The plight of the secular paradigm.

Author:Smith, Steven D. (American law professor)

Ever since the Peace of Westphalia, or in any case since the Enlightenment, or possibly from the enactment of the American Constitution, or at least since the early twentieth century, or most definitely over the last couple of decades or so, it has been accepted in western nations and their progeny, among dominant minorities anyway (to borrow a term (1)), that governments and the laws they impose must be "secular" (whatever that means). (2) This requirement of governmental secularity has been argued for, or at least asserted, or in any case assumed, in law (3) and in political theorizing. (4) "[T]here is a broad consensus," Jocelyn Maclure and Charles Taylor approvingly report, "that 'secularism' is an essential component of any liberal democracy composed of citizens who adhere to a plurality of conceptions of the world and of the good...." (5)

The requirement of secular government has been central to what I will call the prevailing "paradigm of legitimacy." Governments or laws that transgress the requirement by straying beyond the secular and lapsing into "religion" (whatever that is (6)) thereby imperil their legitimacy and compromise their claim on their subjects' respect and obedience. Or at least so it has been widely supposed.

The secular paradigm as a basis of political and legal legitimacy was not always in place, (7) however, and it is not foreordained that the paradigm always will be in place. On the contrary, there are indications that the paradigm is already losing its grip--that it may even be in a condition of crisis, or breakdown. Thus, Rajeev Bhargava argues for a rehabilitation of secularism precisely because, as he observes, "[o]nly someone with blinkered vision would deny the crisis of secularism." (8)

This Essay explores this perceived crisis. Part I discusses the nature of a "paradigm of legitimacy." Part II outlines the strategies of assimilation and marginalization that historically have supported such paradigms and, borrowing from the work of Thomas Kuhn and Arnold Toynbee, considers the paradigm shifts that can occur when these strategies prove ineffective. Part III illustrates these observations by reviewing the process by which, beginning in the fourth century, a Christian paradigm replaced an earlier Roman one and then in turn was displaced by a more secular view. These first three Parts are a prelude to Part IV, the longest in the essay, which discusses the rise of the secular paradigm, the strategies that have supported it, the increasing futility of those strategies, and the consequent present distress. As part of that discussion Part IV considers a potentially crucial distinction--between a secular paradigm of legitimacy and a paradigm of secular legitimacy--that is usually overlooked in contemporary discussions. The conclusion briefly reflects on the prospects.


    Governments claim legitimacy. Not everyone will be persuaded by such claims, of course, or even by the proposed distinction between "legitimate" and "illegitimate" rule. Augustine recounted the story of a pirate captured by Alexander the Great. Asked by Alexander what he meant by marauding on the seas, the pirate answered, "What you mean by warring on the whole world. I do my fighting on a tiny ship, and they call me a pirate; you do yours with a large fleet, and they call you Commander." (9)

    The story is provocative precisely because it challenges a distinction that is familiar, and a claim that governments make, probably of necessity. Governments claim that there is such a thing as "legitimacy," that they possess it, and that in this respect they are different from other wielders of power (such as pirates, or gangsters).

    Legal theorists make a similar point with respect to law. Law claims "authority," which can be another name for, or alter ego, or at least close sibling of, legitimacy. (10) There is a crucial difference, H.L.A. Hart famously maintained, between the mugger who demands your wallet and the tax collector who demands your payment; unlike the mugger, as an agent of the (presumptively legitimate) government the tax collector claims authority and imposes, or purports to impose, obligation. (11) Once again, the distinction can be doubted: Holmes's celebrated "bad man," who recognizes no obligation and cares only about the consequences of compliance or non-compliance, (12) regards law in the way Augustine's pirate regarded government. But legal regimes assert that the bad man is missing a crucial distinction; they claim (of necessity, according to Joseph Raz (13)) that there is such a thing as authority and that their law has it, and that there is such a thing as obligation and that their law imposes it.

    So governments claim authority for their law, and legitimacy for themselves. But how are these claims to be supported? From what does legitimacy derive?

    Here there can be no universal answer. And the local answers are far from being purely philosophical in character. Legitimacy is surely tied to tradition, and to public display or (as Pascal put it) "masquerade," (14) and also to effectiveness: a government that effectively provides order, security, and prosperity is more likely to be accepted as legitimate than one that cannot deliver these goods. (15) But legitimacy has an intellectual dimension as well. Governments and their supporters make claims or arguments calculated to demonstrate their legitimacy; and their effectiveness will depend in part on their success in gaining acceptance for these claims. (16)

    Claims of legitimacy will naturally draw upon the beliefs that prevail in the society which a ruler or government seeks to govern; as these beliefs vary, the content of claims of legitimacy will vary as well. In a society in which most people believe that God closely and benevolently administers the world, claims of legitimacy are likely to appeal to religious premises. (17) Rulers may invoke some sort of divine commission, directly or indirectly conferred. In a thoroughly secular society, by contrast, those kinds of claims will be of no use; governments will have to appeal to other kinds of extant beliefs--to a belief that governments "deriv[e] their just Powers from the Consent of the Governed," (18) for example. But whatever the character of the society, there will be some body of pertinent background beliefs in which claims of legitimacy will be grounded. Claims that manage to establish a solid connection to this set of background beliefs will have a chance of succeeding; claims that cannot be plausibly connected to such prevalent beliefs will be vulnerable.

    We can describe this body of pertinent background beliefs as a "paradigm of legitimacy." (19) The term immediately calls for qualifications. First, there is no suggestion here that every society has some coherent and canonical legitimating creed to which all members of the society subscribe. "Paradigm" must not be taken too stiffly; to describe the pertinent background beliefs as a "paradigm" is not to imply that those beliefs form a self-conscious, or unified, or coherent, or static philosophy. On the contrary, the background beliefs are likely to be diverse, and contested and evolving. Like Hart's "rule of recognition," they may be tacitly assumed and only faintly understood by those who rely on them; they may be extrapolated from practice as much as consciously articulated. (20) Just as terms like "feudalism" and "Enlightenment" are invented after the fact in an effort to capture the central commitments and practices of an earlier time (and even after their invention historians will debate how fully and accurately such terms describe the earlier period), so also a society's "paradigm of legitimacy" may be mostly presupposed, and contestable on both descriptive and normative levels. And yet in much the same way that the law moves to "work itself pure" through a process of ongoing reflection in response to contestation, (21) even so as a government's legitimacy is asserted, and questioned, and defended, the underlying structure of legitimating premises or beliefs--what I am calling the "paradigm of legitimacy"--is brought into the open, and polished up, and sometimes repaired or revised.

    Or rejected. We come here to a second qualification. Paradigms of legitimacy can evolve or undergo refinement, but they can also be discarded and replaced. A paradigm describable as "Romanitas" is over time replaced by a more Christian paradigm, which in turn is displaced by a more secular and democratic one. (22) We will look at the nature and causes of such "paradigm shifts" in Part II.

    Before turning to this topic, though, we should briefly note a third qualification. I have been using the term "paradigm of legitimacy" to refer to the general background beliefs held in a society that are pertinent to concerns of legitimacy and authority--to ideas such as the belief that all authority comes from God, or that governments must be based on the consent of the governed. But for any given society and government there are likely to be more local and particular legitimating beliefs and traditions as well.

    Thus, in medieval and early modern Europe, disputes about the legitimacy of rulers often turned on the interpretation of dynastic customs and understandings about rules and lines of succession. When the king dies without a male heir, does power pass to the king's daughter or instead to a more distant male relative, or perhaps to the king's son by someone other than his wife? Or suppose the king's putative marriage to a first wife, and hence the legitimacy of the progeny of that union, are thrown into controversy, perhaps by doubts about whether the woman's prior union with the king's brother was actually consummated. What then? In contemporary America, similarly, the general notions of popular sovereignty and government by consent may be widely accepted as truisms, but the question whether a particular claimant is entitled to...

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