For those fortunate enough to be unfamiliar with legal developments in America, there is currently a transformation underway in conservative legal theory – the strategy adopted by conservatives in the United States to halt the onward march of progressivism-at-all-costs imploded upon itself with Bostock v Clayton County in which the Supreme Court of the United States delivered a verdict which was little more than judicial activism, by magicking up additional protections not codified in legislation – that a person’s gender identity and sexual orientations are protected categories under statute. Even the minority dissension against the judgement by Kavanaugh J. did not in any way uphold any moral conservative ethos, but accepted that the recognition of such protections were righteous in and of themselves, and his dissent was simply that he demurred on the Court being the one to develop this instead of the legislature doing so. It should be stated that there is already an attempt to codify such protections in Congress with the “Equality Act 2019” – the Courts just decided to expedite the process through judicial fiat.
This may seem like a non-issue, but it nullifies what was the bedrock of conservative jurisprudence in the United States. There already exists a broader intra-conservative culture war between status quo ‘conservatives’ that forged what can only be described as a coalition of obstruction, and the radical traditionalists. The Obstructionists are what people generally assume all conservatives to be: small government, lax regulatory standards, beholden to protecting institutions and personal liberties; whereas the Tradicals like Sohrab Ahmari, Adrian Vermuele, or Michael B Dougherty seek to deliberately break with this doctrine and espouse a proactive form of traditionalism and the establishment of the ‘Common Good’ as the motivator for political conservatism. In short, that conservatism needs to break with the standard ‘Republican’ policy of playing a game of retreat. The Obstructionists seek to delay Progressivism, the Tradicals seek to overturn it. Not too dissimilar to the ‘Conservative’/Nationalist break that exists within the Irish Right.
For the past number of decades, the Obstructionists held sway and the doctrine they followed allowed them to prolong the march of progressivism, but the march was still inevitable. They comforted themselves by conforming to a doctrine of law which derived moral authority from procedural adherence, and not any explicit moral standing. They had transposed Fuller’s arguments into a quasi-positivist doctrine. The Obstructionists never capitalised on their victories to reshape the moral order of society, they instead prioritised preserving the status quo, which shifted further and further left with every Progressivist victory. The Obstructionists sought shelter in their immediate personal circle, while society was changed irrevocably around them.
Bostock has highlighted the complete failure of this approach where two “conservative” Justices (Gorsuch and Roberts) delivered a majority judgement which completely abandoned conservative values and sided with leftist activists. Not only did they capitulate, but the Obstructionists even claimed their doctrine won because both arguments delivered were framed through their prism. It reeks of a supine “when your enemy beats you with your own weapon, you win.”
Risking sounding like an Americentric commentator, I only draw this to your attention in order to pre-empt the destitution wrought by our own Obstructionist quasi-conservatives, and to offer you a radically different method for traditionalist politics in Ireland.
American cultural wars are already alive and well in Ireland, evidenced by thousands marching through Dublin for an American socio-political movement. All we can do now is limit the damage, cut short its cycle of poison, and set forward a proactive policy to overturn any of its achievements.
Nationalist jurisprudence need not necessarily be derived from legitimacy-through-affiliation with analogous systems like how von Savigny sought to legitimise German customs and law by affiliating it with the Romans, but rather from their unifying ideal, the character and spirit of the nation, which can prove to be the source of a new moral order. Not one predicated on religion, but one spiritual and venerable nonetheless.
Allow me to offer a few expositions before I delve into what I propose:
- The highest political unit which can be naturally sustained is the Nation-State.
- The composition of this Nation-State is one necessarily delineated not simply by blood or by culture, but by the unique combination of both.
- The State acts as the arbiter of groups, classes, divisions which compose the Nation, and the Common Good can be defined as what is in the best interests of the Nation as a whole and not the interests of one class or division above another.
Holding these true, and learning from the American experience, we can presume the following:
- Those who seek to subvert the Nation-State or divide its peoples are the enemies of the Nation.
- Those enemies will not be placated, and will pursue not simply victory but total supremacy in all spheres, public and private.
- It is the moral duty of every citizen to oppose such divisions, and the moral duty of the State to maintain the coherence of the Nation.
- Individuals ought not to be compelled to assume the role of the State in moderating these conflicts, except where the State itself fails to uphold this moral duty.
Law is not a highfalutin gift from the Almighty but is the basic Austinian Command Theory – its morality is justified retroactively when the dissent has been crushed. There is a natural connection between law and morality insofar as morality informs law and law can shape morality but there exists no ‘morality of law’ itself.
That is to say, unjust laws are still law. That does not mean that there is a moral compellation to follow such laws, but rather any discrepancy between morals and law will be defined by the success of the legal order in its suppression of dissenting moral qualms. Where such law succeeds, it is because the moral order was successfully exsanguinated. Where morality triumphs, the law is disregarded.
Any attempt to run a “middle-ground” position will run afoul of pleasing nobody – in some instances victory for both isn’t possible. To steal an example, either the Christian bakery must bake a cake it finds morally unjustifiable, or the homosexual couple suffers a moral sleight it finds unjustifiable. The only legal recourse is to choose one outcome over the other and so talk of ‘rights’ are nothing more than fluff to add a veneer of legitimacy to outcomes after the fact.
Neither can we derive morality from procedural doctrine – law formulated in a specific way does not make it moral. It is more moral to protect the innocent through extra-judicial action, than to uphold injustice through the Courts or by statute. It was more moral to torch absentee landlords’ properties when they evicted starving peasants in the Great Hunger than to uphold ‘property rights,’ and it was more moral to uphold property rights than to allow for the arbitrary rule of a Monarch in deciding what could belong to whom.
To give a historic example where law and morality conflict – Britain’s prescription of membership of the IRA did nothing to protect its institutions in their anti-National character. Rather it was de facto conflict between moral views, strength of wills, and all other circumstances (physical, moral, political, and so forth) which decided the outcome, not legislative initiatives. The IRA did not set forth and succeed because they pursued a superior doctrine of jurisprudence, but rather they followed a superior moral imperative. The British legal order dissolved and was replaced in (or was largely transposed into, for sake of accuracy) the burgeoning Irish Nation-State as a result of this success of morality over legal order.
Running concurrently with the above example was an understanding amongst anthropological jurists that the law (customary or otherwise) must derive from the volksgeist or ‘national-character.’ Our first Chief Justice understood this and attempted to remake the legal system to be more Gaelic in nature. The failure to fully expunge the British system was a failure of the revolutionary Government at the time.
The reasoning for this, again, was not based on any theories of universality or humanism, or that a Gaelic-system is necessarily superior to the Anglo-Norman by virtue alone – but that the Gaelic-system was to be uniquely adapted to suit the unique character of the Irish nation and its citizens – a character that cannot be replicated merely by speaking the same language, or living in the same approximate area, but only through the unique combination of blood and culture.
Each Nation will seek to exert its own laws upon its people, as evidenced by the existence of ‘sharia courts’ in Britain. The existence of two competing legal systems does not result in them complementing each other, regardless of the lies and justifying nonsense of some academics. But leads to an eventual and inevitable clash between them as they vie for legitimacy, adherence, and supremacy over one another.
Why the Irish were hostile to the English legal system, or why black Americans are hostile to the WASP legal system is in part because those systems were not designed to work for us or for them. Holding strict to the institutions themselves is the strategy American conservatives tried, and which has failed them morally.
The calls for a ‘black justice system’ or ‘black police force’ for black Americans is but one example of the ethnic component intrinsic within the fabric of any functioning legal system. We are simply more likely to accept the rule of those who are like us, and that is just human nature. Attempts to overcome it will at best lead to the same social and civil unrest that has rocked America, or total disintegration. Authoritarianism might copper-fasten the system in place, but it won’t address the competition between groups which drove that strife in the first place.
Much like American conservatives have learned, prolonging the inevitable is not a solution. In order to maintain any sense of cogency we must accept that the legal system in Ireland will only function as far as the Irish national character remains cogent. The more competing groups there are, and the more tenuous those groups’ links to the authentic Irish nation, the more violent the disintegration of the legal order will be – it does not even need to be a new group which is inimical to Irish national identity for this to occur. In the city of Dijon, Chechens and Algerians have turned the ostensibly French city into something reminiscent of Aleppo or Damascus in 2017 with violent street clashes involving firearms and machetes.
If this seems meandering it is because I am in so many words trying to convey the simple belief that law is a tool, one useful both propaganda-wise and in shaping people’s unconscious responses, but a tool nonetheless. Law itself is not something sacred and holy.
For Nationalists, our moral order is derived from the immortal spirit of the Irish Nation and its unique character – that is not to say I am arguing for relativism, not all moral sources are equal, and I believe fundamentally that nationalism is the source of an objective moral order.
I believe then in the promulgation of not so much a procedural doctrine or an explanation of law’s finer origin, than in a simple diktat for those of us who are on the socially-conservative right: achieve victory. Only once society has been reshaped and reordered, can we sit to discuss the finer points of what law is or what law ought to be. For now, we are in battle for the very soul of the Irish Nation. Holding strict to doctrine has not saved the American or the Anglo, and neither the German nor the French, because leftists only honour the law when they are winning and will place it aside when convenient to do so.
We must overturn the march of liberalism and crush the mindset of the Pale by any means necessary – by statute or bureaucratic inertia, by judicial activism or constitutional amendment, through community action or electioneering, through the empowerment of a Leviathan or through Parliamentary activity. All means must be at our disposal.
We do not simply need to have a nationalist government elected, nor will a simple reordering of the judiciary solve our problems. No, we must pursue liberalism with the same venom they have pursued (and will pursue) us. We must rout them to the ends of the Earth.
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