Whose Fictions? Which Authority

Steven D. Smith. Fiction, Lies, and the Authority of Law. South Bend: University of Notre Dame Press, 2021. $48, 290pp.

Alasdair MacIntyre opens his celebrated 1981 book After Virtue with a haunting parable: an image of a future world where contemporary science has mostly collapsed, with only a confused jumble of references and observations left behind. Many years elapse, and then eventually, a new culture arises and begins to pore over the ruins of the long-lost scientific civilization, seeking to recover what it can from the wreckage. The “science” that emerges from such a ressourcement is a confused stew of concepts and mistaken assumptions, one riven by debates about “the respective merits of relativity theory, evolutionary theory and phlogiston theory.” Some familiar scientific phrases are preserved, but they mean something different now. “[M]any of the beliefs presupposed by the use of these expressions would have been lost and there would appear to be an element of arbitrariness and even of choice in their application which would appear very surprising to us.”

For MacIntyre, this world is our own. A radical rupture exists today between ancient and modern world-pictures—a theme most famously taken up by Leo Strauss—such that ancient thought-forms have become virtually unintelligible. Fundamental historical assumptions about the cosmos no longer hold, and crucial terms have changed their meanings. The epistemic gulf is almost total. Thus, for MacIntyre, our modern reconstruction of the past all too often is only a simulacrum, lacking any sense of the metaphysical structure that provided long-gone civilizations with their internal coherence. Reviving that structure is, in turn, the goal of his own project. Throughout the rest of After Virtue and his other works, MacIntyre seeks to dissolve the modern fact/value dichotomy commonly associated with David Hume, and revive a classical Aristotelian conception of moral reasoning that recognizes no such split.

Steven D. Smith’s book Fiction, Lies, and the Authority of Law aims to do for political “authority” what MacIntyre did for moral reasoning—to expose a desiccated philosophical conception that dominates modernity, and point forward to a truer account. His central claim is audacious: appeals to political “authority,” in virtually all their contemporary permutations, are appeals to “fictions,” or faux-authorities, that constitute mere shadows of the real thing. If Smith is right, then judges, legislators and law enforcement alike are all in a sense play-acting, exercising power on the basis of a fundamentally hollow conception of the right to rule.

Like MacIntyre, Smith argues that the present state of affairs hasn’t always been the case. Once upon a time, the legitimacy of ruling authorities was taken for granted. To name just a handful of examples, the pharaoh of ancient Egypt was revered as a living god, Chinese emperors invoked the “Mandate of Heaven,” and medieval kings claimed the power to govern by divine right. But today, the issue of authority is seriously contested, although the problem rears its head in less obvious ways. Should federal courts interpret laws according to their “original public meaning,” or update them in accordance with contemporary concerns? Should federal courts exercise a check on the power of administrative agencies, or does the inner logic of American law itself tend towards totalizing administrative control? Without recourse to the metaphysical premises of civilizations gone by, these questions feel unresolvable.

Smith’s meditations are timely. Fiction, Lies, and the Authority of Law arrives at a particularly unsettled cultural moment, one increasingly reckoning with the very questions that Smith foregrounds. Following the announcement of its 2022 decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and “un-recognized” a constitutional right to abortion, the Supreme Court experienced a dramatic collapse in public support. This decline was, however, merely the latest chapter of a now-familiar story: the American public’s ongoing loss of trust in mediating institutions, such as governmental bodies, newspapers, schools, churches, and so forth. Partisans of the left and right alike are increasingly willing to recognize as “authoritative” only those institutions that share their own precommitments.

In short, there seems to be something about the cultural environment in which contemporary Westerners find themselves that tends to corrode any conception of universal “authority” as such. And perhaps, Smith is bold enough to suggest, scholars and intellectuals have thought about this issue in the wrong way—searching for solid ground, but inevitably finding only fictions.

That claim is both powerful and controversial. It demands engagement. But ultimately, the dilemmas Smith identifies can only be resolved by an altogether different way of thinking about the problems Smith sets for himself. Perhaps, in the end, Smith’s arguments are not quite radical enough.

* * *

Early on, Smith invokes an observation by political theorist Hannah Arendt that, in the modern world, authority has disappeared—and indeed, the very concept of some such “groundwork of the world” has become almost unintelligible. What could she have meant by this? After all, governments still exist. Schools and businesses are still run hierarchically. And the fact that we still use words like “authority” suggests that the term isn’t strictly unintelligible to us.

Smith lays his cards on the table early: “political authority in the American legal and political system, and probably in other liberal democracies as well, has a fictional quality. Authority itself is a fiction, perhaps, or at least it is grounded in fictional foundations.” On Smith’s conception, “the fictional character of authority lies at the bottom of many long-standing legal or jurisprudential disputes in the American legal system—disputes about the nature of the union . . . and about constitutional and statutory interpretation—and it is what makes those disputes so intractable.” Law’s perennial problems, in short, are generated by malformed philosophical premises.

Is authority indeed fictional? Smith begins his argument by considering the oft-discussed problem of consent-based accounts of authority, accounts rooted in “a commitment to freedom . . . understood in terms of individual autonomy.” Unfortunately for proponents of this view, nobody living in America today ever formally “consented” to the authority of the U.S. political system. No supposed “state of nature,” out of which formal political institutions congealed, ever actually existed. And theories of “implied consent” or “constructive consent” fare no better: both fail to rest on notions of “consent” as ordinarily understood.

Can authority better be conceived in terms of “coordination,” or organization towards a particular end? Smith explains that on such a view, “the necessary coordinating rules and directives . . . must come from someplace—or, usually, from someone,” which raises the question of why that “someone” has the right to issue such rules and directives. Those assertions of right inevitably rest on appeals to “legitimating rationales”—such as the divine right of kings—that are ontologically questionable.

This leads directly to Smith’s conception of authority as fiction—not, strictly speaking, as something false or deceptive, but rather something “treat[ed] as if it were factual.” If a given fiction—like a good film or book—produces positive results and seems adequately “true-ish,” it’s better not to squint too hard at its metaphysical underpinnings. Inevitably, though, some people will—nowhere more significantly than in the domain of constitutional interpretation, which foregrounds the question of authority. The sheer fictitiousness of authority-as-fiction cannot help but “permeate[] law throughout its reaches, coating even the mundane workings of law with a fictional aspect.”

For Smith, constitutional originalists and their critics are doomed to a perennial stalemate because “the contestants suppose they are contending over some contested fact when in reality they are arguing about a fiction”—or, more accurately, a cluster of fictions. For one, “We the People,” of whom the Constitution speaks in its Preamble, have never constituted a single spatiotemporal entity, nor did “the People” who ratified the Constitution include women, slaves, or other human beings. Did “the People” speak as members of states (themselves “imagined communities,” as Benedict Anderson would say), or as members of a new-birthed nation? And for another, what is the ontological status of the principles behind terms like “original intent” or “original public meaning”? Can the intentions of the Founders be aggregated, and should they have controlling weight? Or should a “reasonable man,” who may never have actually existed, serve as the appropriate hypothetical interpreter of the text’s original meaning? The specter of authority-as-fiction begins to loom large.

Similar criticisms, of course, can be leveled against non-originalists. Indeed, on Smith’s account, alternatives to originalism simply place the authority problem front-and-center rather than masking it. A theoretical preference for vesting final authority in the diktats of a high court, rather than in a document’s purported original meaning, cannot explain why that court enjoys true “authority” at all. And in practice, even the most ardent “living constitutionalists” still seek to justify their decisions in the argot of constitutional text (or its emanations and penumbras, so to speak), which is hard to explain unless that document itself does possess a kind of authority.

What about an approach to the Constitution that treats it as mainly a repository of general principles? Smith finds that approach “historically dubious and unlikely as a conjecture about what sensible framers would do,” given the Founders’ general cynicism about the trajectory of the human condition. And in the end, this view merely sidelines the authority question: “We the People” remain a fiction posited for the specific purposes of the political moment.

All of this, Smith concludes, indicates that today’s most vexing constitutional debates are “unresolvable.” The fictional construct that is “We the People” cannot be meaningfully consulted as an interpretive authority. Constitutional theorists and jurists might get by through a kind of post-metaphysical pragmatism in the style of Richard Rorty, not thinking too deeply about the logic of the system, but those in search of a more substantive center are doomed to disappointment.

To start seeing “fiction” as the supporting prop of legal authority, Smith suggests, is to open Pandora’s box. What, after all, is “Congress” or “the Senate,” and in what sense can they be said to exist if the number of their members can vary? This question has implications for longstanding debates in statutory interpretation between “textualism,” “intentionalism,” and “purposivism.” among other schools of thought. On the one hand, how can the constituent members of “Congress” intend anything at all when few of them even bother to skim the laws for which they vote? And does the logic of representative government allow them to “delegate” the function of establishing intent to those legislators who are deeply engaged with the subject matter? Smith answers both questions in the negative.

On the other hand, textualists find themselves caught up in the aforementioned questions surrounding “original public meaning,” to say nothing of the possibility that linguistic changes may thwart Congress’s own purposes. Lawmakers are consigned on this approach, as Smith puts it, to “casting their semantic bread on the waters and hoping that the linguistic currents will bring back something approximating what they hoped for. Is this actually legal authority in any meaningful sense?” And purposivism still pays lip service to congressional authority, even if in practice it departs from congressionally legitimated text. The truth of the matter, Smith reasons, is that such debates over meaning are doomed to remain inconclusive because—like the “will of the Founders”—Congress itself is a kind of fiction. So too are courts—which transcend their constituent judges—and the “Presidency” considered as a permanent institution. Political life, Smith argues, basically amounts to “a necessary conspiracy of suspended disbelief”—one in which the fictional character of critical institutions is tacitly known, yet infrequently acknowledged.

Is this fiction poisonous? Smith considers this question through a lengthy treatment of Vaclav Havel’s parable of the greengrocer who, in order to placate his Marxist rulers, places a “Workers of the world, unite!” sign in his shop window while inwardly remaining politically noncommittal. Over time, a corrosive contempt for truth begins to suffuse throughout the society. This decay is a result of the totalitarian government’s efforts to “assert and maintain its authority” while remaining “grounded in an ideology that for most people is no longer believable.” Liberal democracies, Smith theorizes, are not immune from this kind of rot: just as the fictions of Communist government withered away, one should not assume that the West’s constitutive myths can sustain it for the long term. In particular, Smith points to current progressive policing of language surrounding “race, sexuality, and gender roles” as presenting circumstances where—akin to Havel’s greengrocer—individuals may be pressured to manifest assent to claims they internally reject. And cultures characterized by pervasive dishonesty about their inhabitants’ actual beliefs are ultimately unstable.

For Smith, a culture grounded in fictions that are themselves ungrounded is one characterized at its taproot by “[f]aux authority,” a “simulation” of the genuine article. This is demonstrated, Smith contends, by considering H.L.A. Hart’s critique of John Austin’s account of authority: authority cannot simply mean the power to issue commands that impose reciprocal responsibilities, because otherwise a gunman who demands a passerby’s valuables possesses “authority” over him. Surely “authority” means something subtler, something having to do with the necessary conditions for legitimately compelling obedience. These conditions might include (1) prima facie reasons for obedience, such as a desire to avoid some harm or other, (2) personal reasons for obedience, such as a prior relationship between individuals, and (3) intrinsic reasons for compliance that bottom out in sufficient explanations, as opposed to indirect ones that do not. Smith adds one more element—verticality, or a fundamentally unequal relationship between persons—to fill out such a conception of authority.

On the basis of this conception, Smith finds the standard liberal-democratic accounts of authority fundamentally flawed: a consent-based account locates genuine authority in the consenter, rather than in the government consented to, and a coordination-based account doesn’t seem to account for the fact that authority imposes a claim over and above one’s own self-interest. Equally flawed, for Smith, is Joseph Raz’s “service conception of authority,” which similarly lacks a concept of genuine command. Indeed, virtually all accounts of authority fail to withstand Smith’s razor.

As the book draws to a close, Smith’s project takes on a less critical and more normative cast: is it possible to conceive of authority in a more coherent way? Could we actually identify what Smith calls “just because” authority—authority capable of compelling assent “just because” of what it is? One might imagine a toady who gains pleasure from satisfying his hierarchical superiors—which seems to satisfy Smith’s aforementioned criteria for real authority on the parts of his superiors—but this reeks of “authoritarianism” rather than “authority.” Friendship, and the duties imposed by one friend upon another, lacks the element of verticality. The relationship between a knight and his lady in chivalric love is likewise devoid of real verticality. The truest mode of human-to-human authority, Smith concludes, is the parent-child relationship—when conceived not as a relationship primarily conducing to the interests of the child, but in the terms of Roman pietas or Confucian filial obligation. Recovering this sense of deep obligation might be difficult for modern Westerners, but it does not seem impossible: many people still do act towards their parents as if such a moral claim does in fact exist. Even so, this example of authority remains somewhat contestable.

A few more examples can be adduced. If one prescinds beyond the sphere of human-to-human relations, and is willing to countenance the reality of a personal God, one finds genuine authority in perhaps its fullest and most proper sense. And perhaps one can similarly find real authority in the instructions handed down by a “beloved teacher or coach.”

Nevertheless, authority remains an elusive thing: “an ethic of egalitarian autonomy” has carried the day in the contemporary liberal-democratic world, undermining all claims to unconditional allegiance. In the end, this shift may not be so liberating as it once seemed. In a world “after authority,” society risks losing the very bonds that support human beings as interdependent beings—and so, in a sense, losing humanity itself.

In conclusion, Smith strikes a more optimistic note: there can only be “faux” authority if there is some true authority of which the simulacrum is merely an imitation. Indeed, the Christian theological tradition points to “a true political authority . . . [that] will be . . . with respect to which the earthly governments we see around us are pale imitations or temporary stand-ins.” On this view, all human authorities are relativized, transformed into provisional prefigurations of an eschatological kingdom to come. Such a kingdom—and its King—might be “only intuit[ed] or learn[ed] of through rumor,” but nevertheless remain “real and substantial,” offering a real “groundwork of the world” once believed to be lost.

* * *

Fictions, Lies, and the Authority of Law goes where little legal scholarship dares to tread. It is a work animated by the recognition that, at the very core of today’s most heated controversies over constitutional and statutory interpretation, the deepest questions of moral and metaphysical order still remain contested. In some ways, the book is a direct descendant of Arthur Allen Leff’s 1979 essay “Unspeakable Ethics, Unnatural Law,” which ruminated grimly about what “law” could mean in a world lacking reference to a transcendent moral order.  “Only if ethics were something unspeakable by us, could law be unnatural, and therefore unchallengeable. As things now stand, everything is up for grabs. . . . God help us.” Henry Edward Cardinal Manning put it even more pithily: “all human conflict is ultimately theological.”

As far as this recognition is concerned—that legal debates run “all the way down” to fundamental metaphysical debates—Smith’s book strikes home. What is less clear is whether his constructive account, his own analytical moves towards the possibility of genuine authority in a disenchanted age, really does get beyond the governing assumptions of modernity. Most significantly, while the quest for mathematically precise answers to questions of legal interpretation may be misguided, is Smith’s conception of “fiction” any more stable?

Perhaps, while Fictions, Lies, and the Authority of Law successfully identifies some fundamentally flawed assumptions underlying modern discourse about authority, Smith’s argument ultimately ends up reinscribing those same modern assumptions, albeit in a slightly different way.

* * *

The conceptual core of Smith’s critical argument is his concept of a fiction—something nonreal taken as if it were real. Modern people know that Santa Claus is not a being who actually has a workshop at the North Pole, but many put out milk and cookies for him anyway; in a similar sense, but one with far greater stakes, “the Founders” cannot be consulted in order to determine whether it violates the Fourth Amendment for police to retrieve stored cell phone records from a company tower, but their authority is appealed to anyway by courts and lawyers. On this view, politics under modernity amounts to an immense shell game, one endlessly deferring the question of final authority—that is to say, absolute “just because” authority—without ever locating it.

Is this concept of “fiction,” though, really as bounded as Smith apparently believes it to be? A “fiction,” by definition, is set off against something else, something “real.” And as Smith uses the term, the very notion implies an ascertainable distinction between that which is natural/real and that which is constructed, and hence unreal. There is a “real world” properly described by science, and a “social world” constructed by human beings for human purposes.

But as a number of philosophers of science have stressed in recent decades, this distinction is not a stable one. Bruno Latour, for instance, characterizes modernity itself as “a world in which the representation of things through the intermediary of the laboratory is forever dissociated from the representation of citizens through the intermediary of the social contract”—where, in short, the fact/fiction distinction that forms the core of Smith’s book is affirmed as genuine. For Latour, the great temptation of the modern world is to “invent[] a separation between the scientific power charged with representing things and the political power charged with representing subjects.” On this conception, Smith’s framing is paradoxically the most “modern” move of all.

The evidence against such a separation, Latour explains, is the existence of “hybrids,” or “mixtures of nature and culture” that cannot be interpreted exclusively within the terms of the “natural” or the “political” (or, pace Smith, the “real” or the “fictional”). A recent case provides a helpful example of such hybridity.

Shortly after the Supreme Court’s Dobbs decision, conservative Catholic writer Leah Libresco Sargeant published a personal essay in the New York Times on the subject of ectopic pregnancies. Sargeant wrote that “[i]n an ectopic pregnancy, the baby implants somewhere other than the uterus — usually in a fallopian tube. The situation is fatal for the baby. It’s also dangerous for the mother,” and went on to note that “[a] baby delivered in the first trimester because of an ectopic pregnancy definitely won’t survive. But in both cases, a pro-life doctor sees herself as delivering a child, who is as much a patient as the mother.”

Several days later, Erik Wemple, media critic for the Washington Post, penned a column charging the Times with “publish[ing] inaccurate information about pregnancies.” For Wemple, “[n]ever is an ectopic ‘baby’ ‘delivered’”; physicians who treat ectopic pregnancies note in “medical records that [they’ve] removed a fallopian tube, terminated the pregnancy and collected ‘products of conception.’” Wemple concluded by remarking that “outlets must accommodate and respect the views and experience of the essayist — but that duty cannot conflict with facts and science.” Thus, for Wemple, “science” itself demands that the unborn be called a “product of conception,” not—as for Sargeant—a baby.

What makes this case particularly fascinating is the fact that at one level, there is no real dispute about what is occurring when an ectopic pregnancy is treated. To use as neutral terms as possible, both Sargeant and Wemple are describing a situation in which “the unborn” implants in a location within the body where, if left to grow, it is likely to do harm to the mother. As a result, the unborn is subsequently taken out of the mother’s body. Both Sargeant and Wemple, if presented with a real-world case of an ectopic pregnancy, would identify it as such. 

Rather, the real disagreement is one of terminology, because terminology carries with it moral and political weight. Sargeant views “the unborn” as a baby, and its removal from the mother’s body as, by definition, a delivery. Wemple does not: for him, “the unborn” is a “product of conception” that is “collected” from a woman’s body. These different choices of terminology implicate (what appear to be) the authors’ radically divergent views regarding the nature of the unborn and hence the permissibility of abortion.

The disagreement illustrates that the entity that is the unborn constitutes one of Latour’s “hybrids.” Its ontological character cannot, strictly speaking, be settled through mere observation, as if a “view from nowhere” were possible. Whether one sees the unborn as a baby or as a product of conception—that is, whether one assigns personhood or thinghood to the unborn—is a determination that is always mediated by social realities beyond the merely phenomenological.

This hybridity is an acid that, across various categories, tends to break down Smith’s account of political “fictions” as set off against “facts.” For instance, at one point Smith considers in what sense a “legislature” can be said to exist if the number of its voting legislators grows and shrinks. But one can easily radicalize Smith’s argument, pressing it forward into what is taken to be the “non-fictional” world: in what sense does a “human being” exist if it is constantly shedding cells and replacing them with new ones, or if it loses a limb it once possessed? As soon as the fiction/fact distinction is introduced as an animating principle, very old philosophical problems immediately begin to rear their heads.

None of this is to suggest, of course, that the social construction of “facts” determines reality in toto. After all, some accounts of reality do certainly seem to describe the world more effectively than others: a Ptolemaic cosmology, for instance, simply lacks the internal grammar to describe the vast galaxies and nebulas that modern telescopes can observe and that populate astrophysics textbooks. The point is simply that “hybridity” is far more pervasive than Smith’s account would appear to allow, such that “fictions” inevitably find themselves mixed up with “facts” in what Martin Heidegger would describe as an interpretive “circle.”

How are interpretations of these “hybrids” generated and refined across time? Such processes of inquiry proceed within frameworks of, as MacIntyre puts it, “unarticulated presuppositions which are never themselves the objects of attention and enquiry”—that is, “traditions.” For example, in the above Sargeant and Wemple exchange, one can detect the controlling influence of the “traditions” of Catholic theism and scientific materialism. The former tradition, over time, has come to interpret the unborn as a human being ensouled from the moment of conception, and hence as morally significant from that point on. The latter, generally speaking, interprets the unborn as an entity that takes on moral weight at some point between conception and the moments immediately following birth. Observation of the same phenomenal “data” by individuals inhabiting different traditions may lead to refinement of their respective interpretations—for instance, as his knowledge of embryology advances, a materialist may come to believe that moral significance inheres in the unborn at an earlier or later point than he previously believed—but the underlying presuppositions involved do not change: on the Catholic view, the unborn is created by God and hence infinitely valuable, while on the materialist view the unborn is a cluster of living cells lacking reference to the divine or ultimate. There is no neutral “science,” but rather always “science-according-to-a-paradigm.” 

To the reader primarily interested in questions of legal interpretation and institutional structure, however, all this intellectual history may seem like a distraction. What do Latour’s hybrids, and the traditions of thought within which those hybrids emerge, have to do with the question of authority that animates Smith’s book? Why spend so much time considering how one comes to know the natures of things, however asymptotically?

The reason is straightforward: if Smith really wants to recover the traditional “groundwork of the world” that was lost under modernity, he must do more than simply seek after a maximally authoritative source of law. His mission must be far greater than that: to recover a way of approaching realities in their natures, through traditions of reasoning, in order to understand what they are for, and so ultimately how society ought to be structured and how one ought to live. That is an audacious project indeed. But the alternative is that modernity will carry the day.

* * *

Throughout his constructive account of authority, Smith is very keen to stress that any recognition of genuine “just because” authority must transcend altogether an individual’s own self-interest. That is to say, if arguments made in favor of recognizing a particular authority could be construed as self-serving to the arguer, the authority is not genuine authority, at least not on the basis of those “self-serving” arguments. On Smith’s account, a mob boss lacks true “authority” if he assumes his position by promising to share the spoils with his cronies; here the “authority” is merely a function of the cronies’ self-interest, and for Smith authority must be more than that.

Authority here implies morality, and philosophically speaking, at issue here is a conception of both that derives from an implicit acceptance of David Hume’s famous is/ought distinction. Smith is seeking an absolute ought, one that can’t be read off from the mere “accidental” existence of natural orderings and hierarchies.

But historically speaking, one need not accept this split. On the classical Aristotelian tradition of ethical reasoning, for example, the fundamental problem Smith identifies is simply generated by malformed premises. According to this view, a thing is called “good” when it actualizes the potentialities inherent to its nature—or, in simpler terms, when it acts consistently with what it is. That formulation may seem opaque, yet traces of this older conception of ethics still permeate contemporary language. A “good watch,” for instance, is one that does what one expects a watch to do (keep time faithfully). A “good person,” conversely, is someone who does what is expected of a person (working hard, keeping her word, helping the downtrodden, providing for her children, and so forth). What is significant is that the term “good” is used here in both cases, despite the fact that the inherent capabilities of a watch diverge radically from the inherent capabilities of a human being. So, some analogical relation plainly exists between them.

One can readily carry forward this approach to moral language to the question of authority. On the classical view, there is quite simply no such thing as an “authority”—an entity that it is moral for others to obey—who issues commands that do not benefit those who obey. The right to issue commands derives from the authority’s ability to direct the activities of his subordinates in a manner consistent with their unique capacities, and so help them to be “better” (to be what they could be, but are not yet). In the simplest terms, here authority describes the natural structure of reality as it is in itself. It is not a kind of will-to-power set off against a world of brute “scientific” facts.

These are the premises that underpin the “coordination” account of authority that Smith takes up and subsequently rejects. Authority inheres in the one who issues coordination-commands that work—that properly describe reality as it is, albeit always mediated through human intellectual activity. Smith’s critique of the coordination account of authority—that it fails to explain why the “coordinator” has the right to issue commands—makes sense apart from these premises, but simply doesn’t hold if those premises are taken seriously.

* * *

Viewed through a decidedly nonmodern lens, the problem of constitutional and statutory authority begins to take on a new cast. On a different set of premises, the driving question of American constitutional interpretation simply need not be, as for Smith, whose authority is this? Rather, one might ask what sort of thing is this “Constitution” or this “law”? 

Lee Strang provides an elegant exposition of how one might come to think about American laws in a more “teleological” way—that is, in a manner consistent with their intrinsic purposes as the things they are:

Legal texts, such as statutes, are created by human beings, and humans act for purposes. Humans in legislatures act to identify and correct legal problems in order to secure the common good. Legal texts contain words, and documents with words are characteristically employed by humans to communicate meaning. Lawmakers correct legal problems by communicating reasons through legal texts to the law’s subjects.

From this standpoint, familiar debates between originalism and living constitutionalism are short-circuited. Because the Constitution purports to be precisely that—a “constitution”—it does not make sense to interpret constitutional text as something altogether divorced from basic background assumptions about what a functional government must do—maintain public order, allow for representation of the populace, and so on. And acknowledging such an intrinsic connection between legal text and purpose is entirely consistent with originalism, correctly conceived.

Smith is right to note that both “the Founders’ intent” and “the original public meaning,” taken as metaphysical entia, enjoy only a dubious ontological status. But a more modest account of originalist hermeneutics—on the model of what Strang calls a “constitutional communication model”—does not require such postulates. As a matter of history, the thirteen former colonies sent delegates to the Constitutional Convention—delegates whom they viewed as representatives, and whose decisions they intended to be bound by. Those delegates, together, signed the same document, which the publics of the various new states then ratified. If the participants in that process harbored radically different understandings of what the document itself was doing as “law,” it is reasonable to believe that evidence of those interpretive disagreements would have emerged both before and after the Convention. Empirical evidence for such thoroughgoing vagueness, however, is in scant supply. The Framers were writing a constitution (small-“c”) to structure a new government in response to a particular set of problems, and in most cases substantial information exists about what those problems were and how the new regime sought to resolve them.

In short, it is entirely reasonable to judge some textual interpretations as closer or further from what is known about the Founders’ intentions or the original public meaning of the text, given the evidence available. And a similar argument can be made with respect to Congress and the interpretation of statutes.

To be clear, none of this is to imply that one could decisively settle how, given both text and context, the Founders would have answered a particular present-day question of law. Indeed, a clear-minded originalist can readily concede that “there is in the end no fact of the matter that can demonstrate that any particular interpretation is simply correct or incorrect.” In a sense, that claim is trivially true, because the same can be said of any human endeavor—even formal logical systems come in different varieties, with different core axioms. To the extent this attack strikes home, it is entirely non-unique to legal interpretation. One might say that the act of legal interpretation is more appropriately conceived as asymptotic—an increasing apprehension of communicated meaning, as always mediated through a particular of thought—rather than as a “deductive” uncovering of axioms.

As it were, Smith’s critique cuts deepest against iterations of originalism that bear a more than passing resemblance to John Searle’s famous “Chinese room” hypothetical. If all that is known about a computer program or a human being is that they are capable of receiving Chinese characters as inputs and producing Chinese characters as outputs, can one conclude that the program or individual understands Chinese? Plainly not—proper symbol manipulation alone does not support an inference that the content of the communication is understood. In the same way, originalism would be rendered altogether nonviable if it were committed to the notion that one could “understand the meaning” of constitutional text, or “look up the answer” to an interpretive problem, only by considering other texts and without ever considering the real-world referents of that text. Consideration of such referents, of course, leads directly to consideration of the Founders’ metaphysical assumptions and background commitments. Fortunately, few if any practicing originalists take such an extreme view.

In short, if the modern question of authority is conceived in a wholly different way—as something pertaining to the natures of things, rather than to the will of sovereign powers—a number of the interpretive impasses that Smith identifies simply fall away. Where the law is concerned, who enacted it is less important than what it is. There is no more need for fictions.

* * *

In closing, if indeed all human conflict ends in theological controversy, it is worth saying a few words about the “theology of authority” that pervades Smith’s volume. If an Aristotelian account of authority is rejected, what does this say about the nature of the God, or gods, who preside over the cosmos?

In a prior volume on the subjects of theology, sexuality, and the “culture wars,” Smith distinguishes the pagan and Christian understandings of divinity by contrasting their conceptions of divine presence in the world. According to the “immanent” theology of traditional society, the world itself is divinized, with gods and goddesses—to the extent they exist as separate beings at all—functioning as mere finite entities within the universe. Christianity (and Judaism), conversely, assert that “God is an entity beyond time and space, even beyond ‘being’ (whatever that means). God is transcendent.”

There are political implications that follow from placing the accent upon divine transcendence as strongly as Smith does here. In Fictions, Lies, and the Authority of Law, God’s authority is conceived as essentially akin to the authority of a monarch, albeit on a far greater scale. As far as Plato’s famous Euthyphro dilemma is concerned—does God command a thing because it is good, or is a thing good because God commands it?—Smith comes down decidedly on the latter horn, appearing to embrace a version of divine command ethics in which God, perhaps alone among entities, possesses “just because” authority. “Where wast thou when I laid the foundations of the earth? Declare, if thou hast understanding.”

Is Smith’s appeal to this monarch-God, as a site of “just because” authority, actually an anti-modern move? Readers come of age in a secular milieu might assume so, but Latour suggests otherwise: at the dawn of modernity, theologians came to believe that God’s “transcendence distanced Him infinitely, so that He disturbed neither the free play of nature nor that of society, but the right was nevertheless reserved to appeal to that transcendence in case of conflict between the laws of Nature and those of Society.”

To postulate “God” as an ultimate Lawgiver, grounding authority-relations but remaining largely absent from creation, is to postulate a God very different from the One in whom all finite entities participate and who undergirds the being of things. Likewise gone from this cosmological vision is any “analogical-participatory” understanding of creation in which natural order constitutes a real reflection of its divine source. This God, as the wheels of history turn, is fated to become “an orphaned demiurge abandoned by all,” rather than He in whom all people “live, and move, and have our being.” God becomes an “item within the cosmos” that Occam’s razor can eventually pare away.

One can even press the point further: John Milbank argues that when modern theology took pride of place, “abandoning participation in divine Being and Unity for a ‘covenantal bond’ between God and men, it provided a model for human interrelationships as ‘contractual’ ones.” In other words, to imagine God as a Lawgiver characterized primarily by the structure of his agreements with human beings—an assumption implied by Smith’s use of distinctly personalist categories to underscore his account of legitimate divine authority—is to pave the way for the very political theories of authority that Smith views as fundamentally flawed. If Milbank is right, then Smith gets the analysis precisely backwards: the failure of social contract theories of authority doesn’t point to the need for an account of divine authority as “personalist”; rather, the “personalist” account of divine authority lays the logical groundwork for social contract theories in the first place.

In the end, it suffices to note that the roots of modernity are far older—and far less “secular,” in the contemporary sense—than is commonly assumed today. Appealing to the authority of God is not enough to resolve the problems Smith sets for himself. Just as important is what sort of God is appealed to.

* * *

Smith’s book concludes with a flicker of hope, a hint that one day genuine authority—as he conceives of it—will present itself. And yet what if true authority has never, in fact, been deferred into the eschatological future, but always been present at hand?

Apart from a genuine paradigm shift, modern men and women will keep searching for authority—real authority—and finding only accumulations of power. Nevertheless, the quest will continue, impelled by a vague notion that once upon a time, other conceptions of authority did exist. That notion is correct. But embracing those older conceptions will require a paradigm shift on a scale few can accept. Is authority somehow inherent in things, or is it something that comes from above and works upon formless matter, whether through a human king or a divine Sovereign? Not many today will defend the former claim.

In the end, the point is simple: that which one takes as authoritative will always be a function of their first principles. Smith’s volume is a search for the “groundwork of the world” that once structured Western thought and that much of the American legal tradition seems to presuppose, but it seems unlikely that he can find it within the parameters he has set for himself. Between a conception of “immanent order” in which authority is grounded in reality itself, and an idea of “imposed order” which seeks authority in the directives of an “absolute” person, a vast conceptual gulf exists.

Smith has written a book that cuts to the very quick of politics, in the deepest and fullest sense. The only problem with his critique of modernity is that it does not go far enough.

Originally published in the spring 2025 Mere Orthodoxy print journal. To become a member and receive future issues, join today.