“Only in the past two generations has the public philosophy of America shifted radically from a religious to a secular theory of law, from a moral to a political or instrumental theory, and from a historical to a pragmatic theory. . . Rarely does one hear it said any more that law is a reflection of an objective justice or of the ultimate meaning or purpose of life. Usually it is thought to reflect, at best, the community sense of what is expedient; and more commonly it is thought to express the more or less arbitrary will of the lawmaker. . . The triumph of the positivist theories of law — that law is the will of the lawmaker– and the decline of rival theories– the moral theory that law is reason and conscience, and the historical theory that law is an ongoing tradition in which both politics and morality play important parts — have contributed to the bewilderment of legal education. As a consequence, skepticism and relativism are now wide spread.”[i]
So what is a public philosophy, and where does it come from?
Essentially, Lippmann suggested, it’s the idea that through the rational faculties of men, they can produce a common conception of right and wrong, good and evil, and law and order which possesses a universal validity. Or, as other commentators have couched it: “as a consequence of their human nature and social experience, we can see that all normal human beings carry a compass of ‘natural law’ within; an innate sense concerning things like justice, fairness, equity, cheating, love, courage, wisdom, and so on…” Lippmann explained how our Founders had read the classics espousing these ideals, including writers like Cicero, and designed a nation and a government built around these beliefs, clearly evidenced in the Declaration of Independence and the Constitution. The longevity of these notions and the recurring revival of these ideals in different eras reflects the Founders prudent judgment, and indicates that they reflect a wide and recurring human need. Indeed, when properly employed, sound public philosophy has repeatedly been demonstrated to aid in dealing with many practical questions of policy in the face of recurring, complex political problems.
On the other hand, modern democracies that have abandoned the main concepts, principles, precepts of a public philosophy have gradually disintegrated because liberal democracy is not an intelligible form of government that can function properly unless there are men and women of good will who possess the requisite understandings about how liberal democracy was conceived and founded in the first instance.
In this regard, Lippmann was one of the first to note the emergence of a problematic new meme that ideas and principles should be private, with only subjective relevance and significance. Supposedly, everything that has to do with what man is and should be, or how he should hold himself in the scheme of things, or what are his rightful ends and legitimate means are, has become private and subjective and publicly unaccountable. This has brought about a radical change in the meaning of freedom. Originally, it was founded on the postulate that there was a universal order in which all reasonable peoples concurred. But with the disappearance of the public philosophy, and a concomitant consensus on the first and last things, a great vacuum has opened in the public mind, yawning to be filled. Essentially, this divergence has been a way of not having to open the Pandora’s box of theological, moral and ideological issues which have more recently divided Western societies. However, this expedient only works so long as people are not seriously dissatisfied with things as they are, i.e., agnosticism and/or practical neutrality in ultimate issues are only possible when there are no hard decisions that have to be made.
So will our society endure in its current form?
That depends. Large plural society such as ours cannot be governed without recognizing that, transcending its plural interests, there needs to be a rational order with a superior common-law consistent with our seminal documents. These are the necessary prerequisites, without which it’s impossible for different peoples with their competing interests to live together in peace and freedom within the community we call the United States.
In our lifetimes, institutions built upon these foundations may well continue to stand. But they won’t endure long into the future if their continued existence depends upon their use by a public that is not being taught, and no longer adheres to, these philosophies.
The Leadership Foundation for American Values exists to help those who want to recover, revive and reinvigorate those values in our society.
[i] Prof. Harold Berman, “The Crisis of Legal Education in America”, 26 Boston Coll. L. Rev. 347, 348 (1985)
