The task of applying the criterion of law to power leads to a further question: how does law come into being, and what must be the characteristics of law if it is to be the vehicle of justice rather than the privilege of those who have the power to make the law?
It is, on the one hand, the question of the genesis of the law, but on the other hand, of its own inherent criteria. The problem that law must be, not the instrument of the power of a few, but the expression of the common interest of all seems—at first sight—to have been resolved through the instruments whereby a democratic will is formed in society, since all collaborate in the genesis of the law. This means that it is everyone’s law; it can and must be respected, precisely because it is everyone’s law…
And yet is seems to me that one question remains unanswered. Since total consensus among men is very hard to achieve, the process of forming a democratic will relies necessarily either on an act of delegation or else on a majority decision… But majorities, too, can be blind or unjust, as history teaches us very plainly. When a majority (even if it is an utterly preponderant majority) oppresses a religious or racial minority by means of unjust laws, can we still speak in this instance of justice or indeed, of the law? In other words, the majority principle always leaves open the question of the ethical foundations of the law.
Joseph Ratzinger, “That Which Holds the World Together: The Pre-political Moral Foundations of a Free State,” in The Dialectics of Secularism: On Reason and Religion, 59-60
Reflection – Ratzinger continues to be deeply relevant and insightful here. The book this short essay is taken from is itself a short little thing, less than a hundred pages, consisting of two essays. The first is by Jürgen Habermas, the great atheist secularist philosopher and sociologist; the second is this one by… well, you know who he is!
The subject is the difficulties of forming a functioning democratic society in a secular age. Habermas approaches it from the secularist side, arguing (unconvincingly, in my opinion) for the possibility of a stable society formed without a stable metaphysical view of reality. Ratzinger goes on from this passage to argue that democratic society must be based on something above politics, and that human law must be founded on divine law to avoid the very abuses of power and violation of rights he mentions here, or at the very least to provide an coherent intellectual framework in which to condemn such violations as are bound to happen given our fallen humanity.
This is why, in a certain sense, it is always relevant (Godwin’s Law notwithstanding) to reference Hitler and Nazi Germany in discussions of law and society. Not because Obama = Hitler, or (earlier) Bush = Hitler, or because anyone particularly equals Hitler in our world today. But Hitler and the rise of Nazi Germany raises precisely this question. I do realize that he did not exactly rise to power on an unequivocal majority vote. I do realize that once he was in power he quickly used precisely the tools of state and governance to dismantle and semblance at all of democracy in Germany.
But nonetheless, he was elected, and for much of his regime enjoyed the large support of his countrymen. And if our only criterion for just and legitimate laws is the consent of the governed, or at least procedural propriety, then we have nothing really to say against Nazi Germany.
This is why the question of what happened in Germany is relevant seventy years later. We must provide a rationale for human law and human justice that does not allow, on the level of theory, the wholesale slaughter of a class of human beings in society.
Christianity, rooting the legitimacy of human law in its correspondence to divine law, even while allowing for the messiness of translating one to the other, does indeed provide a coherent way to do this. Secularism has so far failed to do this. Consent and consensus is the only way secularism can find to justify the claims of the law; if tomorrow or the day after we achieve a consensus to suppress enemies of the state without due process or allow the legal killing of some human beings at the arbitrary whim of others, or violate the civil rights of citizens to privacy (hmmm…. all that has happened already… must find more outrageous examples…) – well, secularism has nothing to say to any of that.
So, too bad for Godwin, in other words. Because we have seen a society go mad, essentially, and engage in this level of truly unprecedented evil, we are continually challenged to provide a coherent theory of law and society that excludes Hitler and Nazi Germany as a legitimate government. In a sense, much of Ratzinger’s political and social writings have been done in this very context and for this very reason.