The Law of Leadership

Authored by Andre van Heerden

Imagine that you are creating a fabric of human destiny with the object of making men happy in the end, giving them peace and rest at last.  Imagine that you are doing this but that it is essential and inevitable to torture to death only one tiny creature…in order to found that edifice on its unavenged tears.  Would you consent to be the architect on those conditions?

~Ivan to Alyosha in Dostoyevsky’s The Brothers Karamazov

Dostoevsky’s great novels cultivate the seeds of leadership by exploring the complexities of the human condition.  Justice and the nature of community are central themes, demanding much deeper reflection than they are given in the postmodern West.  Hence our leadership deficit.

The prime purpose of leadership is justice. The prime purpose of justice is the Common Good. The prime purpose of the Common Good is human flourishing in community. And the prime instrument for the achievement of all these benefits is law, properly understood. So law, even in the form of rules or convention, is a measure of leadership. And law is measured by justice.

How are we to live together? The question has engaged the greatest minds in history, from the dawn of civilization, and it remains controversial to this day in homes, workplaces, communities, and nations. Interestingly, the Golden Rule – treat others as you want them to treat you – is known in all cultures, and provides what would be the perfect answer, were it not for human perversity. It is an ideal that is impossible to enforce as a law.

Humanity has tried, from the beginning, to invest society with the qualities we all know to be good. Ancient civilizations in India, Mesopotamia, Egypt, China, Greece, and Rome all tried to promote good faith and truth-telling. Mercy, compassion, justice, duties to parents, the aged, and posterity, and care for widows and orphans, all feature in the ancient ethical and legal codes.  The Ten Commandments remain the most succinct statement of the Natural Law that informs all the ancient codes, acknowledging the reality of a law that transcends the laws of humankind.

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Of course, the ancients often betrayed the ideals through practices like the subjugation of women, slavery, infanticide, torture, and death for even menial crimes. The laws of rulers like Urukagina, Ur-Nammu, and Hammurabi in Mesopotamia show a mix of conscience and cruelty, and we get our word “draconian” from the Athenian lawmaker, Draho, who believed he could scare people into being good neighbors by means of a somewhat intemperate use of the death penalty.

How are we to live together?

The key to answering the question, “How are we to live together?”, lies in the interpretation given to the word “we”. Who are “we”? We are human beings of both sexes, all races, all creeds, all nations, and all socio-economic classes. What unites us is our human nature, from which flows all the community and chaos, creativity and corruption, compassion and cruelty, concord and conflict, courage and cowardice that we know as the human condition.

More importantly, we are both one and many. Every one of us, for better or worse, is born into a community, and individual flourishing is only ever achieved in the context of community; and we should note that those who achieve material success through injustice to others, do not flourish as human beings but by being somewhat less than human.

Community is destroyed by injustice.

Examples are inexhaustible.  The injustice suffered by a small retailer whose shop is looted and burned calls into question the rule of law and the leadership of the community.  The same is true when a person loses his or her livelihood because of a politically incorrect opinion, when workers in one of the world’s richest corporations are so poorly paid that they have to seek welfare, when the wealthy and powerful get away with crimes that carry heavy penalties for everyone else, and when people who speak out against the injustices are demonized and marginalized.  And so on.

So how can laws fix this? A law is a rule, meant to be obeyed, but able to be broken.  Of course, the laws of science cannot be broken (though we may temporarily thwart them as when we defy gravity by flying) and nor can the metaphysical law of non-contradiction – a thing either is or it is not.  The laws of grammar and logic can only be violated at the cost of accuracy of communication, and therefore community. All these laws are realities that are discovered, not made, by humanity.

Things become more complicated when it comes to social conduct, especially in a climate of moral and cultural relativism and the autonomous will of the individual. Hence the interminable wrangling about capitalism, socialism, immigration, education, climate change, vaccinations, abortion, euthanasia, the nature of marriage, gender fluidity, drugs, and alcohol, etc.

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Making laws to govern human conduct in these and other contentious areas inevitably becomes the source of outrage for some and smug satisfaction for others. And who is to say who is in the right? We are beings with free will, but our intellects are limited and prone to error, and our choices often hurt others and also ourselves. What is a leader to do?

Law must obviously be informed by moral standards, but if morality is a purely personal matter, how is it even possible for us to promulgate laws that satisfy all the competing moral commitments?

The ancients understood the challenge better than most people today. According to the still-influential legal codes of the Roman emperor Justinian, the basic principles of the law are: “to live honorably, not to harm others, and to render to each his due”.

Sadly, the postmodern West tries to order society with reference to the second principle alone, and it doesn’t work. The first principle is about personal virtue, which is totally at odds with the greed, deceit, and promiscuity encouraged today, and the third is about justice, which is parodied by the wealthy monopolizing wealth, the powerful abusing power, and celebrities getting away with murder.

Consider the pharmaceutical companies that settled for $26 billion after their opioids killed hundreds of thousands of people.  It sounds generous, but the four companies make $26 billion every fortnight. No one went to jail, and the penalty was, in effect, just another cost of doing business. Injustice arises from bad laws that arise from misleadership.

There are many distinctions regarding law, but the primary one that requires clarity before we can fully understand the others is that between the laws of nature and the laws of civil society.  Natural Law is not man-made; it is discovered by examining human nature, that is, what it means to be human. Natural Law recognizes three broad categories of goods all people need by nature:

• The preservation of our existence by means of security, food, drink, and shelter
• Animal instincts like sexual reproduction, child-rearing, and concomitant activities
• Goods specific to rational beings, like seeking truth, expanding knowledge, and sharing in society, through family, friends, work, community, and politics.

Of course, fulfilling the animal side of human nature enables us to fulfill the defining aspect of our nature as rational beings with free will. The implications for leadership are far-reaching.

Civil law, or positive law, on the other hand, is made by humans, posited (or officially promulgated) by a proper authority. The relationship between Natural Law and positive law was analyzed by many modern thinkers, including Hobbes, Locke, Spinoza, Montesquieu, and Hegel, and despite their differences, and the Modernist rejection of human nature as a reality, they all acknowledged that Natural Law applied to all human beings as rational creatures able to discern its injunctions.

In that, they echoed the key principle of classical legal theory articulated by Aquinas:

Every human law has just so much of the nature of law as it is derived from the law of nature.  But if in any point it departs from the law of nature, it is no longer a law.

According to this common-sense understanding of the law, any command that is grounded merely in the will of the government might have the coercive force of law, but not the moral authority of law. In fact, the broad consensus in western civilization prior to the Enlightenment understood law to be a rule made for the Common Good of a community, grounded in reason, instituted by the will of a legitimately constituted authority, and having both moral and coercive power.

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Classical Natural Law gives rise to natural rights, grounded in human nature rather than human convention.  The use of the word ‘classical’ is important because its understanding of nature differs from the modern understanding. The classical understanding of nature sees it as a thing’s essence, that which makes it what it is, as something with definite meaning and purpose, naturally oriented towards the achievement of certain ends.

The modern understanding of nature, on the other hand, is malleable. The mechanistic worldview of Modernity rejected the idea of innate meaning and purpose in things in favor of a materialist vision of the world as mere matter to be refashioned by human beings in their quest for Utopia. Hence Nazism, Marxism, and libertarian technocratic meritocracy.

Like all natural phenomena, the practical reason of human beings is directed towards specific ends, namely, whatever the intellect perceives to be good. Obviously, a properly informed, rational person will perceive the fulfillment of natural human potential as the good to be pursued.  When we misconstrue what is good for us, it is the result of ignorance, irrationality, or perversity.

So good conduct is simply that which is aligned with right reason.  To be properly rational is to do what is good to achieve the goals set for us by our human nature.  And it is not difficult to list things that are good for us, and by contrast, things that are bad for us.  Truth, justice, freedom, community, peace, meaningful work, and challenge are good for people, while lies, injustice, slavery, social isolation, violence, unemployment, and inertia are bad for us.

As rational animals, human beings are naturally social and political, living in communities and depending on others in various ways for our mutual well-being.  At the heart of human societies are family relationships with their natural rights and obligations, and groups of families form wider relationships in which we become friends, neighbors, employers or employees, citizens, and so on. Obviously, the flourishing of these relationships is a natural good for human beings.

The agrarian activist and writer, Wendell Berry, gives us a lot to think about in this regard when he talks about the injustices visited upon people in rural America: “bankruptcy, foreclosure, depression, suicide, the departure of the young, the loneliness of the old, soil loss, soil degradation, chemical pollution, the loss of genetic and specific diversity, the extinction or threatened extinction of species, the depletion of aquifers, stream degradation, the loss of wilderness, strip mining, clear-cutting, population loss, the loss of supporting communities, and the death of towns.” If this, together with the degradation of humanity in the inner cities, is what liberal democracy has to offer, we can say with certainty that it is not justice.

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One might also reflect on the injustices of the Crash of 2008 brought about by the corruption of bankers and politicians.  In the preceding decade, politicians from both parties in the US manipulated the mortgage system to enable people with no money to get mortgages for homes costing more than half a million dollars. This shakedown of the taxpayer allowed politicians to brag about the great surge in homeownership their supposed vision had created.

Bankers bundled the worthless mortgages into investment packages, in which complex financial engineering allowed few people to understand the menacing risks. Of course, the bankers and politicians never faced any penalties when the house of cards came down. For example, one of the too-big-to-fail banks was awarded $45 billion in bailouts and $300 billion in taxpayer guarantees. Many politicians have thrived, continuing to defraud the taxpayer ever since.

As Frederic Bastiat, the French economist said, “…legal plunder can be committed in an infinite number of ways. Thus we have an infinite number of plans to organize it: tariffs, protection, benefits, subsidies, progressive taxation, public schools, guaranteed jobs, guaranteed profits, minimum wages, a right to relief, a right to the tools of labor, free credit, and so on.”

Liberals, libertarians, progressives, socialists, and extremists of both left and right, all claim to hold the keys to utopia, but their visions never materialize. They offer only ideological agendas that, as soon as they are exposed in rational dialogue, are seen to promote the narrow interests of a few to the detriment of the many. Ideology, by definition, can never be the source of just laws. And ideologues are inevitably misleaders.

Classical Natural Law theory recognizes private property rights that are robust but not absolute e.g. property owners are never justified in undermining the Common Good. Accordingly, it rules out socialism at one extreme and laissez-faire liberalism at the other. There is plenty of room between those extremes for reasonable debate on how best to apply the principles of Natural Law, and solutions would depend on insights drawn from economics, sociology, and political theory.

According to Adrian Vermeule, Professor of Constitutional Law at Harvard, the Common Good may be understood as: “The structural, political, economic, and social conditions that allow communities and individuals to live in accordance with the precepts of justice: ‘to live honorably, to injure no one, to give everyone his due.”

Plato provided a sound idea of the Common Good: “Our aim in founding the State was not the disproportionate happiness of any one class, but the greatest happiness of the whole; we thought that in a State which is ordered with a view to the good of the whole we should be most likely to find justice.”  The same principle applies to any community, business, or family.

So the Law of Leadership is simply this: The purpose of a leader is the Common Good, the flourishing of all. It requires laws that promote justice, that is, true community, in which people are virtuous, avoid harm to others, and give each and every person what is due to them.

And if there is no justice for all, then there is no justice at all.