Professor Eric Voegelin (1901-1985) and Father Henri de Lubac (1896-1991) had much in common, beyond the fact that their lives overlapped. Both men were not only concerned with, but had been personally affected by, the mass ideological movements of the twentieth century. Both men were profound thinkers, who analyzed the problems of order and disorder not on the level of institutional arrangements, but down to their spiritual roots. And each man, in a different way, was accused of adopting a heterodox approach to Christianity. Indeed, some believed that de Lubac had committed heresy, and others would have accused Voegelin of heresy had they been able to pigeonhole him in a confessional denomination in the first place.

There were, of course, differences between them, as could be expected, given that one was a Professor who gave little hint of his own “religion,” if one may even use that term in connection with Voegelin, and the other was a Priest, and later a Cardinal, of the Catholic Church. One major difference was in their approaches to the Person of Christ. Voegelin, as is well known, has been criticized by Christians who otherwise would have embraced him warmly but for the fact that he was readier to talk about “The Pauline Vision of the Resurrected” than the Resurrected.[i] However, and somewhat ironically given de Lubac’s position within the Church, de Lubac agreed with Voegelin that substantial blame for the breakdown of personal and political order in their time, which is still our time, lay with certain developments in Christian theology [ii] when the Church was the great ordering force of the West.
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At the very center of the work of each man was an effort to retrieve the experiences of consciousness of transcendence that gave rise to the fundamental symbols of Western order – of faith and reason, revelation and reason, theology and philosophy, Jerusalem and Athens – and to find, in the context of their time, adequate ways to publicly convey these experiences. The experiences form the substance of order, both personal and political, and their eclipse leads to disorder. The fundamental symbols of this order, in their classical and Judeo-Christian forms, historically separated from their engendering experiences in the divine-human encounter through the process of “doctrinilization.” They thus became opaque, as Voegelin would say, as mere propositions, and then were eclipsed by the symbols created by the ideologies which replaced them, which themselves were parasitic on the symbols that they replaced. Against the dead symbols, ideology at least promised fulfillment, albeit in a purely immanent sense.

Cass notes that “departing from the market’s default outcome will always appear expensive if the ‘efficient’ default is defined as the overriding social goal.” People need labor for many reasons: not only income but to give them a sense of purpose and provide stability to their families. When they have to periodically drop out of the workforce — and especially if they have little if any savings — the consequences are not just financial but social and psychological.

The free market, Cass acknowledges, is a powerful mechanism for “fostering choice, promoting competition, and allocating resources.” But creating the freest possible market cannot be an end unto itself, because sometimes the most efficient outcome doesn’t correlate to a flourishing human society.

Consider smartphones and social media, which, though hailed as enablers of efficiency, were also designed to be addictive. A growing body of academic studies is bolstering anecdotal evidence that iPhones and Twitter are vitiating student competence, not to mention proliferating pornography that feeds addictions and treats people as products to be consumed.
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What Cass proposes, pace Roberts and other free-trade purists, is a political and economic system defined by trade-offs that elevate the renewal of work and family, sustained by a healthy labor market. This includes, for example, providing a subsidy for low-wage work that is funded by higher tax rates and reduced transfer payments, rather than imposing those costs on business owners themselves. People are thus rewarded for joining (or staying in) the economy, and generating an income to provide for themselves and their families, rather than simply getting handouts in the form of, say, universal basic income.

The triumph of pornography represents the death of the symbolic. “Symbol,” Han writes in The Disappearance of Rituals, “originally referred to the sign of recognition between guest-friends (tessera hospitalis). One guest-friend broke a clay tablet in two, kept one half for himself and gave the other half to another as a sign of guest-friendship. Thus, a symbol serves the purpose of recognition. This recognition is a particular form of repetition.” To be truly human, according to Han, is to think and exist symbolically, to tarry with erotic anticipation while cultivating an appetite for truths that sometimes can only be expressed metaphorically. As Han writes in The Scent of Time, a book that links the death of the erotic with the death of narrative:

The formation of metaphors is also a practice concerning truth to the extent that it creates a network of relationships, and lays open the connecting paths and channels of communication between things. The formation of metaphor counteracts the atomization of being. And it is a temporal practice to the extent that it opposes the quick succession of isolated events with the duration, even fidelity, of a relationship. Metaphors are the scent of things which they release when they befriend each other.
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Without metaphor or duration, no narrative can exist. And without a narrative, life has no cohesion, no sense of progression—our experiences are just pixelated moments, like an endless series of TikTok videos. This, Han argues, is why the last men, dutifully worshipping their own bodies, fear death with such vehemence. For what, in the end, is death itself but the ultimate narrative tool for forcing coherence into our lives? It’s the unavoidable capstone that forces our existence to take on form, the ultimate reminder of the meaninglessness of the bare life.

In The Apology, Socrates presents his jurors with a dilemma: death either is the end of existence or the transition to a new existence. During his trial, he professes uncertainty, but his final peroration leans toward the latter horn. In The Phaedo (and The Republic) he argues at length that the soul lives on after death, albeit in a way unfamiliar to most people, who are ruled by their senses. Philosophy’s ascent from matter toward intelligible and eternal truths is training for death. In the final pages of The Apology, he uses the possibility of spending eternity in conversation with other souls as the final proof for the perfection of his life. Socrates’ belief in the immortality of the soul enables him to face his death with equanimity. The point here is not to enter into a detailed exegesis of Plato, but to notice the connection, made early on in the history of philosophy, between (a) the affirmation that the soul exists after death, (b) the claim that there is an intelligible order to reality, and (c) the cultivation of a philosophical life.

Late classical German philosophy’s attack on Platonism required a different view of death. Like Socrates, they argued for the close link between death and one’s way of life, but they endorsed the alternate horn in The Apology’s dilemma. This is clearest in the work of Heidegger: death is, as Heidegger puts it in Being and Time, the possibility of my impossibility. The end of my projects and projections, death is profoundly disturbing. Rather than Socratic equanimity, it gives rise only to angst. Consequently, we tend to flee from it, hiding from the inevitability of death in idle chatter, truisms, and mass media. To live authentically, Heidegger continues, one must anticipate one’s own death with resoluteness. Philosophy does not anticipate and train for the separation of the soul from the body but contemplates final non-existence. To be sure, Heidegger thinks there are gains to this awareness: death, by facing us with our unavoidable non-being, raises the question of being. When I realize that one day I will become nothing, I wonder even more urgently, why is there something rather than nothing? While this is reminiscent of traditional metaphysics, the emphasis is reversed; it is not the permanence of being at which one wonders, but the fleetingness of being and the finality of death.
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Jorge Portilla, perhaps the most important Mexican philosopher of the twentieth century, sharply disagreed with Heidegger’s account of death and provides an alternative. Although he never held a university position, he was actively involved with El Grupo Hyperion’s work of introducing and adapting existentialism and phenomenology for a Mexican context. This is precisely what happens in his lecture on “Thomas Mann and German Irrationalism.” The lecture is not only about Mann, but also about the “intellectual and affective climate of his work”—i.e., the late stages of classical German philosophy. He names this stage “German Irrationalism” and summarizes it as endorsing (among other things), “the primacy of life and the irrational over intelligence and reason; the primacy of death over life.” This climate, Portilla frankly tells us, disgusts him.

The second part of the Out of Africa hypothesis states that the genus Homo evolved in Africa. Böhme strongly challenges this, arguing instead that our genus evolved in a great, now fragmented grassy woodland known as Savannastan, which covered parts of Europe, Asia, and Africa 2.6 million years ago. In support of the idea, she cites 1.8-million-year-old Homo skeletons from Georgia and, more intriguingly, a jaw and a few isolated teeth found in cave sediments in Longgupo Cave, in Wushan County in China’s Sichuan Province. The Chinese fossils were named as a new species, Homo wushanensis, by researchers in 1991, and according to Böhme the remains are between 2.6 and 2.48 million years old. As the oldest Homo habilis remains from Africa are only 2.3 million years old, the dating of the Chinese finds, if verified, would pose a direct challenge to part two of the Out of Africa hypothesis.

But interpretation of the fragmented remains of Homo wushanensis is complicated. In 2009 Russell Ciochon, an American researcher who described Homo wushanensis, declared that he had made a mistake. The jaw and some of the teeth did not belong to an early human, he said, but to one or more “mystery apes.”
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 His retraction was acclaimed by some as a welcome act of intellectual honesty in a field characterized by fierce rivalry. Yet it has hardly settled matters. Böhme, for example, notes that stone tools were also found in Longgupo Cave, suggesting the presence of early humans. Others have speculated that the tools (along with some of the teeth) may have found their way into the deposit from more recent sediments, but Böhme is not satisfied by this explanation. Instead, she asks of Ciochon’s retraction, “Why the spectacular retreat? Was it to avoid jeopardizing the Out of Africa…hypothesis?”

Böhme, it seems, is just as determined to defend her hypothesis as the Out of Africanistas are to defend theirs.

My proposal, then, is simple. The localist, agrarian, decentralized tradition of the Antifederalists must be untethered from the doctrinaire libertarianism and value-free proceduralism with which it has become associated. It must be reunited with the natural law tradition to fashion a jurisprudence—and a culture—whose concern is not merely local control for the sake of local control but an embrace of the moral tenets underlying the classical legal tradition. We must marry Antifederalist sympathies, which recognize the dangers of concentrating power in the hands of a governing class whose values are alien to the governed, to the holistic conservative jurisprudence, which requires an acceptance of a broader role for state action in the maintenance of common culture and public virtue. In short, Antifederalist procedure, natural-law substance; subsidiarity and solidarity.

This proposal will require clarification of something that conservative jurists have often misunderstood. Natural law, when discussed at all, is treated as coterminous with substantive due process—the specter of unlimited judicial power to make up rights and re-write constitutions. This is not correct.

Natural law demands more of government than doctrinaire libertarianism does, but it also restrains it by the specification of just ends in a way that kneejerk fear of state power cannot. It specifies what duties we have and determines the legitimate ends of government activity. Because it grounds our obligation to just authority, it requires an adherence to the allocation of power within a constitutional framework. And, by incorporating the insights of custom and tradition, it helps specify the purposes of government beyond mere abstract shibboleths like freedom or equality, providing an intellectual weapon that restrains unjust power, whether private or public.
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The loss of natural law does not limit the power of the courts; it expands it by blurring the line between law and policymaking. Erie Railroad Co. v. Tompkins has, in this Symposium, become a good case in point. Erie is the quintessential New Deal Court opinion holding that federal courts, sitting in diversity, must apply the decisions of state courts as though they were determinative of positive law. For Merriam, Erie is good because it prevents federal courts from making federal common law, thus usurping the role of the states. Hammer appears to find it incorrect because it prevents federal courts from engaging in the morality-laden argumentation that common law requires, thus shutting the federal courts off to one avenue toward moral jurisprudence. I find Erie troubling for an entirely different reason: The pronouncement that federal courts will treat state court decisions as on par with legislative enactments is nothing short of federally mandated legal realism.

Abstract
​This paper, unpublished for many years, offers an unabashed, unabated, full- throated defense of legal theory and abstract, factually deracinated legal scholarship. Several calumnies raised against such academic work — all beginning with the letter "a" — are addressed and refuted. These are: (1) armchair-ism, (2) abstraction-ism, (3) ampersand-ism, (4) assertion-ism, (5)) affinity group - ism, and (6) aspirational expiation- ism.