The Laws is an ancient book. It was written by an ancient Greek. It is presented in the form of a dialogue, the most prominent character in which is identified only as an “Athenian stranger.”
The Federalist Papers is a much more modern book. It was authored by three Americans writing under a Roman pseudonym and began as a series of newspapers articles. It is a mixture: part philosophic treatise, part historical case study, and part marketing campaign for the ratification of the proposed Constitution that emerged from the 1787 Convention in Philadelphia.
These books, however, are not entirely dissimilar.
Both are meant to be practical user guides for practical political people. Both make it clear that the prelude to laws—the spirit and attitude of those who write and enforce and judge laws—is almost as important—perhaps equally so—as the textual content of the laws.
And, both books offer a subtle, yet radical, suggestion: that reason, rather than will, is the rightful, legitimate source of law and political rule in general.
HOLY CITIES & DIVINE WILL
Every ancient city was a holy city in the sense that every subject of every ancient city assumed that the fundamental laws of the city were handed down by one or more gods.
Ask an ancient Spartan where ancient Spartan law originated and he’d respond: Apollo! Ask an ancient Cretan where Cretan law originated and he’d respond: Zeus!
In fact, this is precisely how The Laws begins. The opening line is a question asked by the Athenian stranger: “Who is given credit for laying down your first laws, a god or some human being?” To which the Cretan, Kleinias, responds: “A god, stranger, a god!” And the Spartan, Megillus, agrees.
This idea of one or more divinities as the source of law and political legitimacy would be carried well into the medieval and modern periods. The divine right theory of kingship, for example, was but one form of divine political rule. Still, today, one finds divine political rule under the name Sharia.
In many different iterations that spanned many different centuries, many different parts of the Earth, many different people, and many different religions, divine political rule was typically understood by those living under it as rule according to and authorized by the will of God.
SELF-GOVERNMENT AND THE WILL OF THE GOVERNED
Fast forward to modern social contract theory, such as what was taught by John Locke and constitutionalized by the American Founders.
Many citizens of modern democracies, republics, and democratic-republics seem to believe that law is legitimate only if it reflects the will of the governed and, in particular, the will of the numerical majority. (Jean-Jacques Rousseau went even further and called for the “general will” of the whole political community, not merely the numerical majority, which is but 50% plus one.)
The will of the people, or the will of the majority, in other words, is now a substitute for divine will as the legitimate and legitimizing foundation for law and political rule in the minds of many modern self-governing people.
We see this in the United States in the debates over Presidential elections and criticisms of the Electoral College. Many Americans, today, assume that any Presidential election in which the winner of the popular vote—i.e. the candidate supported by the will of the majority—is not the winner of the Electoral College vote must be a mistake, an error, a serious flaw in the electoral design.
Yet the two books we are discussing—The Laws by Plato and The Federalist Papers by Hamilton, Madison, & Jay—reject mere will as the legitimate foundation for law, or political rule, or anything else.
Both books acknowledge that will is simply power, and power can be used for justice and injustice. Power is not synonymous with good or right. Will, or power—or willpower—in itself, without any qualifications, is not necessarily connected to or a part of moderation, courage, justice, wisdom, or any other virtue.
Reason, however, is.
Reason is the indispensable core of moderation, courage, justice, and wisdom. In fact, all the virtues, as understood and explained by classical political philosophy, are impossible without the faculty and active use of reason.
And, therefore, both The Laws by Plato and The Federalist Papers by Hamilton, Madison, & Jay offer the subtle, esoteric teaching that reason is the true source of law and political legitimacy.
Aristotle presented the idea in the simplest form of reason ruling over passion within an individual human being as the model to follow when writing laws. Aristotle famously defined law, or what the law ought to be, as “reason unaffected by passion” (The Politics, book III, chapter 16).
It is no accident, therefore, that in the theoretical peak of The Federalist Papers, number 49, we find Madison—who was trained in classical political philosophy—arguing that it is “the reason, alone, of the public that ought to control and regulate the government” while the passions of the people “ought to be controlled and regulated by the government.”
Reason is the only thing that ultimately deserves to rule. Will—whether the will of an individual, or the will of a few, or the will of the majority—does not. Even modern Americans, with all their clamoring for the “will of the people” and “majority will,” acknowledge this, indirectly, perhaps unknowingly, when they accept their own unelected Supreme Court exercising judicial review and striking down laws that were passed with large majority support.
RULE OF REASON & THE ELECTORAL COLLEGE
This philosophic framework enshrines and informs the political science and the Constitutional design of the Electoral College. The fundamental purpose of the Electoral College was to help form not merely a willful numerical majority when selecting a President, but reasonable majority.
And, knowing how difficult it is to draw reason from a large number of people, the architects of the Constitution believed that at a minimum the Electoral College would facilitate the formation of a moderate majority, perhaps the closest practical thing to a reasonable majority.
We can debate whether the Electoral College achieves that purpose now or whether it ever has. But we cannot have a thoughtful discussion about the Electoral College without first understanding the fundamental problem of willfulness—including the simple, unqualified will of the majority—versus reason as the source of law and legitimate political rule. Illuminating this oft-forgotten subject of political philosophy is the topic of this week’s Speakeasy Today podcast. We hope you enjoy it.