Robert P. George on the Purpose of Law and Government
A couple of years ago First Things published an essay entitled “Law and Moral Purpose” (now behind firewall), by Robert P. George, Princeton University’s McCormick Professor of Jurisprudence, and Director of the James Madison Program in American Ideals and Institutions.
A while back I took the essay and choped it up into a multi-part interview format–inserting questions to make the presentation easier to skim, as well as numbers and italics. I thought it’d be worth reprinting part of it below.
What are the obligations and purposes of law and government?
(1) To protect (a) public health, (b) safety, and (c) morals, and (2) to advance the general welfare—including, preeminently, protecting people’s fundamental rights and basic liberties.
Wouldn’t this require the granting of vast and sweeping powers to public authority?
No; the general welfare—the common good—requires that government be limited.
You distinguish between government’s primary and subsidiary roles. What are the government’s primary responsibilities?
Government’s responsibility is primary when the questions involve (1) defending the nation from attack and subversion, (2) protecting people from physical assaults and various other forms of depredation, and (3) maintaining public order.
What are the subsidiary roles of the government?
Its subsidiary roles include: to support the work of the families, religious communities, and other institutions of civil society that shoulder the primary burden of forming upright and decent citizens, caring for those in need, encouraging people to meet their responsibilities to one another while also discouraging them from harming themselves or others.
You’ve said that political morality requires (1) governmental respect for individual freedom and (2) the autonomy of nongovernmental spheres of authority. Can you explain?
Government must not try to run people’s lives or usurp the roles and responsibilities of (1) families, (2) religious bodies, and (3) other character- and culture-forming authoritative communities. The usurpation of the just authority of families, religious communities, and other institutions is unjust in principle, often seriously so, and the record of big government in the twentieth century—even when it has not degenerated into vicious totalitarianism—shows that it does little good in the long run and frequently harms those it seeks to help.
What is the relationship between limited government and classic liberalism?
Limited government is a key tenet of classic liberalism—the liberalism of people like Madison and Tocqueville—although today it is regarded as a conservative ideal.
Does belief in limited government entail libertarianism?
No. The strict libertarian position, it seems to me, goes much too far in depriving government of even its subsidiary role. (1) It underestimates the importance of maintaining a reasonably healthy moral ecology, especially for the rearing of children, and (2) it misses the legitimate role of government in supporting the nongovernmental institutions that shoulder the main burden of assisting those in need.
What truths is libertarianism responding to?
Libertarianism responds to certain truths about big government, especially in government’s bureaucratic and managerial dimensions. Economic freedom cannot guarantee (1) political liberty and (2) the just autonomy of the institutions of civil society, but, in the absence of economic liberty, other honorable personal and institutional freedoms are rarely secure. Moreover, the concentration of economic power in the hands of government is something every true friend of civil liberties should, by now, have learned to fear.
What else does libertarianism respond to?
There is an even deeper truth—one going beyond economics—to which libertarianism responds: Law and government exist to protect human persons and secure their well-being. It is not the other way round, as communist and other forms of collectivist ideology suppose. Individuals are not cogs in a social wheel. Stringent norms of political justice forbid persons to be treated as mere servants or instrumentalities of the state. These norms equally exclude the sacrificing of the dignity and rights of persons for the sake of some supposed “greater overall good.”
How do you respond to those who want to severe the ideas of limited government and moral truth?
It is a profound mistake to suppose that the principle of limited government is (1) rooted in the denial of moral truth or (2) a putative requirement of governments to refrain from acting on the basis of judgments about moral truth.
Our commitment to limited government is itself the fruit of moral conviction—conviction ultimately founded on truths that our nation’s founders proclaimed as self-evident: namely “that all men are created equal, that they are endowed by their Creator with certain unalienable rights, and among these are life, liberty, and the pursuit of happiness.”
What’s at the foundation of this proposition?
That each human being possesses a profound, inherent, and equal dignity simply by virtue of his nature as a rational creature—a creature possessing, albeit in limited measure (and in the case of some human beings merely in root or rudimentary form), the Godlike powers of reason and freedom—powers that make possible such human and humanizing phenomena as intellectual inquiry, aesthetic appreciation, respect for self and others, friendship, and love. This great truth of natural law, which is at the heart of our civilizational and civic order, has its theological expression in the biblical teaching that man, unlike the brute animals, is made in the image and likeness of the divine creator and ruler of the universe.
What do you think about a pragmatic approach to these issues?
We must not adopt a merely pragmatic understanding or speak only of practical considerations in addressing the pressing issues of our day. Sound positions cannot be effectively advanced and defended by citizens and statesmen who are unwilling or unable to engage moral arguments.
That is why we should, in my opinion, rededicate ourselves to understanding and making the moral argument for the sanctity of human life in all stages and conditions, and the dignity of marriage as the conjugal union of one man and one woman.
Are you saying that practical considerations should, or even can, be left out of the argument?
No. In a proper understanding of morality, practical considerations are not “merely” practical.
Can you give some examples?
The moral case for the reform of unilateral-divorce laws includes reference to the devastating, poverty-inducing, crime-promoting social consequences of the collapse of a healthy marriage culture and the role of unilateral divorce in contributing to the collapse.
The moral argument for restoring legal protection to the unborn includes reference to the adverse psychological and, in some cases, physical consequences of abortion on many women who undergo the procedure.
Our task should be to understand the moral truth and speak it in season and out of season.
What do the pure pragmatists urge?
We will be told by the pure pragmatists that the public is too far gone in moral relativism or even moral delinquency to be reached by moral argument. We will be advised to frame arguments in coded language so as not to scare off the soccer moms or whoever is playing their role in the next election cycle.
But you believe this must be resisted. Why?
We must, to be sure, practice the much-neglected and badly underrated virtue of prudence. But we must have faith that truth is luminously powerful, so that if we bear witness to the truth about, say, marriage and the sanctity of human life—lovingly, civilly, but also passionately and with determination—and if we honor the truth in advancing our positions, then even many of our fellow citizens who now find themselves on the other side of these issues will come around.
Why does speaking of “truth” frighten some people today?
They evidently believe that people who claim to know the truth about anything—and especially about moral matters—are fundamentalists and potential totalitarians. But, as Hadley Arkes has patiently explained, those on the other side of the great debates over social issues such as abortion and marriage make truth claims—moral truth claims—all the time. They assert their positions with no less confidence and no more doubt than one finds in the advocacy of pro-lifers and defenders of conjugal marriage. They proclaim that women have a fundamental right to abortion. They maintain that “love makes a family” and other strong and controversial moral claims. The question, then, is not whether there are truths about such things as the morality of abortion and the nature of marriage; the question in each case is, What is true?
What do you think about incrementalism in politics?
Of course, politics is the art of the possible. And, as Frederick Douglass reminded us in his tribute to Lincoln, public opinion and other constraints sometimes limit what can be done at the moment to advance any just cause. The pro-life movement has in recent years settled on an incrementalist strategy for protecting nascent human life. So long as incrementalism is not a euphemism for surrender or neglect, it can be entirely honorable. Planting premises in the law whose logic demands, in the end, full respect for all members of the human family can be a valuable thing to do, even where those premises seem modest.
Fully just law would protect all innocent human life. Yet sometimes this is not, or not yet, possible in the concrete political circumstances of the moment.