Gray on Machiavelli and the Weakness of Law

This is a bracing essay by the skeptical philosopher John Gray about legal scholar Philip Bobbitt's new book on Machiavelli. Way back in the stone age, I studied Machiavelli and Guicciardini (whose immense Storia d'Italia is a relatively unknown masterpiece) in graduate school and wrote my master's thesis about contemporary misinterpretations of Machiavelli's writing (I called this "Machiavellianism," and I argued that the aristocrat Guicciardini had a much more acute understanding of Machiavelli than did most contemporary commenters). But Gray's piece actually says something larger about the comparative weakness of law as against politics. And what he says has direct application to the way in which it is fashionable to discuss many legal issues--from religious freedom to international human rights. Here is a fragment of the essay:

One of the peculiarities of political thought at the present time is that it is fundamentally hostile to politics. Bismarck may have opined that laws are like sausages – it’s best not to inquire too closely into how they are made – but for many, the law has an austere authority that stands far above any grubby political compromise. In the view of most liberal thinkers today, basic liberties and equalities should be embedded in law, interpreted by judges and enforced as a matter of principle. A world in which little or nothing of importance is left to the contingencies of politics is the implicit ideal of the age.

The trouble is that politics can’t be swept to one side in this way. The law these liberals venerate isn’t a free-standing institution towering majestically above the chaos of human conflict. Instead – and this is where the Florentine diplomat and historian Niccolò Machiavelli (1469-1527) comes in – modern law is an artefact of state power. Probably nothing is more important for the protection of freedom than the independence of the judiciary from the executive; but this independence (which can never be complete) is possible only when the state is strong and secure. Western governments blunder around the world gibbering about human rights; but there can be no rights without the rule of law and no rule of law in a fractured or failed state, which is the usual result of western sponsored regime change. In many cases geopolitical calculations may lie behind the decision to intervene; yet it is a fantasy about the nature of rights that is the public rationale, and there is every sign that our leaders take the fantasy for real . . . .

If Bobbitt misreads Machiavelli, it is because Machiavelli is as much of a heretic today as he ever was. Resistance to his thought comes now not from Christian divines but from liberal thinkers. According to the prevailing philosophy of liberal legalism, political conflict can be averted by a well-designed constitution and freedoms enshrined in a regime of rights. In reality, as Machiavelli well knew, constitutions and legal systems come and go. According to Bobbitt, “The lesson of Machiavelli’s advice to statesmen is: don’t kid yourself. What annoyed . . . Machiavelli was the willingness of his contemporaries to pretend that quite simple formulations were adequate to the task of governing in the common interest.” Plainly, the market state is a formula of precisely this kind.

The true lesson of Machiavelli is that the alternative to politics is not law but unending war. When they topple tyrants for the sake of faddish visions of rights, western governments enmesh themselves in intractable conflicts they do not understand and cannot hope to control. Yet if Machiavelli could return from the grave, he would hardly be annoyed or frustrated by such folly. Ever aware of the incurable human habit of mistaking fancy for reality, he would simply respond with a Florentine smile.