The Law of Our Fathers: On the Familial Origins of Legal Authority

Contrary to the image projected by popular movements in ecology, our first and most immediate encounter with nature occurs in the family. Indeed, the word “nature” itself derives from “nascor,” “to be born.” It is in a family, to a mother and father, that one is (normally) born, and each of the progenitors of this family was himself or herself born into a family. The family is therefore one’s “natural” place, being the place wherein one encounters, and comes to inhabit, nature in a specifically natural way.

To say this is not at all to deny the existence of culture, and the particularities of history and human creativity—the “artifice”—that come with it. Quite the contrary, the claim is meant to imply that culture is a natural part of human nature. The wise twentieth-century zoologist Adolf Portmann pointed out that, unlike any other animal, the rational animal that is man leaves the physical womb of the mother long before his development as an organism is complete (one might compare colts, for example, which may stagger for a few minutes after emerging from the womb, but are thereafter already capable of walking like an adult horse).[1] The human child must finish its being born, its “naturing,” in the “spiritual womb” (uterus spiritualis) of the family, which is an inherently social and personal space, permeated by culture and history. In man, culture therefore does not wait until natural birth is over to then be layered on top as the next level but enters into nature from within.

Culture is moreover present not only in the raising of children, but already in the union of man and woman at the child’s origin. This means that isolating a realm of pure nature, as something untouched by culture, is artificial. Marriage, that supremely natural reality in human existence, the place wherein human nature itself is born, has always been a culminating (Hochzeit) expression of culture, a “high” event of music, liturgy, architecture, worship, food, and festival. To be sure, one might object that the observations I have just made apply uniquely to man, and not to nature in general, but in fact one could show, in another context, that there is inevitably a connection between how we think of human nature, and how we think of nature simpliciter.[2] However that may be, the fact remains that, if we define nature in simple opposition to human culture, we will tend to approach human culture itself as something radically artificial—and for that reason at the same time we will tend to reduce the natural world to pure matter, bracketing out the presence of form and, speaking more broadly, the symbolic significance of things. In a word, to fail to see that the family represents our first encounter with the natural world is to have a very un-natural sense of nature, which one inevitably carries with oneself, so to speak, even (perhaps especially) if one flees to the woods to escape all things artificial.

If the family is the first place in which we encounter nature, it is also the first place we encounter authority. Indeed, as has been traditionally recognized, the family is the most natural expression of authority, the expression of authority at the level of nature. The word itself has an organic sense: by bearing witness to a higher, intelligible order, “authorship,” the figure of authority enables that order to grow, to flourish at a lower level (augere). Let me emphasize that authority has an essentially “martyrological” dimension: it does not exist without pointing to an order that exceeds it and for which it holds a special responsibility.

The exercise of authority is then the communication of this order, received “from above,” in a fruitful way, to others below one. Here we see why authority has traditionally been associated specifically with fatherhood: the father, in fulfilling his role given by nature and so bearing witness to the order of nature, pours himself out so as to become fruitful in another, specifically, the woman, who is, to use Aristotle’s description, fruitful in herself. According to the model of “mere power,” in abstraction from authority, this act would be an imposition of order, a coercion, or a forcing through of some intention from the outside in a monolithic sort of way. So conceived, the act presents itself essentially as one that can be replaced in principle by technological means. But authority, as essentially “martyrological” and so as bearing witness (testament—testes) to an order that is not self-produced, operates by most basically acknowledging the order of the other that is (naturally) given, liberating that given order to be itself authoritative in turn, in its own particular way, and so to be itself distinctly generative. In and through the man’s authority, the woman becomes authority. This is an event of analogy.

Family is the symbol of authority, ... which is to say that it is its embodiment, the concrete place wherein authority is first made effectively present, quite literally in the flesh.

The act of procreation, which we might say is a paradigmatic symbol of authority, might be compared to language, another symbol. The word authoritatively spoken, the name given by the author to the reality he beholds, is in itself a mere nothing, a simple flatus vocis, compared to the reality it names; but, in naming, the word elevates that reality to a wholly new, spiritual and intelligible, order of existence that it was not capable of on its own. The procreation of the child is something similar, indeed to an astonishing degree: the sperm of the man is next to nothing in relation to the egg offered by the woman, and yet its effective presence transforms the egg as a whole, allowing the egg to recapitulate itself now as something altogether new, self-generative, no longer a mere part of the woman (or, for that matter, of the man). It has been made “to grow” (augere). The act by which the child comes to be, by which the child originally “natures,” is a primal enactment of authority.

It is important to see both that this primal enactment is structural and physical, which is to say, an actual reality, a matter simply of being, rather than in the first place an act of the will, a matter of doing, in the sense of a moral achievement. The doing of authority, then, and the subsequent activity of the parents in their deliberate efforts properly to fulfill their authoritative roles and raise the child into adulthood, is not a mere “add-on” to a nature already complete. Instead, their authoritative acts of the will are a fruitful participation in the natural order, and indeed they are fruitful—i.e., genuinely authoritative—because they are a participation in the given movement of nature. As we just saw, nurture (i.e., culture or nomos) does not simply come after nature, but even as something new and introduced from without, enters into nature from the inside. It is precisely family life that reveals this truth to us. Nurture elevates nature from within, which means that the parents’ forming of their children’s existence, the regulation of behavior, the education, from the simplest of tasks (learning to tie shoes) to more demanding achievements (the mastery of a musical instrument), to the noblest of acts (the gift of self in the resolute determination of a state of life), are recapitulations at ever higher levels of the “naturing” and so of the original authority of the parents. In authority, nature rises, from within, to a higher level (eu zēn), and it does so because, in nature, authority descends into the foundations of life (zēn) so as to take its origin.

This double movement, from above and from below, is the essential movement of analogy. The natural articulation of authority in the family shows us that—again, precisely unlike “sheer” power—authority has an ontological root. I have argued elsewhere that authority may be said to arrive along the path of beauty, because beauty, akin to authority, moves us already from within to a higher order of existence. Similarly, the parents speak with authority to their children in the first place because they are, as it were, already present in and to the children by nature. The order that parental authority effectively represents can be understood as emerging in some respect from within the organism, and therefore from within the soul, of the child, because it is communicated to the child from his natural, i.e., his ontological, origin. The common blood is a physical expression, a symbol, of the spiritual truth of authority.

This last point deserves emphasis, since it helps us to avoid what would be an easy misinterpretation of the family’s role in cultivating authority. One might think that the family plays this role simply in a psychological or developmental sort of way: one first learns to obey, one acquires the habit of docility, by being subject to commands at an early stage in one’s life, when one had little recourse to any other “authority,” which left one in principle quite vulnerable. If the process occurs successfully, and the vulnerability is not exploited, one learns to follow rules, and so one can participate more actively, more co-operatively, more productively, as a “good citizen,” and perhaps most significantly, as an employee of a larger corporation, where one’s capacity to be what is called “a team player,” has its most direct social significance. This reductively functionalist interpretation of authority, however, ultimately undermines the role of the family, at least in this respect.

As Robert Spaemann has argued, to interpret a thing in a functionalist way by that very fact is to render it replaceable.[3] The family, in this inadequate interpretation, just happens to be the “first school of sociality,” and so “the first school of authority,” so to speak; but, precisely because it is something merely naturally given, and not a function of rationalized technique, it is liable to fail and cannot be counted on to perform its social function without oversight. There is no reason, in principle, why the certified experts in medicine and psychiatry, social servants, and professional educators, would not be able to teach children the social skills of cooperation and rule following, thus understood, more reliably and effectively than any given set of parents. From a functionalist perspective, it makes most sense to trump parental authority by the expert means administered ultimately by the state, and thus by that very token to transform authority into artificial power: to technologize social and political existence.

There is, to be sure, a lot that may be said about the damage this sort of civil replacement of family function does to the fundamental relationships between parents and children and siblings, and indeed all the way unto the child’s relation to himself and his own bodily nature. But there is another dimension to the problem that I think tends to get less attention. It is that the state cannot thus intrude on the life of the family without transforming the state’s own nature. If the ruling power does not recognize the relative authority of the family, it does not understand that authority as such has its roots in nature and what is naturally given, which is to say that it forfeits its own authoritative status. It can only be an instrument of power. It no longer has authority in the proper sense because it no longer bears witness to a given order.

In this respect, it is interesting to consider the (rather diabolical) insight of John Locke, who might be interpreted as having sought to rethink political order from the ground up precisely in the absence of authority in the deep sense we have been describing it.[4] We are generally familiar with his Second Treatise on Government, which offers a social contract theory of political rule in what is arguably its paradigmatic early modern form. The book essentially begins by recasting parental rule over children in the household in functionalist terms (revealingly, right after a discussion of property[5]), as a proto-contractual relation.[6] But even more significant, from our perspective here, is the fact that this reconception of human relations in the Second Treatise is preceded by the First Treatise, which has been almost entirely ignored by scholarship.[7] The purpose of this path-breaking and ground-laying first book is to provide as radically and completely as possible a deconstruction of the principle of “patriarchy,” the notion that governance has some natural root, some naturally given origin—which, it is worth pointing out, Locke recognizes is inseparably a theological notion.[8] I am not so concerned here to defend Robert Filmer, the man specifically under attack in Locke’s book, who might be said to have had a rather positivistic sense of patriarchy, and whose argument clearly evinces a complete absence of any sense of analogy.[9] Instead, I mean to highlight the principle to which Locke’s First Treatise gives a decisive expression: In order to eliminate authority from human existence, all the way up through the political order to the sphere of religion,[10] Locke had to discredit, and so neutralize, the specifically naturally given claims of the family.

What I mean to propose, in the light of this point, is that family is not simply “the first school of authority,” functionalistically understood, but is in fact where one comes to understand the nature of authority because it most basically represents the authority of nature. It is the symbol of authority, in the sense we have been using the term, which is to say that it is its embodiment, the concrete place wherein authority is first made effectively present, quite literally in the flesh.

Once we grasp this, we see how potentially misleading it can be, without proper qualifications, to speak of the sphere of the family as “pre-political.” One speaks this way of course out of a right and proper desire to protect the integrity of the family and to honor its sphere of sovereignty, as it were, outside of the state’s mechanisms of control. There may be situations wherein such a manner of speaking can be necessary, and so justified as a matter of prudence. But if the language is meant at the level of principle, the implication of this move are quite devastating. To designate the family as a “pre-political” reality is first of all to confirm the division between the state and civil society, a division, as I have argued elsewhere, that eliminates all authority in principle at a stroke. Secondly, to posit the “private” sphere of the family as coming before the political is, by implication, to prioritize the parts of human community over that community taken as a proper whole. Aristotle (and Aquinas[11]), by contrast, says: “the polis is by nature [τῂ φύσει] clearly prior to the family [οἰκία] and to the individual, since the whole is of necessity prior to the part.”[12] Note that this priority is given, according to Aristotle, specifically by nature. It is the nature of a whole to precede the parts, insofar as the whole is that by which the parts can be understood as such. To call the family “pre-political” is to betray the logic of the whole and so introduce a principle of fragmentation into the foundation of one’s conception of human community. This principle has two consequences for the family that are ironic—not to say “tragic”—insofar as the aim is to protect the family’s integrity: on the one hand, by making the parts prior to the whole in principle it tends by its very logic to reduce the family to a collection of individuals, and, on the other hand, by projecting that fragmentation into the state, it turns the state into a kind of machine that as a mere functional conglomerate of bureaucratically divided departments cannot in any genuine and substantial way recognize the integrity of any natural wholes, including that of the family. The very effort to protect the family therefore works toward its undermining.

The third point is an elaboration of this last. Given an interpretation of marriage and family as the symbol of authority in its natural modality, and so as representing the authority of nature, to place the sphere of the family specifically outside the political is to determine the political itself as un-natural. In other words, unless the phrase “pre-political” is significantly qualified, the use of the phrase to describe the family by implication empties the political of its natural content, concedes its purely artificial character, and denies its essential rootedness in the order of nature. In this case, conservative thinkers who continue to appeal to “natural law” in the modern context out of a desire to keep politics somehow tethered to transcendent truth, cannot but find the phrase increasingly weightless and unable to gain any political traction. It is hardly an accident that those who both champion natural law in politics and insist that marriage and family are “pre-political” realities, have been criticized precisely for dissociating natural law from nature.[13] “Natural law,” after all, exists only insofar as the logos of law is able to descend into nature and the physis of nature is able to rise up into logos. We cannot affirm “natural law” unless we have a properly analogical sense of authority. It is precisely this that is precluded by the positing of the natural reality of the family as something that occupies a “pre-political” sphere, a sphere that lies enclosed in itself (without authoritative meaning for the community as such) outside of and thus merely juxtaposed to the similarly closed sphere of the political, which can only relate to the family extrinsically—and by insisting on “natural rights” as something like an external check on (wholly artificial) political power.[14]

For the state to recognize the distinct authority of the family, and specifically of the parents in relation to their children, by contrast, is to include the given order of nature within the political sphere that defines the state, and so to allow the family, in its natural reality, to be properly meaning-full. This very act of acknowledgment transforms mere power into authority, because it constitutes the principle of political rule as open in an essential way to an order that exceeds it. To use the language proposed earlier, it gives a “martyrological” dimension to political power. This dimension, this openness to an order that exceeds it, lends political authority a depth and dignity it would otherwise lack—and the lack of such depth and dignity is, I would suggest, one of the basic reasons why the rule of law finds itself in such a state of crisis today. There are few people who respect the political—in its forms, rituals and procedures, in its decisions and policies, in its aims and institutions, and above all no doubt in its statesmen. Respect cannot be coerced or fabricated; it can only be given. And it will be given in truth only to an institution that is itself founded on what is given, an institution that represents a higher order and manifestly binds itself to what is true, good, and beautiful.

To call the family “pre-political” threatens to deprive the family of authority, and thus by implication to deprive nature of authority. But if nature has no authority, then political authority has no natural substance, which is to say it ceases to be authoritative at all and becomes a mere mechanism of power ultimately at the service of private interest, whether conceived individually or collectively. Such a mechanism cannot offer of itself any reason to pay it any heed, any reason to cooperate or to participate in its devices in a manner that would engage one’s humanity or personhood. Cynicism becomes the rule in this case, not because of any moral failing, but because the empty and impotent husk of the pseudo-political cannot possibly call forth from us anything else. In this context, Michael Hanby’s arguments about our having entered into something like a “post-political” era become quite compelling. Without authority, there can in fact be no “polis,” no political order, no ruler who would order common life, but instead only some mode of capitulation to the inexorable movement of the “biotechnical” imperative, on the one hand, or of supra-political economic entities, on the other. We are thus led to a conclusion that might, given so much of the typical discourse on the matter, seem initially counter-intuitive: the state needs to recognize and foster the integrity of the family if it wishes to maintain its own authority. Put positively, by safeguarding the family, it honors and protects, in its natural symbol, the very principle of authority on which its own reality depends.

^[1] Adolf Portmann, A Zoologist Looks at Humankind (New York: Columbia University Press, 1990), 19–49. I am grateful to my colleague Margaret McCarthy for drawing my attention to this text.

^[2] Robert Spaemann makes profound observations along these lines in “Nature,” in A Robert Spaemann Reader: Philosophical Essays on Nature, God, and the Human Person (Oxford: Oxford University Press, 2015), 22–36.

^[3] Robert Spaemann, “The Undying Rumor: The God Question and the Modern Delusion,” Spaemann Reader, 187.

^[4] Though it does not foreground the theme of authority per se, this is in essence the argument we make in Freedom from Reality, 65–127.

^[5] This is no accident, though it is not the place to explore the point in detail here: authority is arguably founded in a basic sense on property (one might consider the dual meaning of the Latin word dominium, both power and property, or the Greek expression for authority, ex-ousia, which, at least in one interpretation of the etymology, appears to be derived from ousia, “substance” in the sense of “property”). There is an inseparable connection between the way one interprets property and the way one interprets political authority, ultimately because property represents the actual reality of goodness that it is the principal task of the authority to distribute.

^[6] See sections V and VI of Locke’s Second Treatise, in Two Treatises (Cambridge: Cambridge University Press, 1998), 285–330.

^[7] There are very few, but interesting, exceptions: Herbert H. Rowen, “A Second Thought on Locke’s First Treatise,” Journal of the History of Ideas 17.1 (January 1956): 130–32; Charles D. Tarlton, “A Rope of Sand: Interpreting Locke’s First Treatise of Government,” The Historical Journal 21.1 (March 1978): 43–73; and Robert Faulker, “Preface to Liberalism: Locke’s First Treatise and the Bible,” Review of Politics 67.3 (Summer 2005): 451–72. These texts all argue that the “deconstruction” of tradition is an essential precondition for clearing the ground that makes liberalism possible. Faulkner points out that this requires the undermining of the Biblical God.

^[8]Locke engages Filmer’s rooting of Fatherly Authority in God’s creation of Adam: chapter 2, Two Treatises, 144–51, and so forth.

^[9]His book was entitled, Patriarcha: A Defense of the Natural Power of Kings Against the Unnatural Power of the People, and was written probably between 1635 and 1642, but published only in 1680 (see Oakley, Omnipotence, Covenant, and Order, 99). It is considered one of the most influential early formulations of the principle of the “divine right of kings,” a particularly modern sense of (univocal) power, isolated from the theological (ecclesial) context that would make it analogically authoritative.

^[10] As his Letter on Toleration expresses clearly, all religions are to be tolerated—except those that depend on a principle of authority (as is well known, though he mentions Islam specifically in this context, what he really has in mind is Roman Catholicism: see Patrick Romanell’s introduction [New York: MacMillan, 1950], 10.).

^[11] See Aquinas’s Commentary on the Politics, I.1.22 (pp. 17–18 in the Hackett edition).

^[12] Aristotle, Politics, I.1.1253a19–20.

^[13] Henry Veatch is best known for this: “A Critique of the New Natural Law Theory,” New Scholasticism 62.3 (1988): 353–65.

^[14] For a more extensive argument on this point, see Politics of the Real (Steubenville, OH: New Polity Press, 2021), 109–37.