Category Archives: Commentary

Krauthammer on Rescuing Syrian Christians

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Syriac Orthodox Christians in Damascus (Russia Today)

A nice piece by Charles Krauthammer in the Washington Post, on the efforts of Lord George Weidenfeld, a British Jew, to save some Syrian Christians. Weidenfeld was himself rescued by Christians in 1938. A British Protestant group brought him to London from Vienna, thus saving him from the Holocaust. Now, he says, he wishes to repay the favor. It’s a small effort, only 2000 families, but it’s something.

Notably, the US Government has declined to participate in Weidenfeld’s efforts, as they target Christians, as opposed to other religious minorities suffering in Syria. No doubt, this reticence comes from the by now well-known American policy of avoiding the appearance of sectarianism in the Mideast. Maybe some people in the Administration even think there would be some sort of Establishment Clause problem with helping Weidenfeld.

Both these concerns are silly. If the US Government were assisting only Christians in the Mideast, that could be a PR problem–for the US and for the local Christians. But the US is helping many religious minorities. Just last summer, it evacuated besieged Yazidis on Mt. Sinjar. So helping Weidenfeld’s group couldn’t be considered favoritism. Anyway, no matter what the US does, it will be seen in the region as a “Christian” power, however ironic that might seem to us here.

As for the Establishment Clause, I don’t know where to begin. Even if the Clause were to apply to such matters, the fact that the US Government distributes foreign assistance to all sorts of religious minorities in the Mideast, not just Christians, would surely satisfy any reasonable neutrality requirement, even the so-called endorsement test. The endorsement test asks whether government action makes non-adherents feel like political outsiders, second-class citizens. Would non-Christians in America really feel like outsiders because some small portion of US aid goes to help a charity rescuing a couple thousand Christian families from war-torn Syria?

The NYT on the End of Mideast Christianity

Egyptian Copts, one holding a Coptic Christian cross, demonstrate against the overnight sectarian violence, in downtown Cairo, Egypt Sunday, May 8, 2011. Christians and Muslims throwing rocks clashed in downtown Cairo on Sunday, hours after ultraconservative Muslim mobs set fire overnight to a church and a Christian-owned apartment building in a frenzy of violence that killed 12 people and injured more than 200. (AP Photo/Khalil Hamra)

 Photo from Christianity Today

Eliza Griswold’s major piece on Mideast Christians in the New York Times Magazine this past weekend is getting lots of well-deserved attention. The Times, more than almost any other media publication, can place items on the national agenda, and both it and Griswold deserve credit for covering the crisis facing Christianity in Syria and Iraq. Griswold makes a couple of mistakes in the article–she incorrectly describes the beliefs of Oriental Orthodox Christians and ascribes the Armenian Genocide to “nationalism, not religion,” when in fact the genocide resulted from both–but, on the whole, it’s a very impressive piece, and well worth reading.

As an American, I was particularly struck by Griswold’s description of how the United States has abandoned Mideast Christians. Really, we are doing next to nothing to help these poor people. “Wait a minute,” someone might object. “How has the US abandoned them? And why do we have to do anything? We’re not responsible for righting every wrong that occurs in the world, and anyway we were in Iraq, trying to help, for years. It didn’t work. Let Iraqis and other local populations settle this for themselves. It’s not worth more American lives.”

I understand the appeal of this objection, but it depends on not a little willful amnesia. Of course, the parties who bear principal responsibility for the persecution of Christians are local Islamists like ISIS. But the US itself bears indirect responsibility. The US invasion in 2003 led to this situation, by creating anarchy and unleashing long-repressed sectarian resentments. And by abruptly leaving Iraq, we have allowed the crisis to intensify. A Catholic bishop Griswold quotes says it well. “Americans and the West were telling us they came to bring democracy, freedom and prosperity. What we are living is anarchy, war, death and the plight of three million refugees.’’ Having helped to create this crisis, the US has a moral obligation to do something to help. We can’t simply abandon these people–and Griswold makes clear that both the Bush and Obama Administrations deserve blame in this–as though we had nothing to do with exposing them to danger in the first place.

As of now, Griswold reports, the US has done very little. (This morning’s announcement of a potential US-Turkish alliance to fight ISIS in northern Syria seems driven largely by Turkey’s desire to preempt Kurdish gains; I doubt most of the region’s Christians hope for much out of it). The US is doing nothing to speed up immigration applications from Mideast Christians, notwithstanding the obvious persecution they are suffering. Even humanitarian assistance has been lacking.

Griswold correctly diagnoses the problem. Mideast Christians have few allies in American politics. Conservatives don’t feel much affinity for Mideast Christians, who often favor Palestine in the Israeli-Palestinian conflict, and liberals have a hard time seeing any Christians as sympathetic victims. As someone once observed, Mideast Christians have the misfortune to be too foreign for the Right and too Christian for the Left.

I hope Griswold’s timely piece can do something to help change America’s response. You can read her whole essay here.

Neutrality Partiality

I have a short essay on the Library of Law and Liberty site involving the idea of religious neutrality when it comes to American public and private education. It was occasioned in part by the Colorado Supreme Court’s recent decision invalidating, pursuant to its state Blaine Amendment, a local program that would have made tuition scholarships available to certain students, which the students could then use to pay to attend private religious and nonreligious schools. I criticize the decision but use it to talk about certain broader issues. Here’s a bit from the conclusion:

Focusing on these details of Colorado law, however, obscures certain larger questions. If “sectarian” truly does mean “Catholic,” and even if it means, as Black’s Law Dictionary says, “of, relating to, or involving a particular religious sect,” then any state Blaine Amendment with this language would be subject to constitutional challenge under the Supreme Court’s free exercise law. “Sectarian” does not sound particularly neutral; or, to the extent it does, it sounds in the rather counterintuitive neutrality of state-endorsed religious hostility. Yet even this perspective on the question of neutrality passes over the colossal non-neutrality of the government’s systematic and exclusive funding of its own putatively religion-neutral schools, to the detriment of able students—many of them from poor and educationally underserved communities—who would greatly benefit from private religious schooling. Neutrality between religion and non-religion seems to demand a plainly partial allocation of resources. Or, one variety of government neutrality—no funding of religious schools—obstructs the achievement of another—educational opportunity.

The question of the place of religion in American educational life—whether in the nation’s public schools or in its position on private religious schools—will not be answered by neutrality talk, for the fundamental reason that nothing in the projects of American education is or ever has been neutral toward religion. From the very first, it was precisely the non-neutrality of the state toward religion that has been one of the prime catalysts of cultural and legal development in American education policy, public and private. There is an understandable tendency among some opponents of state Blaine Amendments such as Colorado’s to reduce them to simple expressions of non-neutral anti-Catholicism. Often they were that, but they were more.

To understand them merely in these terms—as lamentable examples of “discrimination”—domesticates them. It consigns them to a history from which we have happily progressed now that we have entered an epoch in which the making of discriminations of any kind is taboo. It puffs us up with the Whiggish certitude that to repudiate the Blaine Amendments is to rid ourselves decisively of the very real problem they addressed. That problem—how to foster through education the common civic culture upon which the American polity, even still, depends—does not vanish by easy, self-congratulatory resort to the voguish platitudes of antidiscrimination. The Blaine Amendments were woefully inadequate responses to that problem, but responses nonetheless. The empty bromide of religious neutrality is no response at all.

Same-Sex Marriage and Our New Religious Politics

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Photo from Wikimedia

In the last week, two interesting polls have appeared, one from the Associated Press and the other from the Washington Post, on Americans’ reactions to the Supreme Court’s June ruling in the same-sex marriage case, Obergefell v. Hodges. Taken together, the polls reveal that America is more divided on the question than first appeared. And the polls reflect an unfortunate, new religious dimension in American politics.

Notwithstanding the widespread acclaim for the decision in the days following Obergefell, it turns out that many Americans do not favor making same-sex marriage a constitutional right. In the AP poll, only 39% said they approved of the Court’s ruling, while 41% said they disapproved. In the Washington Post poll, a bare majority, 52%, said they approved the Court’s decision, while 44% disapproved. These results are much closer than one would have expected, given the immediate media reaction to the ruling.

Now, the fact that many Americans disapprove of the Court’s decision doesn’t mean the decision is wrong. Constitutional law doesn’t turn on opinion polls. (As it happens, I think the Court’s opinion is wrong as a constitutional matter, for reasons I explain here). And one must be careful about reading too much into polls, especially polls that follow an unusual recent event. In time, public opinion may settle in favor of the Court’s decision, especially given the fact that younger Americans apparently support same-sex marriage in significant numbers. Besides, people could disapprove of the Court’s decision for reasons that do not directly relate to the merits. Americans are generally in a bad mood about the state of our country these days, and the polls may simply reflect that dissatisfaction.

All that said, these polls seem significant to me, for three reasons. First, they demonstrate that opposition to the Court’s decision is not a fringe phenomenon. Forty-four percent of the country is not an insignificant group. Dissenters may be reticent about expressing their opinion publicly—or, indeed, to pollsters, which suggests the percentage of opponents may be even higher—but they are not a trivial proportion of the population. America is apparently still divided on the question of same-sex marriage, and this division will doubtless make itself apparent in our politics. More on this below.

Second, the results hint that some people who oppose the Court’s decision may do so out of concern for religious freedom. In the AP poll, for example, 56% said that religious liberty should take precedence over gay rights, the implication being that people anticipate a conflict between the two. They should. At oral argument in Obergefell, Solicitor General Donald Verrilli himself acknowledged the potential for conflict, on questions like tax exemptions for religiously-affiliated institutions that oppose same-sex marriage.

Finally, there is an unmistakable partisan divide. In the AP poll, a large majority of Democrats gave priority to gay rights, while a large majority of Republicans said religious freedom is more important. The extent of the divide is truly startling. “By a 64-32 margin, most Democrats said it’s more important to protect gay rights than religious liberties when the two are in conflict,” the AP reports. “Republicans said the opposite, by 82-17.”

This polarization is worrisome. Up till now, America has been spared the bitterness of religious politics. Unlike some countries in Europe, we have not had clerical and anti-clerical parties. True, particular religious groups have gravitated toward one or another political party. In New England, for example, Irish Catholics were historically Democrats and mainline Protestants Republicans, a conflict memorialized in films like John Ford’s The Last Hurrah.

But we have never had secular and religious parties as such. Both parties saw religion, in general, as a good thing, and religious liberty as a fundamental American value. Tocqueville noticed this and found it refreshing. “In the United States,” he observed, “if a politician attacks a sect, this may not prevent the partisans of that very sect from supporting him; but if he attacks all the sects together, everyone abandons him, and he remains alone.”

Perhaps the political consensus on the value of religion is breaking down. More and more, one of our two major political parties is identifying itself as secular, and the other as religious. That’s not to say that all Democrats are secularists and all Republicans religious believers—of course not. Just ask the folks at Secular Right. And people could value religious freedom but believe other interests outweigh it in particular cases. Still, there seems a clear trend: religious freedom is becoming a partisan issue. That’s a very bad thing for America. You might even say it’s un-American. Let’s hope the trend doesn’t continue.

Bill Kristol Interview with Samuel Alito

This item is getting some deserved attention: Bill Kristol has posted a long-form, uninterrupted interview with Supreme Court Justice Samuel Alito on his “Conversations with Bill Kristol” site. I highly recommend it for anyone who wants to know more about the inner workings of the Court and the intellectual debates that have informed American law for the past generation. Justice Alito’s discussion of his dissent in Obergefell, which you can access here, will particularly interest readers of this site. Alito argues that the case represents a return to an unmoored jurisprudence of unenumerated rights, divorced both from constitutional text and national history and tradition. Worth watching.

Greece and the Price of Europe

Alexis Tsipras, head of the anti-bailout Syriza party, speaks during a financial conference in Athens on Tuesday, Dec. 2, 2014.  Tsipras said that Greece’s battered economy could not recover unless the money owed to other Eurozone country’s was cut significantly. The leader of Greece’s popular left-wing opposition says he will demand a massive debt haircut from bailout lenders if his party comes to power in a possible snap election early next year. (AP Photo/Petros Giannakouris)

(AP Photo/Petros Giannakouris)

Last week was a momentous one for the European project. On Monday, the Greek Parliament passed an austerity package that other Eurozone members, especially Germany, had demanded as a condition for considering Greece’s request for an €86 bailout. Negotiations will now begin. How they will end is anybody’s guess.  No one thinks the austerity package itself will solve the economic crisis Greece faces, and pretty much everyone thinks it will lead to years of misery for the nation. Greece already owes creditors an unsustainable €320 billion. But Germany argues that EU rules prohibit any debt reduction for Greece. Perhaps the parties will find a way to extend Greek payments without calling it a debt reduction. I’m sure the lawyers are working on it.

There is plenty of blame to go around. Yes, Greece misled people about the state of its finances when it joined the euro and has spent beyond its means. And the left-wing Syriza government greatly misjudged the mood in Europe and allowed itself to be completely outmaneuvered. But the banks that made the loans should have known Greece was in no position to pay. Having collected their commissions, they passed the debts to national governments–privatized gains and socialized losses–and walked away. As for those national governments, they should have known a common currency without a common fiscal policy was an unworkable proposition. They ignored this truth in pursuit of the illusion of a common Europe, extending from Scandinavia to the Mediterranean and from the Atlantic to the Black Sea. Greece is now paying the price for that illusion.

All this has been said before. But I’d like to draw attention to a small element of the austerity package Greece’s creditors demanded, one that has largely escaped notice. Under the terms of the package, in order to stimulate commerce, Greece will have to repeal its restrictions on Sunday store openings. From now on, nationwide, Sunday will be a shopping day. (Two years ago, Athens allowed Sunday shopping in 10 tourist areas, a move that led to protests). Presumably, Greeks will respond by buying and selling and generally growing their economy. The increased tax revenues will allow Greece to pay some of its debt. And repeal of anti-liberal Sunday closing laws will allow Greece to create a rational European economy, like Germany’s—though, ironically, German stores are closed Sundays.

We Americans are likely to view this matter as trivial. In America, as Robert Louis Wilken once wrote, the only thing that distinguishes Sunday from other days of the week is that the malls open a little later. Besides, a country can’t be pre-modern forever. Sunday closing laws are hopelessly old-fashioned and illiberal. If Greeks want to stay home on Sundays, they can; but people should be able to shop if they want to.  Resistance probably comes from interest groups that oppose free competition.

But Greece isn’t America or Germany, or at least it didn’t want to be, and the reform is indicative of a larger issue. The Sunday closing laws reflected the fact that Greece had values in addition to the market. Greece has had a tradition of Sunday closings to allow people to spend time with family and attend church. (Sure, lots of people watch football instead, but that’s a different matter. Hypocrisy is the tribute vice pays to virtue). The ban on Sunday trading acknowledged that Greece is an Orthodox Christian country, with its own rhythms and ways of life. No matter. In Europe today, if it’s a choice between religious and cultural traditions, on the one hand, and commerce, on the other, commerce wins.  That’s the economically sound choice.

I don’t suppose there’s anything to be done. Greece is in a terrible situation and needs to find a way out. And I know it’s a small matter, compared to the other hardships Greeks will have to bear. But something important is being lost. To be part of the European project, apparently, a country must do whatever it can to become a secular, consumerist, market-oriented place—Sundays included. Localized cultures that stand in the way of economic rationality must recede. Perhaps that’s the inevitable logic of modernity. But it’s not an image the Christian Democratic founders of Europe like Konrad Adenauer and Robert Schuman would have recognized.

About Those Religion Surveys …

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Image from Patheos

The latest edition of First Things magazine, currently available only in print, contains an important piece by Princeton sociologist of religion Robert Wuthnow, “In Polls We Trust.” Actually, it’s one of the most important pieces on American religion I’ve read in quite a while. Not for what it says about American religion, necessarily. Wuthnow’s piece is important because of what it says about the polls on which everyone, academics included, rely for insights on American religion.

It’s hard to overestimate the importance of these surveys. Scholars pore over the results to ascertain trends, and, on the basis of those trends, to evaluate the state of American institutions: churches, government, courts. For example, the much touted rise of the “Nones,” the percentage of Americans with no religious affiliation, has implications for our First Amendment jurisprudence. The fewer Americans who identify with institutional religion, the weaker we can expect First Amendment protections to get.  Or so some scholars, myself included, have argued.

Of course, everything turns on the accuracy of the surveys. Most of us, not being statisticians, more or less take them on faith. If Wuthnow is right, though, our faith is misguided. He points out that many surveys of American religion have serious methodological flaws. For example, religion does not always lend itself to straightforward yes/no questions of the sort surveyors ask. In addition, pollsters sometimes fail to account for regional and racial variations.

Most important, response rates are very low. The typical response rate nowadays is about nine or 10%, and rarely exceeds 15%. “In other words,” Wuthnow writes, “upwards of 90% of the people who should have been included in a poll for it to be nationally representative are missing. They were either unreachable or refused to participate.” With such poor response rates, it’s hard to know what the polls reveal about religion in America. This problem is compounded by the fact that the media present the results as accurate representations of what Americans believe – a misimpression that the polling industry, now worth a billion dollars a year, is understandably reluctant to correct – and by the fact that most of us “are unlikely to wade through obscure methodological appendices to learn if the response rate was respectable or not.”

Consider the rise of the Nones, for example. Maybe we really are seeing an explosion in the number of Americans without a religious affiliation, as these surveys suggest. But maybe we aren’t. Maybe the number of Nones is actually much lower. Maybe the number is much higher. Wuthnow’s point is, it’s hard to know on the basis of flawed polls. Now, to be sure, there are other indications that organized religion is declining. Some churches keep membership records; these are harder numbers, and they show that some churches are experiencing declining memberships. Still, one has to be a little careful about declaring trends on the basis of limited information.

The inaccuracy of the polls is more than just an academic matter, because polls may actually help drive social change. It’s human nature to want to follow the crowd. If you think that Nones are the wave of the future, you’re more likely to call yourself one; if you think that church is a dying institution, you’re more likely to leave. On the basis of these polls, pundits will write stories about the new religious movement; advertisers and other cultural influencers will take note of the polls and factor them into their work. Before you know it, the decline of religion and the rise of the Nones will be matters of conventional wisdom people take for granted. In other words, polls can have a disproportionate social impact, even if they are unreliable.

None of this is to say that organized religion isn’t in fact experiencing a decline; as I say, there are plenty of indications, other than these polls. But I wonder how major polling firms will respond to Wuthnow’s criticisms. At the very least, his essay suggests we should treat surveys on American religion with more caution than we do.

Mideast Christians and Authoritarian Regimes

2000px-Coptic_cross.svgLast week’s ruling in Obergefell took up a lot of attention, but I’ve been meaning to link a couple of good articles about Mideast Christians, specifically, their relationship with authoritarian regimes. Outsiders often criticize Mideast Christians for coming to terms with such regimes. But the regimes are often the best alternative in a terrible situation.

First, at Crux, John Allen has been writing a series on Egypt’s Copts, who are going through one of the worst periods of persecution in their long history. Yesterday, he posted an interesting piece on relations between Copts and Egypt’s President Abdel Fattah el-Sisi. El-Sisi has made a number of high-profile gestures of solidarity with Copts, including attending a Christmas Liturgy, and the vast majority view him very favorably. The Coptic Church is solidly behind him, and for most Christians, Allen writes, “it’s axiomatic that el-Sisi is the best thing that’s happened in a long time.”

But there are dissenting views. Allen interviews a few Copts who say El-Sisi’s warmth is just for show, and that his regime continues to oppress Copts, just as the Mubarak and Morsi governments did. Crimes against Copts continue to go unpunished, and there is still  “forced displacement, harassment under the country’s anti-blasphemy laws, kidnappings and physical assaults.” Indeed, one commentator reports that, “in virtually every category… the number of incidents today is going up rather than down.” Perhaps Christians’ support for el-Sisi is misplaced–or perhaps, as most Copts argue, el-Sisi is doing all he can to change traditional Egyptian attitudes, and is the best option in a very imperfect situation. My sense, from reading Western news accounts, is that the latter is the case. But I’ll admit Allen’s reporting makes me wonder a bit.

The second is this wide-ranging interview from La Stampa’s “Vatican Insider” with Syriac Orthodox Patriarch Ignatius Aphrem II. Aphrem–who previously served as his church’s archbishop in America, incidentally–discusses a number of topics, including Christians’ relations with the Assad regime. Here’s a snippet:

Some Western circles accuse the Christians of the East of submitting to authoritarian regimes.

“We have not submitted ourselves to Assad and the so-called authoritarian governments. We simply recognise legitimate governments. The majority of Syrian citizens support Assad’s government and have always supported it. We recognise legitimate rulers and pray for them, as the New Testament teaches us. We also see that on the other side there is no democratic opposition, only extremist groups. Above all, we see that in the past few years, these groups have been basing their actions on an ideology that comes from the outside, brought here by preachers of hatred who have come from and are backed by Saudi Arabia, Qatar and Egypt. These groups receive arms through Turkey too, as the media have shown us.”

You have to read between the lines here. What he’s saying, it seems to me, is not that Assad is wonderful, but that the alternative for Christians is incomparably worse. Aphrem makes other allegations that seem dubious, for example, that the West is arming terrorist groups that are massacring Christians. I guess he’s referring to Turkey’s alleged links with ISIS. Anyway, it’s hard to argue with his basic point that the West should not judge Syria’s Christians for the choices they have to make. Like the Allen piece on Copts, the La Stampa interview is worth reading for a sense of the pressures Mideast Christians face every day.

The Same-Sex Marriage Case

For those who are interested, my quick reaction to yesterday’s ruling in Obergefell is in a symposium today at the First Things website. I discuss the Court’s reasoning and the implications for religious liberty. Here’s a snippet:

First, although some commentators predicted that the Court would issue a narrow, pro-gay marriage ruling, the reasoning of Justice Kennedy’s majority opinion is actually quite sweeping, returning the Court to the heady days of substantive due process and unenumerated rights. Forget about textualism and originalism. As Chief Justice Roberts points out in his dissent, even the restraints of “history and tradition,” a limit Justice Harlan once suggested, are effectively shunted aside. A five-justice majority believes that same-sex marriage is a fundamental element of personal liberty, and that makes it a constitutional right.

For constitutional conservatives, this is very disheartening—whatever one’s views on the merits of same-sex marriage as a policy matter. After thirty years and more of trying assiduously to end, or at least limit, substantive due process, the doctrine still carries the day. As Justice Alito writes in his dissent, “Today’s decision shows that decades of attempts to restrain this Court’s abuse of discretion have failed. A lesson that some”—actually, anyone paying attention—“will take from today’s decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means.” Incidentally, today’s ruling demonstrates again how important the 1987 defeat of Robert Bork was, and how much Senate Democrats gained in putting up such a fight against him. It was the defeat of Bork that led to the nomination of Anthony Kennedy.

You can read my analysis, along with the other contributions to the symposium, here.

Summer Fridays With Pascal: On the Nature of Law

Many law students know the rough outlines of the distinction between naturalLaw law and legal positivism. Both are theories about the nature of law–about what is distinctive about law as a concept. There are many difficulties and nuances here, but as a rough and ready statement, one could say that legal positivism holds that in order for something to be “law,” we must look to its provenance or pedigree in this social world, and only in this social world. It follows that for legal positivists, there is an unbridgeable conceptual gap between what the law is and what the law ought to be–between something’s being law and something’s being a just or moral law. The natural law conception of law is quite different. It holds that “law” includes as its fundamental or “core” example just law–morally correct law. This does not mean that the natural lawyer refuses to believe that there can be unjust laws. Surely there can be. What the natural lawyer believes is that a law’s justice, or its morality, is an integral part of what makes law truly, or fully, or in its core case, law.

It is interesting to see Pascal weighing very much in on the side of legal positivism. He is coming, of course, not from the perspective of what one typically associates with contemporary legal positivism (a late nineteenth/twentieth century phenomenon) but from the Jansenist perspective of the fallenness of postlapsarian humanity. His view is that though natural justice exists (i.e., Pascal is not a relativist), humanity simply cannot know what it is in its depraved state. Whatever laws exist are law simply because bodies vested with proper authority have issued them. Note also that this view of law and justice greatly reduces the issue of compliance against conscience with what one deems an unjust law. What do you expect in this world, with these fallen creatures, after all, but unjust law? Here is Pascal:

On what shall man found the order of the world which he would govern? Shall it be on the caprice of each individual? What confusion! Shall it be on justice? Man is ignorant of it.

Certainly had he known it, he would not have established this maxim, the most general of all that obtain among men, that each should follow the custom of his own country. The glory of true equity would have brought all nations under subjection, and legislators would not have taken as their model the fancies and caprice of Persians and Germans instead of this unchanging justice. We would have seen it set up in all the States on earth and in all times; whereas we see neither justice nor injustice which does not change its nature with change in climate. Three degrees of latitude reverse all jurisprudence; a meridian decides the truth. Fundamental laws change after a few years of possession; right has its epochs; the entry of Saturn into the Lion marks to us the origin of such and such a crime. A strange justice that is bounded by a river! Truth on this side of the Pyrenees, error on the other side.

Men admit that justice does not consist in these customs, but that it resides in natural laws, common to every country. They would certainly maintain it obstinately, if reckless chance which has distributed human laws had encountered even one which was universal; but the farce is that the caprice of men has so many vagaries that there is no such law.

Theft, incest, infanticide, parricide, have all had a place among virtuous actions. Can anything be more ridiculous that a man should have the right to kill me because he lives on the other side of the water, and because his ruler has a quarrel with mine, though I have none with him?

Doubtless there are natural laws; but good reason once corrupted has corrupted all. Nihil amplius nostrum est; quod nostrum dicimus, artis est. Ex senatus–consultis et plebiscitis crimina exercentur. Ut olim vitiis, sic nunc legibus laboramus. [My translation: Nothing more than this is ours; what is ours is what we say, our art. Crimes are mandated to us by the senate, the consuls, and the people. Once we suffered from our vices, now we suffer from our laws.]

The result of this confusion is that one affirms the essence of justice to be the authority of the legislator; another, the interest of the sovereign; another, present custom, and this is the most sure. Nothing, according to reason alone, is just in itself; all changes with time. Custom creates the whole of equity, for the simple reason that it is accepted. It is the mystical foundation of its authority; whoever carries it back to first principles destroys it. Nothing is so faulty as those laws which correct faults. He who obeys them because they are just, obeys a justice which is imaginary, and not the essence of law; it is quite self-contained, it is law and nothing more….

From Fragment 294 of Pensées.