

The Havard jurist Adrian Vermeule has published a brilliant essay in The Atlantic arguing that American conservatives should move beyond the legal philosophies that dominated the rearguard of the long defeat to hard liberalism, and adopt a jurisprudence of the common good. Vermeule’s common good constitutionalism shows a deeply Augustinian and Thomist of the educative and directive function of law in helping human beings come to the common life of virtue in peace for which they all yearn (even if they don’t all know it):

unlike legal liberalism, common-good constitutionalism does not suffer from a horror of political domination and hierarchy, because it sees that law is parental, a wise teacher and an inculcator of good habits. Just authority in rulers can be exercised for the good of subjects, if necessary even against the subjects’ own perceptions of what is best for them—perceptions that may change over time anyway, as the law teaches, habituates, and re-forms them. Subjects will come to thank the ruler whose legal strictures, possibly experienced at first as coercive, encourage subjects to form more authentic desires for the individual and common goods, better habits, and beliefs that better track and promote communal well-being.

Michael Hanby, in a recent essay on contemporary integralists (including Vermeule, Gladden Pappin, and me) in First Things, warns that “today’s integralist thought risks degenerating into a conservative Catholic form of Hobbesian power politics.” But Vermeule’s essay shows him to be anything but Hobbesian. Hobbes had a purely subjective and private account of the good: “whatsoever is the object of any mans Appetite or Desire; that is it, which he for his part calleth Good.” Therefore, he thought that there could be no last end or highest good rendering human life intelligible: “Felicity is a continuall progresse of the desire, from one object to another; the attaining of the former, being still but the way to the later.” For all of Hobbes’s totalitarian conception of the commonwealth, then, the end of his political philosophy is deeply individualistic: the security of each individual in the pursuit of his private desires. Vermeule, by contrast, having an objective understanding of the good sees that the end of politics (and therefore ultimately of jurisprudence) is a common good:

Authority is held in trust for and exercised on behalf of the community and the subsidiary groups that make up a community, not for the benefit of individuals taken one by one.

It follows from this that Vermeule sees the state as being obligated to give subsidium to smaller communities in which true common goods are attained:

The state is to be entrusted with the authority to protect the populace from the vagaries and injustices of market forces, from employers who would exploit them as atomized individuals, and from corporate exploitation and destruction of the natural environment. Unions, guilds and crafts, cities and localities, and other solidaristic associations will benefit from the presumptive favor of the law, as will the traditional family; in virtue of subsidiarity, the aim of rule will be not to displace these associations, but to help them function well.

I could go on, but I would end by quoting every line of the essay, which I urge my readers to go read.

Conversation in Plague Time

The unknown guide continued to remain; and without appearing to have any business to detain him, lingered to talk a little more with Renzo, and resumed the conversation about bread.

“If I had the control, I would order things better,” said he.

“What would you do?” said Renzo, endeavouring to exhibit every appearance of attention.

“What would I do? Every one should have bread—the poor as well as the rich.”

“Ah! that is right.”

“See how I would do. I would fix a reasonable rate within the ability of every one; then bread should be distributed according to the number of mouths, because there are gluttons who seize all they can get for themselves, and leave the poor still in want. We must then divide it. And how shall we do this? Why in this way. Give a ticket to every family in proportion to the mouths, to authorise them to get bread from the bakers. For example: they give me a ticket expressed in this manner; Ambrose Fusella, by trade a sword cutler, with a wife and four children, all old enough to eat bread (mind that); he must be furnished with so much bread at such a price. But the thing must be done in order, always with regard to the number of mouths. For instance, they should give you a ticket for—your name?”

“Lorenzo Tramaglino,” said the young man, who, enchanted with the project, did not reflect that it all depended on pen, ink, and paper; and that the first point towards its success was to collect the names of the persons to be served.

Manzoni, The Betrothed.

Marx’s Fundamental Insight into Capitalism

I have been thinking about the way MacIntyre uses Marx in Ethics in the Conflicts of Modernity. He says a couple of times that Marx’s key insight into capitalism is the theory of surplus value. But it seems to me that what MacIntyre’s argument actually shows is that it is Marx’s insight into the way use value is subordinated to exchange value that is really the key insight. The two are closely related, but I think they are distinguishable.

The account of the subordination of use value to exchange value is something that Marx develops out of his reading of Aristotle (as I have discussed before). He contrasts the case where one exchanges good (C) for money (M) in order to buy other goods that one needs (C-M-C) with the case where one exchanges money for goods in order to exchange them for even more money (M-C-M’).

Capitalism is set up to get you M-C-M’. That is it is set up to increase exchange value and use value is produced for the sake of exchange value. So that equation is an expression of the subordination of use to exchange. According to Meikle, whom MacIntyre cites, this is the true essence of capitalism:

In order to capture the difference between capitalist economy and pre-capitalist ‘economy’ the distinction required is that between use-value and exchange-value. The most fundamental question to be asked about a society is which of these predominates in it. A capitalist society is predominantly a system or exchange-value; economics is the study of the developed forms of exchange-value and of the regularities in its movement, or ‘actual market mechanisms,’ and it can come into being only with the appearance of full-blown market economy, that is, with markets in labour and capital, Antiquity was predominantly a system of use-value, partially administered, and if it had regularities, these were nothing like the cycles, laws, and trends which characterize a system of exchange-value.

I think he is correct.

Of course, the theory of surplus value is meant to explain where the increase in value comes from that gives you M’ in the equation. Marx thinks it comes from exploitation, and this is the essence of capitalism.

Doubtless, there is a lot of exploitation going on in capitalist economies, and this is a great injustice. But it seems to me that Marx’s account of exploitation is too simplistic. Moreover it is hard to reconcile with the teachings of Rerum novarum and Quadragesimo anno on the cooperation of productive property and labor:

Hence it follows that unless a man is expending labor on his own property, the labor of one person and the property of another must be associated, for neither can produce anything without the other. Leo XIII certainly had this in mind when he wrote: “Neither capital can do without labor, nor labor without capital.”[Rerum novarum] Wherefore it is wholly false to ascribe to property alone or to labor alone whatever has been obtained through the combined effort of both, and it is wholly unjust for either, denying the efficacy of the other, to arrogate to itself whatever has been produced. (Quadragesimo anno §53)

So the most fundamental insight into capitalism is not the theory of surplus value, but rather the theory of the relation between exchange value and use value on which that theory is based. It is this relation that supports the lust for money through social pressure. And then in order to satisfy that lust for money it has to create fake needs in consumers, propagating a false image of the good life. As MacIntyre puts it:

[W]hat agents learn from both success and failure in market transactions is the importance of increasing whatever money they have, by selling for as much as possible, by buying as cheaply as possible, by saving, and by investing, and this no matter how much money they may have already. So they learn to want more and then more and then more and become consumed by their own desires. Moreover, it is by how good they are at increasing their stock of money that others measure their success or failure, admire them or withhold their admiration. So the trait that the Greeks called pleonexia, acquisitiveness, a trait that both Aristotle and Aquinas took to be a vice, comes for the first time to be treated as a virtue by large numbers of people and money becomes an object of desire, not only for what it can buy, but also for its own sake. Yet this is not all.
Every economic order is an order of producers who are also consumers and what distinguishes one such order from another is in part how those who inhabit it understand the relationship between their activities as producers and their activities as consumers. The paradox of capitalism is that, while it requires that consumption should serve the ends of expanding production, it imposes on many a way of life in which their work, their productive activity, is thought of as valuable only because it serves the ends of consumption. It creates consumer societies in which its products can be successfully marketed only if the desires of consumers are directed toward whatever consumable objects the economy needs them to want. So the seductive rhetoric of advertising and the deceptions of marketing become necessary means for capitalist expansion, means that shape and elicit desires for objects that agents qua rational agents, directed toward the ends of human flourishing, have no good reason to desire. (Ethics in the Conflicts of Modernity, p. 109).

The Pope’s Two Bodies: the The Weinandy-Farrow Thesis as Lancastrian Ecclesiology

In a recent article for The Catholic Thing, the Capuchin theologian Fr. Thomas Weinandy comes to some rather startling conclusions. He argues that Pope Francis is both the visible ruler of the Church on earth— as Vicar of Christ— but also at the same time the head of a ‘schismatic church’ which has separated itself from the Unity of the Una, Sancta, Catholica. Here are Fr. Weinandy’s words at length:

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St. Henry II

Today is the Feast of St. Henry II, the Exuberant, Holy Roman Emperor. At Mass this morning I used a chalice pall with his image. Sancte Henrice, ora pro nobis! St. Henry’s wife was also a saint: Cunigunde of Luxembourg. They are powerful intercessors for all married persons. It is said that Cunigunde was falsely accused of committing adultery, and so she demanded a trial by ordeal. She walked over red-hot plough-shares without harm, thus vindicating her innocence.

King Emeric of Hungary

In my monastery, Stift Heiligenkreuz, we have annual requiem Masses for our principal benefactors. Today was the requiem for King Emeric of Hungary, who gave us Kaisersteinbruch in West-Hungary in 1202 or 1203. Kaisersteinbruch was an important support of the monastery till 1912, when we sold it to the Imperial and Royal War Ministry. We used the proceeds to buy forests in Styria, which still support the monastery today. King Emeric’s gift has thus played an important role in enabling us to live the monastic life, and it is a fitting sign of gratitude that we have been offering the Holy Sacrifice for him annually for the past 815 years.