Category: Oliver O’Donovan

If early-modern and mid-modern liberal societies were successful in securing their members’ cooperation and participation – and it is hard to deny them a measure of success – this was due to the moment of self-abdication instilled by their monotheistic faith. Through that religious moment they directed their members to become critical moral intelligences, taught them to see themselves as answerable directly to God. Thus they envisaged themselves as open to authoritative criticism and correction, and this lay at the heart of the reconciliation they effected between individual and social identities. In the face of conflicting expectations and hopes, a liberal society could make itself accountable before the throne of God’s justice. This opened up a variety of self-understandings for the dissenter, who could assume the role of critic, prophet, even martyr – all roles that could be socially learned and socially respected. It could even move a dissenting member to respond to it not merely with revolt but with compassion.

In abandoning their deference to transcendence, late-liberal societies have followed a perilous course. Losing the conciliatory strength of religious humility, they have gambled on majority support for a narrowly materialist and sensual sphere of public communications, inculcating by all means at their disposal the purely material expectations that conform to them. This strategy of moral under-education presumes as impoverished a view of human nature as classic liberalism presumed a rather exalted one. …The discontent that any human being can feel at being underestimated can, and surely must, undermine this a-moral majority, generating high waves of inarticulate dissatisfaction. …But the warning that needs hearing is even more solemn than that: liberal society, proceeding on its present course, may deserve a reaction, simply because it is incapable of taking the spiritual capacities of its members seriously.

Oliver O’Donovan Freedom and its Loss The Westminster Abbey Gore lecture 2002

It is all the more important to appreciate the liberal insight at this juncture of our civilisation, when our appreciation is inevitably tinged with a sense of loss. A de-natured late-liberalism, shaping itself ideologically even to the point of religious persecution, and indistinguishable in some ways from the Marxism it once combatted, parts company from classical liberalism precisely here. The liberal tradition used to defer to a point of transcendence within the individual, something which social identity could not account for, something which gave the individual an independent view upon society. This was not in fact a view “from nowhere”; it was precisely a view from “the conscience”. By instructing the individual that conscience had precedence over every social demand, the liberal tradition did not throw him back upon the chances of an untutored imagination. It presumed that conscience had a source beyond both society and individual, that it was more than an echo of social claims, more than a projection of individual dreams. It presumed this because of its monotheistic faith, which lay at the heart of its logic. Until the early years of the twentieth century Augustine’s now controversial thesis, that there can be no “right” in a society which does not acknowledge the right of God, appeared to be the uncontrovertible bedrock of a liberal society. A polytheistic society negotiates multiple claims with no cohesion but what it imposes on them, so that, in effect, it enforces its own sovereignty. Late-liberalism, one may say, in taking up the banner of “pluralism”, has made itself self-consciously polytheistic again.

Oliver O’Donovan Freedom and its Loss The Westminster Abbey Gore lecture 2002

Oliver O’Donovan tells us that our leaders have to lead us, form us and allow us to flourish, or even postively to see to it that we flourish. They have to be brave and lead from the front, and make real decisions about what is good for us. They therefore have to have views about what is good, and they have to allow those views to be tested by dialogue with the people they lead. Leaders have to make decisions. They have to exercise practical wisdom, which O’Donovan calls judgment, in order that we are all increasingly able to exercise practical wisdom, and so become mature. Plato represents one major tradition of practical wisdom, but an even more sophisticated tradition of practical wisdom is that of Christian discipleship.

“In Hebrew the most general word for law, torah, meant simply “a decision.” It referred to the “ruling” that a priest would give when consulted. In the same way we say that the judge “declares the law” in relation to a case, meaning not that he quotes from law books, but that he announces a decision; “the law of the case” is simply the generic principle applied in the particular judgment. But since each judgment is not separate and discrete but occurs in the context of an institution, the law of each case is discerned in relation to the law of preceding cases; if it is to be justly proportioned, it cannot be wildly out of line with other decisions. No act of judgment, then, simply invents law de novo; that would defeat the purpose of judging, namely, determining what is proportionate to the law of precedent that stands over and behind the present decision and can be appealed to in support or criticism of it. But a law of precedent requires no distinct human legislator. Divine law, natural or revealed, when mediated through traditions of right innate in the society, is sufficient to allow courts to develop a law by way of their own judgments, a conception which our shared English legal tradition names the “common law.”

The English parliament began life as a court of common pleas, a means by which the governed spoke to the government about their frustrations, an organic line of communication between the two which served to legitimate government as pursuing the common good. The extension of parliament’s role to a deliberative forum, first for the authorizing of taxation and then for the formation of legislation, recognized the need for government to listen to the vox populi, to respect its deeply held convictions, and to take stock of its anxieties.

By converting parliament into a branch of government, modern constitutional theory lost the sense that the dialogue between government and the governed is at the heart of the legislative process. It became a purely intra-governmental dialogue. The sheer success of parliament in taming the willfulness of the monarchy led to an implosion of government and parliament upon each other, leaving an unhealthy mutual dependence.

When a certain dialogue fails to accompany the formation of law, its enactment simply becomes another form of executive action – it loses its distinctive lawlike character. But what we need is not a dialogue between departments of government, but a dialogue between government and people .”

Oliver O’Donovan Government as Judgment since expanded to become The Ways of Judgment.

The defining role of secular government is to exercise judgment. The court is the central paradigm of government – all government, in all its branches. In Ancient Israel, the simplest model, such as we find in the narratives of David and Solomon and in the Psalms, is that the monarch is a judge who sits in court. “Morning by morning I will destroy all the wicked in the land,” he declares according to the psalm, in what is probably a kind of oath of office; thus, daily assizes are the proof of a just king. Ancient Israel also knew, however, that the task of judgment required not only that the monarch sit in court but that he also found courts.
To provide a court in which a judge sits is no less an act of judgment than to sit in court himself. He considers the situation obtaining, in which those who are wronged lack access to public interest and vindication; he finds it wanting; he redresses it by inaugurating courts. He does not found the judiciary from outside, as it were, like a businessman founding a University chair without himself being a man of learning. The founding of the judiciary is precisely the founding judicial act. It gives judgment in favor of the oppressed.

Oliver O’Donovan Government as Judgment