More than mere values

This chapter begins to connect modern cultural identity to the ‘person’ that bears its values and enacts its virtues. There is an in-baked philosophical anthropology in the triad of consent, equality, and autonomy that I expose for examination here. Then I interrogate this ‘person’ throughout the remainder of the study, both in its natural and corporate forms. The final part of this book is an extended analysis and assessment of this ‘person’. Beginning in Part II, I proceed by assuming that modern values and virtues take this anthropology for granted as if it were a natural kind. It is needed for the values and virtues to make sense. I first, then, must establish that it even exists. Then I can draw some of its contours.

I shall do this by extending my initial analysis of the values and virtues from the previous chapter to the point where they call for being spoken about in personal terms. ‘Personal’ here means two distinct things. First, they are talked about as, say, beliefs or actions, of specifiable if not also specific persons. Second, they must be spoken about in general terms of a certain philosophy of the person. I will then lay out some of the direct and implicit claims about said person(s). These are metaphysical, ethical, political, and epistemological claims. Implied here is that the modern axiological and anthropological shifts also involved changes to—and often revolutions in— the major areas of philosophy. These changes did not remain locked away in treatises. The new philosophies are evinced in the social practice of ordinary modern persons.

These three parts of modern cultural identity, and thus the egalitarian constitution, are notably both experiential categories and conceptual ways of speaking about reality. They can range across human experience. Each also determines possible obligations or ways of deriving obligations on both sides of the personal/public divide. For instance, when there is social agreement that personal autonomy is to be supported, a shared moral language emerges. This might include great focus on the free will of the parties involved. Contractual language then fills moral conversations with ‘consent’ and ‘intention’, as well as those common words for formal concepts like duress, coercion, and mistake. Once formalized legally, autonomy manifests itself as claims to rights, protections, welfare, and freedoms. It might, for instance, involve positive freedoms of universal education and healthcare, a robust welfare state and advanced human rights or similar, plus the universal franchise. Those are all on the side of the person as citizen or subject. The

55 state’s—and along with it, society’s—adherence to laws that protect others from harm or certain kinds of unfairness, ensuring negative freedom for the autonomous persons, is another aspect.1

These values, manifested in law and as law-like customs, virtues, and dogmas, create imperatives for personal action, both individual and corporate. They should thus also be psychologically accurate descriptions of what is required of modern persons in daily life. Where this is the case, they are not received as moral imposition, but as natural features of the human world— being good, fitting, proper, and right. When there is such harmony, neither the Right nor the Good needs to be given precedence, for both converge. There is then little sense in talking of ‘imposing obligations’ or ‘legislating’ morality, about which a little more will be said. Finally, the one metaphysical assumption of the modern constitution is addressed, along with its related revolutions in philosophy.

Virtues

Virtues, at least in the Aristotelian tradition, are dispositions for human action, habits of doing the right thing for the right reason at the right time. Of course, that makes virtue relative to the right. If ‘right’ is grounded in something higher than convention, then virtue would be based in the good, as understood by a given society. For Aristotle, the good was anthropologically anchored. This is also true for moderns. The difference between the two lies in what each understands the human being and his good to be. If being modern implies being disposed to acting according to the three values as both right and good, then there are all sorts of modern virtues that could be derived just from equality, autonomy, and consensualism. These would, under most normal circumstances, usually remain unnamed or implied only by their corresponding vices.2 _{However, simply because there is no name for a virtue}

1 _{Although it is routinely denied, John Rawls’s philosophy of ‘justice as fairness’ would seem to}

enforce a minimal understanding of autonomy as the sovereign virtue, with harm and fairness as the measures of whether autonomy is being respected. The terms ‘person’ and ‘society’ in his understanding of ‘political ideals of person and society’ are Trojan horses for autonomy to be the leading virtue by means of the inability of anyone to opt out of ‘principles of the political conception of justice’. Cf. Justice as Fairness: A Restatement, §47.4. He becomes the main exemplar later in the chapters on equality.

2 _{We humans are generally much better at naming the bad than the good. Consider only how well}

Hell is described, and how weak all descriptions of Heaven seem. Compare Dante’s Inferno to his Paradiso.

56 or its corresponding vice, this does not in any way preclude it from being an important part of ethical life.3

But then there is a third aspect regarding habitual disposition. When modern values are understood to underlie a system of virtues, habits involving consensual obligations, equalitarian policies, and the promotion of autonomy ensue. When we say, ‘It is not a modern country’, we tend to mean that it is deficient not only in modern nomoi and dogmas, but that the dispositions to action are not modern. Imagine, for instance, a modern nation that had a modern constitution and had the belief that it should follow the first principles upon which the constitution could be said to rest, but this nation was incontinent in its actions. It has not developed a modern disposition. If it had, then its natural reaction when legislating or engaging in foreign policy would have also become modern. Latin America is full of such states: Mexico has nearly a photocopy of the United States’ Constitution as its own constitution. But the differences in state action are stark.

One can imagine other corporate persons and natural persons similarly being modern in all ways but adherence to the virtues. Hypocrisy, however, ‘is a tribute that vice pays to virtue.’4 _{Nomoi are socially enforced customs.} Dogmas involve personal conviction and belief. Virtue is the hardest, since it requires habitual action reconciling the latter with the former. As clear as custom can be, and as certain as dogma is, it is still not always clear how one is best meant to act in a given circumstance. Virtue is difficult in any system where it is taken seriously. This is true even when the customs, dogmas, and virtues are united, and all descend from the same shared values (as with the modern). Am I meant to be an egalitarian in all my relations? Or can I place my child’s personal autonomy above other considerations? Should consent trump equality and personal autonomy (freedom from unwarranted harm) when someone wants to sacrifice his life for another?

To distinguish virtue from nomos sufficiently, it should be remembered that nomoi have the psychological force of mores; whereas virtues are the dispositions to action in line with those mores: when virtues are defined as acting ‘at the right time, for the right reason…’, that reason can be a nomos; the sense of it being the right time for a certain action can also be related to a nomos. This indicates the relativity of virtue-ethics as a systematic engagement with human action. It is as relative to culture and place, as to the truth and the Good. It is true that nowhere is injustice confused with justice.

3 _{In his Ethics, Aristotle himself names and refers to unnamed virtues of such and such description.} 4 _{François de La Rochefoucauld, Refexions Morales (1692).}

57 However, in some places ‘treating others with equal moral consideration’ is seen as a virtue, with ‘patronizing others’ and ‘treating others with unequal consideration without reason’ as the two opposing vices. In other places or times, equal moral consideration could be seen as a vice.

More than just a set of values, together the modern trinity presents a positive vision of the good that calls for persons to instantiate and extend that vision through their dispositions for action. The temptation is to imagine it as a ‘meme’, if that concept were not itself fatally flawed. Persons self- consciously want to replicate modern values because they believe that these values are as real as genes, and certainly more important to busy themselves with. Genes are mostly out of our control. Values are the very stuff of our daily decisions. There are obvious sets of twinned vices which are either deficiencies or excesses of the virtues of consensualism, ‘the practice of equality’5_{, and autonomous living.}

Nomoi

In this study, the three values of modern cultural identity will occasionally be addressed in their law and law-like relations through the broader concept of ‘nomos’. ‘Nomos’ will be the word that I use for ‘law’ in this broadest sense, except where ‘law’ or ‘custom’ communicate the concept better. Nomos is an ancient Greek word meaning ‘law’, ‘custom’, ‘mores’, and other related concepts. The nomos/phusis debate amongst the ancient Greeks brings it into relief. Physis can be understood to be ‘nature’ and its laws. What man adds in terms of law is nomos. Hesiod said that the nomoi are what distinguish man from animals. Different nomoi, would be what distinguishes one group of men from another. Conceptually, I use ‘nomos’—without italics—for a set of customs, habits, mores, and morals that regulate and order a way of being for persons. It is a system of Right grounded in the Good. The Good that it is grounded in need not be self-consciously part of the reasons for adhering to the nomos. ‘Nomos’ is the word for the system of rules, as well as the word for a single rule. The plural stands in either for multiple systems of Right or many rules of order within what could be called a culture. In that way it functions much like the words ‘moral’ and ‘morals’.

Any given nomos is not necessarily formalized into a code or codification. Many codifications or codes of conduct, however, are based in particular nomoi. Modern nomoi encompass the relevant parts of law and law-like

58 relations that specifically differentiate being modern from other ways of being in the world. This holds true both as it is experienced by modern persons— whether individually or as part of modern institutions—and as it is understood by scholars.

Modern nomoi are mapped onto the cardinal modern values: equality (universal equality of persons) as the default moral position in modern political constitutions; consensualism, as the only route to a priori morally binding political obligations as the binding force of law (it answers the question ‘Why am I morally bound to obey the law?’ often with a social contract); and personal autonomy, understood as ‘being an end in oneself’, as the point of departure and goal for moral action, both personally and politically.

These nomoi bridge the experience of personhood, the definition of what a person is (or conceptualization of what persons are), and the experience of law and lawmaking (as the ratio within the law), as well as the limits and the understanding of what the law is, at least insofar as it can be said to obligate morally. And they are as true for institutions that want to be considered modern as they are of individuals who self-understand as modern.

Approaching the topic with the conceptual framework of nomos allows the academic discussion also to include the lived experience of the person amongst other persons. That is where nomoi become imperatives, moral values, as well as the justification for moral obligations. Being appealed to in social, psychological, and legal discourses, they become metaphysical anchors in the world of persons, to which other concepts or entities can be tied down. Adhering to or living with(in) a nomos has many consequences, including that which could broadly be called anthropological consequences: nomoi are ‘designed’ for certain kinds of constitutions, and vice versa (egalitarian nomoi for democratic constitutions).

I chose nomos chiefly for the precision and accuracy of the term. In the first case, law in its broadest signification could mean either a description of regular action or an imperative for action. Nomos, too, is able to bear such meanings. Secondly, in modern parlance we speak of the ‘laws of nature’. There is an impersonal aspect of those laws as descriptions of regular non- volitional activity. Such a use of the word ‘nomos’ would not be likely for the Greeks who invented it. Custom was usually opposed to nature, famously in the nomos/phusis debate. And the nomoi—the law and law-like customs and traditions—were built atop nature (or, so contended one side of the debate). Sometimes they were constructed even in opposition to ‘nature’ in the

59 descriptive sense, but for the sake of ‘nature’ in the teleological sense. In virtue ethics, for instance, weak natures were made virtuous by that process of building a ‘second nature’ with the crooked timber that nature had provided. If nomos comprises the law and law-like customs as well as traditions that bridge self and society, then ‘modern nomos’ should describe a

culture of law and personhood that obtains when certain nomoi are in place. In the broadest sense this is a culture of ‘right preceding the good’, which is built atop an ostensibly naturalistic natural world. God is absent, dead, or exiguous to its functioning.

Why use a Greek word? Some of the reasons for my preference for the Greek word nomos over its insufficient English near-equivalents should by now be apparent. As Boethius notes in his discussion of persons in Contra Eutychen, Greek does not lack for words. I would have preferred simply to use the word ‘law’—that is, if its non-legal connotations were closer to the surface meaning, as they are in ‘natural law’ or ‘moral law’. ‘Law’ has in the modern age come nearly to mean ‘positive law’ (for reasons not unrelated to the modernization and secularization6 _{of law). ‘Modern law’ as a title also seemed} insufficient. It suffers not only from the aforementioned positivist limitation, but it also has no obvious content. For some scholars it refers to positive law after the French Revolution or following nineteenth-century European codifications; whereas for others it was law in the age of human rights and modern international law; and, again for others, it is ‘our’ law as opposed to historical law. ‘Nomos’ has the initial advantage. It neither suffers from a handicap of meaning nor is it completely idiosyncratic in its senses.

Lastly, I am not only borrowing words and concepts from the ancient Greeks but also from the sociology of religion. There the term ‘nomos’ was introduced into academic discourse in senses that I have here followed.7 Although nomos as a concept becomes thicker in this book than the original

6 _{In this book, I have little to say about secularization per se, or as it relates to modernization.}

Although, it has to be said that the experience and theory of being modern is very much involved with questions of religion, especially in self-understanding and the content of the law. Nevertheless, I anticipate that what I am doing is at one time both more meta-level than the social facts of religion and more personal than religion. If ‘faith’ is meant by ‘religion’, I respond that any specific personal faith or belief is far too particular for the nature of my argument, which could equally apply to Jewish, Christian, or Neopagan faiths, so long as the persons of those faiths are also moderns. The removal of the heteronomous relation either to God or religion is more to the point. I return to it in the chapters on autonomy.

7 _{Peter L. Berger, The Sacred Canopy: Elements of a Sociological Theory of Religion, especially the chapter}

‘Religion and World-Construction’. Giorgio Agamben has used nomos idiosyncratically in his Homo Sacer, ‘The Camp as the “Nomos” of the Modern’ 166-80.

60 Greek term, the Greeks still play their part. Although I do not venture too far from the original meaning, since many examples are drawn from their ancient political communities and thinkers.

First principles and Dogmas

The three cardinal values involve not only the structures and laws, but also serve as motivation for belief and moral action. Equality, consent, and autonomy are necessary to explain a great deal of modern cultural identity— and thereby the modern constitution—in a logically and psychologically

convincing way. As first principles8_{, these values have a creedal character,} both for the faithful and for the heretics that oppose them. If I were to believe that ‘All men are created equal’ or ‘freedom is the essence of man’, I would act with those as moral knowledge—literally, as conscience—and thus as the reason for my action. And I would merge them synthetically wherever possible, perhaps so that ‘every person has equal (similar) access to the provisions that make freedom realizable’.

These values are self-evident enough now for modern man that they have the character of first principles, or ‘ethical premises’.9 _{He also knows that} these were not always treated as first principles: they were discovered at some point. Which is not inconsistent with their being true, and universally valid, and self-evident. Mathematics, too, was once unknown to us. It was always true. We can easily and proudly concede this, especially as we moderns believe we were the ones to discover these truths.

The trouble is that they are not necessarily first principles at all. They require either argumentation or a leap of faith to establish them. Since they