Collapse of the Rational Legal Order


Almost forty years ago, Senator Barry Goldwater, the erstwhile transformative presidential candidate, led a delegation to the Nixon White House. There, in the Oval Office, he informed the leader of his party, that his presidency was all but over. “The Arizona senator sat directly in front of Nixon’s desk, the others to the side. Goldwater told Nixon he had perhaps 16 to 18 Senate supporters left – too few to avoid ouster.” Nixon’s own party had turned against him.

The writing was already on the wall for Nixon and his corrupt regime. Just a couple weeks earlier, Republican Congressman Larry Hogan, a member of the crucial House Judiciary Committee investigating the president announced on air that the President of the United States had, “beyond a reasonable doubt,” committed an impeachable offense. “I want with all my heart to be able to say to you now that the president of the United States is innocent of wrongdoing, that he has not committed an impeachable offense, but I cannot say that.” Hogan went on to vote for all three articles of impeachment against Nixon.

One should not put to fine a point on this particular moment. The Republican turn against Nixon was not an insular event. Nixon professed his innocence from the beginning of the scandal and his party toed the line. This should not come as a surprise. Members of the Republican Party had a vested political interest in supporting their leader. They were also, to be clear, motivated by in-group/out-group dynamics. Everyone recognized that Nixon was a sonofabitch, but he was their sonofabitch, and they would remain loyal in the face of partisan attacks from “those people” across the aisle. So, even in face of plummeting public support, GOP stalwarts remained true up to release of the infamous “smoking gun” tapes.

That being said, it should also be remembered that it was staffers for the ranking Republican on the Ervin Committee, Howard Baker, who uncovered the existence of Nixon audio recordings. Republicans on the committee voted unanimously for the President to turn over the relevant tapes. Yes, they were loyal partisans. Yes they were no less susceptible to demagoguery and political bombast than any politician since Alcibiades. When the dust settled, however, and the facts were clear, enough party loyalists ignored in-group pressures, accepted the clear evidence, and supported the rule of law.

This is as it should be.

The current social order is premised on three mutually interdependent socio-economic arrangements: the nation state, capitalism, and the rational/legal order. Each arrangement sustains the other, no single structure can exist if any one of the other’s loses its hold on the minds of humanity.

The modern social order rests on these three pillars. Each is mutually dependent and mutually reinforcing.

The nation state is a power arrangement in which centralized power is distributed along a sprawling bureaucratic network, making it possible to effectively govern large and diverse populations. The nation state, be it premised on democratic principles or despotic, works because the bureaucratic functionaries are often experts in their particular areas and are perceived as holding legitimate authority. That authority also extends to the use of violence, if necessary, to maintain the social order.

To sustain a bureaucratic technology monstrous enough to govern often growing populations of hundreds of millions of people, however, requires access to flexible and expandable resources. There is no tangible resource that can serve as a medium of exchange in such an order. Capital, however, based on innovative forms of currency, accounting and wealth reproduction, provides the necessary flexibility and extensibility to sustain these large, bureaucratic complexes. Capitalism is the single best system for regimenting the nation state and the concurrent markets associated with such massive populations.

Capitalism is, in fact, so effective that attempts to date for creating alternatives only ever result in distorted variations of the theme. The so-called “communist” or “state socialist” experiments have all failed because, instead of overthrowing the capitalist order, such systems merely transfer the capital from one holder to another. Capital is taken out of the hands of a private, bourgeois class, and reproduced onto state ledgers. The capital remains, but the system often loses the requisite flexibility and innovation necessary for economic growth, or for the expansion of capital as wealth holdings. It is clear that if socialists want to overthrow capitalism, they must also find alternatives to the nation state.

The nation state, however, also sustains capitalism, whether it is the kind of private capitalism of the west, or the state governed capitalism of the misnamed “socialist” nation states. It’s the nation state that manages the resources of a particular geographic location, governs the infrastructure necessary for accessing these resources and conducts trade with other nation states for the sake of expanding markets. The nation state also serves as the juridical and policing authority necessary for preserving ownership, private or public, of these resources. Furthermore, powerful nation states can also use their power to force concession from other cultures.

This means, however, that there must be some formal, predictable process by which global markets can be run and massive states can enforce the rules of participation. That is the rational/legal order. Rules are created through a process perceived as legitimate and applied in a manner perceived as just. Negotiating, formulating and applying laws through a bureaucratic process is the mechanism by which the political economy works. Laws make the system predictable, making it possible for capital to be exchanged and valued in such a way as to stimulate growth. Laws also level the playing field if applied evenly to everyone under a well understood and acknowledged rule of law or justice.

It is no accident that the modern nation state, capitalism and a rational/legal philosophy evolved over the same period of time, culminating in the late 18th century. All three legs of this stool had to be present if the modern world that we all know and take for granted were to emerge. Had any one of these legs not developed, ours would be a very different lived experience.

The great social theorist, Max Weber, outlined the rules of the modern world. Much of this essay is based on Weber’s ideas.

For the most part, this triad works pretty well. They are the bedrock of modern society. Those cultures best able to sustain a national state, a capitalist market and a consistent rational/legal order dominate, while those that struggle to do so fall by the wayside. However, this system is potentially tenuous. The virtuous triad is bound together with the ephemeral chords of legitimacy. Legitimacy, as the great social theorist Max Weber might remind us, is premised on a certain amount of volunteerism on the part of those governed by the established order. The nation state can enforce the laws because enough people perceive the nation state as the legitimate authority to do so. Capital has value because enough people perceive that value as being real. The laws are real because enough people elect to follow them even when doing so is not in their personal interests. So long as the triad is perceived as legitimate, it is capable of binding hundreds of millions of people in a shared consensus of a social order.

If that legitimacy were lost, however, then the nation state must become more violent and oppressive to survive. Capitalism collapses as trillions of dollars in investments become worth no more than the paper that they are written on–if there is any paper at all in this digital age. Laws become nothing more than suggestions.

Now this consensus is always being challenged, most often by the powerful. Since much of this essay is based on Weber’s work, it is useful to understand his definition of power. Power, according to Weber, is the ability to achieve one’s ends despite opposition. This is especially true when this opposition is of the existential form of nothing more than ink on paper, or a bureaucratic ritual. Those in positions of power are frustrated by laws and bureaucratic rules that thwart their ability to achieve their ends. They can often use their social position to bypass the established social order. In doing so, however, they may destabilize the very order that justifies their position. Consequently, there is an incentive for even the most powerful to more or less play by the rules, to be judicious in their trespasses. When that judicious line is crossed, the powerful may find themselves sacrificed by their peers for the sake of maintaining the social order.

Our Founding Fathers were among the vanguard of this trilateral order. Each of them was of the economic and political elite, but had the unenviable task of building a political-economy after having just severed the ephemeral bounds of the previous order. The people they were to govern were already skeptical of authority and had demonstrated a willingness to take up arms not just against the illegitimate colonial power seated in far London, but also against their own powerful neighbors who would abuse their position. Shays’ rebellion was foremost on there minds as they drafted the Constitution.

The Founders chose to base their new government on Enlightenment principles of reason, liberty and justice. These principles were fairly new and hotly debated among our Founders, but one thing was certain. This new nation had to be one based on the rule of law. The traditional order was upturned. Law, for it to hold legitimacy among a population of people who had already disregarded a whole host of laws in overthrowing the crown, had to be universal. No man could be held above the law.

Toward this end, the Founders wrote into our Constitution the means by which to hold even the highest executive of the government accountable for his actions–impeachment. Impeachment, in the United States, is arguably the ultimate expression of the rational/legal order. It communicates to the rest of us that even the highest law enforcement officer in the land is not immune to the rule of law. Its very existence is proof that we do not live in an autocracy.

Granted, a powerful argument can be made that every president in some way breaks the law. Yet very few are actually impeached, let alone removed from office for doing so. The language, “high crimes and misdemeanors” is vague enough to give considerable leeway to the President. In Nixon’s case, this leeway served him until the level of his high crimes could no longer be denied by enough people. For the sake of preserving the order, he had to go.

It took a great deal, however, to apply the rule of law to Nixon. Arguably, the rule of law was never applied to Reagan for his crimes associated with the Iran Contra Scandal. Clinton, who clearly broke the law by lying to a grand jury and was impeached. His actions, however, were not seen as high enough crimes or misdemeanors to necessitate removal from office. Regardless of how one defines Reagan’s or Clinton’s actions as deserving impeachment, that the law could be applied to each was a very real threat. After all, Nixon did fall despite tremendous power and a great structural machine designed to keep him aloft–the political party.

Weber’s concept of power is associated with what he referred to as party. Parties, for Weber, are voluntary social relationships, the ends of which are to “secure power within a corporate group for its leaders in order to attain ideal or material advantages for its active members.” Political parties are the most obvious, but certainly not exclusive, of such arrangements. One’s ability to achieve ends despite resistance is most effectively accomplished with the support of organized others. Historically, however, one’s ability to mobilize a party in the face of the rational/legal order has been significantly constrained. As with Nixon, despite formidable party dynamics, in the face of clear, rational/legal challenge, enough members of his party abandoned him in favor of the law.

What happens, however, if those rational/legal constraints stop being so binding. To what extent might someone with enough power based on party support defy rational/legal constraints? And if that person can flout the rational/legal order and still hold on to party support, what then becomes of the rule of law?

Enter into the triad a new variable–the cult of personality. The modern iteration of the cult of personality, by which one’s authority is based on a willingness of people to follow a leader based on perception of individual greatness, is an outgrowth of the rise of mass media as an agency of socialization. Those capable of capturing the media lens have a distinct advantage in cultivating party than those less skilled. The cult of personality dovetails nicely with Weber’s concept of charisma by which “…an individual personality by virtue of which [one] is considered extraordinary and treated as endowed with supernatural, superhuman, or at least specifically exceptional powers or qualities.” Mass media is the perfect glove over the fist of charismatic authority.

Weber assumed that charismatic authority was only a short lived phenomenon. It was a great way to organize resistance to authority, but ultimately, the charismatic leader would lose party support once the people following him realized that he was not endowed with exceptional ability–that he was just a man. Eventually the flaws would present and charisma would wane.

But Weber was theorizing before the rise of mass media let alone the fragmentation of media resulting from contemporary communication technology. Today, we face the very real prospects that decentralized and fragmented media can perpetuate charismatic authority among a base in perpetuity. The charismatic leader can, through party affiliation, employ media filters in which his image is never tarnished. Any failure on the leader’s part can be blamed on some scapegoated “other” set up to serve as the charismatic leader’s foil. This “other” may be immigrants. It may be the “Fake News” media, meaning any media other than that which perpetuates the leader’s authority. Some mythical deep state can be blamed for any failures of the flawless leader.

This may be speculation, but it is not without a valid premise. Our current debate is often referred to as a Constitutional crisis. That may be an apt description, but it is a challenge of a different order. Historically, Constitutional crises developed because of legal contingencies for which our governing document did not offer clear, rational/legal guidance. So the outcome was unpredictable by rational/legal means.

That is clearly not the case today. The Constitution is clear, and any reasonable application of our rational/legal doctrine must lead down the road to impeachment if not actual removal. This application, however, is being blocked not by vagaries in that rational/legal order, but by party dynamics. That a charismatic leader, with his own de facto media machine, may have enough of a following, enough of a party, to be immune to rational/legal processes should be a monumental concern to any thinking individual regardless of party affiliation. When the House of Representatives debates not the validity of impeachment, but rather the strategic value of impeachment in the face of a stalwart party mechanism, we are no longer having a debate about how the Constitution applies to this point of law, but rather we are deciding whether the Constitution matters any more.

If it doesn’t, then are we seeing the culmination of the end of our current social order? Remember, our current social order stands on three pillars. it’s a three-legged stool. The nation-state and capitalism cannot stand without a rational/legal order. If the rational/legal order is of secondary importance to party, then are we living within the same social order that we have taken as granted for generations, or are we seeing the rise of something else–something infinitely more sinister? After all, what is a nation state without a rational/legal foundation? What becomes of capitalism if property is no longer predicated on law, but rather on whether or not your particular party is making the property decisions.

As it stands, there is still hope for the rational/legal order. Nixon remained in office by virtue of his hold on the Republican Party. Once that hold was broken, in the face of a clear, rational/legal challenge, his tenure was done. That may yet hold true, in which case this speculative scenario will be nothing more than an interesting theoretical exercise.

Furthermore, even if the fears expressed in this short piece are valid, it is likely that our current debate is not the catalyst for revolutionary change–for the spontaneous collapse of the rational/legal order. Rather, what we are seeing is most likely just one more nail in the coffin of the contemporary social order based on the virtuous triad. Social orders don’t often collapse…they crumble until they can no longer sustain their own weight. We may be seeing one more crack in the dam that is the modern world.

It is important to remember that the world we live on did not always exist in this way. There wasn’t always nation states, or capitalism or a rational/legal order. Certainly, we didn’t always have all three combined in quite the way we have today. It is naive to think that our social order will last forever. It will crumble at some point. It will be replaced, albeit incrementally, by something else. Our concern must be the nature of that something else. Will it be something better–or will it be a whole lot worse?

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s