Code Napoléon Recalled

A year away from another general election, the focus is back on money again. And once again ventures are being launched to reform the funding of the electoral process. This, of course, is a bottom-up venture in a day-and-age when the acceptance of our fundamental laws lies back some 238 years (the Constitution having been ratified in 1788). Since then law in the United States, case law governed by precedent, has grown enormously and represents a vast morass piled high enough to make a Himalaya. At a minimum, some constitutional amendment will be required to bring about the change reformers hope to achieve. Such an amendment requires two-thirds majorities in both houses of Congress and must be ratified by three-fourth of all states. Even if such a change passes, the accumulated precedents of nearly two-and-a-half centuries will be applied to its interpretation in practice—which is a way of saying that fundamental effective change from the bottom up is virtually doomed at the start.

Just a short time after the Constitution was ratified in the United States, the Napoleanic Code was established in 1804—but its earliest draft dates to 1793. This summarily wiped away the vast accumulation of many different versions of French Mediaeval law: a radically fresh start. The name that come to be attached to it tells us that it was top-down. That code itself was modeled on Justinian’s reform of Roman law, completed in 533—which tells us the size of that mountain of morass Napoleon had to cause to disappear…

The Code was—like its time—rational to a fault. It was, by design, intended to avoid the features of case law; thus it prohibits judges introducing a general rule, thus enlargement of the laws, because this constituted, in the eyes of framers, legislation by judges (Article 5). This also meant that precedent (stare decisis*) is not a binding feature of French law. But…

But, of course, no law, no matter how new and clean, can actually anticipate all of the cases that will be brought before judges. Every code is missy, as we would say nowadays, and therefore judges would be faced by cases in which the proper fit of the existing code would not cover the gaps. To prevent judges from avoiding such problems by not dealing with them. They had to use some part of the Code to apply it to the problem in the gaps. They were required, therefore, to engage in interpretation  (Article 4; for text of Articles see this link). In effect, therefore, the French Code, although intended to prevent legislating judges, also compelled them to interpret the law one way or the other so that the net effect is that French jurisprudence de facto works the same way as common law—although its judges are denied the favorite game played on Law & Order, our TV series, which often features a major hunt for precedents.

Which is a way of saying that reform, however good—and it is best if it is a brand new start—will gradually turn into another yet another new morass. Morass will pile on top of morass until it begins to seem like a mountain. The very shortest version of the French Code today has 3,000 pages; there is also an “expert” and a “mega” version (the last available on a searchable CD ROM).

Now tunneling beneath that mountain with a (probably small) popular movement of reform—and introducing say a few pages more stuff at the very bottom, i.e., as part of the Constitution—say regulating how money may be spent on elections—will barely be noticeable by the money itself which, like water, can penetrate any kind of mountain of morass at any point and cumulate wherever it wishes.

But for a small reform, likely to last, say, two hundred years, one does need a Napoleon.

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* Stare decisis et non quieta movere. To stand by decisions and not to disturb the undisturbed. Thus to use case law established by previous cases and to respect their conclusions as law.

The Professional Soldier

One of the characteristics of the professional soldier—as my late friend and comrade-in-arms Al Coger used to say—is respect for the professionals on the other side. Both are simply doing a job that, alas, has become necessary enough to make war a calling. Hate is not an aspect of it—nor is war something elevated. It isn’t about ideology, much less about adherence to a cosmic faith. It’s organized violence to be managed as efficiently as possible, and as Sun Tzu, who belonged to this profession, wisely asserted in his The Art of War, the most efficient handling of war is to win it without an actual battle.

Elections, to be sure, are somewhat more efficient ways of resolving conflict than war. Unity frays over time, and at right regular intervals it needs to be restored by the force, in the case of politics, of superior numbers. Ballots are more efficient than bullets. And once the matter is decided, civility should rapidly return. It should return if both sides recognize the underlying issue. That issue is that conflict may be unavoidable but isn’t some kind of good in and of itself. Unity is. And conflict must be ended as soon as ever possible—not when the other side has been absolutely annihilated. Compromise, therefore is part of it.

The presence of a sense of unity, even in the midst of the conflict, is what matters. And when it’s absent, real trouble looms. War between nations must be hallowed by an understanding on both side that each is part of humanity—and humanity is the higher good. Within a nation the unity of its people as one community must be the fundamental assumption that renders elections legitimate. Demonization of the other side has been a feature of elections at their emotional heights throughout our own—and in other countries’—history. But after the election is decided, normalcy returns again. Indeed it has been a feature for the winner to embrace those who opposed him and for the looser to pledge his support.

Quite visible cracks have appeared after this year’s election. They may just be a residue of the pain of loss on the right. The right, of course, will triumph again, just give it time, but one of the signs of a loss of effective unity is that every loss today is Doom Forever, and every victory the Triumphal Arrival of the Everlasting Future. One radio host, for instance, Dennis Prager, has elevated political stances into religions. He sees three such competing for humanity’s allegiance: Leftism, Islamism, and Americanism (link). That’s the sort of thing I mean. It reminds me of Toynbee; he saw “end times” characterized internally by the rise of Futurism (read leftism), Archaism (read Americanism), and externally by the eventually successful pressure of an External Proletariat (read Islamism). The secessionist talk, largely only symbolic although it is, also indicates that even great and successful unions of people become, eventually, too big to hold together.

To whom does the future really belong? Toynbee suggested that those in charge of really shaping the future are the people who are looking up, transcending all these battles, and finding  solutions in the spiritual realm—where no “divisions,” in Stalin’s sense, are even discernible. They are too few in number to be clearly seen yet. They’re not agitating in the public square; that square is down there, not up. They’re not thirsting for power, either; they only long to do a good job—like any decent professional soldier. I’m waving to you, Al. You never thought you’d end up in heaven—or that such a place even existed—but there you are now.

Lucky and not so Lucky Elections

Very little time actually passes when we are not again reminded that we live in a fallen world. Things are getting back to normal. The cynical response to this, of course, is merely to shrug, but invariably “normalcy” means that children are being killed needlessly somewhere. We have the teaching to guide us (Matthew 19:14): “Jesus said, ‘Let the little children come to me, and do not hinder them, for the kingdom of heaven belongs to such as these.’” The Golan Heights heat up as if there was a volcano there. And Israel is mobilizing to defend itself against that Goliath of Palestine, the dirt-poor Gaza strip. Of course it is election time in Israel, and that might have some causative effect (see, for instance, link). And we may call ourselves lucky that children are not routinely killed every time we go to the polls. But such good fortune does not please if our context is humanity.

In Parentheses

Back in the long ago, probably in the 1950s, I read a strange book entitled In Parenthesis. It was written by David Jones, published in 1937, but it dealt with Jones’ experience of World War I, a period of such collective horror and disorder for participants that Jones thought of it as a suspended period of his existence, between parentheses. Jones was a painter and engraver not a writer, hence perhaps his use of the singular. But it’s obvious how he used the word. I didn’t know his background at the time of reading—nor did I have sufficient background to understand his mythic or literary allusions. What struck me then was the reality of war—and the originality of Jones’ conception—that isolation of something unspeakable, its separation by parentheses from the rest of experience.

Sometimes only the “idea” of a work remains in my memory—but is deeply embedded there and surfaces like a reminder. For the participants, wars belong there. A while back now I mentioned W.G. Sebald’s book, Air War and Literature (link); in that book he attempts to answer critics of German post-war literature who berate the Germans for not writing about the war. Sebald’s book itself provides the reason why; the more remembered, the more repressed. Placed between parentheses.

Now of course it is almost ridiculous to liken great violent upheavals like world wars to the recurring phenomenon of national elections; the more fitting reference in the latter case is to circuses. But yet for me the phrase, in parentheses, recurs right on time every election year, just about this time in the cycle; it comes in the form of a reminder: put all this aside, ignore it. It is a kind of collective madness, really. And if it has the smell of war and of insanity, it is because elections are exactly that: wars. They are sublimated wars—but real; why else would I recall In Parenthesis each time, and each time with a little shudder.

Breadless Circuses

Is there a kind of archetype of rulership? And, for that matter, what is an archetype? In practice it seems to mean what most people understand by some concept, thus a widespread meaning, understood at once and essentially in the same way—without further elaborations, nuance, and learned exceptions. Rulership? Well, whoever can say, “Off with his head!” would appear to manifest it—provided, of course, that it really happens. It means ability to accomplish at the highest collective level what the person actually intends.

The American way of government as embalmed in the constitution ignores the archetypes that float about. By contrast the American way of electing its ruler makes maximum use of the archetype—thus in effect ignoring that a presidential election is not, repeat not, the election of a ruler at all. It is the election of electors who in turn elect an executive charged with executing the laws passed by Congress. Quite a contrast. Genuine rulers—the off with his head kind—tend to elect themselves. If that’s not the way they get there, they get there on a vast swell of popular hysteria so great that riding rough-shod over flimsy pieces of paper is quite easy—and easily enforced by thugs in shirts of the same color.

Ours is a kind of corporate model, in effect. At the archetypal level. At the corporate level the board composed of ownership selects the executive who runs the company; the board can also remove the chief executive if he doesn’t deliver. The cowardice of most boards is just a fact; but it happens. The difference in our governing structure is that the power is entirely in the hands of Congress—but not the at-will removal of the executive.

But people want to keep things simple—and as I’ve remarked elsewhere before, If you keep it simple, you are stupid. Therefore, at this season, we have political circuses. The Romans insisted on more. Bread and Circuses. We only get the circuses. The bread is supposed to come from G — no! Make that the Market.

Elections, Elections

They’re everywhere, everywhere. Even we are now actively committed. The superpac ads are exploding all around us, we’re attending every spellbinding debate, we’re hitting the streets canvassing for our candidate, It (our candidate is unusual in being an It) is, we think, the only candidate worthy of political effort. And It only wants to raise our taxes (which tells you how we vote around here) by a staggering 0.7 mills per annum—or as much of that at maximum that It will need over the next eight years to balance Its budget. Yes, we say! Yes, to that.

Perspectives

By way of background to what follows, I wondered this morning jotting a diary entry how I would view this election day if I were thirty-five rather that double that number plus. To check on this I looked back to 1971, the year when I was that age. Nixon was President and Vietnamization was then in full swing. Vietnamization? The word stopped me for a minute before memories stirred. Oh, yes. There had been that disastrous North Vietnamese offensive, back in 1968—the Tet. It shook the U.S. Government enough so that Nixon launched Vietnamization as a consequence. The word meant that Vietnamese, rather than U.S. forces, should take over the war effort there. We’d engage in training them. Ah, perspective. When a war begins to fail, turn it over to the locals. We’d learned to do that for the first time ever in the Vietnam War. I don’t recall Europeanization ending either of two world wars, nor Koreanization during Truman’s “police action,” so called, that came later.

No elections took place in 1971, so I checked back to 1970. In the midterm elections of that year, the Democrats gained nine seats in the House and lost one in the Senate. Before the elections they’d dominated both houses of Congress; after it, they still did. The GOP gain of a seat in the Senate was the first sign of Nixon’s “Southern Strategy.” Did Democratic victories signal Nixon’s doom in 1972? They did not. The Southern Strategy came of age two years later, and Nixon won by a landslide. He carried every state but Massachusetts and the District of Columbia; the U.S. map was a uniform red.

Still, it was a different sort of time, at least as I recall it. Neither government nor public had as yet become as sharply divided in ideology. We were active in space. Apollo 14, the third successful lunar mission, landed on the Moon in 1971. The Cold War was still a reality. Vietnam was issue One. Unknown to all but a handful of the 208 million inhabitants of the United States then, the first e-mail message ever sent passed between two computers that were part of the Internet’s precursor, the ARPA-NET.

After a while, staring at screens, I came to the conclusion that, at thirty-five, I was very actively engaged in the world, then living in Washington, DC and by the hour that my diary jottings were taking place today I would have been in very thick traffic making my way downtown. World and current affairs were much more in the background then for me, forced out of view by things to mind and lists to work. I had virtually no time to contemplate the times. But the seeds of today, back then still the future, were already sprouting.