Show notes
Richard Reinsch (00:19): Hello, I’m Richard Reinsch. Today we’re talking with Steven Smith about his new book, Fictions, Lies, and the Authority of Law. Steven Smith is the Warren Distinguished Professor of Law, at the University of San Diego. He’s the author of numerous books, including The Rise and Decline of American Religious Freedom, Law’s Quandary, and, he’s been on this podcast… I think this is your third appearance, Steven, so we’re glad that you’re- Steven Smith (00:47): I think I might be. Richard Reinsch (00:48): … a repeat offender. It was Pagans and Christians in the City, I think was the most recent appearance. Steven Smith (00:53): I think we did have a conversation about that one, yes. Richard Reinsch (00:56): It’s great to have you back, and you’ve written another provocative book here, Fictions, Lies, and the Authority of Law. So tell us, what’s going on? Steven Smith (01:04): Well, the book combines some things I wanted to write about various subjects that are all connected, I think, by the problem of authority and questions of authority. I tried to have a lead into that by quoting Hannah Arendt’s, I think, very intriguing claim that she made about the middle of the last century that authority has disappeared from the modern world. We no longer know what it is. In losing authority, she said, “We have lost the groundwork of the world.” So that’s pretty provocative, but also puzzling and raises lots of questions. So I used that as the way to get into some of these various questions. Some of them are more standard law professor type questions about constitutional interpretation and statutory interpretation, and so forth. Some of them are more straight jurisprudence questions that legal philosophers like H. L. A. Hart and so forth have dealt with. Some of them have to do with things that I think are really on the minds of and kind of worrisome to a lot of people today about cancel culture, living with lies, that sort of stuff, is also the subject of one of the chapters. Richard Reinsch (02:13): Yeah. I’ll confess this. So coming to your book, before I started reading it, what got me interested in it and thinking that this could be an interesting interview is just looking at contemporary America right now. We’ve got this heavy movement, we’ve covered it extensively at Law & Liberty, that insists basically America is founded on a fraud. It goes beyond even the old progressive claim that we’re ill-founded, but that we’re just founded on something like slavery and racism, and the perpetuation of that through our institutions. Then, of course, the way in which political claims are debated, or rather not debated, in many respects, in our country and how we label one another as not just wrong, but people we struggle to even dialogue with. Just thinking about right now, this question about masks reemerging with the Delta Variant in certain states, and are masks going to be required and how we deal with people who don’t want to wear masks and vice versa. All of this, I mean, the general tenor of our politics makes me think there is nothing in our constitutional order that we see as transcending heated contemporary differences. Do you see it that way and has that led into what you’re doing in the book? Steven Smith (03:29): Yes and no. I think, actually, it’s turned out, with all of the anti-racism concerns and the COVID restrictions and so forth, that there are a lot of ways that the book has immediate applications. More than I thought it would have as I was doing it or even when I was pretty much finished with it, which was I finished writing it really almost a couple years ago, before a lot of this happened. You know it takes a while to get something published. In the meantime, it’s been gratifying and alarming to see that I think there are quite a lot of applications to some of our on the ground current practical concerns. One way to get into that, I suppose, would be to say that our system of government is based on the idea that government has to come from the consent of the governed. That’s a foundational proposition. It’s in the Declaration of Independence. It’s been recited innumerable times over the course of our history. That’s kind of axiomatic in many ways. It’s also a privilege familiar, and lots of people have written about this, that that’s a problematic idea. Do we really have the consent of the governed? I deal with that in what I think is a little different way saying, well, in a certain sense, no, it’s a fiction to say that we have the consent of the governed, but we can have accounts of authority, I think, that can be based on fictions if the fictions are widely believed. I try to combine the consent of the governed idea with the idea that people like John Finnis, but other people have developed a coordination account of authority. You know that authority comes from the need for coordination, not just punishing offenders and so forth and anti-social criminals and so forth, but coordination that’ll allow us to coordinate for the public good a lot of our projects that we have. So that we have a need for that and the ability, as Finnis and others say, of some group or institution to provide that coordination is the foundation of authority. I find that to be quite a plausible account, but it creates a question of where do people get or where do some person or institution get that ability to provide coordination. The answer, I think, is, at least in part, they get it because we think they have authority. In our system, we think they have authority goes back to the consent of the governed. So the consent of the governed does sort of figure in authority, even if it is, to some extent, a fiction, I think. If it’s a fiction that’s widely believed and beneficial, I think it can be the basis of actual authority. But if the fiction becomes frayed and so forth, there’s discussion, then the authority can disappear. I think we’re seeing real concerns about that just over the last couple of years. Richard Reinsch (06:24): What do you think Hannah Arendt meant by the modern world faces the evacuation of authority? What did she mean by that? Steven Smith (06:34): She has a long answer on that that traces this back to Roman ideas and so forth. To be honest, I don’t really go into that much because she’s not the only person who has claimed that. I quote several other people who have also said… Søren Kierkegaard for example, and other more recent observers who say that authority has disappeared from the modern world or that it’s very problematic or that we don’t understand what it is. So I say upfront that this isn’t going to be an exegetical sort of work trying to figure out what any person in particular had in mind. But I admit, I use it more as a point of departure to explore. I keep coming back to Arendt’s claim, but I’m still using it less to figure out what exactly she meant and more as a point of departure to consider a lot of things that I mention. Richard Reinsch (07:25): I haven’t read or written a lot, but that ground work of the world. I mean, is this some sort of classical- Steven Smith (07:35): I doubt she meant what I end up- Richard Reinsch (07:37): … classical political philosophy account of reason and politics? I don’t know. Question on consent of the governed though. My understanding, the root of that concept from Harold Berman’s Law and Revolution is monastical reform in the early Medieval Period. The principle being within monasteries, voting amongst the monks on who would be your abbot, what would be the rules that would govern, and the idea being what touches all concerns all and therefore, should receive consent by all. In my understanding, that’s like a natural law root of that, taking man as a dignified being created by God seriously and His reason seriously, therefore, is consent as to what touches him and law. I’ve always thought that’s not someone trying to articulate a fictional account, but maybe a truthful account of who man is and how he should be governed, and then that spreads one account. As Berman documents, that makes its way through a lot of Western legal thinking, in particular in the English Medieval law. Then it comes out in what I would think of as the good Liberalism and the American founding, as… Then it becomes a more general political teaching. So, I guess, when you describe the consent of the governed maybe as a youthful fiction, I think, or it’s a better fiction than other fictions, but what do you make of that? Then also, a consent of the governed, but in American context would be Republican or representative consent. Not consent of each and every person, but of those who have appointed, so necessarily that’s why the Philadelphia Convention wants state ratifying conventions, not just the state legislatures, because it wants that approval apart just from state authorities. So what do you make of all that? Steven Smith (09:38): Good question. A couple points here. One is as far as the genealogy of the concept, I don’t really try to trace that through here. I mean, to the extent, I rely on historical work in this book, it’s more on Edmund Morgan’s, I think, really good book on Inventing the People. He talks about the idea of the people and consent and so forth. But he’s starting with the English Civil Wars in the 17th century, I think, is what he’s mostly talking about and that’s as far back as I go here. But I’m sure the idea does go farther back. Berman’s book, one I’ve relied a lot on for other purposes, but I haven’t really focused on it for this purpose. I do quite a bit of work in the area of religious freedom, and other people do, and trace, you might say, very related ideas way back to Tertullian and so forth, that religion has to be consensual. Those things are not unrelated, I think, to this idea that authority needs to be accepted by… It can’t just be coercively imposed and so forth. So the fundamental idea probably has a lot of roots. It’s also one that I don’t in any way mean to disparage it. I mean, I think it’s a very valuable, and for lots of purposes, it contains real truth. But just in a couple steps, I mean, the most common objection, I think, though to this as an account of the authority of, say, modern governments like ours is that most of us never really did have an opportunity to consent. No one ever sat us down and said, “Do you consent to be governed by this regime? If so, initial here.” We just didn’t. Theorists who try to make up for that with theories of implied consent or constrictive consent say some good things, and I think even relevant and valuable things, but don’t really supply actual consent by most of us. So that’s why I argue that it’s a fiction. But in explaining how a fiction works, I do say that a fiction will work… It needs to satisfy a couple of conditions. One is plausibility. It doesn’t need to be true, but it needs to be true-ish. You can’t really work with a fiction, even a movie or a book and a big political fiction like this unless it is true-ish. The fiction of the consent of the governed, I think, is quite true-ish for our system, but its plausibility does hinge on things like voting rights and freedom of speech. These are all, I think, very valuable things. So it’s a fiction that, though it is partly fictional, that’s had, I think, very beneficial effects. It’s an ennobling fiction, you might say, and one that works to make government, I would say, better, more enlightened, and so forth than it would be coming from some other fiction. For example, the parties for the vanguard of the Proletariat, for example, and it’s going to lead us to the revolution. So it’s a very valuable fiction in that sense. Again, by fiction, I try to carefully distinguish between a fiction and a lie. I mean, those blur together at some point, but they’re not the same thing, I think. In saying that this is a fiction, I don’t mean to be saying it’s our system is based on lies. I think it’s based on things that are partly fictional, but valuable, ennobling fictions in so far as we act on them. Richard Reinsch (12:59): So you’ve used, you said, true-ish, truthful fiction. Is there a truthful account of legal authority and how would we know it? Steven Smith (13:09): Yeah, well, towards the end of the book, I try to get into that because the first chapters are mostly trying to expound the idea that authority can be based on a fiction… what we call authority, the functions of authority can be based on a fiction, but that one of the consequences of that is that is that there are a lot of questions that we perpetually debate, seemingly never reach answers and that one of the reasons for that is that we’re treating what’s at bottom of fiction as if it were a fact, as if there were some fact of the matter that could settle what the Constitution means, for example, for some particular thing or what a statute means. To the extent that those things are based on fictions, there’s not going to be any fact of the matter that can settle a lot of those debates. So I think that helps to explain why we never do reach any sort of real answers and we probably never will, because it’s not the kind of thing that could yield those kinds of answers. But that’s still dealing with, we call it authority, I call it authority in the first part of the book, but later I suggest this might be a faux authority. So if you ask, as you just did, is there any sort of true authority, could there be? The latter chapters, the last two chapters and the epilogue, try to address that question more directly. I might mention the evolution here. Some of this is based on an article I did about 10 years ago which suggested that no, there couldn’t really be true authority. Even God’s authority is not exactly true authority. But reflecting on that in the intervening period, I’ve come to the idea that no, that’s a mistake. I think our modern commitment to autonomy and equality is so emphatic that I think it makes it very difficult for us to recognize what true authority would be. But I argue in the last chapter and the epilogue that, for example, in a Christian perspective, I think there’s, in some ways, a standard answer to this, although one that probably most, even Christians, today no longer think in these terms. That is, yeah, there is a true authority. The king of kings, the early governments that we respect have a kind of authority, but it’s a shadow of the true authority that is there and someday will actually be more operative. I try to explain how that kind of authority could satisfy the conditions of real authority in a way that Earthly governments just really can’t. Richard Reinsch (15:46): Something you also write about in the book is anthropology and the significance of who we think man is, what do we make of ourselves, what are we for, as getting at this question of legal authority. So, as you were saying, the dominant understanding, I think, particularly amongst elite classes, is we’re autonomous, we give the law to ourselves from deep within our conscience, which we conceive of in a very subjective way. Who the human person is is growing in sophistication with his own law giving or her law giving. The other conception of that is, I think you used this term, which I like that term, is that we’re deeply relational and we’re not autonomous. We’re dependent on others for everything, and that’s a recognition of wisdom there, that we need other people not just for contracts, but in deeply embedded ways. But, I guess, my question to you is, and that’s the position you side with, I largely agree with that position, what does that mean though for law and for government? Might that give us a way for thinking about it that moves it beyond a fiction? Even the noble fiction you describe. I say that our system has been based on a fiction, but that’s not the same as a lie. One of the ways of distinguishing is to say, “Is this a proposition that people are willin…
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