I Do, I Do, and We Do Too: Plural Marriage and the Unethical Status Quo

While most arguments heard in popular media outlets involve general issues of either religious conviction or liberal concepts of equality, the crux of the issue regarding societal and legal acceptance of polygamy, in all its forms, center on two primary points of contention.  The first debate centers on how the word marriage should be defined.  The second debate is focused on who should and who should not have a legal right to enter into a marriage, and if withholding that right is justifiable in a diverse, liberal, secular democracy.  While the final result of the second debate may be largely based on the results of the first debate, the two arguments are so intertwined with each other that they need to be dealt with simultaneously.  With an understanding of the history of marriage in general, its history in the United States specifically, and the conflicting arguments regarding plural marriage, it becomes evident that the status quo is unethical and indefensible within the parameters of a liberal society governed by secular laws.  The proper alternative is to leave marriage in the hands of religious institutions and officials, and allow civil unions between any number of adults who choose to enter such a union with fully informed consent, with their rights being protected by the state and any benefits granted, based on the state’s interest in children, to only be granted once children are present within the family unit, whether said unit is dyadic or plural in nature. 

When it comes to defining marriage, there are three basic competing definitions, with a fourth option that would completely eliminate the concept of marriage as it is generally understood.  In the article, “What is Marriage,” published March of 2011 in the Harvard Journal of Law & Public Policy, the three authors provide two working definitions of marriage for the purposes of delineating what they see as the opposing sides in the ongoing same-sex marriage debates.  There is the traditionalist definition of marriage which states,

Marriage is valuable in itself, but its inherent orientation to the bearing and rearing of children contributes to its distinctive structure, including norms of monogamy and fidelity. This link to the welfare of children also helps explain why marriage is important to the common good and why the state should recognize and regulate it. (246)

There is a revisionist definition used by advocates for same sex marriage that states,

It is essentially a union of hearts and minds, enhanced by whatever forms of sexual intimacy both partners find agreeable. The state should recognize and regulate marriage because it has an interest in stable romantic partnerships and in the concrete needs of spouses and any children they may choose to rear. (246) 

This second definition is, in part, a reaction to the traditionalists’ assertion that expanding the definition of marriage beyond its historically understood meaning, of a union between a husband and wife, will result in marriage being extended not only to same sex couples, but to polygamous, incestuous, and even interspecies relations.  The pro-polygamy movement generally uses the revisionist definition above, but does so without limiting the number of those involved in a marriage to two.  According to Dr. Brian Schwimmer, professor of anthropology at the University of Manitoba, there are three basic forms polygamy can take: polygyny – “marriage of one male to several females”; polyandry – “marriage of one female with more than one male”; and group marriage – “marriage of several females with several males” (1).  The fourth option as detailed by Lenore J. Weitzman, a sociologist and lawyer, suggests that the traditional marriage contract be set aside in favor of individually developed and agreed upon contracts between the parties involved, giving them the authority to determine specifically the guidelines for their union, which the courts would use to settle any disputes upon the dissolution of the agreement, traditionally known as a contested divorce. 

Contracts in lieu of marriage would allow for legal relationships not contemplated under the present structure of state-regulated marriage…Contracts in lieu of marriage could also be used to ensure many of the functions that families have performed in situations where legal marriage is impossible: in communes, group marriages, and other family-like units of more than two adults. These contracts would also provide an alternative for homosexual couples wishing to legitimize their relationship. (1249)

            The second debate regarding equal rights and equal treatment under the law is just as complex, dealing with normative values of society and the precedence the courts have set in past disputes on the matter.  Part of what makes this particular dispute more problematic is that there are rulings that are contradictory in their application.  For example, Jonathan Turley, a constitutional scholar at George Washington University, notes that the court’s ruling on the landmark Lawrence v. Texas case contains two conflicting statements.  At one point, the court implies that the power to define marriage lies solely with the individual state, but later, the court referred to marriage as a universal right. (Turley)  These two statements are mutually exclusive because a right, guaranteed to all citizens, cannot be legally infringed upon by any person or state.  For the U.S. Supreme Court to say it is a universal right, while giving the power of regulation to the individual states, sends a troubling message.  The message is that the courts will refer to marriage as a universal right because to say it is not would be ill received by citizens who would fear possible infringement by an over-reaching federal government.  However, the court has abdicated its responsibility to rule on the matter in a way that would require the status quo be either protected or invalidated.  Instead, the court’s actions give de facto power to the states to deal with the issue of marriage, both in terms of definitions and possible enforcement of institutional violations.  If marriage were truly considered a universal right, states would not be allowed to regulate marriages in a manner inconsistent with federal laws which guarantee equal protection and equal treatment.  Unfortunately, the courts have not defined with any specificity what marriage is or what the specific universal rights are, as they relate to the institution of marriage. 

            Polygamy is not a new form of marriage in terms of either the Judeo-Christian tradition or American history.  The only thing new about polygamy in America is the recent push for acceptance of all forms of polygamy, whether as a religious practice or as an egalitarian, secular choice.  Within the last sixty years, polygamy has increasingly been less centered on religious ideology and doctrine, and more in tune with secular, egalitarian principles.  There have been several instances in America’s past where polygamy has been practiced with relative conspicuousness.  From the Mormons of Utah, who had to legally abolish polygamy as a condition of statehood, through the 1960’s and the start of the Kerista Commune in San Francisco and the Church of All Worlds in Saint Louis, polygamy seems to be not only a constant, but one with growing support among society.

            The Judeo-Christian tradition shows implicit support for polygamy in the Old Testament.  Consider that King Solomon “had seven hundred wives, princesses, and three hundred concubines” (King James Bible Online, Kings 11:3).  Consultation of the New Testament reveals there are no prohibitions against the practice, though when Jesus is asked about marriage, he states in Matthew, “so they are no longer two, but one. What therefore God has joined together, let no man put asunder” (King James Bible Online, Matthew 19:5).  Interpretation of this verse led to the belief that marriage is a sanctified union, and further led to the Catholic Church mandating that marriages be solemnized before being considered valid.  In 1573, the Catholic Church at the Council of Trent took a formal stance on polygamy by stating, “If any one saith, that it is lawful for Christians to have several wives at the same time, and that this is not prohibited by any divine law; let him be anathema” (Trent).  According to Charles Kindregan, distinguished professor of law at Suffolk University, the requirement for church solemnization was, in large part, disregarded by many Protestants after the Reformation, though the belief that marriage was “of God” continued, and marriage as a divinely inspired union has been the primary influence on marriage law in the United States. (26)  England did not recognize marriage as a civil agreement until passage of the Matrimonial Causes Act of 1857, which took the jurisdiction of marriages away from the canonical courts and placed it with the civil courts.

            America was settled by many seeking freedom to practice their religion in ways that weren’t acceptable to the Catholic Church or the Church of England.  The idea of marriage as something sanctified by God was still a mainstream concept, though marriage laws would be administered through civil courts, not religious courts.  This jurisdictional divide lends strength to the idea that marriage has changed from a religious institution to a civil institution, where the state recognizes marriage in a secular aspect and assumes the authority and responsibility to regulate it.  The polygamy debate lay mostly dormant in America until the advent of the Latter Day Saint movement in the 1830’s, and the subsequent migration of Mormons to Utah in 1844.

            Mormons practiced polygyny, which is a form of marriage where a man has multiple wives. (Schwimmer)  Their practice of polygamy placed Mormon religious beliefs at the center of a debate over the validity of the theory of popular sovereignty at a time when popular sovereignty was being used to justify the continuation of slavery.  The Republican platform of 1856 promised, "to prohibit in the territories those twin relics of barbarism: polygamy and slavery" (GOP).  The debate came close to causing civil war when then President James Buchanan sent troops to Utah to gain control of the territory.  Though little was gained by the President’s action, this event shows how divisive differing beliefs on what marriage is and what it should be are.  A few years later, the Federal Government passed the first law outlawing polygamy: the Morrill Anti-Bigamy Act, signed into law by President Lincoln in 1862.  The idea of polygamy was so offensive to some that the Morrill Act was found lacking because it required proof that an actual marriage had taken place.  Congress remedied that oversight with the Edmunds Act, which further criminalized bigamous cohabitation, removing the necessity for proof of marriage.

            Regardless of the federal government’s brief involvement in marriage law as a result of the conflict with the Mormons in the Utah Territory, marriage law in America has primarily been the purview of the individual states.  One important exception is the legal stance, supported by the U.S. Supreme Court, of anti-miscegenation to preserve racial purity.  According to Kindregan, “In early America, it was commonly accepted that persons of different races could not enter into valid marriages.  The protection of racial purity was a fundamental component to the law of marriage” (31).  It was not until nearly a hundred years had passed since the Civil War and the earlier dispute with Mormons over marriage that the Supreme Court reversed its prior stance on miscegenation.  In 1883 the Supreme Court upheld the constitutionality of Alabama’s anti-miscegenation laws in Pace v. Alabama.  Eighty-four years later, in the 1967 ruling on Loving v. Virginia, the court concluded that marriage could consist of a couple of differing races, and further concluded that the states could not deny the right to marry based on race.

            American society is still in the middle of a debate over how marriage should be defined.  In addition to the debate over the definition of marriage, society is involved in a heated debate over the civil rights issues surrounding it.  In early 2011, President Barack Obama made the decision to no longer oppose suits related to section three of the Defense of Marriage Act (DOMA) which was signed into law in 1996 by then President Bill Clinton.  Section three of DOMA defines marriage as a union between one man and one woman.  President Obama, a constitutional lawyer, based in part on consultations with the Department of Justice, has stated he believes the section is unconstitutional.  His belief that it is unconstitutional is his reason for refusing to oppose any challenges to the law which are based on the provisions of section three.

There are three primary contributing factors to the rise of secular polygamy, or polyamory.  Arguably, the broadest social change in American culture within the last fifty years has been wrought by the feminist movement, seeking treatment on par with that of men, and seeking to break free from socially, and often legally imposed gender roles.  For example, Elizabeth Emens notes in her work titled "Changing name changing: framing rules and the future of marital names” that

Custom became law…in the late-nineteenth and early-twentieth century. These cases built dicta upon dicta until many states had plainly declared in case law or by statute that married women's ability to engage legally in certain activities-such as driving or voting-was dependent on her bearing her husband's name. (Emens)

The women’s rights movement could be said to have started when Susan B. Anthony started the National Woman Suffrage Association in 1869 with the specific goal of securing for women the right to vote.  Over 100 years passed from the beginning of the women’s suffrage movement until married women no longer had to legally change their name to that of their husband’s to be permitted to vote in some places. Sexual culture saw a dramatic change during this period due to many interrelated factors.  One influence was the hippie counterculture of the 60s and 70s.  Another influence was the new research on human sexuality by Kinsey.  The “final straw” may have been the development of the pill, a tool which gave women control over their reproduction.  This meant that women, like men, no longer had to worry about accidental pregnancies and the social stigma attached to unwed mothers in those days.

             Not only did the fight for equal rights for women result in a better understanding by 

society at large of gender roles and how normative values serve to place both men and 

women into pre-established social roles, but it forced society to re-evaluate concepts of 

equality, fairness, and justice as they related to gender, sex, and power dynamics in intimate 

relationships.  In 1961 Robert Anson Heinlein published what some have called the bible of 

the polyamory movement: Stranger in a Strange Land.  Many of Heinlein’s novels challenged 

tradition and social custom, especially on the sexual front.  Not only did many of his stories 
deal with families that were part of plural marriages, in several of his books he was even able 

to place the taboo of incest in a positive light.  A character from his novel Friday stated, 

“Geniuses and supergeniuses always make their own rules about sex as on everything else; 

they do not accept the monkey customs of their lessers" (Friday).  With the popularity of 

Stranger in a Strange Land occurring simultaneously with the free love movement and the 

feminist fight for equal treatment and sexual liberation, there was a “perfect storm” across 

the country that resulted in a major shift away from unchallenged patriarchal societal 

structures and expectations.  The shift is ongoing and growing even now.

            Most recently, both the religious and secular polygamists/polyamorists see an opportunity to push their arguments into the limelight, and once again, force society into a dialogue about what justice means, how fairness should be determined, and how equal should people be when it comes to the law’s treatment of intimate relationships.  The opportunity comes in the form of the same-sex marriage debate, where the traditionalists opposed to legalizing same-sex marriage use  the argument that if the right to marry is extended to same-sex couples, society will be forced to allow polygamy, incestuous marriages, and marriages between man and man’s best friend.  While the fact that the argument is a slippery slope that drops off the precipice to become a reductio ad absurdum may serve to rally support to their side of aisle by playing on the moral foundations of our society, many proponents of plural marriage are more than ready to have the public debate about polygamy and the extent to which the state should be allowed to tell fully informed, consenting adults who they can and cannot form intimate relations with, both in and out of a marital structure.  Proponents of polygamy are probably not looking for an immediate change in the laws, but an open dialogue which will eventually lead to decriminalization, legalization and state recognition of plural marriages.  This dialogue will be coming on the heels of three recent, major shifts in social tradition and juridical precedence: the fight for racial equality, the fight for gender equality, and the fight for sexual orientation equality.

Polygamy within a secular society that prizes equality is inherently good.  Legalizing the practice would allow consenting adults the freedom to enter into relationships where the terms of the relationships are defined by the people involved and not by the state in support of religious tradition.  The U.S. Constitution bars the federal government from making any laws that either respect the establishment of religion or prohibit the free practice thereof, which for all practical purposes is what has been done regarding marriage.  In legalizing polygamy, it becomes easier for abused women and children in a polygamous family to seek legal protections.  The abused would not be afraid of their polygamous practices becoming known in the same way they would if the practice remains illegal. 

            The legalization of polygamy would be good in that it would remove the hypocrisy inherent in the current legal system.  The courts consistently claim the state has a justifiable interest in marriage that stems from the idea that society has a vested interest in how children are raised; promoting the continuation of a civil, stable society.  However, the state makes no effort to regulate marriages where the parties to the marriage are not parents, or cannot become parents, or choose to not become parents.  Even if the courts were to argue against polygamy on the basis of children and social stability, there is no empirical evidence showing that polygamous families are not as able to provide social stability for children as monogamous families.

            Regarding consistency, current laws permit a man to father children with different women and, as long as court ordered child support payments are made, the man is not guilty of a crime.  However, if the adults all chose to live together as man and wives, they would all be subject to anti-polygamy laws and risk fines and incarceration, as well as having the state remove the children from the household.  This is one of the most evil results possible while polygamy remains a criminal offence.  By removing the bar to polygamy, the home life of any children can be determined based solely on the care they receive and the home environment itself, without the social and religious stigma of polygamy being used as a litmus test which assumes an unhealthy environment for children without any proof to support the conclusion.  Society, through the courts, seems to be of the belief that a single parent household is a healthier, more stable environment for children than the household with three or more parents.

            Polygamous arrangements are much better arrangements for social stability than monogamous arrangements.  In a highly mobile society where the traditional extended family is becoming more and more a thing of the past, with the resulting loss in the support network such an arrangement provided for everyone involved, there are three options for society to choose from.  Society can, through legislation, attempt to force a renaissance of the traditional extended family, it can allow the continued deterioration of the extended family, or it can allow individuals to enter into agreements that serve to create an “expanded” family, based on the depth of trust and intimacy developed by the people involved.  Only the third option promotes ideals of personal liberty, while the first two either serve to intrude on the choices and relationships a consenting adult may enter into or further allow the destabilization of society by not allowing people to develop extended familial support networks, minimizing resources available for child care and for elder care.

            Legalizing polygamy makes the legal system more egalitarian, less grounded in patriarchal power dynamics, and discontinues the traditional support of a religious custom through law.  Dr. Betty Cogswell writes, regarding the patriarchal tradition of family,

The pervasive influence of the traditional family myth parallels the influence of the myth of male superiority.  Male superiority has been so infused into our lives…that some individuals often find themselves behaving in terms of this image while simultaneously advocating gender equality. (393) 

Legalizing polygamy also extends to each adult the maximum amount of liberties that do not infringe on any other individual’s liberty.  Polygamy, as noted above, also provides a way to buttress the failing support network people once relied on, known as the extended family, by allowing them the opportunity to create an expanded family of close friends and lovers, providing more resources to care for each other.

            As has been stated before, current laws are detrimental to polygamous relationships merely because they are polygamous, not because they are harmful to society or to the children involved.  It has also been asserted that current marriage laws are de facto laws respecting religion.  As evidence, a child was recently removed from her parents, who were part of a polyamorous household, after the child’s grandparents sued for custody on the grounds that the home environment was, according to the bible, immoral.  Dr. Geri Weitzman reports in “What Psychology Professionals Should Know About Polyamory,” “No evidence of child abuse or neglect was found, and mental health professionals found that the child was well-adjusted” (13).  This incident, and those like it, results from a confluence of problems with society’s current interpretation of marriage and the way in which marriage laws are applied, in contradiction to the Constitution, in a manner both hypocritical and inconsistent.  Only by decriminalizing and legalizing polygamous unions in all of its forms (polygyny, polyandry, and polygynandry) can injustices like this be eliminated, or at the very least minimized, with resultant family laws becoming more egalitarian and less based on the myth of the traditional, patriarchal, dyadic, family structure.  

After having looked at the issue of marriage, the arguments surrounding the issue of plural marriages, and showing how changing the status quo is the right thing to do, the next step is to address what specific changes need to be made, and how those changes would be most effective.  The first thing necessary is to decriminalize the practice of polygamy.  This can be accomplished in one of two ways.  Anti-polygamy laws can either become generally unenforced through a practice known as desuetude, or the laws can be legislatively repealed from the current legal codes of each jurisdiction in which they are present.  The method of desuetude would be the fastest and most cost efficient path, while legislative action would be the most effective and most positive, in that it would require public debate, which ideally would result in majority support for decriminalization that would be acted on by the legislators in the state and federal congressional bodies.

            The next step would be to address the arguments posed by marriage traditionalists.  The traditionalists are correct that a modern western understanding of marriage is founded on a Judeo-Christian tradition, and based on New Testament scripture, which seems to promote dyadic unions, roles based on sex, and a patriarchal hierarchy.  It would be improper to deny those couples who wish to perpetuate that particular doctrinal interpretation that liberty, because it would be discriminatory to their religious beliefs and practices, damaging to understood principles of liberty, and thereby harm society in the process.  This is exactly how the debate should be structured in the arena of public opinion.  By only allowing the rights supported by biblical doctrine, and denying all others, the state has given its implicit support to a particular interpretation of one specific religious faith.

            Because the traditionalists are right about marriage being generally accepted as an undertaking grounded in religious beliefs, there is room for negotiation on terminology.  Polygamists who are not supportive of the traditional religious understanding of marriage should apply pressure on the legislatures to stop performing, recognizing and otherwise involving themselves in a religious ceremony.  Instead, the support should be for state recognized civil unions based on the fully informed consent of all the parties involved, leaving marriage, a religious ceremony, to the various religious institutions to administer and adjudicate on while operating within the laws of the state.  There are a few things that need to happen for this tactic to be successful.

            Plural marriage and same-sex marriage advocates need to co-opt a significant portion of the politically conservative population, specifically the more libertarian of the group, and build an alliance based on keeping government and laws out of the bedroom in the interests of personal liberty.  Same-sex marriage advocates need to take a step back from their prior arguments revolving around marriage rights, accept the religious connotations the word comes with, and advocate for state sanctioned civil unions, with the understanding that “separate but equal” is acceptable since the law would treat the unions in a manner equal to how traditional marriage has been treated, and separate only in how the union is viewed by society in terms of religiosity.  Because marriage is generally defined with religious aspects, it should then be removed from all legislation and replaced with something representative of a generic, secular union or partnership.

            The term partnership is apropos considering the plethora of laws already codified that deal with business partnerships.  Business partnerships between two, five, or twelve have not been found to be too difficult for the state to adjudicate when there are disagreements over the dissolution of the arrangement.  The civil unions should be contractually based, with the involved parties agreeing to explicit obligations and responsibilities, and the contract should be a living document in that the parties should be allowed to change, upon mutual agreement, the terms of the contract.  These contracts can be dealt with in the civil courts by using existing business laws as a template for dealing with unions between two or more people in a family unit, and the traditional patriarchal roles based on sex, supported through legal precedent, need to be completely dismissed and the precedent disregarded.  This removes a major problem with the current marriage contract, which Lenore Weitzman addressed in the California Law Review with her observation that it “is unlike most contracts: its provisions are unwritten, its penalties are unspecified, and the terms of the contract are typically unknown to the ‘contracting’ parties” (1170).

            These efforts may or may not successfully result in the decriminalization, legalization, and state recognition of plural marriages in the near future.  However it is this author’s belief that it is only a matter of time before polygamists see their rights recognized and protected.  While the argument presented here is slightly different from most others, it is grounded in the same ethical standards as those of Andrew March, professor of political science at Yale University as evidenced by his claim, fitting as a concluding statement and indicative of the ideal end result of this particular debate, that

the most justifiable policy on liberal grounds is not the institution of “marriage” increasingly open to new constituent relationships, but rather a universal “civil union” status which fulfills the social and moral aims behind recognizing and subsidizing the family but is entirely neutral to the gender and to the numbers of the partners. (11)

            The issue of what marriage is, how it should be defined, and who should or should not be allowed to enjoy its benefits, is not an easy topic to deal with. Traditions, history, religious beliefs, and cultural inculcation make it difficult to objectively examine an institution as long lived as marriage has been, and hypothesize radically different forms it might take if society and the courts decide that it is time to re-evaluate the social paradigms regarding marriage.  There is no scientific data that legal, social, and psychological professionals can look at to see what outcomes may result with a broad change in how marriage is defined and regulated.  However, this lack of data is not a compelling reason to not make changes if society determines making a change is the right thing to do in the interest of justice.  Society will adapt to change, as it always has before, or it will rescind any changes it finds too burdensome to maintain.  

Works Cited

Cogswell, Betty E. “Variant Family Forms and Life Styles: Rejection of the Traditional Nuclear Family.” The Family Coordinator Volume 24 number 4 (1975): 391-406. JSTOR. Web. 20 February 2011.

Davis, Ray Jay. Encyclopedia of Mormonism, Vol 1, Anti-Polygamy. Macmillan. 1992.  Web. 28 March 2011.

Emens, Elizabeth F. "Changing name changing: framing rules and the future of marital names." University of Chicago Law Review 74.3 (2007): 761-863. Academic OneFile. Web. 24 Mar. 2011.

Girgis, Sherif, Robert P. George, and Ryan T. Anderson. "What is Marriage?" Harvard Journal of Law & Public Policy 34.1 (2011). Academic OneFile. Web. 20 Mar. 2011.

Heinlein, Robert. Friday. Holt, Rinehart and Winston. New York, NY. 1982. Text.

Heinlein, Robert. Stranger in a Strange Land. Penguin Putnam, Inc. New York, NY. 1991. Text.

Kindregan, Charles P., Jr. "Religion, polygamy, and non-traditional families: disparate views on the evolution of marriage in history and in the debate over same-sex unions." Suffolk University Law Review 41.1 (2007): 19+. Academic OneFile. Web. 27 Mar. 2011.

King James Bible Online. 2011. Web. 22 Mar. 2011. <http://www.kingjamesbibleonline.org>

March, Andrew F. "Is There a Right to Polygamy? Marriage, Equality and Subsidizing Families in Liberal Public Justification." Journal of Moral Philosophy, 8.2 (2011): 244-270. SSRN. Web. 30 Mar. 2011.

Republican Platform of 1856. USHistory.org. Independence Hall Association. Web. 21 Mar. 2011.  <http://www.ushistory.org/gop/convention_1856.htm>

Schwimmer, Brian E. “Marriage and Family Terms.” Fairfield University. Course Syllabus for SO 142, Sociology of the Family. n.d. Web. 21 Mar. 2011. <http://www.faculty.fairfield.edu/faculty/hodgson/Courses/so142/Family_types/familyterms.htm>

“The Council of Trent The Twenty-Fourth Session: The canons and decrees of the sacred and oecumenical Council of Trent.” Ed. And trans. J. Waterworth. London: Dolman, 1848. 192-232. Hanover Historical Texts Project. Web. 19 Mar. 2011.

Turley, Jonathan. “Affidavit #1 of Jonathan Turley.” In the Matter of: The Constitutional Question Act, R.S.B.C. 1996, C. 68 and In the Matter of: The Canadian Charter of Rights and Freedoms and In the Matter of: A Reference by the Lieutenant Governor in Council Set Out in Order in Council No. 533 Dated October 22, 2009 Concerning the Constitutionality of s. 93 of the Criminal Code of Canada, R.S.C. 1985, C. c-46. No. S-097767. Supreme Court of British Columbia. 20 Oct. 2010. Web. 28 Feb. 2011.

Weitzman, G, Davidson, J, Phillips, R., Fleckenstein, J.R., and Morotti-Meeker, C. “What Psychology Professionals Should Know about Polyamory.” National Coalition for Sexual Freedom, Inc. (2009). Web 23 February 2011.

Weitzman, Lenore J. “Legal Regulation of Marriage: Tradition and Change: A Proposal for Individual Contracts and Contracts in Lieu of Marriage.” California Law Review Vol. 62, No. 4 (Jul. – Sep., 1974). JSTOR. Web. 19 Mar. 2011.

Insurance = Communism?

How does health insurance work? Well, it's communism. Yes, communism, but communism gone bad, like Stalin was at the helm. A large community of people pool their resources (called premiums), and those premiums are used to pay for the medical care the people in that community need. Insurance companies, to satisfy investors, cull from the community those in the most need, protecting those who statistically need it least (they play the odds like a casino and the house always wins; that's what their number crunchers do for a living) and charging them just as much as they think the market will bear.

I can see an argument being made that health care, to some degree, is a right, albeit not one specifically delineated within our Constitution. But to me it's more about being a good American. We take care of each other. We cut the lawn of the widow next door, repair broken fences, and help those in need when we can. We live in a civilized, industrialized major world power known as the US of A! What have we let happen with our country's health industry? We've let it buy its way into the halls of power, spending over $1.5 million every day of every year, gaining influence over our law-makers. We've let their multi-million dollar public relations firms scare us into believing that the shareholders of CIGNA and the CEO's of the insurance companies CARE more about our health and well being than we do ourselves. I say that because where the rubber meets the road, WE ARE OUR GOVERNMENT. For goodness sakes, we don't tell they guy down the street, making $9/hour that he's not entitled to the protections granted by soldiers, or judges because he doesn't contribute to the salaries of those soldiers or of judges, so why do some of us have the temerity to tell that same person that they don't have the right to the same kind of health care we have, because they haven't earned it? We damned sure don't take that route with the little old lady who we cut the lawn for out of the kindness of our heart, do we?

We need a single payer system...one that puts the doctors in charge of what is prescribed in the way of medication and medical treatments; one that eliminates the hassles that every doctor and hospital has to deal with in terms of justifying to some desk jockey adjuster what was needed and why, when we all know that the moron at the desk doesn't understand a thing they're being told, but their job is to "adjust" the claim downward, or escalate it to someone who can.

We spend nearly 15% of our country's GDP on health related costs compared to France's 10% (2002 figures), and France is regularly touted as having one of the best health care systems in the world. Note that France has a health care system and we have a health care industry. We all know that there isn't any plan that is perfect, and every country out there, even France, Canada, Sweden and the U.K. have their own unique problems, but their problems pale in comparison to ours when it comes to who gets cared for and how vs. who does not get cared for at all.

The cost for a universal plan is minimal IF it's truly universal...if, unlike the insurance companies who cull the high risk applicants with rescissions or outright denials of coverage, this universal health system accepted everyone, and everyone contributed to the best of their ability (like we do to pay for judges, police, and soldiers), without the need for high priced PR firms, or the need to grease the palms of the power brokers to the tune of over half a billion dollars every year, we'd keep workers healthier and therefore more productive (increasing our GDP even more), and find that it's less expensive than what we currently have.

Our taxes pay for a lot of things. Libraries, parks, police, fire, judges, politicians (ugh), soldiers, and more. The list could get pretty long. When was the last time you complained that the legal system was run by the government and not by a for profit corporation? The health of our bosses, the health of our employees, and the health of our neighbors is important, and it's important enough to tell the health insurance megacorps with their Stalin-like CEO's at the helm, and their shareholders that our health isn't something to be treated like odds at the roulette wheel for their profit, but is necessary for a stronger, more united, happier and LESS STRESSED society. We Are Americans...we need to stop letting ourselves be used as pawns by the powerful, moneyed, amoral, greedy bastards that have been setting us one against the other for over 50 years. We're long overdue for this America. Now do something.

Hobbes, Montesquieu, and Rousseau – A Comparison of Views on Various Subjects

          The purpose of this paper is to compare the views of Hobbes, Montesquieu, and Rousseau on various subjects, to provide a critique of each philosopher’s position, and finally to argue for an alternative position.  The subjects explored, in order, are the relationships of freedom to law, nature and reason to God and revelation, commerce to virtue, and democracy to monarchy.  At the end of the paper, this author will provide his personal opinion on the various relationships and seek to synthesize, with modifications, the various philosophical stances into a practical, justifiable position that may serve as an alternative to the positions of the philosophers being critiqued.

On the relationship of freedom to law

Hobbes (From Leviathan)

Hobbes seems to make it clear in chapter five that freedom consists only in the absence of a physical hindrance to action when he states, “…if a man should talk to me of…any Free, but free from being hindered by opposition, I should…say…his words were without meaning; that is to say, Absurd¹.”  This deterministic position is in full agreement with his mechanistic explanation of cause and effect, from object to sense, from sense to imagination, from imagination to speech, from speech to reason, and from there to the formation of the various passions, which are sought to be satisfied through endeavors, based on the individual’s appetites and aversions².  Hobbes uses this definition of freedom to define liberty as “the absence of externall Impediments: which Impediments, may oft take away part of a mans power to do what he would; but cannot hinder him from using the power left him, according as his judgement, and reason shall dictate to him³.”  Because of Hobbes’ deterministic views on human behavior, the source of any willful human action is irrelevant when it comes to liberty.  All that matters is that the action is either unhindered by external barriers, and therefore the actor has the liberty to act, or it is hindered by external barriers, in which case the actor is denied liberty.  Hobbes reasserts his position more directly when, in chapter twenty-one, he describes what it means to be free.  “A Free-Man, is he, that in those things, which by his strength and wit he is able to do, is not hindered to doe what he has a will to do⁴.”

Hobbes divides laws into natural laws, which are existent at all times, and civil laws, which originate from a sovereign.  The two primary natural laws are articulated in chapter fourteen.  The first is, “That every man, ought to endeavour Peace, as farre as he has hope of obtaining it; and when he cannot obtain it, that he may seek, and use, all helps, and advantages of Warre⁵.”  The second is, “That a man be willing, when others are so too, as farre-forth, as for Peace, and defence of himself he shall think it necessary, to lay down this right to all things; and be contented with so much liberty against other men, as he would allow other men against himselfe⁶.”  Hobbes later states that the laws of nature are not truly laws, but are merely those qualities that dispose men to peace and obedience, and only become laws upon the creation of a common-wealth.  Immediately preceding this confession, Hobbes makes the assertion that the natural laws and civil laws are of “equall extent” and that natural laws are the commands of the common-wealth in the same manner the civil laws are the commands of the sovereign, and are at least equal in authority⁷.  Hobbes has previously implied that natural law has primacy over civil law, so when civil law stands in opposition to natural law, and seeks to deprive the person or people of their means to self-preservation and peace, people have recourse to natural law.  It is this primacy granted to natural laws that allows a reading of Hobbes that leads one to a conclusion that the people of a common-wealth have a right of revolution against the sovereign, by willfully entering into a state of nature (war) relative to the sovereign and those who remain in the common-wealth.

If one operates under the assumption that the natural rights and laws posited by Hobbes are ideals that right reasoning will lead one to follow, the only problem (though a major one) with his position is one of individual mental faculties.  This means that some people reason better than other people and any willful action to remove oneself from the common-wealth will always be arguably unreasonable, and would be argued as such by those who choose to remain a part of the common-wealth.  Of course, the reverse is also true, and one who removes himself from the common-wealth will argue that those remaining are unreasonable.  Hobbes has set himself up as the only true authority on what would be reasonable, and any who disagree with him are, as one can surmise from his tone in Leviathan, unreasonable.

Montesquieu (from The Spirit of the Laws) 

While Montesquieu may agree with Hobbes’ definition of liberty on the basis of the science of physics, Montesquieu chooses to define it in accordance with social governance, and gives two definitions.  The first definition provided is, “…liberty can consist only in having the power to do what one should want to do and in no way being constrained to do what one should not want to do.”  He explains this meaning further when he states, “Liberty is the right to do everything the law permit; and if one citizen could do what they forbid, he would no longer have liberty because the others would likewise have this same power.” Montesquieu goes on to define the particular type of liberty he is seeking to promote as political liberty, and it becomes obvious that Montesquieu has moved away from the Hobbesian understanding of liberty in terms of physics, Montesquieu provides the following definition: “Political liberty in a citizen is that tranquility of spirit which comes from the opinion each one has of his security, and in order for him to have this liberty the government must be such that one citizen cannot fear another citizen⁸.”  Montesquieu further claims that in order for a government to be such that it is capable of providing the citizens with this form of liberty it must be a moderate government and there must  be a separation of the three powers that Montesquieu sees in each state: the power of making, removing, and modifying laws, the power of making peace or war and dealing with foreign powers, and the power of punishment for crimes and judging disputes⁹. 

In determining how laws will best promote political liberty within republics, monarchies, and even despotisms, Montesquieu claims that each form of government will have different guiding principles (political virtue, honor, and fear, respectively¹⁰), its citizens will have different mores, and that laws need to be in agreement with and serve to promote those guiding principles, as well as take into account the climate, geography, religion, wealth, commerce, etc. of the people being governed¹¹.  The number of variables involved when looking at any given culture, which serve to differentiate it from other cultures, make it impossible to apply any law universally, and Montesquieu implies this when he says, “Laws should be so appropriate to the people for whom they are made that it is very unlikely that the laws of one nation can suit another¹².”  Montesquieu provides fifteen guidelines for how to approach laws when one seeks to determine the appropriateness for the given form of government and its principle, as well as for the people, taken as a whole, in book twenty-nine.  Montesquieu has done a brilliant job of identifying the fact that different people, having different ideas of right and wrong, and having needs and wants prioritized differently, will require governance that matches those ideas, needs, and priorities.  The primary problem with how he relates political liberty to the law is not the relation, but the definition he gives political liberty in the first place.  To make the claim that liberty is entirely dependent on the perception of fear by one citizen of another, and making the claim that the degree of liberty provided (reduction of fear) is the province of the law seems, to this author, improper.  In a world that has greatly improved (and will continue to improve) its understanding of brain chemistry and psychology it is entirely possible that at some point in time there could exist a chemical agent capable of removing the emotion of fear altogether.  Montesquieu also has not addressed the fear of what Hobbes would call “artificial men” in the form of government, governmental institutions, or corporations.  This is important because it is possible for a person to not fear the people of these organizations but fear the organizations themselves, seeing them as having a life of their own, separate from the people who are a part of it.

Rousseau (from On the Social Contract)

            Rousseau deals with three types of liberty: natural liberty, civil liberty, and moral liberty.  Natural liberty is the, “…natural freedom and an unlimited right to everything that tempts him and that he can get¹³.”  The transition of man from a state of nature, where natural liberty is enjoyed, into a civil state, results in civil liberty.  Whereas natural liberty is only limited by the amount of force one may bring to bear against any opposing force, civil liberty is limited, and defined by the general will.  This general will is a communal directive and is greater than the mere sum of the wills involved (which Rousseau would call the will of all) in the formation of the social contract.  Required for the social contract, and therefore civil liberty, is that each person give himself entirely to the community, and as everyone has equally vested themselves in the social contract, there is no private interest in making the contract onerous for others¹⁴.  Rousseau claims that by entering into this social contract and acquiring civil liberty through the body politic, it brings with it moral liberty.  According to Rousseau this transformation to civil society brings with it a redirection of the individual will toward the common will, “…by substituting justice for instinct in his behavior and giving his actions a morality they previously lacked.”  This moral liberty is the idea that, under Rousseau’s social contract, states people will be disposed to obedience to the laws they have prescribed for themselves, which is in direct opposition to natural liberty where natural laws were based on “impulse of appetite”, which Rousseau terms slavery, and is the sign of a “stupid, limited animal¹⁵.” 

            Rousseau has painted a picture of a utopian, idyllic society in which all laws are the result of the general will, designed to seek the common good, and always tend toward the public utility¹⁶.  With a society like the one Rousseau posits as resulting from the social contract in the way he sees it, it seems there would be no need for any laws, just decisions, which by the nature of the community would always be moral and right.  Even when one considers Rousseau’s admission that people can be misled, and therefore be mistaken when it comes to deliberating on their decisions, to assume as he does that factions and special interest groups can be made to have no greater power than any other group or individual, strikes this author as ludicrous utopianism.

On the relationship of nature and reason to God and revelation

Hobbes (From Leviathan)

            A reading of the first two parts of Leviathan would, by themselves, lend credence to the belief that Hobbes saw little, if any, good from a belief in God or in divine revelation.  However, the third part immediately shows that Hobbes may see nature and reason as God’s creations, and that all interpretation of things divine need to be made from a position of God-given reason, and with an understanding of the natural world.  In two statements Hobbes is clear that reason and nature are not in any way antithetical to God or revelation.  First, he states, “…we are not to renounce our Senses, and Experience; nor…our naturall Reason.  For they are the talents which he hath put into our hands to negotiate, till the coming again of our bleed Saviour¹⁷.”  Hobbes goes on to claim,

For though there be many things in Gods Word above Reason; that is to say, which cannot by naturall reason be either demonstrated, or confuted; yet there is nothing contrary to it; but when it seemeth so, the fault is either in our unskilfull Interpretation, or erroneous Ratiocination¹⁸.

By showing how nature, reason, God, and revelation are not mutually exclusive, Hobbes’ Leviathan may be interpreted from both secular, and scriptural, ecumenical perspectives.  Whether this speaks to Hobbes’ possible atheism or Lutheran belief system it is impossible to tell since he has tied the two belief systems together so well.  One potential benefit of doing what he has done here, is provide a method for civil governance for both the non-religious and religious.  One potential downfall of doing what he has done, is provide a justification for governance of any given religious doctrine.  However, this justification should not be taken to mean license for the sovereign to do as he pleases since Hobbes teaches that the laws of nature will remain in force; one of the foundational laws of nature being, “This is that Law of the Gospell; Whatsoever you require that others should do to you, that do ye to them¹⁹,” and is also known as the Silver Rule.  Furthermore, Hobbes asserts that until and unless a new prophet arises who both preaches the scripture unerringly and performs miracles, then there can be no credence given to the words of what would be obvious charlatans and deceivers²⁰. 

Montesquieu (from The Spirit of the Laws)

            Montesquieu devotes two full books on the relationship between religion and governance, though religion is pervasive throughout the work.  There seems to be a general antipathy toward religion in general, but a practical concession that religion is so powerful and pervasive a force that any philosophy of government needs to accept and adapt to the religions and superstitious beliefs of the people to be governed.  Evidence for this interpretation of Montesquieu can be found in book eighteen, on laws and the nature of the terrain, where he includes superstition as a chapter, and states, “The prejudices of superstition are greater than all other prejudices, and its reasons greater than all other reasons²¹.”  In book four Montesquieu observes that the people in his time are exposed to education from three different sources: fathers, schoolmasters, and the world; and that the worldly education conflicts with that provided by the other two sources.  He explains this by saying, “This comes partly from the opposition there is for us between the ties of religion and those of the world²²…”  In determining the part religion plays in governance, Montesquieu believes that as long as the laws are such that they regulate behavior and not thought or intent, they are less likely to lend themselves to unjust judgments against an accused, and a wrong removal of liberty, they are at least tolerable.  “For if the magistrate…even searches out hidden sacrilege, he brings an inquisition to a kind of action where it is not necessary; he destroys the liberty of the citizens²³…”  This section makes it clear that in societies where religion exists at all, secular forces should see to it that civil laws do not punish religious transgressions, and that ecumenical authorities should have no authority to punish transgressions of civil laws.  This appears to be a precursor to the separation of church and state concept that is still argued over in the United States today.         

Rousseau (from On the Social Contract)

            Rousseau has set himself the task of determining, through reason, the best structure for a civil society, and the framework in which it must continually operate.  Beginning with his belief that man, in a state of nature, is an ignorant animal without language, without an understanding of moral values, and driven by emotion, he needs to apply reason to fix what is broken.  What is broken is that men have become “depraved” and “miserable” as a result of forming societies.  Rousseau believes that men, in this original state of nature where instinct was the dominant motivation for action, refrained from uselessly harming others, and chooses to use this as the basis for judging the “goodness” of human behavior²⁴. 

            Rousseau makes the claim that all justice comes from God, but that without a social contract there is no means to see justice done, and this is the justification for the implementation of laws, the purpose of which is to see that justice is done among men.  Not only is Rousseau firm in his belief that God is the source of all justice, he seems convinced that the formation of a new state has always been accomplished by using the people’s religious beliefs to persuade them that the type of society being formed is better for them than their current state of existence.  Rousseau warns in this section that “one must not conclude from all this…that politics and religion have a common object for us, but rather that at the origin of nations, one serves as an instrument of the other²⁵.”  In fact, he later asserts that at first all governments were theocratic, and needed to be in order to provide the justification for the formation of a united society²⁶.

            In the same chapter, Rousseau explains why a religion in a state is more useful than not having one, and why Christian law is more harmful than useful: especially Roman Catholicism, which he sees as so bad he doesn’t discuss the reasons in depth, claiming it’s a waste of time to do so.  He does, however, state that a type of Christianity, “not that of today, but that of the Gospel (is a)…saintly, sublime, true religion,” but still shows how it is inconsistent with a good state since true believers are more interested in the afterlife and salvation than they are of their life in the state, and the state suffers as a result of this²⁷.

            In order to create what Rousseau sees as the strongest possible state, he explains that the state should have a civil religion which should establish “sentiments of sociability without which it is impossible to be a good citizen or a faithful subject²⁸.”  This religion should not be compulsory, though the sovereign is within his rights to banish anyone who does not believe in it, and it should have minimal dogmas.  Rousseau suggests the following dogmas, “The existence of a powerful, intelligent, beneficent, foresighted, and providential divinity; the afterlife, the happiness of the just; the punishment of the wicked; the sanctity of the social contract and the laws…” He describes these as positive dogmas, and provides one negative dogma of intolerance.  The negative dogma of intolerance is so important to a strongly constituted state that Rousseau warns about the dangers of allowing intolerance in strong terms. 

Those who make a distinction between civil and theological intolerance are mistaken, in my opinion.  These two intolerances are inseparable.  It is impossible to live in peace with people whom one believes to be damned.  To love them would be to hate God who punishes them.  They must absolutely be either brought into the faith or tormented.  Whenever theological intolerance exists, it is impossible for it to not have some civil effect; and as soon as it does, the sovereign is no longer sovereign, even over temporal matters.  From then on, priests are the true masters; kings are merely their officers²⁹.

The only time Rousseau agrees that it may be right for the priests to be the “true masters” as he called them, above, is when the “state is the church, and the prince is the pontif.”  In any other form of government, any and all religious beliefs should be tolerated to the extent that their dogmas are not in opposition to the duties and obligations of the citizenry, and as long as they are tolerant of all other faiths.  Any religion or faith that violates this rule should be removed from the state³⁰.

On the relationship of commerce to virtue

Hobbes (From Leviathan)

            Hobbes dismisses the ancient understanding of virtue as a moderate point between two extremes and redefines what virtue is from his mechanistic basis for human understanding, and bases the definition on the action itself and the propensity of a man to perform those actions in accordance with a given virtue or defect.  Virtue and its opposite, defect, are either natural or acquired, and are related directly to the intellect³¹.  Natural wit is acquired through use, and acquired wit is acquired through instruction, with each responsible for the particular virtues and defects of a person.  Proper use of a person’s wit would be virtuous and tend to provide for one’s security and self-preservation while improper use would be defective and tend to diminish one’s security, putting his own preservation at risk.  Only through proper reasoning will a person reach the right conclusion. 

For those in a common-wealth, where commerce would be permitted³² by the ideal sovereign who would use force to see that violations of civil and natural laws are punished, adherence to natural laws (also called moral laws) is compulsory.  Hobbes states that the third natural law is justice, which is simply stated: “That men performe their Covenants made³³.”  As commerce is, at its core, the result of mutual covenants of trust, it is protected in a common-wealth by a sovereign, and protected in a state of nature by God.  This is made clear at the end of chapter fifteen where Hobbes says of the laws of nature, “…Law, properly is the word of him, that by right hath command over others.  Yet if we consider the same Theoremes, as delivered in the word of God, that by right commandeth all things; then are they properly called Lawes³⁴.”  One might claim that the laws of nature are not the same as the civil laws governing commerce, but Hobbes instructs the reader in chapter twenty-six that, “The Law of Nature, and the Civill Law, contain each other, and are of equall extent…,” and that once a common-wealth is created the natural laws become civil laws and are the “commands of the Common-wealth³⁵.”  These commands, in this case, are that justice be done according to the laws.  Injustice is the failure to adhere to a covenant, so if there is a covenant or compact, the adherence to it by all involved parties is the relevant definition of justice³⁶.    

Montesquieu (from The Spirit of the Laws)

              Montesquieu says that each form of government should govern according to particular guiding principles.  In a republic the guiding principle is virtue, specifically political virtue (with a spirit of equality present in democracies, and a spirit of moderation in aristocracies), in a monarchy it is honor, and in despotism it is fear.  For the purposes of how virtue relates to commerce in each of these systems, or even in general, it is best in this writer’s opinion to consider each guiding principle as a virtue in its own right, as odd as it may seem to consider fear as a virtue.  Consider that the guiding principle in each form of government is that which keeps the government stable, and for this reason should be considered a requisite virtue. 

Political virtue is a love of the laws and the state, and requires a constant preference for the common good over one’s own³⁷.  Honor is oriented toward the self, and is measured by the degree to which one has most acquired “a gracious manner, a courtly air, intelligence, good judgment, politeness, urbanity, and joyfulness – and all this without constraint, affectation, or defect of any kind,” and would be a perfect honette homme³⁸.  In this way, and according to the rules of honor in the monarchy, a social hierarchy is established with the prince above all.  Fear serves to keep the people as slaves, serving the whims and caprices of the despot.  However, for stable despotisms there must be some stability, and for a despotic government to be tractable, it must be forced through some means to follow some order and suffer some rule³⁹.

According to Montesquieu commerce, in general, gentles the mores of a people, though the laws of commerce may either perfect the mores or ruin the mores.  Commerce also tends to lead to peace between different states, though not between individuals⁴⁰.  Montesquieu sees commerce as a force that at times is more powerful than the sovereigns, saying, “Commerce, sometimes destroyed by conquerors, sometimes hampered by monarchs, wanders across the earth, flees from where it is oppressed, and remains where it is left to breath⁴¹.”  After letters of exchange began circulating, allowing people to hide their wealth more effectively, “Since that time princes have had to govern themselves more wisely than they themselves would have thought, for it turned out that great acts of authority were so clumsy that experience itself has made known that only goodness of government brings prosperity⁴².”  Montesquieu further states the specific purpose of commerce is “to export and import commodities in favor of the state⁴³.”

  Republics are most welcoming to commerce, and republics that have commerce as their foundation may experience great wealth without the people’s mores being damaged, “because the spirit of commerce brings with it the spirit of frugality, economy, moderation, work, wisdom, tranquility, order, and rule.  Thus, as long as this spirit continues to exist, the wealth it produces has no bad effect.”  This spirit can be maintained as long as the laws provide that fortunes are divided “in proportion as commerce increases them, (and) must make each poor citizen comfortable enough to be able to work as the others do and must bring each rich citizen to a middle level such that he needs to work in order to preserve or to acquire⁴⁴.”

Monarchies should limit commerce in a few ways.  The nobles should not be permitted to levy taxes, as they would then be in the position of a despot where the people have no higher authority to appeal to and the nobles appointed to relieve any abuses would like to reap the benefits of those abuses.  Nobles should refrain from engaging in commerce since it could result in their acquisition of exorbitant and unseemly amounts of wealth, which Montesquieu deems as pernicious⁴⁵.

Regarding commerce in despotic states, Montesquieu only has this to say, “As for the despotic state, it is useless to talk about it.  General rule: in a nation that is in servitude, one works more to preserve than to acquire; in a free nation, one works more to acquire than to preserve⁴⁶.” 

Rousseau (from On the Social Contract)

            Rousseau believes the general will is that will directed toward the greatest common good.  In book two he states, “the greatest good of all…comes down to these two principle objects: freedom and equality⁴⁷.”  Rousseau then says that, presuming moderation of avarice within the lower classes and moderation of goods and influence in the upper classes, that people should be relatively equal.  In his note on the subject he asserts that this is done for the stability of the state.  “…tolerate neither opulent people nor beggars.  These two conditions, naturally inseparable, are equally fatal to the common good.  From the one come those who foment tyranny and from the other the tyrants⁴⁸.”

            Commerce within a state, between its citizens, with the intent to increase one’s wealth and luxuries, are not conducive to the common good, and therefore could not be something the general will would support.  Rousseau asserts, “Give money and you will soon have chains.  The word finance is a slave’s word…In a truly free State the citizens do everything with their hands and nothing with money⁴⁹.”  Rousseau is not opposed entirely to trade between nations, if it serves the common good, though he believes that it is unsustainable and the society will eventually stop trading.  Rousseau again seems to be quite similar to Montesquieu when he lists a series of suggestions based on a state’s geography, climate, customs, and character of its citizens.  One suggestion to a hypothetical state with an extensive shoreline is, “Cover the sea with ships; cultivate commerce and navigation.  You will have a brilliant and brief existence.”  Rousseau gives a note here regarding foreign commerce where he refers to the Marquis d’Argenson, who said “foreign commerce…creates almost nothing but a deceptive utility for a kingdom in general.  It can enrich some private individuals, even some towns; but the whole nation gains nothing from it and the people is not better off because of it⁵⁰.”  It seems Rousseau finds virtue and commerce two things that do not mix well, unless it is in a very particular situation, and then it they only mix well for a very limited time.

On the relationship of democracy to monarchy

Hobbes (From Leviathan)

Hobbes criticized Aristotle’s division of government forms, both the good and bad as Aristotle sees them; kingship v. tyranny, aristocracy v. oligarchy, and polity v. democracy.  Hobbes asserts that Aristotle has made a mistake in his classifications by calling a government that has the exact same structure two different things depending on the intent of the ruler or rulers.  Hobbes blames this error of discernment on Aristotle’s moral values creating a perception bias⁵¹.  Hobbes gives the impression that he will rank the various forms, of which there are only three in his opinion, monarchy, aristocracy, and democracy, based on reason, and not on virtue as Aristotle did.  Interestingly enough, it also appears that Hobbes may have merely been using a bit of rhetoric to sweep aside old ideas to replace them with new ones, again.  As he begins his ranking by discussing monarchy, he almost immediately brings in questions of virtue with the use of words like “corrupt” and have meanings grounded in moral values. 

            Hobbes deals with monarchies first, and claims that a good monarch is far better than corrupt legislators.  Misleading, considering he doesn’t make the comparison with good legislators, or with a corrupt monarch.  At first glance, however, an argument could be made that even a good monarch might be better than a group of mostly good legislators because there is no dilution of responsibility for the actions of the ruler in a monarchy amongst other rulers like there is with a legislature, therefore, as Hobbes claims, the interests of one good monarch are more closely aligned with the interests of the society than are any other form of government where many more people would be involved in lawmaking.  The primary problem here would be that the one good ruler is compared to a mostly good legislature, without giving any thought, at this time, to the results of one corrupt ruler in opposition to a majority of corrupt legislators.

            By comparing this “bad” possible eventuality with the good one, reason would show that a few good legislators would have a better chance of mitigating corruption in government by the corrupt ones, leaving society in a better condition than if it were to suffer under the effects of one corrupt monarch, where there is no mitigating, equal force at the legislative level.  Hobbes later addresses the potential problems with succession in a monarchy and the inherent risk that a monarchy, due to a succession crisis, could more easily dissolve back into a state of nature⁵².  If the litmus test for determining the most favorable form of government is that it must be most resistant to dissolution that would result in society reverting to a state of nature, then monarchy would be the least favorable of the three forms of government Hobbes addresses. So, while a surface understanding of Leviathan might lead one to believe that Hobbes believes that a monarchy is the “best” form of government, with a deeper understanding it can be concluded that he actually is supporting a republic as the best form. 

Montesquieu (from The Spirit of the Laws)

            A quick reading of Montesquieu would seem to indicate that he is taking a wholly relativistic approach to which form of government would be best, whether despotic, monarchal, or republican.  Much of The Spirit of the Laws concerns itself with how to apply the variables that Montesquieu believes should make up a government, such as climate (books 14-17), terrain (book 18), commerce, population, spirit, mores, manners, and religion of the people (books 19-25).  However, in book eleven, “On the laws that form political liberty in its relation with the constitution,” a close reading will show that Montesquieu appears to begin to lose his non-judgmental stance and start to show some favoritism for a republican form of government over a monarchal form.

            Book eleven is where Montesquieu delineates the three types of power always present in a state: legislative, executive (dealing with the rights of nations), and executive (dealing with the civil rights, which he simply calls judging⁵³).  In a section on how the power of judging should be applied in criminal cases, after he suggests that an accused should have the ability to challenge his judges, where those remaining are considered to be those acceptable to the accused, he states, “The two other powers may be given instead to magistrates or permanent bodies because they are exercised upon no individual, the one being only the general will of the state, and the other, the execution of that general will⁵⁴.”  Montesquieu does not define what he means when he uses the term “general will.”  It seems likely to this author that the general will Montesquieu speaks of is the same general will Rousseau defines in On The Social Contract published fourteen years after Montesquieu’s The Spirit of the Laws.  If this is the case, then the general will is that of the people.  This seems correct in at least one other way, when the concept of sovereignty is explored.  A despot is the sovereign in a despotic government.  The people are the sovereign in a republic.  An absolute monarch is, for all practical purposes, a despot, or is likely to become one even if the monarch did not at first wield his power arbitrarily.  The type of monarchy Montesquieu is focused on is the constitutional monarchy, like England was at the time, and sovereignty seems to be divided between the monarch, the nobles, and intermediary powers.  Sovereignty cannot be divided and risk being in opposition to itself (which is impossible, and any appearance to that effect would be the result of private interests being misunderstood to be the general will), so sovereignty must reside in the people, and expressed through the general will, even in a monarchy, if Montesquieu is to be understood correctly.

Rousseau (from On the Social Contract)

            When it comes to a true democracy Rousseau rightly asserts, “In the strict sense of the term, a true democracy has never existed and never will exist.  It is contrary to the natural order that the majority govern and the minority be governed⁵⁵.”  Rousseau then proceeds to list a number of prerequisites for a democracy in order to be successful: a small state, simplicity of morals, equality in ranks and fortunes, little or no luxury, and most importantly virtue⁵⁶.  It may then be assumed that the only form of democratic government warranting consideration is of an aristocratic form, of which Rousseau delineates three types: natural, elective, and hereditary.  Of these three types, the preferred, and the one to be compared to the ideal monarchy, is the elective form.  In this case, Rousseau determines that in a popular government where all men are equally magistrates, an aristocracy is such that the people elect those who are believed to the wisest and most fit to govern the citizens.  However, as a result of some inherent inequities of power and wealth within an aristocracy, Rousseau states that a nation governed democratically, through an elected aristocracy, requires “…moderation among the rich and contentment among the poor,” since an aristocracy does not require the level of virtue a true democracy would need.

            When Rousseau examines monarchal forms of government, the implication is that there are so many inherent risks in a monarchy that it cannot be the preferred form of government.  This is reminiscent of Hobbes comparison of monarchy to a republic.  Hobbes’ concern seemed to be sustainability, and the conclusion he implies was eventually reached by way of analyzing the risks inherent in monarchies when it comes to transfers of power and the rights of succession.  With Rousseau one sees the same risk assessment at the core of his discussion.  The following quotes give strong evidence that Rousseau would firmly support any elected aristocracy over a monarchy.

“…if no other government has more vigor, there is none where the private will has greater sway and more easily dominated the others.” 

“Kings want to be absolute…”

“The best kings want to be able to be wicked if it so pleases them, without ceasing to be the masters.”

“Their personal interest is first of all that the people should be weak, miserable, and unable ever to offer any resistance to them.”

Finally, Rousseau delivers a coup de grâce to monarchies when he states an outright conclusion to the question of preference of monarchies or democracies with,

An essential and inevitable defect, which will always place monarchical government below republican, is that in the latter the public voice almost never raises to high positions any but enlightened, capable men, who fulfill them with honor; whereas those who attain them in monarchies are most often merely petty troublemakers, petty rascals, petty intriguers, whose petty talents--which lead to high positions in royal courts—serve only to reveal their ineptitude to the people as soon as these men are in place.  The people makes a mistake in its choice much less often than the prince, and a man of real merit is nearly as rare in a ministry as a fool at the head of a republican government⁵⁷.

Author’s synthesis of the aforementioned theories and relationships  

 Understand that the following interpretations and suggestions are based on a somewhat parochial perspective from one who has a predisposed bias toward certain concepts of freedom, law, the natural world, spirituality and religion, and governmental structures, which stem from a combination of cultural inculcation and experience, and only afterward are followed by independent reasoning over the course of nearly forty years.  I need to acknowledge that the interrelationships of the various concepts and ideals need to be addressed with a Montesquieu-like moderation, as an excess in any direction will lead to a failure to reach the ideal ends of any society, which is a balance of liberty and security that may be maintained indefinitely, and like Rousseau reasons, takes into account human nature as it is, and as it may become.

Regarding liberty and law, there should first be a guiding principle within the people that tends toward three things.  First, there should be a general desire of the people to associate with other citizens in a civil, non-violent manner, where each person’s physical being and property is regarded with the utmost respect.  Second, people should desire to improve their state, their immediate community, themselves, and all other peoples of the world (in that order) in ways that will not harm others physically, financially, or emotionally.   Third, the people should be always vigilant and prepared to oppose any who put private interests above the general interest, which would be in opposition to the general will.  All of the above require, as Montesquieu points out, a certain political virtue to be taught to all in such a way that it tends to inspire the public to seek the general will and understand the principles upon which the society rests.  I think at this point it is obvious that Rousseau’s concept of the general will is one I agree with wholeheartedly as a requirement for a stable society.  Unfortunately, the ability to discern what laws and what decisions are most in accordance with the general will is still somewhat problematic.

I disagree with Rousseau that a religion is necessary for a civil state, but understand the power any religion can have on the mores and the desires of a people.  I do agree with Hobbes’ stance that a civil society does not need to be one that dismisses the possibility of divine revelation or the possibility of divine laws.  However, in order to best be able to incorporate differences in religious beliefs Rousseau is correct in asserting that tolerance is mandatory.  Without tolerance of different beliefs, the visceral nature of the emotions religion is capable of inspiring is a threat not only to those with diametrically opposed spiritual beliefs, but it can be a threat to everyone within the state.  Hobbes suggestion that laws be made based on the understanding that not everyone who has claimed divine revelation agrees with each other on dogma, and is further correct that it would be improper to hold culpable for violations of law based on divine revelation those who have either not been privy to the same revelation in the same way, or who claim an experience of a different revelation.  Therefore, it must be that in order to best govern a society, the laws must devolve to only the common ground each citizen can find agreement with.  In the hypothetical posed here, that would be in accordance with the general will, and incorporate Hobbes second natural law that one refrain from doing to others what he would not have done to him.

Montesquieu and Rousseau both have similar beliefs when it comes to the amount of damage excesses of luxury can cause a state.  If the ability for acquisition is left unchecked, and allows for the possibility that any one person, or any one faction of people, may acquire so much that people are beholden to them for their own well being, then that possibility, beyond being minimized and mitigated, needs instead to be eliminated altogether.  This is not to say that any and all luxury is to be eliminated.  Such a suggestion goes so against man’s natural inclinations to seek luxury that it would be a ridiculous and doomed endeavor from the start.  Instead, as both philosophers suggest, for practical considerations there needs to be a range of economic conditions that range from the mere level of subsistence on the low end to the high end where luxuries and indolence may be enjoyed by those who have worked for and earned them, but will not be so provided for that regular and productive labor is not necessary to maintain the luxuries enjoyed. 

When it comes to an ideal form of government, to see to the ends I’ve proposed, I must agree with Hobbes (based on what I believe his preference to be), Montesquieu, and Rousseau, in that a democracy, by way of aristocratic form (representative republic), with the separation of powers, is the preferable form.  Considering that I believe the U.S. has this particular form, it cannot help but be wondered, what is lacking that might explain the ills seen in our country.  The answer is several things.  While Montesquieu and Rousseau would probably point to the size of our country as being the primary cause, I would disagree with them on that point.  I would point to two large ideological factions that believe America is virtuous, and further believe in the concept of American exceptionalism.  One particular group sees virtue from a belief that Americans are inherently good, moral individuals and superior to other states and cultures from that perspective.  The other group sees virtue from a belief that our system of checks and balances, combined with the guiding principles of equality and justice that America’s founding documents espouse, with an understanding that different people will see things as being “good” or “bad” from different perspectives.  The two beliefs, regardless of the fact that one may or may not be more worthy than the other, are antithetical in nature.  The first group places sees virtue and morality as the result of nationality, while the second group sees virtue and morality as a result of adherence to what they believe to be universal principles and the ability of people to work together to minimize abuses of power through a properly designed and monitored system of governance.  It might be too late to rectify the disparate beliefs of these two factions, but if it is not, the only way it can be rectified is, as Montesquieu claims is mandatory for a state to properly pursue its guiding principles, education.  In the case of the United States, required is a state education that promotes political virtue, the general will, and equality, fairness and justice.

Citations

1.     Leviathan. Ch 5. p. 113

2.     Leviathan. Ch 1-6. p. 85-130

3.     Leviathan. Ch 14. p. 189

4.     Leviathan. Ch 21. p. 262

5.     Leviathan. Ch 14. p. 190

6.     Leviathan. Ch 14. p. 190

7.     Leviathan. Ch 26. p. 314

8.     The Spirit of the Laws. Part 2. Book 11. Ch 6. pp. 155, 157

9.     The Spirit of the Laws. Part 2. Book 11. Ch 6. pp. 156-157

10.  The Spirit of the Laws. Part 1. Book 3. pp. 21-28

11.  The Spirit of the Laws. Part 1. Book 1. Ch 3. pp. 8-9

12.  The Spirit of the Laws. Part 1. Book 1. Ch 3. pp. 8

13.  On the Social Contract. Book 1. Ch 8. p. 56

14.  On the Social Contract. Book 1. Ch 6. p. 53

15.  On the Social Contract. Book 1. Ch 8. p. 56

16.  On the Social Contract. Book 2. Ch 3. p. 61

17.  Leviathan. Ch 32. p. 409

18.  Leviathan. Ch 32. pp. 409-410

19.  Leviathan. Ch 14. p. 190

20.  Leviathan. Ch 32. pp. 413-414

21.  The Spirit of the Laws. Part 3. Book 18. Ch 18. p. 294

22.  The Spirit of the Laws. Part 1. Book 4. Ch 4. p. 35

23.  The Spirit of the Laws. Part 2. Book 12. Ch 4. p. 190

24.  On the Social Contract. Introduction. p. 7

25.  On the Social Contract. Book 2. Ch 7. p. 70

26.  On the Social Contract. Book 4. Ch 8. p. 124

27.  On the Social Contract. Book 4. Ch 8. p. 130

28.  On the Social Contract. Book 4. Ch 8. p. 130

29.  On the Social Contract. Book 4. Ch 8. p. 131

30.  On the Social Contract. Book 4. Ch 8. p. 132

31.  Leviathan. Ch 8. p. 134

32.  Leviathan. Ch 21. p. 264

33.  Leviathan. Ch 15. p. 202

34.  Leviathan. Ch 15. p. 217

35.  Leviathan. Ch 26. p. 314

36.  Leviathan. Ch 15. p. 202

37.  The Spirit of the Laws. Part 1. Book 4. Ch 5. p. 36

38.  Stanton, Domna C. The Aristocrat as Art: A Study of the Honnete Homme and the Dandy in Seventeenth and Nineteenth-Century French Literature, by Domna C. Stanton. Columbia University Press. Oct 15, 1980. p. 52

39.  The Spirit of the Laws. Part 1. Book 8. Ch 10. p. 119

40.  The Spirit of the Laws. Part 4. Book 20. Ch 1-2. p. 338

41.  The Spirit of the Laws. Part 4. Book 21. Ch 5. p. 356

42.  The Spirit of the Laws. Part 4. Book 21. Ch 20. p. 389

43.  The Spirit of the Laws. Part 4. Book 20. Ch 13. p. 346

44.  The Spirit of the Laws. Part 1. Book 5. Ch 6. p. 48

45.  The Spirit of the Laws. Part 1. Book 5. Ch 8. pp. 53-54

46.  The Spirit of the Laws. Part 4. Book 20. Ch 4. p. 341

47.  On the Social Contract. Book 2. Ch 11. p. 75

48.  On the Social Contract. Book 2. Ch 11. p. 75

49.  On the Social Contract. Book 4. Ch 15. p. 102

50.  On the Social Contract. Book 2. Ch 12. p. 76

51.  Leviathan. Ch 19. pp. 239-241

52.  Leviathan. Ch 19. pp. 241-246

53.  The Spirit of the Laws. Part 2. Book 11. Ch 6. p. 156-157

54.  The Spirit of the Laws. Part 2. Book 11. Ch 6. p. 158

55.  On the Social Contract. Book 3. Ch 4. p. 85

56.  On the Social Contract. Book 3. Ch 4. p. 85

On the Social Contract. Book 3. Ch 6. p. 87-89