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mercredi, 16 novembre 2016

Enlightened Patriarchy: Frederick the Great’s Principles of Lawmaking

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Enlightened Patriarchy:
Frederick the Great’s Principles of Lawmaking

Perhaps the most impressive Western tradition of statecraft, at least in the modern era, is that of Prussia. To be sure, the liberal-democratic tradition launched by the United States [2] and France is formidable, and it is not without reason that it today dominates our world. But the greatness of America and France also relied upon a prosaic factor: sheer demographic and geographic size. Little Prussia in contrast accomplished feats with absolutely miserable resources, raising herself up among the great powers and founding the German nation-state through sheer force of will. The Prussian “authoritarian” tradition, with its emphasis on hierarchy, community, and martial prowess, is then a useful counterpoise to the liberal-democratic one we take for granted today. Clausewitz and Carl Schmitt must be read beside Jefferson and Tocqueville [3].[1]

The most illustrious of all the Prussian leaders was Frederick the Great, a great political reformer and military commander who also cultivated a reputation as a philosophical thinker in his own right. Given how rare it is for generals and politicians to be particularly thoughtful, Frederick the Great merits all the more to be read by young Westerners in search of their heritage and a usable past. I propose then a reading of some of Frederick’s quite substantial philosophical and political writings.

Frederick’s Dissertation on the Reasons to Establish or Abrogate the Laws (Dissertation sur les raisons d’établir ou d’abroger les lois, 1750),[2] written after a decade in power and the hard-won conquest of Silesia, is admirably clear in its writing (how rare that can be!) and showcases wide reading and historical knowledge.[3] Many of Frederick’s themes and arguments retain all their relevance to this day. As this text is apparently unavailable in English, I will quote from it at length.[4] Unusually for a reigning monarch, the Dissertation was made public, thus showcasing the King’s philosophical credentials and stirring European debate.

Frederick’s ideal government is an enlightened patriarchy. He notes that “family fathers” have played an enormous role in the law throughout history, both as lawmakers and as legal masters of the household. For Frederick, the laws should serve to shape custom and enforce public morals, with the interests of the community overriding those of individuals. But this firm law must also be humane, rational, and moderate. Social conventions should be examined in this light and reformed accordingly. Frederick concludes with two proposals as examples: ending the stigma of bastardy, so as to prevent illegal abortions leading to the deaths of both the bastard and the mother, and a pan-European ban on dueling, the latter often causing the death of valuable citizens.

To know how to make laws, the practical Frederick advises looking to history:

Those who wish to acquire an exact knowledge of the way in which the laws must be established and abrogated can only look to history. We see there that all nations have had particular laws, that these laws were established in succession, and that much time has always been necessary for men to reach something reasonable. We see there that the legislators whose laws have lasted the longest are those who had as their goal public happiness, and who best knew the genius of the people whose government they regulated.

According to Frederick then, history teaches that the establishment of good laws requires patience, public-spiritedness, and harmony with “the genius of people,” which might also be termed national character. He shows an optimistic faith in reason typical of the Enlightenment: men require time to establish good laws, but once reached, these tend to spread. This accounts for the pervasiveness of Roman law: “These laws were found to be so admirable that after the destruction of the empire, they were embraced by the most civilized peoples.”

Frederick’s Dissertation provides a fairly impressive overview of the evolution of law from ancient to modern times, covering the Ancient Egyptians, Greeks, Romans and the modern European nations of England, France, and Germany. He draws from numerous sources, mentioned in the marginalia, including Herodotus, Plutarch, Livy, Cicero, and Tacitus for the Ancients and mainly French historians for the Moderns.

Frederick’s highlights from this enormous historical period are obviously not disinterested. These generally could be considered to subtly reinforce his position as an “enlightened despot” and pragmatic reformer, particularly interested in maximizing his state’s population and military power. In addition to “family fathers,” Frederick places a strong emphasis on the role of religion and, interestingly, usury in the development of the law. Hence, he expounds at length on Sparta, a martial state to which Prussia was often compared:

Lycurgus, king of Lacedaemon, used the laws of Minos, to which he added some of Osiris, which he collected himself from a journey he made to Egypt; he banished gold from his republic, silver, all sorts of currencies, and superfluous arts; he equally shared lands among the citizens.

This legislator, who intended to shape warriors, did not want any sort of passion to weaken their courage; he allowed for this effect the community of wives among citizens, which peopled the State, without excessively attaching private citizens to the sweet and tender bonds of marriage; all children were raised at public expense. When parents could prove that their children were born unhealthy, they were permitted to kill them. Lycurgus believed that a man who was not fit to bear arms did not deserve to live.

He ruled that helots, a kind of slave, would cultivate the soils, and that the Spartans would only busy themselves with the exercises which would render them fit for war.

The youth of both sexes wrestled; they exercised completely naked, in the public square.

Meals were regulated, where, without distinction of orders, all citizens ate together.

It was forbidden for foreigners to stay in Sparta, in order that their manners not corrupt those which Lycurgus had introduced.

Incompetent thieves were punished. Lycurgus had the intention of forming a military republic, and he succeeded in this.

The Aim of Law: Good Manners & Public Safety

csm_6.5_2dd71daf9a.jpgFrederick asserts that laws should aim to promote “[g]ood manners and public safety.” He is enormously concerned with civil peace, saying French chancellor Michel de l’Hôpital’s efforts to increase tolerance and defuse tensions between Catholics and Protestants during the Wars of Religion “worked for the salvation of the fatherland.” Laws may deal with politics (government), manners (criminal), and civil matters (contracts, usury).

But for Frederick, laws do not merely have the negative goal of suppressing crime and instability, but also the positive one of fostering good habits. Hence the laws have an important cultural role. He says “the laws are dikes against the overflowing of vices, they must be made respected by the terror of punishments,” but these should also be humane. The sovereign must protect “the majesty of the laws” if these are to have any power. This sometimes fails. Under the Roman Republic “the corruption of manners . . . led to an endless multiplication of laws.”

Frederick cites the Twelve Tablets of Rome, inspired by Solon, among the best laws. These had notably legalized posthumous recognition of children (in cases where the alleged father died before birth) and divorce: “These laws, so equitable and so just, restrained citizens’ freedom only in the cases when their abuse of it could harm the calm of families and the security of the republic.”

However, in judging what individual liberty and equal rights citizens should have, Frederick stresses that the aim must always be the public good. Many restrictions on individual liberty and “discriminations” against classes of citizens might at first appear unjust, but are actually upon closer examination found to serve the general welfare. Frederick cites the German practice of primogeniture in this regard:

Whoever has bothered to the examine the laws with a philosophical spirit will have no doubt found many which at first appear contrary to natural equity, and which however are not so. I content myself with citing the right of primogeniture. It seems that nothing is more just than sharing the paternal estate equally among all children. However experience proves that the most powerful inheritances, subdivided into many parts, reduce over time opulent families to indigence; which has led father preferring to disinherit their younger sons rather than prepare their house for a guaranteed decadence. And for the same reason, laws which appear bothersome and harsh with certain individuals are not less wise, so long as they tend towards the entire society’s advantage; this is a whole to which the enlightened legislator will constantly sacrifice the parts.

Thus, discrimination against younger sons, while unfair for those concerned, can be justified by its strengthening of the continuity of the family house. (I note in passing that some have claimed this passing on of the family household to  the first-born son has contributed to the strong German tradition of family businesses [the famous Mittelstand]. Conversely, the French Revolution’s egalitarian law of succession overrode the father’s will and equally distributed property among sons. Thus, estates tended to disintegrate over time. Some have blamed the catastrophic and lasting decline of French fertility in this period on these provisions, bourgeois fathers seeking to reduce their offspring to maintain their households.)

Certainly the American and French revolutionaries would not deny the importance of the general welfare, but Frederick is more explicit: the public good must come before the individual interest and narrow “rights.” In this he echoes the wisdom of classical philosophy, as when the Roman emperor and Stoic philosopher Marcus Aurelius [4] wrote: “What brings no benefit to the hive brings none to the bee. [. . .] What causes no harm to the city causes no harm to the citizen.”

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Patriarchy: A Realistic Ideal

Frederick ascribes an enormous role to the père de famille, the family father, both in the historical foundation of law and in establishing good laws in the present. He begins his historical account as follows:

It seems probably that family fathers were the first legislators: the need to establish order in their houses no doubt forced them to make domestic laws. Since these first times, and when men began to assemble in cities, the laws of these particular jurisdictions were found to be inadequate for a more numerous society. [. . .]

Disorders accrued in the cities, news vices were born, and the family fathers, as those with the greatest interest in repressing them, agreed, for their security, to oppose this excess.

Towards his conclusion, Frederick presents patriarchy as one of the best forms of government given humanity’s imperfect nature. He describes first a utopia in which government and laws would perfectly regulate society like clockwork:

A body of perfect laws would be the masterpiece of the human spirit concerning the government’s policy: one would observe there a unity of plan and rules so exact and proportioned, that a State driven by these laws would resemble a watch, whose springs have been made for one same goal; one would find there a deep knowledge of the human heart and the genius of the nation; punishments would be tempered, so that by maintained good manners, they would be neither light nor harsh, clear and precise rulings would never lead to legal dispute; they would consist in an exquisite choice of all that has been best in civil laws, and in an ingenious and simple application of these laws to the customs of the nation; all would be foreseen, all would be combined, and nothing would be subject to inconveniences: but perfect things do not pertain to humanity.

Human beings being imperfect, Frederick instead offers patriarchy as a realistic regime. Under patriarchy, the government’s public-spiritedness is ensured by a sense of family belonging with the people:

The peoples would have reason to be satisfied, if legislators placed themselves in their regard in the same mental dispositions of these family fathers who gave the first laws: they loved their children; the maxims they prescribed had as their goal only the happiness of their family.

This perspective largely resonates with evolutionary psychology’s later view that feelings of kinship enable in-group altruism and more generally on the centrality of family to human psychology.

Frederick highlights numerous examples throughout history of the importance of the father in law: parricide was so unthinkable to Solon he made no mention of it in his laws, while the Romans made the mere intention of parricide punishable by death. This did not mean the father should enjoy unlimited and tyrannical power, as Frederick also writes:

No laws revolts humanity more than this right of life and death which fathers had over their children in Sparta and Rome. In Greece, a father who was too poor to provide for the needs of a too numerous family allowed the children born in excess to perish; in Sparta and in Rome, if a child came to the world poorly-shaped, this sufficiently authorized the father to deprive him of his life.

It is worth observing here that if the killing of infants was not for an arbitrary individual purpose such as a father’s whim, but rather for a rational public purpose such as eugenics, this might meet Frederick’s criteria for a good law, given his previous assertion of the public good over individual interest.

friedrich_II.jpgFrederick’s advocacy of paternal authority is all the more poignant and significant in that his own father, Frederick-William, also known as the Soldier King, had been a harsh one. Frederick-William had often beaten his son and executed before Frederick’s eyes his youthful best friend (and possible lover), Hans von Katte, for “desertion.”

Undivided Authority

Frederick’s apology of patriarchy fits well with his arguing that the sovereign should enjoy undivided authority, free notably from parliaments. This enabled the sovereign to concentrate without distraction and formulate coherent laws. Coming from an absolute monarch, this was obviously not a disinterested position, but it was forcefully argued. Frederick stresses the dissensions between Senate and people which paralyzed the Roman Republic and writes on England:

Although England has many wise laws, it is perhaps the European country where they are the least in effect. Rapin Thoyras [a French historian] remarks very well that, by a vice of government, the power of the King is constantly in opposition to that of the parliament; that they watch each other, either to conserve their authority, or to extend it; which distracts the King and the representatives of the nation from the care which they should expend to maintain justice; and this turbulent and stormy government changes endlessly its laws by acts of parliament, according to whether the current situation and events forces it to do so; hence It follows that England is in the situation of more requiring reform of its jurisprudence than any other kingdom.

Frederick argues elsewhere that laws made by different authors will tend to contradict one another and be incoherent:

When in a State the laws are not assembled in a single body, there must be some who contradict each other; as they are the work of different legislators who did not work on the same scheme, they will lack unity which is so essential and so necessary to all important things.

He notes that nothing is worse for respect for the laws than internal contradiction. Hence, Frederick strongly argues for legal codification, citing many examples, from Justinian through Alfred the Great to Louis IX of France.

Frederick then explicitly rejects any doctrine of divided sovereignty or separation between executive and legislative authority, as found in the writings of Montesquieu and the American Constitution. No doubt Frederick would not be surprised by the often vague and incoherent texts produced by divided sovereigns, whether the representatives in the U.S. Congress or the heads of state of European summits.

To be continued . . .

Notes

1. My ability to directly study the Prussian tradition is sharply limited by my very inadequate knowledge of German. Concerning Frederick however, I am fortunate, as a blessed son of France, for the Great King wrote overwhelmingly in French. This reflected the preeminence of French as the European lingua franca of the eighteenth century and Frederick’s enthusiastic embrace of the French Enlightenment, or les Lumières. On other benefits of learning the French language, see Guillaume Durocher, “Learning French with Jean-Marie Le Pen,” [5] Counter-Currents, November 20, 2015.

2. As published in Johann Preuss, Œuvres de Frédéric le Grand, vol. 9 (Berlin: Royal Printer, 1848). http://friedrich.uni-trier.de/fr/oeuvres/9/toc/ [6]

3. Montesquieu is a possible but uncertain influence. Frederick makes clear in a letter that he had read Montesquieu’s Considerations on the Greatness and Decadence of the Romans. However, there is no mention of the French writer’s more famous Spirit of the Laws, which were published around the same time as the Dissertation’s writing.  There is confirmation that Frederick read the Spirit of the Laws afterwards. Anne Baillot and Brunhilde Wehinger note a number of parallels: on the law as representing the progressive development of human reason (Montesquieu: “The law, in general, is human reason.”), on the need to adapt law to “national genius” and circumstances, on a gentle approach to abortion, and in supporting the ban of torture. Anne Baillot and Brunilde Wehinger, “Frédéric II, Roi-philosophe et législateur,” HAL.archive-ouvertes.fr (2013). https://hal.archives-ouvertes.fr/hal-00788671/document [7]

4. Frederick’s works appears to be largely unavailable online in English. French and German versions of his complete works are available in scanned and text formats from the University of Trier. However, these are only available page-by-page rather than by chapter or book, which make referencing somewhat obnoxious.

Article printed from Counter-Currents Publishing: http://www.counter-currents.com

URL to article: http://www.counter-currents.com/2016/11/enlightened-patriarchy-part-1/

URLs in this post:

[1] Image: http://www.counter-currents.com/wp-content/uploads/2016/11/Friedrich_ii_campenhausen.jpg

[2] the United States: http://www.counter-currents.com/2016/07/the-eternal-anglo-1/

[3] Tocqueville: http://www.theoccidentalobserver.net/2016/07/tocquevilles-patriotic-republic-nationalist-themes-in-democracy-in-america-part-1/

[4] Marcus Aurelius: http://www.counter-currents.com/2016/09/the-prayers-of-marcus-aurelius/

[5] “Learning French with Jean-Marie Le Pen,”: http://www.counter-currents.com/2015/11/learning-french-with-jean-marie-le-pen/

[6] http://friedrich.uni-trier.de/fr/oeuvres/9/toc/: http://friedrich.uni-trier.de/fr/oeuvres/9/toc/

[7] https://hal.archives-ouvertes.fr/hal-00788671/document: https://hal.archives-ouvertes.fr/hal-00788671/document

Enlightened Patriarchy:
Frederick the Great’s Principles of Lawmaking

Part 2

Moderation & Humaneness

Fried2-post.jpgThe sovereign has authority but, as with the father, this must be deserved. Frederick notes dispassionately that Publicola, one of the founders of the Roman Republic, had legalized tyrannicide. The laws must be fair and appropriate to the nation concerned, otherwise they will be soon be abolished and the people will revolt:

The legislators who establish laws in monarchies are typically themselves sovereign: if their laws are gentle and equitable, they will maintain themselves by their own accord, all individuals find their advantage in them; if they are harsh and tyrannical, they will soon be abolished, because they need to be maintained by violence, and the tyrant is alone against an entire people who only the desire to eliminate them.

Frederick argues that excessively harsh laws anyway cannot last. Draco, the first lawmaker of Athens, saw his notoriously tough legislation soon abrogated by Solon’s.

Frederick argues:  “Natural equity wishes that there be proportion between crime and punishment.” Punishment should take circumstances into account for “[t]here is an infinity between the destiny of a rich man and of an impoverished one.” Frederick claims that for a poor thief to steal a rich man’s gold watch was no great crime.

Frederick proposes a middle way between laxness and severity. He notes that the Ancient Egyptians did not punish thieves — the victims were legally allowed to rebuy their lost property from the thieves — a measure which was “the means of making thieves out of all Egyptians.”

In contrast, “[t]he French laws are of a terrible rigor,” for these prescribed the execution of domestic thieves so as to prevent the spread of their “seed.” Frederick claimed Prussia, by not executing nonviolent domestic thieves, had found the right balance:  “Prussian jurisprudence has found a temperament between the laxity of Egypt’s and the severity of France’s.” At the same time, he affirms harshness for the most evil crimes “so that the punishment is always in step with the crime.”

These considerations on humaneness were also linked to the abolition of torture. Frederick expresses revulsion for the practice of trial by ordeal in England and of “la question” (the seeking of confessions under torture) in France. Frederick banned torture in Prussia on his third day on the throne. He did so on the grounds that tolerance to pain was not necessarily correlated with virtue and that citizens should not be forced to incriminate themselves. This ban “caused a sensation in Europe” and put Prussia “at the vanguard of modernity.”[1]

With perhaps excessive rhetorical flourish, Frederick claimed to be taking “the side of humanity against a custom shameful to all Christians and civilized peoples, and, I dare to add, a custom as cruel as it is useless. [. . .] It would be better to forgive twenty guilty people than to sacrifice an innocent. [. . .] The question in Prussia was abolished eight years ago [. . .] we are certain to not confuse the innocent and the guilty, and justice is delivered no less.”

Other examples of humaneness are Frederick’s abolition of the Hurenstafe (the “Whores’ Punishment” instituted by his father, meaning execution by tying the woman in a bag and drowning her in a river) and a ban on hiding unwanted pregnancies and killing unwanted infants.

Frederick provides quite a long narration on the development of the laws and rights of Englishmen, including the Magna Carta, habeas corpus, and trial by jury: “the nation still conserves this privilege.”

Usury & Inequality

Frederick ascribes considerable importance to economic inequality and to the evil of usury in the history of the laws. He writes: “nothing makes more odious differences of condition than the tyranny which the rich exert with impunity over the miserable.” To this end, Frederick put limits on the ability to appeal, for prior to this those of means could appeal decisions in Prussia’s various courts almost endlessly.

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Frederick identifies usury, with the related self-reinforcing accumulation of wealth by an oligarchy, as a major cause of revolution throughout history, accounting for much social unrest in Athens and Rome. He even calls striking the right balance between lenders and debtors “the philosopher’s stone of jurisprudence”:

The laws concerning debtors are indisputably those which require the most circumspection and prudence on the part of those who publish them. If these laws favor creditors, debtors’ conditions become too difficult; an unfortunate accident can forever ruin their fortune. If, on the contrary, this law is to advantageous to them, it alters public confidence, by denying contracts which are founded on good faith.

This happy medium which, while upholding the validity of contracts, does not oppress insolvent debtors, seems to me to be the philosopher’s stone of jurisprudence.

It seems to me that wealth has a tendency to self-accumulate in a self-reinforcing fashion, as Marx famously analyzed. This is especially when these wealthy elites, which are typically cognitive/clannish cliques, capture the state. Then, the correction may only be achieved by a social revolution, whether enlightened or egalitarian.

National Genius

Though laws are fashioned by universal reason, they must be tailored to local circumstances, namely a nation’s geographical, political, and cultural character. Frederick stresses on several occasions that the laws must respect the “national genius” of the governed, what we might call national character:

We observe again, by examining the conduct of wise legislators, that the laws must be adapted to the kind of government and to the genius of the nation which must receive them; that the best legislators have had as their goal public felicity; and that in general all laws which are most in line with natural equity, with a few exceptions, are the best.

As Lycurgus found an ambitious people, he gave them laws more suited to making warriors than citizens; and if he banished gold from his republic, it was because interest is of all vices that most opposed to glory.

Solon himself said that he did not give the Athenians the most perfect laws, but the best laws they were capable of receiving.

Frederick then does not advocate a naïve universalism sometimes associated with the Enlightenment, but adaptation to national character. Solon’s laws differed from Lycurgus’ also in accordance with their maritime position, propitious for commerce.

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Conversely, Frederick asserts: “The laws indeed must accord with the genius of nations, or one must not hope for them to last.” To ignore national character is to build laws upon weak foundations, leading to their dissolution. Frederick cites the early Romans as an example of a democratic people, who hence rejected regimes dominated by the king or the propertied classes.

Frederick also argues that laws should be harsher for less civil nations, which are often less developed ones: “It finally seems to me that, among nations who have barely emerged from barbarism, the legislators must be severe; that, among civilized peoples, whose manners are gentle, one needs human legislators.”

This adaptation of laws to local political and cultural character naturally suits sovereigns such as Frederick, who can thus justify their independent particular choices while respecting those of others, contrasting with the ideology of intolerant world-empires, who claim universal jurisdiction.

Against Bad Laws & Lawyering

Frederick makes a number of general comments on avoiding bad laws. The laws must not be vague, for this leads to insincere, hair-splitting legal debate (“la chicane”) and judges must then “have recourse to the intention of the legislator.” Frederick argues that “The skillful legislator does not overload the public with superfluous laws.” An excess of laws leads to confusion and contradiction: “Few wise laws make the people happy.”[2] Laws should be replaced when these are “contrary to public happiness and natural equity, when they are enounced in vague and obscure terms, and finally when they imply contradiction.”

Frederick repeatedly attacks the use of rhetoric by lawyers, including Cicero, seeking to emotionally manipulate judges rather than stick to fact and logic. Frederick expresses considerable pride that his grand chancellor, Samuel von Cocceji, had legally banned rhetoric (I leave aside whether this measure was effective):

Prussia has followed this Greek custom, and if the dangerous refinements of eloquence are banned from pleas, this is thanks to the grand chancellor, whose integrity, understanding, and indefatigable activity would have done justice to the Greek and Roman republics, in the times when these were the most fecund in great men.

Questioning Convention: The Case of Aborted Bastards

Quite in keeping with a tradition of philosophy founded by Socrates, Frederick urges the questioning of convention in the formulation of the laws. Custom should be examined in the light of reason and reformed according to the public good. He notes that bad civil laws are often kept by a kind of inertia “to not shock the prejudices of the nation” and “purely because of their antiquity.”

Frederick did not however advocate an indiscriminate contempt for convention. On the contrary, he advises caution for men are “in the majority, animals of custom” therefore “it could be dangerous to touch them [customs],” for this may lead to more confusion than good. Frederick then advises a pragmatic and reasonable approach to tradition.

A large number of the historical events cited by Frederick seem to refer to this sort of approach, particularly with regard to warfare and natalism. The martial Spartans allowed men and women to train and wrestle together naked. Solon allowed women to remarry if their husbands were impotent. The Romans, at various times, passed laws subsidizing having of three children, recognizing posthumous children (when the father died before birth), and legalizing divorce.

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There is also a hint of Frederick’s contempt for Christian dogma as when he recounts of Romulus, the legendary founder of Rome:

He wanted the kings to have a sovereign authority in matters of justice and religion; he had no belief in fables ascribed to the gods; that we have for them holy and religious sentiments, attributing nothing dishonest to their blessed natures.

This too is quite in line with Plato’s Socrates, so eager to revise or suppress inherited myths and poems when these show the gods in an impious and irrational light. Frederick adds that Romulus considered the very walls of Rome to be “sacred,” the violation of which was the pretext for killing his brother Remus. This may be taken as a metaphor for the security of the city being a supreme religious imperative, overriding even the closest family ties.

Frederick provides a practical example of questioning convention with the case of the illegality of abortion, which was often punished by death. He considers this practice as barbaric as the Spartan and Roman fathers’ right to kill their children. In fact, Frederick does not argue for the legalization of abortion, but rather the elimination of the most common cause of abortion, which is the stigma of bastardy:

Is there not something quite harsh in the way which we punish abortions? God forbid that I would excuse the dreadful action of these Medeas who, cruel to themselves and to the voice of blood, suffocate the future race, if I dare to express myself so, without letting it see the day! But let the reader strip himself of all prejudices of custom, and let him deign to lend some attention to the reflections which I will present him.

Do not the laws attach a degree of infamy to secret childbirths? A girl born with a too gentle temperament, deceived by the promises of a scoundrel, does she not find herself, in consequence of her credulity, in the situation of having to choose between the loss of her honor and that of the unfortunate fruit which she has conceived? Is it not the fault of the laws to put her in such a violent situation? And does not the severity of judges deprive the State of two subjects at once, the runt who has perished, and the mother, who could abundantly repair the loss by a legitimate propagation? One responds to this that there are homes for orphan children. I know they save an infinity of bastards; but would it not be better to cut the evil by its roots, and conserve so many poor creatures who miserably perish, by abolishing the blemishes attached to consequence of an imprudent and flighty love?

Frederick then wished to prevent the abortion of bastards and the execution of their mothers, that manners be gentler and his state more populous.

Towards European Law?: The Case of Duels

Frederick’s second example of questioning convention is the practice of duels. Here, he notes that laws against dueling are often ineffective because of the contrary social stigma of those who reject them. A nobleman rejecting a duel is considered unmanly while a soldier may well lose employment by his loss of reputation. Thus, monarchs as powerful as Louis XIV of France and Frederick-William (Frederick’s father, also known as the Soldier King), had failed to eliminate the practice, as “duels changed their name.”

Frederick advises as the only solution the punishing of duelers following a mutual agreement among European countries to not grant asylum to the guilty:

If all the princes of Europe do not assemble in a congress, and do not agree among themselves to attach dishonor to those who, despite their rulings, attempt to slaughter each other in single combat, if, I say, they do not agree to refuse all asylum to this kind of killer, and to punish severely those who insult their peers, either in speech, or in writing, or by ways of deed, there will be no end to duels.

Let me not be accused of having inherited the visions of the abbot [Charles-Irénée Castel] de Saint-Pierre [a French writer who had imagined a world without war]: I see nothing impossible in individuals submitting their quarrels to the decision of judges, just as they submit the disagreements which decide their fortunes; and by what reason would princes not assemble in a congress for the good of humanity, after having held so many on subjects of lesser importance? I return to this, and I dare to assure that this is the only way to abolish in Europe this inappropriate point of honor, which has cost the lives of so many honest people whose fatherlands could have expected great services from.

Here again, Frederick wishes to save lives which could serve the nation. The assembly of European princes to establish common norms is an interesting prefiguring of the later bourgeois states’ exponential practice of negotiating European norms in various treaties. We cannot say that Frederick is advocating “European law” per se because he does not suggest the establishment of a purported suprastatal enforcer (e.g., a court).

Frederick reflects typical Enlightenment optimism:

To imagine that men are all demons, and to rail against them with cruelty, is the vision of ferocious misanthrope; to suppose that men are all angels, and to give up the reigns to them, is the dream of an imbecilic Capuchin monk; to believe that they are neither all good nor all bad, to reward good actions beyond their worth, to punish bad actions less than what they deserve, to have indulgence for their weaknesses and humanity for all, that is how a reasonable man must act.

Conclusion

As expressed in the Dissertation, Frederick the Great’s thoughts on lawmaking are striking for their modernity. One can certainly identify signs prefiguring our current troubles. His public circumspection and private contempt for organized religion is no doubt a forerunner a certain agnosticism culminating in nihilism. Frederick’s pleas for a humane approach, while understandable in those still-brutal days (try reading about premodern crime and punishment without flinching), can be taken to a demagogic excess.

However, Frederick is careful to always make his argument with reference to the public good: humaneness and innovation are interesting to explore, but if these clash with the general welfare, the latter must always prevail. Our time is one of individualism and egalitarianism, a time when laws are largely judged by whether they grant free caprice and “equal rights” to individuals. Frederick in contrast provides powerful arguments in favor of laws established by paternal authority for the well-being of the community as a whole and for the promotion of good socio-cultural norms.

Frederick furthermore argues forcefully for a pragmatic and rational approach to lawmaking. One should not be impious or contemptuous of custom for its own sake, but one should be willing to rationally examine and reform custom in light of the public good. Outside of utopias, Frederick saw enlightened patriarchy as perhaps the best possible form of government. The great philosopher Schopenhauer [2] would later concur with this assessment, seeing an autocratic and benevolent “national father” as the form of rule most suited to an imperfect mankind.

Frederick was opposed to a crude universalism and cognizant of the need to adapt legislation to national characteristics. At the same time, he saw himself as participating in a genuinely pan-European intellectual culture and on occasion advocated for joint solutions among the princes of Europe. Frederick the Great’s principles of lawmaking then retain all their relevance for European patriots today.

Friedrich-II-preussen-grabplatte.jpg

Notes

1. Baillot and Wehinger, “Frédéric II, Roi-philosophe et législateur,” 13.

2. Frederick seems to have failed to implement the legal simplification he advocated. His Codex Fridericiani, which was worked upon during this period and sought to simplify Prussia’s plethora of laws stemming from innumerable traditions and jurisdictions,  was apparently enormous and unwieldy. Frederick writes that in Germany: “there is no circle, no principality, no matter how small, which does not have a different customary law; and these rights, through the length of time, have acquired force of law.”

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URL to article: http://www.counter-currents.com/2016/11/enlightened-patriarchy-part-2/

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[1] Image: http://www.counter-currents.com/wp-content/uploads/2016/11/FrederickBerlinCrop.jpg

[2] great philosopher Schopenhauer: http://www.counter-currents.com/2016/03/schopenhauers-critique-of-democracy/

[3] Image: http://www.counter-currents.com/wp-content/uploads/2016/11/Laws.png

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