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Aug 28, 2018
144 THE POLITICAL SCIENCE REVIEWER
The Political Philosophy of Alvaro d'Ors
The subject of this essay, don Alvaro d ' Ors, is almost totally unknown to theAmerican academic world, salve a small group of specialists in Roman Law.Although the author of more than a dozen books and several hundred articles,'practically nothing of his writing has been translated into English. Indepartments of Spanish Literature in this nation, the name d'Ors suggests hisillustrious father, Eugenio d'Ors, who brilliantly expressed a classical andMediterranean vision of Spanish existence for a generation of writers whoflourished in the years prior to the Spanish Crusade against Communism. Butthe authority of his son, don Alvaro, is recognized on the European continentin the highest circles of jurisprudence. He is cited everywhere in scholarlyarticles given over to issues ranging from Roman Law to modern constitu-tional theory. In Rome itself he is a legend.
A thoroughly "university man, " almost quintessentially the type itself, hisstudies were interrupted by the Civil War when he enlisted as a Carlistvolunteer. With the war won in 1939, d'Ors returned to university life and hehas never left the academy in his long and distinguished career, first at theUniversity of Compostela and later at the University of Navarre. Seventy-three years old at the writing of this paper, he still spends time each day at theUniversity of Navarre where he lived the larger part of his academic career,as Professor ofRoman Law and as chief librarian. His formal retirement a fewyears ago was marked by the publication of studies honoring him, a lengthyFestschrift, as well as the appearance of several studies dedicated in whole orin part by his grateful students.
Years ago the late Willmoore Kendall spotted something "curiously new"-
I wish to thank the Earhart Foundation for a grant rendering it possible that I do this research.1. Rafael Domingo, Teoria de la "auctoritas" (Pamplona: Ediciones Universidad de Navarra,S.A., 1987). This is a thorough study of d'Ors teaching on the subject of "authority" which followshis teacher' s thought from authority in general, juridical and philosophical theory through to itsapplication in Roman Law; in the sources of justice; applications of the power/authority structurein political justice; authority and power in Canon Law; the University; and a general theory ofauthority itself.
Dr. Domingo lists most of the significant writings of Professor d'Ors and the following list hasbeen taken from his book (24-29). Those works used by myself are cited in the app ropriate places.Above and beyond these academic studies, d'Ors has a rich body of literature published in thesemi-clandestine Carlist press during the regime of Franco. They have not been included or usedhere because of their immediate political import which d'Ors himself does not include under hisunderstanding of "theory" or "political philosophy." The list of d'Ors' works begins on p. xxx.
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or so he expressed it to me personally-in d'Ors' mind which made him notonly a man erudite in matters concerning Roman Law and Jurisprudence, butan original political philosopher. Kendall died years before the Spanishprofessor's thought had flowered into its fullness, Again, in our country, M.E. Bradford has long admired d'Ors, and only recently did I discover thatd'Ors today is recommending Bradford's A Better Guide than Reason to hisfriends and disciples. D'Ors generously admits his debt to the German KarlSchmitt, "who so sagaciously has infiltrated a juridical vision in the interpre-tation of political reality."' But d'Ors is by no means uncritical of Schmitt.
I am personally convinced that Alvaro d'Ors is among the half dozen or sofirst political philosophers of this century. His speculations are as original asare those of Leo Strauss and Eric Voegelin, to mention the two contemporarypolitical philosophers best known in this country. My hope, in writing thisintroduction to d'Ors' thought, is that his work will be translated soon intoEnglish and thus given the chance to compete in an intellectual marketplaceprogressively dominated by the English language.
A characteristic of d'Ors' thought is a suspicion of the purely abstract anda preference for the concretely juridical, for laws as interpreted by judges whoseek out "the just" in the contingencies of human existence. But this emphasisis by no means monolithic. The subjects he has written about are bewilderingin their analogical complexity: the differences between Greece and Rome astraceable to differences between seafaring and an earthbound society; thesharp antagonism between the modern State and other political forms inwhich men have lived their corporate existence; the roles of Empire andChurch in Western history; the innocent but incipient secularization implicitin the birth of International Law in Francisco de Vitoria; the ecumenicEmpire and the impossibility of a World State-and the list goes on and on.
Don Alvaro in his very last book expressed his conviction that all philoso-phy, at bottom, is metaphysics. In his judgment that is as it ought to be, D'Orshimself is no metaphyician nor has he ever pretended to be. But it is one thingto be a professional metaphysician and it is something else-in the lastanalysis, something more important-to have a metaphysical grip on theworld. "Juridical and political thought must seek the primogenitive law inevery institution, the etymos nomos as we might call it, which lights up someintimate necessity justifying the historical development of that institution." 3D'Ors adheres to a thorough-going realist understanding of the world and inthe following essay I have ticked off a number of themes that dominate histhought. Some of them reveal a realism which is almost brutal, as evidencedby his reflections on violence.
2. De la Guerra y de la Paz, 195.3. Forma de Gobierno y Legitimidad Familiar, 12.
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No matter how far back we trace the written history of man, no matter howdistant are his archeological and numismatic remains, we always seem to findat the origin of his story some act of violence. Some might be tempted to findin d'Ors a latter day Hobbes in Spanish form but, granted the likeness, acrucial difference remains. Hobbes postulated a jungle out of which manemerged into society but d'Ors never speaks of any such jungle anterior topolitical history. Wherever we look, no matter how far back we take theadventure of any race or community, we always discover some older politicalorder which is expelled, usually by the sword, yielding to a newer order ofthings. 4 The Hobbesian postulate of a pre-civilizational jungle is a scholar'shypothesis with no corresponding historical evidence to buttress it. If we staywithin the boundary of history, one society gives way to another, and it doesso by violence: the new order usurps the old. This observation is one withProfessor d'Ors' insistence that violence is not an epiphenomenon for politicaltheory: violence is constitutive. Violence, even war itself, are consubstantialwith man's life in history. Our author neither deplores nor exults in this truth.He simply accepts it as being one with human life as we have known it sincehuman records marked down man's progress through time.
The word "violence" in the Spanish language suggests physical force. (Itdoes so as well in English). But the Latin violencia has as its root vis, or"Power." All political power guarantees order and the more "powerful" thepolity in question, the better the order. Hence the liberty of the subject is thebetter achieved when the power is "powerful," capable of violent activityagainst any threat to the order in question. A weak polity offers impoverishedorder and little hope against chaos. s The violent origin of political power,hence, is prolonged in the preservation of order. The enemy of chaos,therefore, is lodged in political power which is-the reader will pardon thetautology-powerful indeed. (The author is reminded of a remark made byThomas Molnar when Washington was burning in the late Sixties. When weran across a street in a neighborhood going up in flames, Molnar said to me:"I escaped Communist tyranny when I came from Hungary but at least we hadCommunist order over there and that is better than no order at all.") D'Orssays the same in any number of writings. Without order there is no justice, andorder, both in its primitive constitution and in its actual maintenance, reposesupon violence. Withdraw the police and society collapses. My thesis thatd'Ors in his realism is utterly unsentimental finds here both confirmation andelucidation. Possibly the late Yves Simon would have added as an addendum
4. Cf., e.g.: La violencia y el orden, ( Madrid: Ediciones Dyrsa, 1987), 73-82.5. Ibid., 74-76.
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to Alvaro d'Ors' contention that in moments of total collapse in a society weoften can find islands of virtuous men who will not revert to savagery.' ButSimon's exception simply reaffirms d'Ors' thesis.
Violence suggests war, both external against the enemy from without andinternal, against treason. A universal commitment to pacifism, according todon Alvaro, is a contradictory posture taken up against exigencies located inhuman nature itself. He finds, incidentally, this to be an aberration markingAmerican "imperialism"-a war against all wars. When all pacific methodshave been exhausted in adjudicating serious differences, the only recourse iswar-or surrender to the adversary which is simply a war lost, even withoutbloodshed. To outlaw war is itself an act of war against any and all litigants.The anti-war thesis, one with an abhorrance of all violence, is itself acontradiction in terms. D'Ors' realism is severe in that it cuts through allsentimentalities and bruises every tendon of the liberal sensibility.
A second instance of "Orsian"'realism is his teaching on the authority ofcustomary law. (I postpone d'Ors' elaboration of the concept of authority untillater in this paper and I simply use the term here as it is usually understoodin English discourse.) He neither differs much from Cicero, the scholastics,and the Common Law tradition of the English experience nor does he spendmuch time-so far as I can determine-in expanding on this classical andscholastic inheritance. However, don Alvaro sharply parts company withnineteenth- and twentieth-century "romanticism" (his term) which looksupon custom as something that grew up slowly and corporately out of an"organic past.' D'Ors insists that there are no corporate acts. "Organicism"is a myth buttressed by the Hegelian contempt for the human person. Everycustom had its origin, its principium, in some concrete human being. It couldhave been some tavern keeper now long forgotten. What was to become aliving tradition is rooted in some personal authority which was accepted,sooner or later, by a given community. Any other position involves personi-fying society and converting a relation into a human substance. Traditionsgrow but this historical enlargement is never the result of some Zeitgeist: it isan accumulation taking place in individual men whose authority came to beaccepted by the body politic. Were you able to trace back your customary wayof life, at its origins you would find some sage uttering a truth, be it practicalorspeculative, a truth listened to and accepted by a community. Anything elseis idealism or romanticism and d'Ors will have nothing to do with either.
6. A conviction expressed in private conversation with the author in 1948.7. The neologism, "orsiano" and "orsianisnw" is now common in Spanish intellectual circles.8. Autarquia y autonomia, IX; Una introduccion al estudio del Derecho, 23, 26; Domingo, op. cit.,110-112; Una introduction al estudio del Derecho, 63-73.
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D'Ors' realism' synthesizes with his insistence on the importance of theorigins of all political institutions. As a jurist our author is keenly interestedin juridical structures but as a political philosopher he adds to these consid-erations the note of efficient causality. All political and juridical structuresgrow out of origins that configure their subsequent development."
I elicit here in verification of the above the Orsian theory of legitimacy."
The reader will note how don Alvaro moves from historical data totheoretical principles capable of illuminating them and then back again fromthe theoretical to its verification in political reality. In so doing, don Alvaroputs into practice what he considers to be his profession: that of the"hermeneuticist."
The subject of legitimacy, teaches our author, emerged vividly to troublethe West as a result of the unquestioned legality imposed by the FrenchRevolution-a network of univocal legislation that aimed at covering everyaspect of human existence even as it flattened and suppressed all diversity, alegality in sharp contrast to the older dynastic legitimacy of the House ofFrance that was murdered in the legal assassination of both King and Queen.Legality killed Legitimacy on the guillotine. Weber was a political philoso-pher who valiantly tried to disassociate the concept of legitimacy fromdynastic considerations; d'Ors noted that Kelsen himself attempted to locatelegitimacy in legality. 12 But, adds d'Ors, if legitimacy equals legality, theformer term is drained of any philosophical interest. It loses any precision ofmeaning it might have had. In fact-again the Orsian realism-"liberaldemocracy was able to prescind from the term legitimacy and itordinarily didso." 13 Weber, in turn, brought back the concept of legitimacy by distinguishingthree types: charismatic legitimacy which reposes upon the personal power ofa man who enjoys quasi-sacral prestige; traditional legitimacy which grows upwith the passage of time (dynastic legitimacy is thus a species within thatgenus); and "rational" legitimacy which is simply another way of expressingKelsen's democratic legality. The only non-legal or pre-legal legitimacy leftfor Western man once he had shed Divine Revelation and the sacral authorityof the Tradition founded thereon was a putative legitimacy pertaining to the
9. For a study where d'Ors formally addresses the question of realism and juridical study, cf."Principios para una teoria del Derecho," Anuario de Filosofid del Derecho I, 1953; Unaintroduccie al estudio del Derecho.10. Cf., note 3.11. My treatment of Alvaro d'Ors' theory of legitimacy is gleaned principally from: Forma degobierno y legitimida familiar, Ensayos de Teoria politica, 135-152.12. Ensayos de Moritz politica, 135.13. Ibid.
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Natural Law. So much for the thesis of Weber.In practice, however-points out d'Ors-this usually means that when a
positive law on the books is opposed by the people (or by a significant majorityor minority), they appeal to the "legitimacy" of what they desire over againstthe positive legality they oppose. This is the meaning of so-called "legitimateconcerns or claims." Legitimation is thus reduced to abrogating an old law ororder and imposing a new one, often by democratic means. It follows that ifthe populace adheres to a law or legal system, the law or system is legitimate.If the populace opposes that law or system, both lose their legitimacy. In bothcases legitimacy is reduced to the will of the majority and any possibledistinction between legitimacy and democratic legality dissolves. What thenhappens to the difference, let us say, between a legitimate and illegitimatechild? Is the issue here settled by the will of the parents or the will of society?And the glaring truth remains that the Revolutionary Law killed the Legiti-mate King! Even the French Revolutionaries (here I gloss the text) admittedthat Louis XVI had been their legitimate King. In deposing and executing himthey abolished his legitimacy and thus legitimacy was absorbed into legality.Better yet, legitimacy ceased to be. The very execution of the one by the otherwas a crooked way of admitting that they are not identified.
D'Ors attempts to weave his way out of this thicket by noting that today, ala Weber, the appeal to a supra-legal Natural Law often takes the form of anappeal to a Charter of Human Rights (i.e., the one laid down by the UnitedNations) which is understood to be superior to all positive law. But thisputative legitimation runs contrary to the basic presupposition of the modernState: the State is Sovereign and in its essence there are concentrated anidentity of both Power and Authority. If the State seriously and not justceremoniously submits to some Law anterior and superior to itself, then theState abdicates its claim to Sovereignty. An ambiguity thus lies at the heart ofthe modern political experience. The Soviet Union and other totalitarianregimes signed the Charter of the United Nations and then went their ownways violating Human Rights in every conceivable fashion. And what are weto think, then, of those sovereign states that have complied, more or less, withthe Charter? Do they comply because they want to? If so, they can withdrawthat act of the will-at will. Thus the supposed legitimacy of the Charter ofHuman Rights or of the Natural Law reposes upon the will of the SovereignState and hence ceases to be a Law anterior to positive legality which ispresumed to be its legitimation.
Everywhere we turn legitimacy is swallowed into political will. D'Ors addsthat above and beyond these anomalies there remains the oddity of a NaturalLaw floating in the air, a series of abstractions which do not know themselvesand cannot interpret themselves because no law, not being a person, caninterpret anything. Abstractions cannot judge. The reader will note here ourauthor's profound distaste for all things Platonic. The Natural Law needs an
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authoritative interpretation. Intrepretation by definition calls for an inter-preter which is not the Law itself.
When Christendom was itself and before it became "The West" or"Europe" that interpreter was the Magisterium of the Church, a teachingVoice above all political power but itself the possessor of the revelation of Godon earth. The Natural Law forms part of the Divine Law and the revelationof that law was made by God through His Church. The Natural Law is thuslegitimated not in itself but in its Author. The very etymology of auctoritassuggests an auctor. It is no wonder that d'Ors, possibly the most prestigiousscholar of Roman Law living, is often followed up to this point but is thenabandoned. His orthodoxy is too rich for the desiccated secularized intellec-tuality of the day. Some Spanish scholars have complained to me that at thispoint the Catholic in d'Ors swallows up the jurist. An analysis of the complaintlies beyond the scope of this study but the dilemma don Alvaro sets forth isloaded with implacable logic: unless Law be legitimated beyond itself, then itis reduced ultimately to the will of the Sovereign State and this last leadsimplacably to a positivism whose savage cruelty has ravished this mostunhappy of all centuries.
Professor d'Ors concludes, hence, that neither the concept nor the realityof legitimacy make any sense within a liberal democracy. Using the Churchas his paradigm, our author adds to the Magisterium the living Tradition whichbreathes life into any people. He conceives Tradition-better yet, traditions,because the concept is analogical-as a felicitious mingling of laws andcustoms:
Not the legality of a written constitution but the authentic style of lifepersisting within its own Tradition: in other words, the laws and the customsconserved by successive generations ... in this fashion the naturality of thedivine law is joined to the naturality of the appropriate Tradition ... whereasthe natural law is always given us as a limit, the law of the Tradition is givenus as something positive."
This perspective renders intelligible the contemporary opposition, experi-enced everywhere in the West, between positive legality which often clasheswith both natural and divine law. D'Ors cites legislation concerning divorceand, especially, abortion as instances. The State can legalize both but canlegitimate neither. The Christian, I might add, thus lives in an intolerabletension between laws which he cannot accept as legitimate and his own moraldecisions on these issues which often convert him into an outlaw in his ownnation.
Don Alvaro discovers the ontological heart of legitimacy in a principle ofits origin. Most profoundly that principle of origination is paternity. God is
14. Ibid., 147-148.
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Father of Natural Law as He is Father of us all. Even in countries with littleor no monarchical tradition, we discover the legitimacy of the family, thelegitimate origin from whence come forth legitimate children. Familiallegitimacy is the primal source of all legitimacy and it is anterior, insists d'Ors,to all legality. No positive law makes a marriage: a marriage is made by vowsexchanged between two persons before God. The best legality can do here isto recognize a pre-existent state of affairs for the legal consequences or effectsthat follow therefrom.
In a brilliant essay published in 1959, Forma de gobierno y legitimidadfamiliar, d'Ors approached a very old and classical topic-forms of govern-ment. Granting that the subject seems to have lost interest for our time, d'Orsinsisted that this loss of interest is due, at least partially, to the defective Greekformulation of the issues involved. The original tripartite division of politicalforms into monarchy, aristocracy, and democracy was merely numerical.D'Ors discovers the earliest formulation in Herodotus. The dialogue iscarried out by Persians, one defending democracy, another aristocracy, andDarius, monarchy. 15 The text, according to our exegete, suggests that thethree-fold division was already in existence before the fifth century B.C. but itsoriginal source has been lost. Amateurish in its development, the dialoguealready insinuates the subsequent division of governmental forms into "good"ones and their corruptions.
Tracing the doctrine through Xenophon to Plato, d'Ors notes the Platonicmyth which spoke of the time of Cronos when men were governed by the gods.But after Zeus made the world turn around the old order was overthrown andmen had to govern themselves. The best government would be, according toPlato, government by a wise man. D'Ors adds-"naturally, Plato was thinkingof himself." 16 Such a royal government would need neither the consent of thegoverned nor the guidance of laws.
The Republic corresponds to this basic idea, an utopian archetype of aperfect city, organized in a strict hierarchy, a regime of matrimonialcommunism marked by the dominance of the upper classes. It is interestingto note the prohibition against travelling and, above all, the prohibitionagainst praising whatever a man has seen outside the City-a city with ahierarchical culture and an official religion and education. l'
Plato, of course, knew that such a city was impossible to actualize and itremained simply a model between government by the gods and governmentby men. Men themselves must not govern but only the Laws, the nomoiwhich, in turn, ought to be above all personal will. The three-fold division now
15. Forma de gobierno y legitimidad familiar, 15-16.16. Ibid., 19.17. Ibid., 19-20.
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doubles, The corrupt governments-Tyranny, Oligarchy, "Bad" Democ-racy-are those that violate or prescind from the laws because evil men whogovern do so in the service of their own desires. For Plato, consent by thegoverned to their governments is not the mark of monarchy, aristocracy, anddemocracy, Legality is what separates relatively "good" governments fromtheir opposites. We might add to d'Ors' observations that a mark of Platonicpolitics is its suppression of all extra-legal factors in the body politic: e.g., thesuppression of the family.
Aristotle did not significantly alter Plato's six-fold division of governmentsbut he refined it by downplaying legality and emphasizing an allegiance bygood rulers to the interest or well-being of the entire commonwealth. Havingdone so, the traditional tripartite division loses all interest for Aristotle whointroduces, possibly for the first time in Western theory, the "class struggle"as definitive inunderstanding political life. The greed of the rich and the envyof the poor can only be mitigated by some "mixed" polity and most ofAristotle's Politics is a book of recipes for avoiding revolutions triggerd byeconomic factors.
Aristotle's shelving of the traditional three-fold division of political formsis analogous, says d'Ors, to the contemporary lack of interest in the subject.Nonetheless, d'Ors accuses both Aristotle and modernity of intellectuallaziness on this issue: "pereza intelectual." 18 D'Ors became convinced at thisstill fairly early development of his own thought that the ancient doctrinecontained in itself a germ of truth, "an authentic etymos nomos for the politicalscience of all times. "19
D'Ors insists, paradoxically, that the introduction of the consideration ofcorrupt forms of government is itself a corruption. The grafting of moralconsiderations-altruistic and egocentric rulers-is extrinsic to the issue.Equally defective is the arithmetical government by "many" or "few" because"any observation conformed to reality leads to the conclusion that everygovernment is in the hands of a few which renders illicit any excessivegeneralization of the concepts of aristocracy or oligarchy." 20
These historical considerations having been made, d'Ors sets forth his ownthesis: what is of enduring worth in the traditional tripartite division reposesupon a criterion of the legitimacy of power in relation to the familial structuresdiscovered in all political societies.
Although the point seems muted in the text, d'Ors is actually going tovalidate the ancient doctrine by introducing a new theory of political repre-
18. Ibid., 33. Permit me to warn the reader that I have severely condensed d'Ors' historicaltreatment for reasons of the economy of this paper.19. Ibid.20. Ibid., 34.
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sentation. A society composed basically of isolated individuals with little or nofamilial traditions represents itself in a liberal democracy-one man, one vote.A society divided into a majority of men whose families do not count sociallyor politically, families with little or no weight in social life, and an aristocraticminority based on families marked by their family names, represents itselfnaturally in an aristocratic republic. D'Ors finds a model here in the RomanRepublic with its patrician and plebian classes. This does not mean that aplebian cannot rise to political preeminence but when he does so he is not therepresentative of a family. The business is easily illustrated in the Americanexperience: a Kennedy is elected because he is at Kennedy, the scion of anillustrious family. A Dukakis becomes governor of a state and a candidate forpresidency because of who he is, not because of his family. Dynasties oftenemerge in liberal democracies because the formal structures of the latter havenot yet eliminated familial and hence aristocratic pretensions. D'Ors' paragonis Rome. We might add as well the example of England in the past fewcenturies. A Churchill arises to prominence because he is a Marlborough. ADisraeli arises to prominence because he is himself. That both were brilliantmen is irrelevant. Senator Kennedy is not a particularly brilliant man and noteven his friends would argue the contrary. But he represents an illustriousfamily and that is his ticket of admission to American political power. A societyin which every family is a dynasty unto itself represents itself naturally in adynastic monarchy. Legality dominates democracy; legality balanced bylegitimacy marks aristocracy; and legitimacy as anterior to and legitimative oflegality seals monarchy. Monarchy is thus less government by one thangovernment by a family. The professor adds, in a sage aside, that a sign ofdemocratic individualism is its permanent attack on the differences betweenlegitimate and illegitimate children, its attempt to equalize both legally. Thisis not done out of tender charity toward these unfortunate youngsters but outof a deep resentment for the family as an institution incapable of being reallyat home in a society that recognizes legally the existence of nothing more thanthe solitary individual. I might add, as a deduction of my own from the above:where the family lacks political representation, monarchy is an unnatural formof government, the superimposition of a crowned dynastic mummy upon abody foreign to its essence. Where fathers are kings in their own families, oneof their own-a dynastic king-is father of all the fathers. The charge ofpaternalism would not bother Professor Alvaro d'Ors in the least. Indeed hisadherence to the Carlist monarchical ideal where the king governs as well asreigns and his contempt for contemporary European constitutional liberalmonarchy is a faithful echo of a theory which is thoroughly philosophical. Theconcept of Republic is not the contradictory of monarchy. There have beentransitional republics and transitional monarchies. The enemy of legitimatemonarchy is illegitimate monarchy, usurpation in the strict sense of the term.
D'Ors points out that the moral considerations advanced by Aristotle to
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distinguish tyranny from monarchy do not truly reach the heart of theproblem. A tyrant, de facto, might govern well and a "good" dynastic kingmight govern poorly. The formal difference between the two of them mustbe sought elsewhere, in the origin of their power. The legitimate king inheritsfrom his father as does the legitimate son from his. When events go badly forthe legitimate king-as well as for the legitimate father of any decent family-his own gather all the more around him. Louis XIV had his back to the wallwhen the armies of the continental alliance threatened to push deeply intoFrance unless he withdrew his grandson's claim to the Spanish throne. TheFrench King called a Council of The Blood Royal to advise him on his duty.When the guns were roaring and Marlborough was at his gates, Louis forgothis absolutist pretentions and remembered that his power was founded not inhimself but in his family. D'Ors is fond of pointing out that after the defeatat Austerlitz the Austrian Emperor, Francis II, was cheered in Vienna by thepopulace but that very Emperor wondered whether the same receptionwould be accorded Napoleon in Paris had he lost such a crucial battle. Thetyrant exercises power which is not received. There is nothing behind him,He must go from victory to victory-or die. We might evidence here as proofthe late Adolph Hitler.
Factually, of course, every dynasty at its origin was imposed by violence,but its legitimation does not depend upon the founder but upon his descen-dents who inherit.
The virtue of a king does not reside in his being one; unity can be achievedin other ways as well; that virtue reposes upon the king's being legitimate, inbeing the supreme personification, living and enduring, of all loyalty andevery legitimacy,"
It follows that the classical tripartite distinction, although badly articulatedby the Greeks, contained within itself a series of principles of enduring truthfor political philosophy. They are even insinuated, insists d'Ors, in the veryGreek words used to designate the three governmental forms.
Cracia as in `democracy' orin the 'autocracy' of the tyrannt, or in 'aristocracy'simply means the fact of political power; arguia, on the contrary is essentiallythe origin of a power, that is to say, familial legitimacy. Thus, in monarchythe power of the royal family; also in oligarchy the power of families of nobleorigin. 22
The Orsian treatment of the theme of legitimacy is an admirable instanceof his genius for handling philosophical considerations with their historical
21. Ibid., 21.22. Ibid., 39.
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incarnations which include, but are not exhausted by, the very language weuse in discussing matters political.
Authority and Power
In his Ensayos de teoria politica, d'Ors ends a lengthy study on legitimacywith a warning: do not confuse legitimacy with authority. Authorities areneither legitimate nor illegitimate. The adjectives pertain to powers. We tendto confuse the concept of authority with that of power for a series of reasons.The difficulty of rendering the Latin auctoritas by any comparable Greekword and the absence in Greek of any term corresponding exactly to theRoman auctoritas blurred the concepts and tended to turn the "authentic,"authenticum, into the sense of a superior authority. This degenerated intoaccepting as an "authority" any superior power. 23 Hence he who is delegatedpower tended to think of it as coming from a "superior authority." Thepoliceman thus refers to his "authority" as something delegated to him.
D'Ors is fond of recalling the literary critic who exploded in a theatre inMadrid, disturbing the whole house, screaming that the play was a disaster.When accosted by the police who insisted that they were the "public author-ity" and could not abide this disturbance of order, the critic insisted that, no!He was the authorityin matters theatrical. He was right! He was the authority!The police were wrong: they had no authority, but they did have power toenforce order and hence to expell him from the theatre.
In what, then, consists the distinction between power and authority? Herewe reach the most original and certainly the heart of Orsian political theory.Refined, corrected and expanded through some forty years of intellectuallife, 24 d'Ors' theory matured slowly, even nervously as he corrected, amended,refined. Henri Bergson once wrote that when two intuitions cross in the mindof a thinker a new philosophy is born. The two notions that crossed, we mightsay collided, in the thought of Professor d'Ors, were those of power andauthority.
As suggested and illustrated by this study, d'Ors often begins with historicalor etymological roots; sometimes he begins at the beginning, with principlesconsubstantial with human nature. In the elaboration of his power/authoritydoctrine, d'Ors takes as a given the truth that the human soul has two faculties,intellect and will. This places don Alvaro firmly in the broad classical andChristian tradition of which he is a latter day representative. The professornever pauses to argue this truth. Presumably such a defence pertains to themetaphysician. D'Ors, nonetheless, constantly uses and illustrates this
23. Auctoritas-authentia-autenticum, 379.24. Cf., Rafael Domingo, Tern-fa de la "auctoritas," 34-51.
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division of faculties. To the faculty of understanding there correspondsknowledge, science, sometimes wisdom. To the faculty of the will therecorresponds power, often the exercise of liberty. It is proper, therefore, forthe intellect to know-and only to know: intelligence does nothing; it simplyunderstands what is there to be understood. It is proper to the will to act: thewill qua will does not understand anything, it desires; it commands. 25 In life,however, these two faculties cooperate and without that cooperation intellec-tion would bear no fruit and volition would be blind.
So far, so good: nothing that was not already well known and articulated inthe broad classical and scholastic tradition d ' Ors inherits, along with the restof us, from the past. But the Spanish theoretician now adds the following: theintellect answers questions put to it by the will; the will, in turn, questions theintelligence as to what ought to be done. He who understands answers; hewho can act, asks questions.
"Pregunta el que puede; responde el que Babe." 26 "He questions who canact; who answers is he who knows."
Early in his development of this duality of concepts themselves reflectiveof a duality in human nature, d'Ors tended to link knowledge with truth andtruth with authority: the man who possesses some truth-or body of truths-about some defined subject of being. If I would know something about thatdetermined and defined dimension of the real, I ask questions of the sabio, thesapiens, the expert, the sage. In ordinary speech, I go to the authority. DonRafael Domingo, in summing up d'Ors' teaching on the issue, notes how donAlvaro traces the concept of authority to its Roman roots. 27 The Latin termaugeo denotes the notion of expanding, adding to, aiding, amplifying, fulfillingwhat is not yet fulfilled, What is correspondingly fulfilled is some power orpotestas which questions him who possesses the authority, "knows the truth,"
The ontological structure is readily identifiable in day to day living. If I amill, I consult a physician, an authority on matters of health, My power to followhis council remains free. There is no freedom in authority, only in power.Authority thus answers power and this is true not only in the trivial details ofdaily life but throughout the entire gamut of social and political existence.
When both power and authority are recognized socially, they are formallyconstitutive of corporate political life. Professor d'Ors notes that very oftena man's authority is not recognized until after his death-this sometimesoccurs in advances made in science and it always occurs in the case ofunemployed but aspiring young PhDs. Society itself must seal authority byrecognizing it publically. Refining his conception, d'Ors sometimes distin-
25. Ibid, et passim.26. This Orsian aphorism stands on the page marked "Introduction" to Rafael Domingo ' s study,Teorla de la Auotoritas. "27, Ibid., 215; cf. Auctoritas-authentia-authenticum, 375; Doee propositions sobre el poder,n. 8.
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guishes a mere "knowing" from "authority," restricting the latter notion to atruth, a knowledge, lifted up by society before itself. 28 Among his models is theRoman Senate during the full flowering of the Republic. Bereft of power, theSenate was consulted by the instruments of political power as to "what oughtto be done," what is the truth (more often practical than speculative)concerning this or that proposed course of action. In a court of law, thewitness, testis, possesses an authority over the facts of a case which isrecognized by the court. With age, knowledge often takes on the character ofwisdom and society frequently recognizes the authority of the prudent:auctoritas prudentium.
D'Ors carefully distinguishes authority from prestige, a characteristic withwhich authority is often identified. A university professor who does his worksloppily will lack prestige but he still enjoys authority. Prestige is moral, arecognition of virtue, whereas authority pertains to knowledge, but to knowl-edge "socially recognized." A knowledge which is not recognized is notoperative. Somebody must recognize that I know something; otherwise heasks me no questions and I can give him no answers. It follows thatunrecognized knowledge does not answer and the mark of authority is that itanswer questions put to it by those in power. As suggested, in the matters ofday-to-day living, the Orsian thesis seems almost self-evident. A knowledgewhich is not sought, which is unknown or unrecognized, is sterile, thusviolating the very communicability which is one with human knowing. In thelight of d'Ors' distinction between recognized and unrecognized knowledge,the tragedy of the forgotten or ignored sage is heightened. It would seem thatall knowledge aims at converting itself into authority and when this does notoccur-as frequently happens in life-some ontological violation has woundedthe person in question.
The genus in this regard is "social recognition" which bifurcates into twospecies, "power" and "authority." If an unrecognized possession of knowledgelacks authority, so too does an unrecognized "power" lackpotestas. Power, inthe sense of mere force, is without delegation. The town bully has force butnobody gave it to him. Genuin, political power is always received, delegated,never "originating" unless it be the Power of God. Behind all political poweron this earth there reposes some source that gives power, ultimately God butproximately any number of factors operative within a society: i.e., a written orunwritten constitution, , a living Tradition incorporating customs and laws,privileges and rights (fueros in the Spanish context), etc.
28. D'Ors' theory of power and authority runs through most of his writings. Those usedby the author to synthesize the doctrine in the text are principally the following: Ensayos de TeoriaPolitica; Una introduccin at estudio del Derecho; Auctoritas-authentia-authenticum; El profesor;Potestad y Autoridad en la organizacion cle la Iglesia; La violencia y elorden.
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But whereas power is always delegated and can be re-delegated in adescending scale of political institutions, authority is never delegated. Notreceived, authority is acquired and subsequently it is recognized socially. Theuniversity does not delegate to me my authority as a professor of philosophy:the university recognizes that authority by hiring me. The causality is mutual.Nor can I, insists our author, delegate my knowledge and hence my authority.If I miss a class somebody can substitute for me but I do not delegate to himmy authority. As a substitute he enters the classroom with an authority of hisown even if it lasts only for a day. Although united in their being recognizedsocially, auctoritas and potestas are distinguished not only by the mark of"responding" and "questioning" but as well by the note of nondelegability anddelegability. These last are, using Aristotelian terminology (rarely used byd'Ors), properties of the essences in question.
The confusion of authority and power is today built into the structure ofmany Western languages, including English. Whereas the essence ofauthority is well attested by phrases such as "I go to the authority" when I askquestions about my health, my automobile, my moral obligations, my tax-returns, the term is used poorly in such ceremonial phrases as "By theauthority vested in me, I the Mayor of this town, name you first assemblyman."It is quite obvious that we are using a word, "Authority," equivocally: to conferis one thing; to give advice, something else. The mayor has the power to namethis functionary, a power delegated to him by whatever higher power standsbehind his political office and in a cascading series of acts he delegates powerto the assemblyman to exercise certain limited activities in the township. Themayor's power "is vested," that is conferred upon him by some more ampleand fundamental power. But authority cannot be "vested," insists our author.Authority can only be recognized and recognition is not an act of conferringor giving. Once recognized, authority is heeded as it responds to those inpower. I do not give a man his authority nor can any authority give anythingsave its knowledge. These distinctions sometimes are finely honed in ordinarylanguage and sometimes they are lost altogether. D'Ors often points out thatthe scriptural tradition inherited from the Hebrews, the philosophical tradi-tion from the Greeks, and the juridical from the Roman do not easily translateinto one another but all three are of the very essence of our commoninheritance. D'Ors' propositions must be understood as balanced judgmentsto be taken in a relational sense. Social recognition need not be, indeedpractically never is, univocally monolithic, totalitarian or majoritarian.. Myauthority as a university professor need not be recognized by the townshipsurrounding my university. A scientist's authority need not be recognized bythe Sunday newspaper. These last neither recognize nor fail to recognize theauthorities in question because they fall outside the scope of the truthsincarnated therein. Presumably it is one thing to know that someone is anauthority and it is something else to be able to question that authority. The
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mark of power, as indicated, "is its capacity to act in the light of intelligentquestions posed to those in authority."
If bothpotestas and auctoritas are united in their being recognized socially,they are united as well in their being personal. D'Ors insists-this is crucialto his entire thesis-that there are no impersonal powers and authorities.That conviction leads back to his realist understanding of man. Onlyindividual men possess intelligence and will; given that authority and powerare extensions of these faculties, it follows that both are the exercise of humanagents.
Don Alvaro insists that authority, properly understood, is totally bereft ofpower. It follows that the expression "moral" authority is a tautology. Allauthority is "moral" if by moral we mean that which is counterposed to"powerful." D'Ors rarely employs the scholastic distinction between powerand its two instruments, persuasion and force, but I find nothing in his thoughthostile to that conception. Authority, if I understand d'Ors correctly, neitherpersuades nor forces: it states the truth when asked by the competent powerto do so.
In an interesting essay given over to the role of the university professor, Elprofessor, 29 d'Ors develops what might be called a test case of his theory. The"holder of a chair"-the Spanish rough equivalent to our American fullprofessor-is licensed by the university to teach his discipline. This verylicensing is the social recognition which seals his knowledge with authority.But if all authority answers and all power questions, what is the potestascorresponding to the auctoritasof the professor? d'Ors unhesitatingly an-swers that the Power in question is the Student. The student, by enrolling inthe university, is empowered to receive an education and this power is sociallyrecognized. When he commences his university life-his "carrera," as theSpaniards call it-he can ask only the broadest of questions. These questionssharpen, become more finely tuned, as the student is introduced graduallyinto the discipline in question. Although the professor can pose questions tothe students, he does so only in order that the student can come to formulateever more precise and profound questions to the professor.
The Authority of the Faculty thus finds its corresponding Power in theStudent Body. For d'Ors the university administration is an extention of thePower of the Student Body. It handles or ought to handle the Parmenideandoxai of academic life and it ought to do nothing else. The best a rector cando, according to d'Ors, is give his inaugural address at the beginning of theschool year and remain silent thereafter. D'Ors' theory will seem chaotic toAmerican academicians and administrators but their shock simply testifies tothe truth that the confusion between authority and power is so deeply
29. "El Profesor," previously unpublished and added as an appendix to Tern-1a de la "Auctoritas"by Rafael Domingo, 303-317.
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embedded in Western life that their proper ordering which ensures the libertyof the professor must look like chaos indeed. There is a radical quality to donAlvaro's "traditionalism" which makes the liberal university produced bymodernity an intolerable infringement on intellectual liberty in the class-room. As an aside, d'Ors notes the temptation of scholars to convertthemselves into administrators and he warns that administrative tasks oughtto be taken up by them reluctantly and then for only short periods of time. Toadministration there pertain a cluster of skills which are antithetical to thosemarking the man of wisdom. The pride implicit in authority's yearning toconvert itself into power-in this case petty power-is as old as Plato'sRepublic.
Knowledge is not Power and Bacon's insistence that it was marked thebeginning of the technologizing of learning that today has become govern-ment by technocrats.
The issue leads d'Ors to comment on the question of "academic liberty."What is to be taught pertains to the university as such and to its sponsors: inthe case of a Catholic University, the Magisterium of the Church will act asguide and limit. But this issue is one our author rarely addresses. He is moreinterested in what he calls "the formal liberty" of the professor to teach as hesees fit without any outside interference. If he is the authority, then outsidemeddling, administrative or otherwise, is an infringement on his liberty. Theimposition of readings and texts by departments are perfectly proper for theteaching of infants but on the university level they are a violation of the veryessence of professorial authority.
Summing up what I have called this "test case," the gradual transformationof the professor into a functionary of the State who prepares students to taketheir roles in society has blurred his essential role of being an authoritativevoice of a knowledge, often a wisdom.
In his Twelve Propositions Concerning Power, 30 Professor d'Ors speaks ofa pluraity of "powers" hierarchically organized which all participate in adirective or guiding role for a government the very name of which comes fromthe helm of a ship. 31 When the power of government involving the socialacceptance of those who are governed is merely conventional and subject toconstant change, then we confront democratic power or potestas. This last, aspointed out earlier, is exclusively legalistic and presupposes nothing morethanasociety of individuals 3 2 "To the degree to which potestas is derived froma natural exigency imposed traditionally which does not depend on the here-and-now conventional will of the group, power manifests itself as a community
30. Ensayos de teoria politica.31. Ibid.,32. Ibid., 111-112; cf., Una introduction al estudio del derecho. 57-58.
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ruled fundamentally by a principle of legitimacy."33 The social recognition ofboth powers, thus converted into forms of potestas , "depends on a convictionexpressed by a wisdom itself socially recognized which is called authority."The multiplication of powers within any society-all governments aiming atman's social well-being harmonized by one or more,of the classical "forms ofgovernment " or, presumably, by their many combinations opens the door forthe crucial role of the famous principle of subsidiarity, "the very first principleof all social organization according to Catholic doctrine." 34
This principle when first developed by Popes Leo XIII and Pius XIenvisaged the modern State's returning to society those autonomous organ-isms that the State had emasculated during four centuries of modernity. Thepapal documents hence tend to speak of a movement "downwards" in whichthe State empties itself of this usurpation. In a non-Statist polity, however, themovement would be "upwards, " from the less powerful or "inferior" entity tothe higher. Our author understands subsidiarity as involving a synthesis ofliberty and charity. Liberty: every social institution ought to exercise its ownfreedom in pursuing ends consubstantial to itself. When the institution inquestion is capable of achieving its goals, it must be left alone by all other-presumably "higher" and more powerful-social and political entities. Char-ity: when an institution-family, municipality, etc.-is simply incapable offulfilling its own finalities, then the organism closest to it in superiority oughtto aid the inferior. But, warns d'Ors, this principle is often misunderstood evenby its putative supporters. Subsidiarity has little to do with technical efficiency.A higher social group might be able to do the work of a lower group or personmore efficiently in a technically superior way, but this consideration is nowarrantfor interference. If the lower society achieves its goals, even in a sloppy andhaphazard way, then let it alone! Do not violate its liberty. (I am reminded of thecharming Viennese Schlamperei and of Chesterton's crack that somebody elsemight be able to make love better to my wife than I can, but this is no reason whyhe should!) Only a serious breakdown of the institution in question warrants theintervention of the higher social organ. It is interesting that d'Ors sees this as anact of charity. Charity, in turn, must not be confused with the meddling ofbusybody technocrats.
33. Ibid., 112; emphasis in original. D'Ors here and elsewhere broadens his understanding oflegitimacy. Although the father/son relationship remains the paradigm of legitimacy, d
'Orsbroadens the theory to include any society that is not governed merely conventionally, any societythat enjoys a vivid Tradition that has been inherited. Hence d'Ors grants the validity of applyingthe predicate of legitimacy even to republics provided that they are not pure democraticrepublics. The application of the word itself would seem to be an instance of what Thomists call"an analogy of participation": in this case, dynastic and familial legitimacy operates as the primeanalogue which admits, however, of differing degrees of participation, Legitimacy, of course, istotally absent in regimes which are merely "conventional" and "legal."34, Ibid.
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All politics is a meshing of lesser powers by an overarching potestas which isgovernment par excellence. When Power, warns d'Ors, is confounded withAuthority, Authority ceases to be the check or limit on Power that it is supposedto be. Authority, thus, not only answers but these very answers function as wellas limitations, specifications, of Power's range of activity. Although our professoradmits that at times Power and Authority might reside in the same person, (hedoes this rather nervously) he insists that they must not do so within the samedimension of the real.
D'Ors thus teaches, as indicated throughout this study, that the authority/power relation is thoroughly natural, rooted in man's two spiritual faculties ofintellection and volition. Nonetheless, human nature exists in a fallen state andwhat is perfectly natural, normal, mo)re often than not is blurred in historicalexistence.
The Blurring of Authority and Power
Political philosophy-I speak here in my own name for a moment-is atension lived by a man who is tempted, at least potentially, toward political praxison the one hand and toward pure metaphysical speculation on the other hand.His success as a political philosopher is often measured by his ability to live withinthis tension, yielding to neither temptation. His speculation must transcendhistorical reality but it must both take its point of departure from, and be capableof, illuminating history. As classical instances, we might note Plato's andAristotle's speculations on the Greek polis and Cicero's on the Roman Republic.
Speaking as a Thomistic philosopher, I might point out here that from anepistemological point of view the issue can be elucidated in terms of the dualityfound in all judgments: whereas the thing understood, often an historicalcomplexity itself disengaged in previous judgments, plays the roleofsubject, thatthing is understood in terms of universal predicates.35 These "formalities,"intelligibilities-are first discovered in, then predicated of, the "things"themselves. When the thing, the res, is political, the res publica, then the mindis engaged in asubject moving through historical time. Political philosophy,hence, always manifests an historical and singular reality understood in termsof universal necessities. This scientia is engaged in universals discovered insome historical existence. Otherwise we are dealing with ideology, notphilosophy.
The overarching tenure of Alvaro d'Ors' teaching on political philosophyleads me to think that he might agree with the late Yves Simon's definition ofideology: a philosophy crafted to defend some concrete political position.Marxism immediately comes to mind. D'Ors' careful distinction between his
35. Cf., Frederick D. Wilhelmsen, Man's Knowledge of Reality, Preserving ChristianPublications,3d ed., esp., 122-156.
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scientific work and his occasional writings in defense of Traditionalist orCarlist polities-indicates that the ideology-political philosophy distinctionhas always been operative in his thought. D'Ors is almost alone in Spanishacademic circles in this severe intellectual objectivity. It is more common thanotherwise in Spain today to use a university position as a stepping stone topolitical power. Don Alvaro has never been minister of a government orcandidate for political office. In a profound sense, he is a living incarnationof his own insistence that authority never commands: it only answers andcounsels. D'Ors' theory of authority and power must both render historyintelligible while transcending any concrete moment thereof. I have alreadypointed out that don Alvaro discovers, philosophically and hence as somethingnatural, the authority/power polarity. Let us move, now, to a consideration ofhow he locates these intelligibilities in historical existence. As a jurist whoseexpertise is Roman Law and Jurisprudence, we are not surprised to find d'Orsdisengaging from the Roman experience the theory he has elaborated througha life spent in speculation. More accurately expressed, the theory emergesfrom its historical concretion. A kind of Aristotelian induction is at play in theSpanish theoretican's thinking.
The most primitive instance of the distinction between authority andpower, within our civilization, lies at the remote origins of the Roman Order.The college of augers who read the signs of the will of the gods in the passingof birds and other natural phenomena was consulted by the kings, repositoriesof political power. At this dawn of our inheritance there was already presenta lived, vivid awareness that political power must respond to somethingbeyond itself. 36 The sacral authority of the augers and the political power ofthe kings mixed into a kind of felicitious unity at this birth of Rome. Thegradual militarization and hence secularization of the royal power in theEtruscan period stripped the kings of augural authority. Roman tradition,coming into its own thanks to a kind of logic worked within the alchemy oftime, gradually sealed with a corporate approval the distinction between hewho has power and he who has authority, between he who commands and hewho authorizes. Reaching its apotheosis in the high period of the RomanRepublic, authority was centered in the Senate and it acted as an effectivebreak upon the power of the magistrates even as it served as a beacon guidingits decisions. The auctoritas of the Senate controlled morally the imperiumof executive power. The role of the earlier college of augurs was expanded bythe somewhat newer authority of the Senate. The magistrates, questioning asto what ought to be done, and the Senate, answering out of its wisdom, formeda crystalization of the permanent and natural relationships found between thewill and the intellect. 37
36. Inauguratio: La teologia pagana de la Victoria legitima; Ensayos de teoria politica, andpassim(the theme appears in many of Don Alvaro d'Ors' writings).37. Ibid.
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A very early blurring of the power/authority distinction can be discoveredin the gradual replacement of the augurs by the haruspices who predicted thefuture, read the omens of the gods, at the command of the magistrates. Theharuspices became functionaries of political power, men personally subordi-nate to magistrates, generals, and others to whom pertained the power of theRoman political order. Catering favor with their chiefs, they often read theomens of the times as their masters wished. Cicero said of them that they were"fakes having nothing to do with real augers." In this, as in many other things,Cicero lamented the passing of the ancient order. Nonetheless, the declineof the sacral authority of the augurs, as indicated, did yield to a more secularauthority, that of the Senate. The independence of the Senate-at firstsuffused with an authority to which political power appealed-was firstmenaced by Octavius, Caesar Augustus, who blurred further the power/authority distinction. By the Middle and Late Empire the Senate had virtuallylost its real authority although the power of Roman tradition was so strong thatthe fiction of an independent Senate was maintained until the very last daysof the Empire.
The old-and very natural-distinction between power and authority wasreborn in the medieval tradition where the royal power was counterpointedby papal authority. A vivid "inauguaration"38 of political power by ecclesias-tical authority was the imperial coronation at the hands of the Pope, an actbeginning when Leo III crowned Charlemagne emperor on Christmas Eve inthe year 800 A.D. The modern State, the creation of the French monarchywhose apologete was Boclin, effectively identified Authority with PoliticalPower in the late Renaissance and early decades of the Modern Epoch. Theloss of independent divine authority was dramatically staged by Napoleonwhen he seized the crown from Pius VII, the crown the pope was to have usedin crowning Napoleon himself, thus authorizing, inaugurating the new em-pire, blessing it with his authority. Napoleon crowned himself. I ratherimagine that don Alvaro would agree with me that it was better this way: thepope washed his hands, albeit unwillingly, of the horrors that were to followupon Napoleon's coronation. Napoleon, in crowning himself, thus signalledto the world what it had already known-Rome had no authority any more inthe affairs of state in what was once a Christian community of nations. TheWill of the Prince was the last word spoken in matters political. That theFrench Revolution converted the Will of the Prince into the Will of theMajority was simply a democratic flourish to a document whose history hadalready largely been written. Napoleon was the first soldier of the Revolution.Western man has suffered the consequences of this abomination in thetotalitarianism of our century.
38. "Inauguratio," Ensayos de Teorfa Polftica, 79-94. Here d'Ors traces the ontological sense of"inauguratio"-the blessing, so to speak, of authority to the commencement of some politicallabor.
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The classical liberal divison of powers into three was a tactic to avoidtyranny and assure the liberty of the subject. D'Ors points out thatMontesquieu's division has never worked. Long before don Alvaro, DonosoCorts noted that the supposed tripartite division in England, the quintessen-tial example cited by Montesquieu, masked the truth: 39 Power in Englandsince the Protestant Succession in 1688 resided in Parliament and nowhereelse. Parliament, until very recently, has been the representative of a broadaristocracy based upon the loot of the monastery lands, and that classgoverned the United Kingdom for more than four hundred years. Professord'Ors points out the essential flaw in the liberal tripartite division of powers.If power is so divided into three that any one or two of these powers can checkexcessive encroachments by the third, then that power-be it legislative,judicial, or executive-is both what it is as a constituted power, plus its beingan authority over the neighboring powers that it pretends to judge. D'Orsdoes not exactly subscribe to Donoso's insistence that political power isnecessarily one which is subsequently limited by a host of "hierarchies,"authorities. But then again d'Ors does not exactly reject the thesis. He largelyignores it because his focus is elsewhere: the unnaturalness of any power beingconfounded with authority. In a word: the professor does not so much objectto political powers being tripartite as he objects to their supposed capacity of"checking" or "limiting" encroachments of one power by the other branchesof government. The triplification of political power simply confounds thesame problem we encounter when any power, be it one or many, is identicallyan authority. This presupposition of the modern State reduces all authorityto some univocally conceived Authority/Power, "The Prince" or "The Will ofthe People." In fact, d'Ors reads Polybius' understanding of the constitutionof the Roman Republic as the misunderstanding of a Greek of what wasquintessentially Roman: Roman "powers" did not check one another; theywere checked by "authorities," principally that of the Senate which was nopower at all,
Donoso Corts' insistence on the unity of power can be explicated,perhaps, in terms of the Thomistic metaphysics of being. Power must lie onthe side of existence; power is a "poder ejercer. In God, Power is one with
39. Donoso Corts, Textos Politicos ( Madrid: Ediciones Rialp, 1954), esp. 461 ff. D'Ors rarelycites Donoso and the famous nineteenth-century Traditionalist thinker seems to have had littleinfluence on him. D'Ors' traditionalism, in fact, owes very little to nineteenth-century Tradition-alist thought. His Carlism was forged in a lived personal experience in the Spanish Civil War, whathe prefers to call "The Crusade," but his thinking is composed of a political philosophywhich grewout of his juridical expertise and historical reflections. Most Carlist thinkers distinguishedbetween "the Social Sovereignty" of Christ and a "political sovereignty" pertaining to the State.D'Ors, as indicated in the text, denies all sovereignty to political power. Also, the critique of themodern State made by d'Ors cuts much deeper than that found in writers such as Vazquez deMella. However, an elucidation of this theme would require another study.
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Being, but nowhere can we discover-within Being itself-any specificationor determination of Power. This specification, itself always some limitation,must come from a principle not identically Power: i.e., the order of essence orthe determination of existence. An unlimited Power, which is not God, is ametaphysical monstrosity. Don Alvaro d'Ors, holding with Donoso but inindependence of his speculation, that Power cannot be specified from withinitself, sees no difficulty of speaking of many powers in a cascading order ofdelegation. These powers respond to authorities because they question whatis to be done. Thus don Alvaro's Power/Authority duality corresponds as wellto St. Thomas' esse/essence duality. As essence determines, limits, andspecifies the act of existing, so too does authority determine, limit, and specifypower. The difference between Donoso and d'Ors on this issue has nothingto do with whether power is always determined by a principle not itself, the"hierarchies" in Donoso and the "authorities" in don Alvaro. The differencewould seem to lie-my suggestion is provisional-in Donoso's insistence thatnot only is power unitary but that there is only one such unitary power in thepolitical order. I find nothing in Professor d'Ors corresponding to thatproposition. Power is always delegated from some one primal source butthere are many powers. Don Alvaro's many examples are drawn from Spanishand other European constitutional situations, but his theory applies as well tothe United States of America.
In this nation the judiciary attempted to assume the prerogatives of thelegislature for many years during the ascendency of the so-called `WarrenSupreme Court." All manners of social policy, some beneficial and otherspossibly not so, were juridically legislated into existence-altogether withoutregard to the legislative branch of government and very often in total disregardof the will of the respective states making up the American Union. Morerecently the Congress set itself up as the authority concerning the behaviourof the President and "His Men." At the moment of the writing of this paperthe same Congress, itself the ultimate repository of American Political Power,has taken upon itself the role of Authority in attempting to police its ownconduct. The Congress forced the Speaker of the House to resign because ofsupposed malfeasance of funds garnered for his reelection. Moving backsomewhat in history, we might recall the political experience of King GeorgeIII in England who was not content, apparently, to be a mere servant of thearistocratic class to which his house owed the throne. Bereft ofpolitical powerbut possessed as the executive of immense financial wealth, the King at-tempted to buy Parliament, the repository of Power in England. Hisexperiment failed because influence, be it royal or otherwise, is one thing andpower is something altogether different. George III was what we nowadaysin the United States call a wealthy lobbyist, but a lobbyist who failed.
The ensuing confusion has always been intolerable because no one of thethree branches of power can claim an independent authority. The result in
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these last generations has been an increasing technologizing of governmentin that political power has found itself constrained to fall back on the authorityof its own/tee nicians. Power in our modern states tends inexorably towardstechnoc acy./The natural order of things is reversed. Political prudence,gnome, is irndence for government. But the business of government is so vastthat no man or body can govern without council, the prudence known aseubulia. The wisdom proper to political power includes the sagacity neededto choose advisors wisely. But these councillors, possessed of knowledge andhence of a certain authority, ought not to govern. Their role should be sharplyrestricted to answering questions put to it by the competent political powerin question, In fact, however, power is slipping away from government andpolitics increasingly follows the dictates of technical efficacy, possibility. OneAmerican astronaut said to a journalist who asked him why we are going to themoon, that we are going there because we can go there! This is a technicalanswer to a prudential political question that confounds the issue. Technicalpossibility, attested to by technical authority, has been turned into a politicaldictate.
D'Ors often notes that this confusion between political and technicalprudence is a two-headed sword. Either authority yearns to be power (as inthe university situation in which professors lust after administrative posts) orpower dreams of converting itself into authority as in the modern State. Thefirst temptation is Platonic; the second is Baconian. When the "wise" man,even if he be wise only about computers and statistical curves, takes on themantle of political power, liberty is destroyed. When mathematics becomespolitics, politics attempts to demonstrate rather than to judge. There is noliberty in scientific demonstration. Liberty is consubstantial with power butwith a power that not only consults higher authorities such as the Church butlower authorities with technical expertise. Politics must not be absorbed intoeither. Conversely, the absorption of technics into political power violates thenature of the latter. This time, however, the haruspices cannibalisticallydevour the power that gave them birth. This is the essence of technocracy.
This blurring of the roles of authority and power is complemented by afurther confusion noted by Professor d'Ors. As already indicated, d'Ors holdsthat authority has nothing essentially to do with legitimacy. Authorities areneither legitimate nor illegitimate. Whereas legitimacy is inherited-torepeat the thesis-authority is the acquisition of a knowledge subsequentlyrecognized socially. Strictly speaking nobody can be "loyal" to an authorityunless it be the authority of God. Loyalty suggests a willingness to obey.Obedience pertains to the will and hence lies on the side of power. This is wellillustrated by the paterpotestas. 40 The son is loyal to his father even if his fatheris a perfect fool, altogether bereft of any significant authority. Loyalty thus
40. Doce propositiones sobre elpoder, 120.
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pertains more properly to legitimacy. The issue is muddied when loyalty isattached to legality. Loyalty is a natural dimension of human nature andpertains to persons. In the political order these persons are legitimated intheir power, their potestas. All Law is general, abstract, and aims ( thoughoften confusedly-at universality. No man can be loyal to an abstraction evenif he tries. Loyalty, hence, follows a descending hierarchy of delegation. Aman obeys the laws but he does not adhere to them with the loyalty a soldiergives his commander.
The Orsian theory is tested by himself in his historical speculationsconcerning the Roman experience but his thesis, if it is to enjoy the status ofpolitical theory, must apply as well to historical situations thathehas not testedpersonally. I suggest that recent American history validates these proposi-tions of the Spanish scholar. The United States of America in its inception wasnot a liberal democracy. At its inception the United States was an aristocraticRepublic which admitted certain democratic and monarchical principleswithin its constitution. Since President Jackson and definitively since the CivilWar, the American Republic has moved toward a democratic Republic.Increasingly democratic in the past decades, American politics today liveswithin a tension, even a hostility, between older aristocratic and monarchicalformalities and newer democratic incursions. Presidential pretentions reachedtheir apotheosis in the early years of the administration of Richard Nixon andthe phrase "An Imperial Presidency" was heard everywhere. These preten-sions were effectively exploded as a result of the Watergate scandal. Thenation soon came to now what the late Willmoore Kendall had insisted on allalong: the spectrum of the so-called "imperial presidency" was a fake! Powerin this nation reside effectively in Congress; at times that power sleeps but italways is there to be aroused from its slumbers as though it were a recumbentlion. Nixon resigned.
Nonetheless, the Constitution has vested the presidency with all executivefunctions. Being a person, the American President has gathered aroundhimself an ever increasingly large body of functionaries who sense-rightly orwrongly, constitutionally or not-that their loyalty belongs to "The Chief."(An anecdote here might illustrate the point: when President Kennedy wasasked what was his favorite piece of music, he answered "Hail to the Chief'which is often played when the president makes a ceremonial entrance.)Exercising their diverse political roles which have been delegated to them bythe President, these loyal servants-"The President's Men" they were calledby a famous book bearing that title-have given their allegiance to The Man,The Chief. And they have tended to do so above any adherence they mighthave given to the written Legality imposed by Congress.
The Orsian distinction between personal loyalty to superiors by men withdelegated power and the abstract imperative of the law could not be illustratedmore vividly. In a pure democracy of the liberal stripe there is no role for
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either legitimacy or its response in loyalty. But the United States of Americais not a pure democracy. The President is elected democratically (in fact if notin theory: the Electoral College is an aristocratic mummy, a shell), but hiselection is independent of the fate of his party. Unlike most Europeandemocracies, the American President is not selected by a parliament domi-nated by the party to which he belongs. He can win at the polls and his partymight lose. This, of course, is what has happened in the last forty years-aRepublican President and a Democratic Congress. Popularly elected, thePresident nonetheless is invested with a role and certain attributes that arereminiscent of a medieval king. In a regime in which a quasi-monarchicalpresidency squares off against a potentially hostile and democratically electedCongress, repository of ultimate Power, a potential clash between Legitimacyand Loyalty is already an inbuilt possibility. From a purely formal point ofview, abstracting from the substantive issues in question, the Americanpresident today can be compared to the English kings Charles I and II, evenJames II, as these last faced a hostile Parliament. Just as the English kingslooked back upon an older power that had by now slipped from their fingers,so too does the American president look back-his tradition, of course, ismuch shorter-upon the imperial presidency of Franklin Roosevelt. Just asthose royal personages in their purple robes admonished Parliament from thethrone to do its duty by the common good, so too does President Bush lectureCongress on its duty. The only road opened to these long dead Stuartmonarchs and open to the very much alive American presidents is theimmense influence of their offices, their capacity to buy, cajole, and threatentheir policies into effective legislation. In both the older English politicalexperience and its contemporary American counterpart, Power resides in alegislative body that not only is the fount of legality but also the holder of thepurse strings. The ambiguity is patent: the President of the United States is"under the law" but he is The Chief, especially the Commander in Chief of theArmed Forces-and this last attribute is not ceremonial as in certain Euro-pean states: it is effective, real.
Don Alvaro d'Ors, fairly early in his academic career, wrote a remarkableessay called "Silent Leges InterArma."' I Since he has referred to it in his moremature writings, it is clear that d'Ors considers the study to be important foran understanding of his political philosophy. "The Laws, Among Arms, AreSilent." The sentence is Cicero's. D'Ors asks rhetorically what is a man to doat night if thieves accost him on an unlit road? He cannot call on the police,representatives of political power. He cannot talk his assailants out of theircriminal intentions. He will not let them murder him. He has a gun and heuses it. No law authorizes him to do this. Indeed the laws insist that nobody
41. De la guerra y de la paz, 23-44; Ensayos de Peoria Politica, Cicern, sobre el estado deExcepin,153-175.
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can take unto himself the role of policeman or magistrate. But he shootsbecause he is authorized by a higher law, self-preservation. But so too in allwar: the Laws are "silent" when the guns roar. The very deliberation andsolemnity, the rhetorical flourishes of lawyers, the careful meticulousnesswith which laws are written, the thicket of exceptions and distinctions-all ofthis is swept away when the enemy swarms over the walls of the city bent onplunder and submission to an alien will.
The laws are silent when the State is impotent before a danger facing anindividual; the Laws are silent against a threat to the State: legitimatedefence in either case: public here and private there. In both cases the Statefaces a crisis and its laws prohibit an act founded on the very instinct ofconservation. The laws are silent because there is no organization of theState capable of confronting this danger 42
Sometbing like this motivated "The President's Men" in the Irangate crisis.They had learned nothing from Watergate. The formal peace betweennations recognized by the Congress did not jibe with their perception that theUnited States was at war with International Communism in Nicaragua. Theyjudged-rightly or wrongly is not the point-that they were carrying out theChief' s will. After all, Ronald Reagan had long denounced the Sandanistavictory in Nicaragua and had declared it a potential threat to the security of theUnited States. But the Laws prevented the Arms from achieving the victorythese men thought theirs to win. Lt. Col. North and Vice Admiral Poindexterand the rest of them circumvented the Law in supporting the so-called"contras," freedom fighters in the jungles on the Nicaraguan border. In factthey violated that law out of loyalty to the Commander in Chief and hisobligation to protect the nation from all enemies, internal and external.
The Irangate affair is a test tube verification of d'Ors' thesis, an Aristote-lian "exemplar" in which the intelligibility of the professor's thesis can be"read" and "validated."' The President constitutionally directs foreign policybut the Congress sets limits to that direction legally. The Irangate soldiers,most of whom were professional warriors, one of them at least highlydecorated for heroism in combat, carried out what they conceived to bePresident Reagan's vigorous anti-Communist foreign policy in CentralAmerica. Their loyalty was given as a soldier's sword to their Commander inChief. But that loyalty was illegal. The fact that legality won out over loyaltyis a vivid proof of how far along the road to a pure democracy the UnitedStates has gone. Loyality and its corresponding link with Legitimacy is a
42. De la guerra y de paz, 43.43. e.g., my own treatment in: Man 's Knowledge of Reality (New York: Preserving ChristianPublications, 1988), 122-134.
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declining factor in American politics.Don Alvaro d'Ors is not a moralist. He is a political philosopher. His
"oficio," as he might modestly put it, is not that of the ethician. It follows thatthe reader must ponder what I have written about the Irangate scandal interms of political theory, not in terms of constitutionality and whatever moralresponse is elicited thereto. The Irangate men acted naturally but thenaturality of their action was illegal. Legitimacy and Loyalty are ontologicalfactors anterior to Legality but Legality can outlaw them. Although the moralconsiderations are radically different, the situations discussed here are notformally distinct from the Chinese Communist government's insistence thatchildren report their parents to the commissars when these last show less thanenthusiasm for the going regime. If the youngsters remain loyal to theirparents, they act illegally but they act naturally out of loyalty. If they betraytheir parents, they act legally but unnaturally. Positive law cannot legislatelegitimacy into being: this law either recognizes the anterior principle oflegitimacy or denies it. North and his companions behaved naturally assoldiers are supposed to behave: they obeyed-or thought they obeyed-superiors in a chain of command. Their conduct can be adjudicated favorablyor unfavorably depending on a man's existential convictions but their conductcannot be judged to have been unnatural. This is the way soldiers act! Theiractivities followed a certain curve inscribed in the very nature of man. If therewas an aberration in their modus actuandi , it is to be sought in constitutionalityand not in human nature. That d'Ors has traced this principle in itsdevelopment is a sign of the genius of his political philosophy. He has notconfounded the study of Constitutional Law (of which, incidentally, he is aforemost expert on the European continent) with that of Political Philosophy.In so doing, he has not confused conventional morality with ontologicalprinciples deeply at work in every human being.
These two recent constitutional crises in American history cost onepresident, Mr. Nixon, his office and almost did the same to Mr. Reagan. Bothillustrate the confusion between power and authority in the liberal division ofpowers. Congress judged (a role of authority) the actions of the Watergate"plumbers" and the Irangate soldiers to be illegal and Congress had thepower, through a judiciary subservient to itself, to punish the wrongdoers.
But the very American Judiciary, even unto the Supreme Court, is not anindependent authority. Since ending its legislative spree when headed byEarl Warren, the Supreme Court now interprets the going law but never risesabove its positive character. It has no authority to declare some written lawwrong because it violates a higher law, Natural Law. It can only interpret apositivity there to be interpreted. Should the individual states incorporate thenatural law in their legislation, the Supreme Court must note that incorpora-tion. Should they fail to do so, that Court is incapable of declaring anythingcontrary to a higher Law it can only recognize if the states or "the people"
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recognize it. It follows, as argued, that there is no Authority anterior orsuperior to the Will of the People. Nowhere in the United States can we findan Authority independent of Political Power, an Authority recognized sociallyto the extent that it is questioned and heeded by those in power.
The business is illustrated dramatically by the abortion issue. Condemnedby the Natural Law as murder-no pro-abortionist argues in favor of his thesisby appealing to any putative natural law; he argues in favor of a presumed rightover her own body possessed by all women-an interesting argument but onetotally foreign to the entire tradition of Natural Law in our civilization.Condemned by the Natural Law as murder-first or second degree is not tothe point-abortion in this land can be outlawed only if an existing positive lawcan be found capable of overturning Roe v. Wade or if a constitutionalamendment is crafted favoring the life of the unborn. This process itself iselaborate and lengthy. If successful, it could be overthrown as was theamendment outlawing the drinking of spirits. In this country, in any event, adictate of the Natural Law needs the crutch of the Positive Law in order thatit be respected. Authority, in all cases, dissolves in Democratic Will, in Power.One is reminded of Bodin's pious hope that the Prince respect the Law ofGod. But if he does not, too bad! He is the Sovereign. So too today in theUnited States: if the courts respect the Natural Law, itself part of the DivineLaw, very good: but if not, too bad! Obey-or go to jail. Many today do justthat.
Professor d'Ors has suggested that a common adherence to the NaturalLaw acted partially as a moral check on the political order even after thebreakup of religious unity in the sixteenth century. He has also pointed out,the issue was referred to earlier, that a Natural Law, unbuttressed by theDivine Law and the Church as God's Voice on earth, tends nonetheless tobecome diffuse, watered away, vague, and subject to a host of differing andmore often than not contradictory interpretations. Your opinion on what thatLaw states is just as good as mine! This means, of course, that neither opinionis worth anything. A secularized Natural Law ceases soon enough to be itself.
We might note here how Fr. John Courtney Murray, S.J., in his We HoldThese Truths, thought he had found a consensus in the United States unifyingCatholics, Protestants, and Jews in a common allegiance to a Natural Lawascribed to by all and sanctified, authorized, by the very founding documentsof the Republic. A certain plausability attached to Murray's thesis when it waslaunched in the fourth and fifth decades of the century. 44 But even grantingthat plausability-itself dubious-history has rendered it obsolete. In theUnited States today a secularized religion of democratic "values" is the onlycommon orthodoxy publically proclaimed by politicians, educators, most
44. Cf., Frederick D. Wilhelmsen, "Religion and the State," The World and I, forthcoming.
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religious leaders, and the immensely prestigious mass media. 95 A mark of thistruth is the need that even religious leaders seem to have in justifyingtraditional moral convictions by their ability to conform to and serve demo-cratic norms. The worse that can be said of any polity or proposal is that it is"undemocratic." This reduction of The Good to the Democratic is one withthe reduction of Authority to Power and Power to Democratic Power: voxpopuli, vox Dei, a proposition no orthodox Christian could subscribe to werehe aware of its implications. Permit me to hazard the guess that this state ofaffairs cannot last because the Democratic Ethos itself lacks any infallibleInterpreter, any Authority sealing its pretensions with personal wisdom. I amreminded of the "man sagt, man tut" of Heidegger, of inauthentic humanexistence based on rumor and unfounded opinion wide