Conservative philosopher Russell Kirk’s opus on American “order” appeared in 1974, a year of remarkable disorder: Vietnam divided the nation, university protests disrupted classes and frequently drew the attentions of the National Guard, and Richard Nixon resigned in disgrace. The American order survived Vietnam and Watergate, two events that would have precipitated revolutions in more fragile democracies, just as it has gone on functioning for more than 150 years after the Civil War and nearly 250 years since the signing of the Declaration of Independence. France, by contrast, has been through five “republics” in a similar timeframe. What are the roots of this American order, that has proven so durable, and how deep do these roots go?
Kirk begins by quoting Cicero, who ruled in the final years of the Roman Republic, and surveying the obvious decay and disorder of a once-great power, concluded that the citizens of Rome had failed in their sacred duty of maintaining the Roman way of life:
Long before our time, the customs of our ancestors molded admirable men, and in turn these eminent men upheld the ways and institutions of their forebears. Our age, however, inherited the Republic as if it were some beautiful painting of bygone ages, its colors already fading through great antiquity; and not only has our time neglected to freshen the colors of the picture, but we have failed to preserve its form and outlines.
Importantly, Cicero locates this failure not only in the decay of institutions, but in the degraded moral condition of the men and women charged with their upkeep. “Cicero understood,” Kirk tells us, “that the problem of order is simultaneously personal and social: Roman men and justice declined together.” It follows, then, that true order cannot be reduced to the laws, imposed from without, but must begin in religion and philosophy, in a shared outlook on life and morality. “All the aspects of any civilization arise,” Kirk argues, “out of a people’s religion:”
its politics, its economics, its arts, its sciences, even its simple crafts are the by-products of religious insights and religious cult. For until human beings are tied together by some common faith, and share certain moral principles, they prey upon one another. In the common worship of the cult, a community forms. At the heart of every culture is a body of ethics, of distinctions between good and evil; and in the beginning, at least, those distinctions are founded upon the authority of revealed religion.
Without a shared body of ethics, trust is impossible, for the foundations of trust are laid upon the faith that the behavior of other people might be made predictable, and that deviations from acceptable behavior will be punished. Judaism, in Kirk’s telling, was the first religion to offer a moral order, and to define sin in terms of disobedience to that order. The pagan gods of the Greeks, by contrast, were capricious in the extreme, propping up one day what they would strike down the next. Kirk quotes from Hesiod: “Zeus rules the world, and with resistless sway / Takes back tomorrow what he grants today.”
The terror of existence without object or rule was dissipated by the revelation that man is not alone in the universe; that an Other exists; and that Other is the One God, who makes it possible for human beings to be something better than the beasts that perish. Through the revelation of order in the universe, men and women are given the possibility of becoming fully human – of finding pattern and purpose in existence, unlike dogs that live from day to day only.
From Kirk’s perspective, the religious worldview, which offers a hope of transcending death and the mortal lifespan, also endows history – how man lived, and how he will live – with greater importance. And though Kirk does not mention Darwin once in this book, he nonetheless offers a kind of Darwinian defence of the Judaeo-Christian roots of American culture: “survival and continuing relevance to the human condition are the best practical tests to determine whether a body of belief is right or wrong.” If I cannot share Kirk’s faith in the existence of a personal god, I can nonetheless wonder at the remarkable resiliency of the Abrahamic religions, which continue to captivate billions of people today.
If America’s moral order may be traced back to the founding of Judaism and Christianity, its legal order – and that is the sense most associated, in the common mind, with the word “order” – comes directly from England and their “common law.”
The common law is quite different from statutory law – that is, different from the written statutes issued by the sovereign political authority. The common law is founded upon custom and precedent, although upon national customs and usages, rather than upon local. This common law is an “organic” development, arising out of centuries of judges’ decisions upon the basis of what the people believed to be just. It is “prescriptive” law, derived from the man-to-man experience of people in community over a very long period of time; it is “customary” or “traditional” law.
This connection to the people and to their values and manner of living anchors the common law in time and place, and places greater weight on legal custom than judicial authority: the common law is the rule of stare decisis, “to stand by decided cases.” It was to the common law that we owe the growth of the jury system and the concept of being tried by one’s own peers, as well as the concept of guilty-until-proven-innocent: “Under the common law of England, the plaintiff and the defendant, or the prosecutor and the defendant, are regarded as adversaries, on an equal footing. Their lawyers define the issue to be settled, while the judge remains neutral. A defendant is presumed to be innocent unless the evidence proves him guilty beyond any reasonable doubt.” It was perhaps not obvious to the early adherents of the common law, but they were laying the foundations of representative government: of a nation in which the citizens participate in the judicial process, and in which the rich and the poor, the powerful and the weak, are bound by the same law. Moreover, it was not imposed upon the people of England, but arose from their common consent. Kirk is adamant about this point: “For a body of law to be really enforceable, it must receive the willing assent of the mass of people, living under such a law. Stable government grows out of law, not law out of stable government.”
I cannot hope to summarize the extent of Kirk’s argument, for he ranges widely across European, Greek and Roman history, pointing out the figures and ideas who most influenced America’s settlers and early statesmen, and contextualizing the American experience in history. The Roots of American Order is thus both a history book and a work of political philosophy, and in both respects it testifies to the immense breadth of Kirk’s learning. Rather, I will conclude with a kind of thought experiment: America is now, by common consensus, in a period of social and political division that rivals the 1960s in its acrimony and explosive potential. By the lights of Kirk, we are living through a period of intense disorder. Upon what new foundations will a future consensus be built, if not on those laid out by Russell Kirk and the original American experiment? If we are to have neither common religion nor history nor culture, and if the law and the constitution increasingly become subject to political whim, what, ultimately, will unite us?