home  |  book  |  blogs  |   RSS  |  contact  |

Chapter 9:
Living Under Law

print view

[W]e may say that the movement of the progressive societies has hitherto been a movement from Status to Contract. —Sir Henry Maine

IN THE COUNTRY, people live under power.  In the city, people live under law.  To pass from the culture of the countryside with its power holding landowners and assimilate to the city with its laws and lawyers is the greatest challenge to the pilgrim on the road to the middle class.  It means going to a lawyer, instead of going for your gun.  It means having faith in the law to smoke out the perjurer, instead of smoking her.  It means ignoring the meddler instead of beating his brains in.  The challenge is dramatized in August Wilson’s Jitney, a play about life on the cusp of the transition from the culture of power to the culture of law. 

Jitney follows five men working jitneys, illegal cabs, out of a decaying storefront in Pittsburgh’s black Hill District.  The three older men are retirees, earning extra money with their automobiles.  Then there’s the young kid trying to get out of the projects, and the drunk, a once-skilled tailor.  The jitney station is run by Jim Becker, a retired steelworker from J&L. 

It’s a simple business.  Customers call in on the pay phone and the driver who’s been waiting longest takes the call and the fare.  The drivers drive their own cars and pay Becker a monthly fee. 

Becker is the poster boy for the American Dream.  He worked hard at the mill all his life, and now owns his own home with his wife of twenty years.  He’s a deacon at his church. 

But twenty years ago his son took up with a white girl, daughter of a vice-president at J&L.  Discovered in a compromising position by her father, she accused Becker’s boy of raping her.  Becker went to get a lawyer.  Becker’s boy went to get a gun and killed her.  Her son condemned to die, Becker’s wife stopped eating, withered away, and died. 

His hopes dashed by the disgrace of his son the murderer and the death of his wife, Becker soldiers on, marrying again, buying his own modest home, and becoming deacon of his church.  When his boy returns from jail full of rage twenty years later, his death sentence commuted, his father turns him away.  He cannot open his heart to the boy who stilled his mother’s heart and maintains, with the last shreds of youthful defiance, that he killed the girl so that they would have a real crime to pin on him.  Becker’s boy wanted to be a big man, not the small man his father proved to be when, two months late with the rent, he truckled to the shouting of his landlord.  But Becker kept his faith with the city, despite everything, and when the city wants to demolish the jitney station and his livelihood to make way for urban renewal, he still goes to get a lawyer, and not to get his gun.

Why should a retired black steelworker like Jim Becker have faith in lawyers?  Why should he come to believe in the law instead of the fist?  Perhaps even more remarkable than the faith in monotheistic religion, the transition from belief in the power gods of nature to the loving God of Christianity, is the transition from the culture of power to the culture of law.  It is a miracle for a man like Jim Becker to place his faith in the law.  When the state grabbed his gifted son, branded him as a murderer, and locked him away, Becker was faced with a choice.  He could continue his faith in the law against all his instincts of family loyalty, or he could throw it all up in disappointment and regress to the despair of alcohol or oppression politics, grumbling and raging from a bar stool against The Man.  That he doesn’t lose his faith, but stumbles on with life, buying his own home and becoming a deacon in his church, makes him into a saint.  For he renounces family, the tie of clan, in favor of society, the modern abstraction invented to replace the instinctive loyalty to blood and kin.

The difference between the culture of the countryside and the culture of the city is between power and law, between a clan ordered by instinctive tradition and power and society organized in self-conscious tradition and rule.  The country is ruled by instinct and power, the city is ruled by law and by purpose.  In the face-to-face society of the village, people lived in a time before ego.  They did not conceive of themselves apart from their collective identity in a family, clan, village, or as “the people” that had lived on their land since time immemorial.  Writing in the nineteenth century Sir Henry Maine had made this clear.  Ancient society was not, as we consider it today, “a collection of individuals... [It] was a collection of families.” (Maine 1972 p74)  The concept of family was close to the modern concept of corporation, as an entity “perpetual and inextinguishable.”  And people experienced their tribe as eternal, having occupied its land from the earliest times when it was first created by the gods.  Calling themselves “the People” they lived an unreflective tradition, “the Way” that represented the accumulated tradition of their tribe.  There was no right and wrong, but deviating from “the Way” was understood as madness.  The modern idea of “change” was meaningless, for people lived to propitiate the higher powers: the village elders or the angry gods.  Punishment for violation of “the Way” in ancient society was not executed on a guilty individual, but on a whole family.  This was done not as a punishment to “send a message” to would-be malefactors, but because the tribe experienced the family as a single entity.  The family was responsible for the actions of its members, just as a modern corporation is seen as being responsible for the actions of its officers and employees.  Kinship was considered the only possible basis for society.  A woman left her parents’ family upon marriage and entered the family of her husband.  The kinship concept extended from family to clan, and from clan to tribe.  The assumption was made, although it amounted in many cases to a legal fiction, that all members of a family, or clan, or tribe were related to a single ancestor.  Consanguinity, or the fiction of consanguinity, was the basis for successful society.

As the modern (and perpetual) corporation is ruled by a Chief Executive Officer, the ancient perpetual family was ruled by a Father.  The clan of which the family was a part would have its father, and the tribe its father.  These fathers led by power, their mana, the nameless, wordless power that people can sense and instinctively defer to.  It is the power that people sense when the President of the United States walks into a room.

The most well documented ancient father accessible to modern readers is the Roman father, who enjoyed an authority over his family known as Patria Potestas, the power of the father.  At the beginning of the Roman republic, his power included the power of life and death over his children, the right of uncontrolled corporal punishment, to give a wife to a son, to divorce children from the family.  So when the city of Rome was small, it still exhibited the culture of a village, a community of families.  But by the end of the Roman Empire, these rights had collapsed.  The right to corporal punishment had become the right to bring domestic offenses to a “magistrate; the privilege of dictating marriage [had] declined into a conditional veto.” (Maine 1972 p82)  The law had grown up and was now interfering with the traditional rights of the family and its father.  The city had developed its written law and its judges, and had displaced the traditional power of the father. 

In the face-to-face society, conflict was resolved by immemorial custom or by the village big man or the village elders.  But once the scale of human society transcended the limits of face-to-face society, as it did in many regions of the world in about 500 BC, and people began to experience themselves as egos, with identity separate from community, then something had to replace the unreflective tradition of the face-to-face society.  As Huston Smith tells the story, this new thing was created in the spiritual awakening of the Axial Age, when Confucianism, Buddhism, and Judaism all were founded with their specific and self-conscious articulation of the correct path for the individual ego in the Five Relationships, the Eightfold Way, and the Ten Commandments.  What all these new self-conscious traditions understood was that pure power, the ego power that had burst the bonds of face-to-face community, was a problem.  Human society, as it emerged from the face-to-face village community, could not be successfully carried forward solely by egotistical warlords who understood nothing but power.  The power of the unbridled ego that operates beyond the face-to-face society had to be limited by rules.

The Axial Age did not solve the problem of the unbridled ego for all time.  Its achievement was to record the problem of the unbridled ego as a great human drama, and to show that it was possible to transcend the heritage of unconscious tradition and also mitigate the brutal world of ego and power.  The doctrine of might-is-right could be transcended by a higher power that stood above all power relations and could judge the actions of the powerful.  This higher power was law, growing out of the twin cultural foundations of reason and literacy. 

Law is a city phenomenon.  It is in the city that the individual ego, the force that challenged the face-to-face society, is once more contained.  The law of the city responds to the breakdown in kinship as a basis of the good society and the rise of the individual ego.  It marks the decline of the perpetual family and the rise of the purposeful individual.  Law waits upon the birth of reason, the idea that the universe operates by rule in regular, predictable ways, and not at the will and prompting of familiar spirits.

Since the Axial Age, countryside and city have conducted a spirited dialog between power and law, between continuity and change, and between tradition and reason, demonstrating the profound difference between hierarchy and power in the country and law in the city.  In the country, the law of status and power always prevailed.  In face-to-face society the power of land and the influence of landowners were supreme.  In the city the power of land and money was everywhere diluted by the need to support the complex urban economy and its thousands of individual business transactions that extended far beyond the ability of any power elite to supervise.  And the relationship between power and law fluctuated as the city grew or declined.

The Roman Empire sustained an unprecedented expansion of cities and saw a remarkable expansion and differentiation of the law.  During the Republic the Romans developed the Twelve Tables, a codification that attempted to ensure that judges should be bound by a written code and not be free to make law on their own.  Over the centuries of the Roman Law, the basis of social relations progressively moved from membership in the family group to the individual in the city-state governed by the rule of law. 

But when the cities in Europe declined after the fall of Rome, a hierarchical, family-based social structure grew up in its place, the feudal system, that conceived social existence as hierarchical and group-based; the powerless owing allegiance to their liege lord and the powerful reciprocating with protection for his loyal follower.  The agricultural society seemed to demand a hierarchical status society based on power, just as the city had seemed to demand a rule-based society based on law.  In the feudal agricultural world, family is everything, because it mediates the access to land through the vital process of land inheritance, the sole means to survival and prosperity.  In the city, the family decays as other means of mutual support develop, and as the importance of inheritance declines, since the city lives by money and the exchange of goods and services, not by the fruitfulness of the land. 

The rise of the city over the last one thousand years has encouraged a move away from the power relations and the life-or-death struggle over land to the growth of law and contract.  The first to flourish, the cities of northern Italy—Venice, Florence, and Genoa—were all commercial hubs, with Venice and Genoa establishing naval empires in the Mediterranean and Florence becoming a major center of woolen manufacture and banking.  The most successful of these three cities was Venice.  It was also the city that developed the most secure and even-handed body of law to regulate its political and economic life.

The Republic of Venice that flourished from the end of the first millennium until its capitulation to the army of Napoleon in 1797 was an aristocracy.  Political power was vested in a few hundred noble families, and the framework of political institutions was designed to maintain those families in power.  But the Venetian nobles were merchants.  They lived by buying low and selling high.  Faced with the turbulence of trading in the Mediterranean, they built a polity based on rules and regulations that encouraged and supported the commerce that had raised their families to eminence.  Legislative and executive powers were vested in a web of committees and councils.  The chief executive, the Doge, was elected by a complicated series of committees for a life term.  His powers were limited by custom and by a promissione, an extensive oath of office that he pledged upon election.  The nobles all belonged to the Great Council, equivalent to a New England town meeting.  In between Doge and Great Council were numerous committees and councils, including a Senate, a Council of Forty, and a Council of Ten. 

At the core of Venetian prosperity was a fleet of ships that plied the Mediterranean, bringing cargoes from Constantinople, Palestine, and Alexandria through Crete, Negroponte, and Corfu, and up the Adriatic Sea to Venice.  These ships sailed mostly in convoys on regularly scheduled seasonal voyages.  Venetian merchants at each port purchased goods in anticipation of the next visit of the fleet.  A state scribe sailed with each ship to keep track of all cargo.  Merchants and investors collaborated in short term partnerships, called colleganze, and spread the risk of individual voyages among several individuals.  Because the Mediterranean was contested by several powers, the merchant fleet of galleys doubled also as a navy, and most ships were built by the Venetian state at its Arsenal along the waterfront from the Doge’s palace and the piazza San Marco.  The government and its councils were heavily involved in the regulation of commerce, from bidding for ships, prioritization of cargo, pay and working conditions of seamen and oarsmen, responsibilities of officers, and scheduling of voyages.  The government also regulated the bylaws of the numerous guilds and fraternal organizations that flourished in Venice, attempting to strike a balance between the encouraging of fraternal solidarity and the limiting of economic exploitation.

Consistently, century after century, the Venetians maintained their institutions and avoided a descent into tyranny.  At key crisis points, when power threatened to overcome law, law triumphed and the Republic endured.  When two noble families plotted to kill the Doge and seize power in 1310, Doge Gradenigo put down the rebellion.  When a Doge, Doge Falier, plotted to usurp absolute power in 1355, the Doge himself was put down.  Rumors of a plot forced the Doge Falier to call the Ducal Councillors to investigate.  When they discovered that Doge Falier was himself the center of the plot, they arrested him and his conspirators.  The accused were tried by a council of 35 and sentenced to death.  “All punishments were inflicted according to due process of law as then understood.” (Lane 1973 p182)  Although Venice suffered from plots among its ruling class, it never experienced a revolt from below.  In its last days, when French troops were looting and requisitioning in the Veneto, the common people rioted, shouting for “Marco! Marco!” the patron saint of Venice.

Law does not emerge in the city out of genius, or great leadership.  It emerges through necessity and through the painstaking accumulation of experience, as expressed in case law and legislation.  In the city, the merchants need a culture that honors the idea of a contract, and that rewards trust and honorable dealings.  They also need quick and fair adjudication of their disputes, because time is money.  And they need a system that is more or less self-regulating.  The accumulated network of rules and precedents allows these needs to be met.  The very complexity of the city demands a legal framework.  The complexity and the volume of commercial transactions, the division of labor through the law of comparative advantage, these things cannot be hammered into place by crude power.  Rules for a commercial republic need to be delicately chiseled out with patience and craftsmanship.

The city needs law like a plant needs water.  Its need springs from the birth of reason in the Greek triumph of 500 BC and the retreat of the gods to the periphery of existence.  With Greek science began the age in which the natural world began to be experienced as regular and predictable, subject to natural laws and not governed by the spirits of the gods that dwelt in every tree and animal.  If the natural world is not governed by divine caprice, the power of the gods, but by divine law, the genius of an abstract God who sets the world in motion, then man is no longer a helpless pawn of heavenly power games—the stuff of mythology—but a calculating creature who can influence events by planning and action.  Life is no longer a circular treadmill of eternal return, but a linear, directed effort towards a goal.  And if the regularity of “laws” can be discovered in natural events through discursive reasoning, then it follows that law can be discovered in human events.

Besides, the city is too big and complex for its ruler to decide everything.  Rulers and bosses are everywhere beset by underlings who are hanging around waiting for a decision on something.  A power hierarchy is hopeless at dealing with complexity and change. Just to prove it, the Russians attempted in the twentieth century to run a modern economy on the boss principle.  The result was disastrous.  Every factory, directed by the central planners to produce a quota of product every year, tended towards autarky, because it could not contract with suppliers individually, and could not trust that needed goods would be delivered.  So every factory built its own machine shop so it could repair its equipment in-house, and every factory operated its own foundry so it could accomplish even the simplest tasks like replacing cast-iron manhole covers without having to rely on outside suppliers.  The Soviet economy failed because it had no law, no way for individual economic actors to bind themselves, their suppliers, and their customers into a web of contract and trust.  Lacking such binding agreements, each actor decided that they had to insure against non-performance of others by minimizing their reliance on others.  The economy was run by Soviet power, but power runs only up and down, not side-to-side.  Wealth and prosperity do not issue from power and autarky, but by specialization and cooperation.

The secret of prosperity is known to the world by the dull name of the law of comparative advantage.  It demonstrates why specialization works.  It says that in a world of two persons, one of which can do everything better than the other, the best strategy is for the brainiac to specialize on the tasks at which his superior skill creates the most value, and buy from the other person for the rest.  Thus the world’s best brain surgeon contributes most to the world by employing others to perform skull trepanning, and concentrates on the tricky work of removing tumors, even though he remains the world champion at trepanning.  But when people are specializing on their core competences and outsourcing the rest, they are bound to others by a web of contractual relationships.  When something goes wrong, or one of the parties to a contract defaults, then relief may only be available at law.  Such a system is the opposite of the top-down central plan with its orders from the top and its climate of mistrust and fear.

But law is not perfect.  There are enthusiasts of law that have forgotten that laws are made by humans, who are after all only too human, and easily confuse their personal interest with the general interest.  There are critics of law that condemn the whole edifice of law because it does not implement their vision of perfect justice.  These people miss the point.  Law does not end the endless struggle for existence, the clash of power, and the original sin of every living thing: that it lives by killing other living things.  What law does, and it is not a small thing, is to reduce the need for force in the resolution of conflict.  It sets up a theoretical framework of flawed human action.  It differentiates between the tort, the wrong direct, and mere negligence, the sin of omission.  It imagines the prudent man, and what precautions that worthy person might take against accident or the mistakes of others.  It differentiates between premeditated and unpremeditated action, as when the accused murderer acquires a settled intent before the actual commission of the murderous act rather than simply kill out of murderous rage.  Through the rules of evidence, it tries to develop a reliable method for admitting only the most reliable reports of past events as seen by many people from different directions.  Law encourages the individual to emerge from the safety of the group.  It saves the individual from the cost and humiliation of acquiring a powerful patron, and it reduces the scope of arbitrary power.  Perhaps, most of all, it reduces the need for private armies.  Taken all in all, the law is a miracle, a liberation from the dull thump of power, for it sets up a regime in which it pays to obey the rules.

The importance of living under law is illuminated most poignantly by the story of those who arrived in the city without the cultural benefit of living under law.  Many immigrants to the city do not experience the law-based culture of the city as liberation.  Arriving in the city, the immigrant finds that his culture, his experiences, his expectations, and his skills are horribly out of joint.  Desperate for a job, he experiences the web of city laws as a net to trap him and keep him from earning a living.  They seem to be little different from the oppressive laws of the country that were designed to keep the little people docile and subservient to the power of the landed nobility.

A great literature has grown up witnessing the struggle of the big city immigrant.  Perhaps the greatest were Henry Mayhew’s London Labour and the London Poor and Jacob Riis’s How the Other Half Lives.  Mayhew demonstrated what life was like in London in 1850 for those without particular skill, those immigrating into London from the English countryside or the Irish potato famine.  They lived, many of them, as costermongers on the street selling apples, or coffee, or flowers.  They had no religion, they had vague recollections of their parents, they were mostly illiterate, and they did not contract legal marriages.  They expected to fight with their fists, and knew the law only as it descended upon them for violating the ordinances regulating street commerce.  Writing later in the century, Riis could show his readers a New York City with teeming tenements that seemed to show mid-century London as a mild picnic. From the Irish to the Italians to Chinatown to Jewtown, he told a grim story of dirt, dark, overcrowding, exploitation, and poverty.  For he described a people still attached to their peasant culture, unskilled, undisciplined, wretched, camped out in the city.

But even the poor benefit from law, and even the poor are capable of self-government.  Hernando de Soto is a Peruvian businessman who founded the Institute for Liberty and Democracy in Lima to try to help dig his country out of its history of poverty.  In numerous books and articles he has advanced the thesis that the poverty in Latin America issues from the lack of access to law and property rights.  When a householder does not hold clear title to the land on which he builds a house, he cannot obtain a mortgage to finance his building.  He can only build when he has the cash to build.  And without clear title, he must build out to the lot lines with a huge defensive wall.  He cannot afford to leave his land; for he has no legal title, and no legal call on the state to protect his ownership rights.  When the farmer does not hold a clear title to the land on which he farms, he cannot obtain financing for his crops and for his farm buildings.  He must finance his operations from his own savings, or from family and friends, or perhaps from a government co-operative.

We should not think that the poor in their villages strewn across South American and Asia are in this position because they are incapable of understanding the concept of property or of managing property rights and title to land.  When de Soto traveled to villages in South America he found that everyone knew who owned what.  The problem was, as he wrote in The Mystery of Capital, that the system of land ownership in the villages was operated according to a verbal and aural system, a common memory of land ownership, while the official land title scheme in the capital city was a paper system run by the political elite that was expensive to use and radically out of synchronization with the land ownership reality out in the villages.  The statute law of the political elite was radically different from the living law in the villages.

Why then, de Soto asked, did the United States seem to have a system of land ownership that worked, where the system in his own Peru had broken down into a war between country and city?  The answer was instructive.  The peaceable system of land ownership that the United States presently enjoyed was not something imported from Europe or hammered out during the American Revolution.  In fact there had been a war in the United States between the farmers and the federal and state governments that had festered away for decades.  It only ended when the federal government capitulated during the Civil War.

In early colonial days the government had brought over the British system of land ownership that assumed that all land already had a title.  But the land of North America, from the perspective of the colonizing Europeans, did not have an owner.  A living law grew up which allowed a man to own land that he had settled and improved.  The big landowners in the government strenuously resisted this custom, both for selfish reasons, and to attempt to enforce the treaties that had been made with Indian tribes.  But it was all for naught.  First of all, the squatters and settlers could vote, and they voted for politicians that would support their rights.  “At the beginning of the nineteenth century, the property system of the United States was in disarray.”  The government had failed to deal with the problem of migration on the land. (De Soto 2000 p127, 129)  In response, the settlers organized their own self-governing claim associations and made their own laws, specifying the “procedure for registering, marking, and transferring claims; and the procedure to be adopted when club members contested each other’s rights.”  In the end, the federal government capitulated in the Homestead Act of 1862, which was not a noble grant of land to the tiller but a codification of the existing living law of the settlers out on the plains.

The Homestead Act was not the only capitulation by the suits to the living law of the people.  When gold was discovered at Sutter’s Mill, the Forty Niners rushed out to California in 1849 to mine it only to find that the United States did not possess a mineral law.  In any case, in the new State of California, recently acquired from Mexico as the spoils of war, property rights in general were in considerable flux.  But the miners were not deterred.  They set to work and wrote their own property and mineral rights law, setting up their own mining districts and regulations to govern the creation and transfer of mineral rights.  Typically mining district regulations evolved through nine distinct stages from the formation of the district at a mass meeting of miners to the establishment of a “system for resolving disputes.”(De Soto 2000 p140-3)  The U.S. Congress got around to establishing a federal mineral law about 20 years later.  It was based on the living law that had been worked out by the miners in their self-governing mineral districts.

The success that the American farmers and miners of the nineteenth century achieved in enforcing their claims upon an elite that was hostile to their claims is instructive, especially when compared with the failures of the Peruvians.  These American citizens already possessed the tools of modern self-government.  Set down upon a hostile plain, or in remote mountains, they immediately organized self-governing institutions complete with president, recording secretary, by-laws, and a paper trail.  This was not a pre-industrial village culture that a metropolitan elite could marginalize as backward and superstitious.The American farmers and miners generated a record of self-governing competence that the suits back in Washington D.C. could not ignore.

But many immigrants to the United States, fleeing famine or oppression, lacked the self-governing skills that ordinary, literate Americans possessed.  How could they thrive in the land of the free where the people ruled themselves?  It turned out that the new land had another way of assimilating them to the American tradition.  Even when inundated by a flood of immigrants disadvantaged by their cultural ignorance of living under law, the United States brought them after a generation or two to middle class respectability.  It was done by intermediation.  In the middle of the nineteenth century, as boatloads of Irish disembarked from the “coffin ships” onto the island of Manhattan, an institution interposed itself between the immigrant and the city of laws, negotiating in behalf of the immigrant with the bourgeois city elite.  It was the genius of the leaders of New York’s Tammany Hall to understand how to draw the immigrant into the American community.  Tammany understood what the immigrant wanted: a job and a rudimentary safety net.  And it understood that the immigrant owned something that could be exchanged in trade for a job: his vote.  Fresh from oppressed Ireland or the Pale of Settlement, the newly arrived immigrant was not scandalized by vote rigging or by corruption.  He’d seen all that back in the old country; meanwhile he needed a job, or maybe a street peddler’s permit.  Tammany’s precinct captain was delighted to help, furnishing bail, helping tenants burned out of their tenements, or putting in a word with the judge.  He demonstrated his respect for the immigrant by turning up at weddings and funerals. 

It was the genius of the American aristocrat Franklin Delano Roosevelt to turn the Democratic Party into a national Tammany Hall, decently covering the bare-knuckle politics of the inner city with an upper-class veneer, and bringing hope and a job to those sucked into the maelstrom of the Great Depression—in return once again for their votes.

It is traditional for the enlightened classes to deplore the corruption and waste of the big city political machine.  For the city immigrant, the power relations of the political machine are not scandalous, but familiar, a power available to fight on his side in the strange and frightening city and the overwhelming power of landlords and employers.  Yet understanding only power the immigrant fails to recognize how the law of the city, though favoring the city-bred middle class, still offers opportunity and protection to the weak.  The bourgeoisie has an opposite problem.  Skilled and experienced at living according to the rules of the city, they forget that the rules were forged in a power struggle between the middle class and the king, and that, for all that they replace naked power with law, they still represent the power of the bourgeoisie to write laws that suit its needs and that reflect its idea of right and wrong.  Thus both immigrant and middle-class talk past each other, the immigrants not understanding how law benefits them, and the middle-class forgetting that they wrote the laws to suit themselves.

It was the remarkable achievement of the left and of writers like Jacob Riis in his cloying How the Other Half Lives to dramatize the struggle of the city immigrant and the mild hypocrisy of the bourgeoisie and turn it into a scandal, insisting that the misery of the immigrant was a consequence of bourgeois law.  For the left, the law is a decoy, a pretence of justice that merely covers the mailed fist of bourgeois power with a velvet glove of law.  In The Communist Manifesto Engels only mentions law once, in passing, as an accompaniment of free competition that supports the sway of the bourgeois class.  Since then, the left has never tired of discovering that the application of law unfairly targets the under-class immigrants to the city.  A sophisticated modern analyst like Foucault in Discipline and Punish has shown that bourgeois law is really no different than the law of the ancien rĂ©gime, except that at least the kings of France were honest about power whereas the bourgeoisie hides its power behind blank prison walls and faceless bureaucrats.  Thus the left denies that law is anything but the codification of oppressive power relations, the imposition of legal shackles upon a helpless people enslaved by a power elite.

The grain of truth in the left’s attack on law consists in this: that the bourgeois city of law is not a paradise.  Conflict is real, and the cockpits of power are not abolished by the courts of law.  But that is the limit of the left’s argument.  The bourgeoisie turned out not to be a pack of snarling beasts, but concerned citizens who were touched by the struggles of the immigrants in the cities and sensitive to the accusations of activists.  It responded by trying to mitigate the immigrants’ struggles and miseries.  Over the past two centuries the bourgeoisie has enacted numerous programs that demonstrate its good faith and its concern to accommodate people who have come to the city but are not yet of the city.  The bourgeoisie condoned the corruptions and the tribalisms of the political machines, social organizations for people who need to be socialized in the face-to-face society; it institutionalized labor unions, social organizations for people who believe in us-and-them and who experience the business world as a cockpit of exploitation; it reformed the criminal law to soften its impact on the rambunctious and rebellious underclass males; and it enacted universal suffrage.

The city is a hard taskmaster.  It does not tolerate incompetence and the slipshod.  It expects and demands from those that come to the city honesty and the performance of promises.  The artifacts of city commerce are drenched in words like “deed” “trust” “bond” “interest” as Frederick Turner discovered in Shakespeare’s Twenty-First Century Economics.  What it expects from its citizens is the capacity for self-government.

The world of self-government calls forth a culture of law, a mitigation of power relationships into a matrix of rules, and the transformation of the old culture of extended family and blood kinship into the new world of the individual, the nuclear family, and the perpetual corporation.  This new culture might be a precipitate of the superior consciousness of the city dwellers, or it might be an artifact of the complexity of city life and commerce, demanding a web of rules to regulate and guide the behavior of the business of the city in a detail and a fineness that the crude application of tribal or family power could not provide.  What is certain is that the law of the city is not a conspiracy of  bourgeois merchants to secure their power and wealth against the claims of the lower orders, but a step-by-step movement to make the city work for people who live and work in it.  Law is not just a codification of power relationships, but also a genuine transcending of the simple calculus of power with something universal and beneficial to all.  He who learns the art of living under law has learned to thrive in the city.  The law of the city is the rule of the road to the middle class.


print view


Click for Chapter 10: Explaining the Culture War


Buy the ebook: Road to the Middle Class: only $0.99.


Your comments are welcome. Please e-mail to Christopher Chantrill at mailto:chrischantrill@gmail.com, and take the RMC test here.



“But I saw a man yesterday who knows a fellow who had it from a chappie that said that Urquhart had been dipping himself a bit recklessly off the deep end.”  —Freddy Arbuthnot
Dorothy L. Sayers, Strong Poison

Civil Society

“Civil Society”—a complex welter of intermediate institutions, including businesses, voluntary associations, educational institutions, clubs, unions, media, charities, and churches—builds, in turn, on the family, the primary instrument by which people are socialized into their culture and given the skills that allow them to live in broader society and through which the values and knowledge of that society are transmitted across the generations.
Francis Fukuyama, Trust

Hugo on Genius

“Tear down theory, poetic systems... No more rules, no more models... Genius conjures up rather than learns... ” —Victor Hugo
César Graña, Bohemian versus Bourgeois


“We have met with families in which for weeks together, not an article of sustenance but potatoes had been used; yet for every child the hard-earned sum was provided to send them to school.”
E. G. West, Education and the State

Faith & Purpose

“When we began first to preach these things, the people appeared as awakened from the sleep of ages—they seemed to see for the first time that they were responsible beings, and that a refusal to use the means appointed was a damning sin.”
Finke, Stark, The Churching of America, 1776-1990


“When we received Christ,” Phil added, “all of a sudden we now had a rule book to go by, and when we had problems the preacher was right there to give us the answers.”
James M. Ault, Jr., Spirit and Flesh


A writer who says that there are no truths, or that all truth is ’merely relative’, is asking you not to believe him. So don’t.
Roger Scruton, Modern Philosophy

Faith and Politics

As far as the Catholic Church is concerned, the principal focus of her interventions in the public arena is the protection and promotion of the dignity of the person, and she is thereby consciously drawing particular attention to principles which are not negotiable... [1.] protection of life in all its stages, from the first moment of conception until natural death; [2.] recognition and promotion of the natural structure of the family... [3.] the protection of the right of parents to educate their children.
Pope Benedict XVI, Speech to European Peoples Party, 2006

China and Christianity

At first, we thought [the power of the West] was because you had more powerful guns than we had. Then we thought it was because you had the best political system. Next we focused on your economic system. But in the past twenty years, we have realized that the heart of your culture is your religion: Christianity.
David Aikman, Jesus in Beijing

Religion, Property, and Family

But the only religions that have survived are those which support property and the family. Thus the outlook for communism, which is both anti-property and anti-family, (and also anti-religion), is not promising.
F.A. Hayek, The Fatal Conceit

presented by Christopher Chantrill

Data Sources  •   •  Contact