Federal Models of (Civil) Authority
Daniel J. Elazar
Federalism, Covenant, and the Purposes of Politics
Human, and hence scholarly, concern with politics focuses on
three general themes: 1) the pursuit of political justice to
achieve the good political order; 2) the search for understanding
of the empirical reality of political power and its exercise; and
3) the creation of an appropriate civic environment through civil
society and civil community, capable of integrating the first two
to produce a good political life. Political science as a
discipline was founded and has developed in pursuit of those
three concerns. In the course of that pursuit, political
scientists have uncovered or identified certain architectonic
principles, seminal ideas, and plain political truths which
capture the reality of political life or some significant segment
of it, and relate that reality to the larger principles of
justice and political order and to very practical yet normative
civic purposes.
Politics has two faces. One is the face of power; the other is
the face of justice. Politics, as the pursuit and organization
of power, is concerned (in the words of Harold Lasswell) with
"who gets what, when and how." However, politics is equally a
matter of justice, or the determination of who should get what,
when and how -- and why. Power is the means by which people
organize themselves and shape their environment in order to live.
Justice offers the guidelines for using power in order to live
well.
Politics cannot be understood without reference to both faces.
Without understanding a polity's conception of justice, or who
should have power, one cannot understand clearly why certain
people or groups get certain rewards, at certain times, in
certain ways. On the other hand, one cannot focus properly on
the pursuit of justice without also understanding the realities
of the distribution of power. Both elements are present in all
political questions, mutually influencing each other.
One of the major recurring principles of political import which
informs and encompasses all three themes is covenant -- an idea
which defines political justice, shapes political behavior, and
directs humans toward an appropriately civic synthesis of the two
in their effort to manage political power. As such, covenant is
an idea whose importance is akin to natural law in defining
justice and to natural right in delineating the origins and
proper constitution of political society. While somewhat
eclipsed in political science since the shift to organic and then
positivistic theories of politics which began in the mid-19th
century, it persists as a factor shaping political behavior in
those civil societies whose foundations are grounded in the
effort to translate that idea into political reality and in
others searching for a means to build a democratic order on
federalist rather than Jacobin principles. In the present crisis
of transition from the modern to the post-modern eras, covenant
is resurfacing as a significant political force just as it did in
the transition from the late medieval to the modern era which
took place from the 16th to the 18th centuries.1
Like any great idea, covenant and its related terms are often
used as slogans. Such use testifies to the seminal character of
covenant as a concept, since every truly great idea must rest on
so simple a core that it can become a slogan, but sloganeering
should not obscure the more profound dimensions of covenant which
requires sophisticated analysis and understanding if the concept
is to be used properly for political invention and action.
Covenant can be studied in three dimensions: as a form of
political conceptualization and mode of political expression; as
a source of political ideology; and as a factor shaping political
culture, institutions, and behavior. As a form of political
conceptualization covenant shapes the way in which people look at
the world and understand the nature of politics and civil
society. The covenantal world view is one of the two or three
"mother" world views shared by humanity. It is by no means
far-fetched to assume that basic to every personality, as it is
formed by both nature and culture, is a world view that is
hierarchical, organic, or covenantal in orientation.
Federal and Other Origins of the Polity
Since its beginnings, political science has identified three
basic ways in which polities come into existence: conquest
(force), organic development (accident), and covenant (choice).
These questions of origins are not abstract; the mode of founding
of a polity does much to determine the framework for its
subsequent political life.
Conquest can be understood to include not only its most direct
manifestation, a conqueror gaining control of a land or a people,
but also such subsidiary ways as a revolutionary conquest of an
existing state, a coup d'etat, or even an entrepreneur conquering
a market and organizing his control through corporate means.
Conquest tends to produce hierarchically organized regimes ruled
in an authoritarian manner; power pyramids with the conqueror on
top, his agents in the middle, and the people underneath the
entire structure. The original
expression of this kind of polity was the pharaonic state of
ancient Egypt. It was hardly an accident that those rulers who
brought the pharaonic state to its fullest development had the
pyramids built as their tombs. Although the pharaonic model has
been judged illegitimate in western society, modern totalitarian
theories, particularly fascism and nazism, represent an attempt
to give it a certain theoretical legitimacy.
Organic evolution involves the development of political life from
families, tribes, and villages into large polities in such a way
that institutions, constitutional relationships, and power
alignments emerge in response to the interaction between past
precedent and changing circumstances with the minimum of
deliberate constitutional choice. The end result tends to be a
polity with a single center of power.
Classic Greek political thought emphasized the organic evolution
of the polity and rejected any other means of polity-building as
deficient or improper. The organic model is closely related to
the concept of natural law in the political order. Natural law
informs the world and, when undisturbed, leads in every polity to
the natural emergence of power relationships, necessarily and
naturally unequal, which fit the character of its people.
The organic model has proved most attractive to political
philosophers precisely because at its best, it seems to reflect
the natural order of things. Thus it has received the most
intellectual and academic attention. However, just as conquest
tends to produce hierarchically organized regimes ruled in an
authoritarian manner, organic evolution tends to produce
oligarchic regimes, which at their best, have an aristocratic
flavor, and at their worst are simply the rule of the many by the
few.2 In the first, the goal of politics is to control the top
of the pyramid, in the second, the goal is to control the center
of power.
Covenantal foundings emphasize the deliberate coming together of
humans as equals to establish bodies politic in such a way that
all reaffirm their fundamental equality and retain their basic
rights. Even the Hobbesian covenant -- and he specifically uses
the term -- which establishes a polity in which power is vested
in a single sovereign, in principle maintains this fundamental
equality. Polities whose origins are covenantal reflect the
exercise of constitutional choice and broad-based participation
in constitutional design. Polities founded by covenant are
essentially federal in character, in the original meaning of the
term (from foedus, Latin for covenant) - whether they are federal
in structure or not. That is to say, each polity is a matrix
compounded of equal confederates who freely bind
themselves to one another so as to retain their respective
integrities even as they are bound in a common whole. Such
polities are republican by definition and power within them must
be diffused among many centers or the various cells within the
matrix.
We find recurring expressions of the covenant model in ancient
Israel, whose people started out as rebels against the Pharaonic
model; in the medieval rebels against the Holy Roman Empire; in
the Reformation era rebels against the Catholic hierarchy; in the
early modern republicans who were rebels against either
hierarchical or organic theories of the state; and in modern
federalists. Frontiersmen generally -- that is to say, people
who have gone out and settled new areas where there were no
preexisting institutions of government and who, therefore, have
had to compact with one another to create such institutions --
are to be found among the most active covenanters.
Each of these forms of founding has very real implications for
the character of the regime that emerges from it, in the
structure of authority, in the mechanisms of governance, and in
the forms the regime is likely to take. Thus in regimes founded
by conquest and force we expect to find hierarchical structures
of authority dominant, power pyramids in every sense of the word.
In such regimes, administration, which is a matter of a top-down
chain of command, takes precedence over politics and
constitutionalism. Indeed the major political arena in such
regimes is that of the ruler at the top of the pyramid. In other
words it is court politics, with the kind of intrigue and
jockeying for position associated with the politics of courts. If
constitutionalism plays any role at all, the constitution takes
the form of a charter granted by the ruler, whose status is at
least formally controlled by him (although, as we know from
feudal systems, under certain circumstances rulers who seem to be
on the top of the pyramid can be forced to grant charters of
liberties to subsidiary bodies because there has been a
redistribution of force as a result of external factors over
which the top of the pyramid has no control).
The apotheosis of such a regime is an army. Indeed, one of the
first modern models was Prussia, described by Voltaire
as "an army transformed into a state." So, too, was
Napoleonic France where Napoleon's administrative reorganization
of the country fixed its internal structure for the next 170
years regardless of wars, revolutions, coups, and regime changes.
The worst manifestation of such regimes are totalitarian
dictatorships whereby those at the top of the pyramid attempt, in
the name of an ideology, to bring their pyramided powers to bear
on every aspect of private as well as public life.
Organic polities that essentially develop by accident and are
marked by their center-periphery configuration, organize their
mechanisms of government differently. For them politics takes
precedence over administration and both over the constitution.
Since the most important political arena is in the center, the
politics is the politics of the club or clubs where the elite
gather and maintain relationships with one another regardless of
their stand on issues, simply because they belong to a common
elite or network of elites. Administration is deemed much less
important than politics and exists only to the degree that it is
necessary, flowing from the center outward. At first the same
club members who dominate the regimes politics also undertake
much of the necessary administration of functions, but as matters
grow more specialized, a separate administrative elite is
developed, drawn as much as possible from the same sources as the
political elite and maintaining a common old-boy network.
The English system, where studies at Oxford and Cambridge are
tickets of admission to either the political or administrative
elites, whose members literally speak the same language or at
least in the same accents and belong to the same clubs, typifies
this kind of regime. Constitutionalism is not unimportant in
such regimes, but it is not reflected in a single major document
but in a set of constitutional traditions which may or may not
have been set down in writing and transformed into law, again in
the English model. The apotheosis of this model is parliamentary
government along the Westminster system, while its excess is to
be found in Jacobinism where a revolutionary cadre siezes control
of the center in the name of the masses and concentrates all
power within it in the name of the revolution in order to
reconstruct the regime. It never relinquishes control.
Covenantal regimes, founded on the basis of reflection and choice
to establish a matrix of power centers, so that both its framing
institutions and constituent bodies share authority on a
fundamentally equal basis, order the mechanisms of government
quite differently. First and foremost comes the constitution and
the constitutional tradition it fosters. The constitution must,
perforce, come first because it is the basis upon which
institutions are organized and authority and power are shared and
divided. Without the constitution there can legitimately be
neither politics nor administration. Pursuant to the constitu-
tion there develops a politics of open bargaining in which access
is guaranteed by the constitution and the constitutional
tradition to all citizens who accept the rules of the game. The
open competition of parties and factions is encouraged.
Administration is subordinate to both constitutional and
political standards and is further controlled by being divided
between the framing institution and the cells of the matrix.
The apotheosis of this model is a federal democratic
republic on the order of the United States or Switzerland. Its
excess is anarchy where the framing institutions and cells prove
incapable of ordering the exercise of power within the structure.
While in real life many polities mix these models to establish
their regimes, the classic examples of political organization
tend to be relatively pure representations of one or the other.
Both the purer cases and the mixtures teach us about important
manifestations of political life.
MODELS OF FOUNDINGS/REGIMES
| Founding: | Conquest
Force
| Organic
Accident
| Covenant
Reflection
and Choice |
| Model: | Pyramid | Concentric
Circles
| Matrix |
Structure of
Authority: |
Hierarchy | Center-
Periphery |
Frame and
cells |
Mechanisms of
Governance (in
rank order): |
Administration-
top down
bureaucracy
Politics-court
Constitution-
charter |
Politics-club-
oligarchy
Administration-
center outward
Constitution-
tradition | Constitution-
written
Politics-open
with factions
Administration-
divided |
| Apotheosis: |
Army |
Westminster
system | Federal system |
| Excess: | Totalitarian
dictatorship |
Jacobin state | Anarchy |
Most common
Form of
Revolution
Against |
Coup de Etat |
Civil War
Among Elites
|
Structural
Resort to
Arms
|
The uses of covenant demonstrate how political conceptualization
and expression go hand in hand. Thus, during the 16th and 17th
centuries, the Swiss and the Dutch, the Scots and the English
Puritans not only conceived of civil society in covenantal terms,
but actually wrote national covenants to which loyal members of
the body politic subscribed. Similar covenants were used in the
founding of many of the original colonies in British North
America. Covenantal thinking was the common mode of political
conceptualization and expression during the American Revolution,
where it was reflected in any number of constitutional
documents.3 More recently, such examples as the call for a social
contract in England to create a new set of relationships between
labor and management and the covenant inaugurated on the Boston
Common by the city's major religious groups in 1979 to bring
racial peace to that city are but two of many examples of the
continuing use of covenant as a form of political
conceptualization and mode of political expression.4
As a source of political ideology, covenant shapes the world
views or perspectives of whole societies, defining their civil
character and political relationships, and serving as a
touchstone for testing the legitimacy and often even the
efficiency of their political institutions and those who must
make them work. Thus the Afrikaners have built the ideology
sustaining their tribalism around the covenant one party of them
made with God before a battle with the Zulus at the time of the
Great Trek. Their national day is called the Day of the Covenant
and their national shrine is designed to celebrate that day.
Their leaders invoke that covenant to justify their policies
toward non-whites and implicitly ask to be judged by it.5
Perhaps most important of all is the role of covenant as a factor
in shaping political culture institutions, and behavior. This
factor is the most difficult to measure and yet is operationally
the most significant dimension of covenant.
The power of covenant and the covenant principle flows less from
its conception and systematic presentation as philosophy (and
certainly not from its reduction to the level of ideology) than
from the way it informs culture, especially political culture,
endowing particular peoples with a particular set of political
perceptions, expectations, and norms and shaping the way in which
those perceptions, expectations and norms are given institutional
embodiment and behavioral expression. To take one example, there
is every reason to believe that the idea of separation of powers,
especially among equals as distinct from the separation of powers
among different classes of unequals is a product of covenantal
political culture, and that its various institutional expressions
reflect that political culture. Where the same institutions have
been introduced into political systems serving people with a
different political culture, they have worked in opposite ways
from those for which they were intended. This is in no way
better reflected than in the differences between the separation
of powers system of the United States where President, Congress,
and the Supreme Court interact in creative tension to balance one
another, and similar systems in Latin America which are modeled
institutionally on the U.S. Constitution but which have been
imposed upon a radically different political base. Lack of a
covenantal political culture in Latin America with its sense of
consent rather than force as the basis of political life, of
limitations on the use of power, sharing among partners to
advance the common good while preserving their respective
integrities, and abiding by the rules of the game is both a
response to and a generator of circumstances which lead to the
abuse or the distortion of the institutional framework.
All the evidence points to the existence of certain covenantal
peoples whose political cultures are informed by covenantal and
related concepts, which in turn influence their political
institutions and behavior. Those peoples emerged out of two
nuclear concentrations. The first was at the western edge of
southwest Asia some three to four thousand years ago, in what was
once known as the fertile crescent, especially in what is today
Israel and in surrounding Jordan, Lebanon and Syria. The second
was in north-western Europe, especially in Switzerland and in a
band stretching from up the Rhine River Valley through western
Germany, eastern France, Belgium, the Netherlands, across the
North Sea to Scotland and the eastern coast of England. They
subsequently settled and shaped various "new worlds" in North
America, southern Africa and Australasia.
Out of these covenantal peoples emerged Judaism and Christianity
with their biblical covenantal base, reformed Protestantism with
its federal theology, federalism as a political principle and
arrangement, the modern corporation, civil societies based upon
interlocking voluntary associations, and almost every other
element that reflects social organization based upon what has
loosely been called "contract" rather than "status." Moreover,
these covenantal peoples seem to have internalized a covenantal
approach to life, to a greater or a lesser extent. The Swiss,
for example, are a federal people through and through, whether
they are dealing with their political system or with the way in
which they serve customers in their resorts. The Americans have
many of the same qualities, although in a softer and less sharply
defined way.
Any study of covenant as a phenomenon must focus on these three
dimensions. Indeed, the intellectual challenge of studying this
phenomenon grows out of the possibility of using covenant as a
seminal concept which has been given ideological expression and
even more important, has shaped political culture and through it
political institutions and behavior. Studying the linkages
between these three and the way in which they occurred in various
communities and societies is a major intellectual challenge of
political science.
Covenant and its Federal Expression
A covenant is a morally-informed agreement or pact based upon
voluntary consent, established by mutual oaths or promises and
witnessed by the relevant higher authority, between peoples or
parties having independent, though not necessarily equal status,
that provided for joint action or obligation to achieve defined
ends (limited or comprehensive) under conditions of mutual
respect which protect the individual integrities of all the
parties to it. Every covenant involves consenting, promising and
agreeing. Most are meant to be of unlimited duration, if not
perpetual. Covenants can bind any number of partners for a
variety of purposes but in their essence they are political in
that their bonds are used principally to create bodies political
and social.
The definition of covenant in law as a binding promise is a
straightforward statement of a concept of far-reaching importance
in the relations between individual groups and peoples. In
modern law, covenant is defined as "a promise or agreement under
consideration, or guarantee between two parties, and the seal or
symbol of guarantee is that which distinguishes covenant from
modern contract." Theopolitically, "a covenant is a promise that
is sanctioned by an oath..." accompanied by an appeal to a deity
or deity to 'see' or 'watch over' the behavior of the one who has
sworn and to punish any violation of the covenant by bringing
into action the curses stipulated or implied in the swearing of
the oath." For a theological or political significance, "the
oath was usually accompanied by a ritual or symbolic act."6
Thus two words used as synonyms for brit in the Bible are shevuah
and alah. The first means oath and the second is used as a
synonym for covenant but has its origins in the word for cursed.
This reflects the way in which a covenant embodies mutual
oath-taking. The oath-taking basis of covenanting is even more
pronounced in the medieval Latin term for confederacy,
coniuratio, with iuratio the Latin term for oath. This may
be a translation of the German eidgenossenschaft from eid, the
German word for oath.
The covenant idea, with its derivatives and cognates, offers a
particular orientation to the great questions of politics in
theory and practice. Perhaps the clearest indication of this
special orientation is to be found in Thomas Hobbes' translation
of the principles of natural law into what he called articles of
peace, i.e., the articles of the original civil covenant.7 In
its theological form, covenant embodies the idea that
relationships between God and humanity are based upon
morally-sustained compacts of mutual promise and obligation.
God's covenant with Noah (Genesis 9), which came after Noah had
hearkened fully to God's commands in what was, to say the least,
an extremely difficult situation, is the first of many such
examples.
In its political form, covenant expresses the idea that people
can freely create communities and polities, peoples and publics,
and civil society itself through such morally grounded and
sustained compacts (whether religious or civil in impetus),
establishing thereby enduring partnerships. In its more poetic
(but, for the Bible, no less serious) forms, covenant has even
been used to describe relations between God and nature, man and
nature, and the various elements of nature.8
In all its forms, the key focus of covenant is on relationships.
A covenant is the constitutionalization of a relationship. As
such, it provides the basis for the institutionalization of that
relationship but it would be wrong to confuse the order of
precedence. Students of federalism know that this is a real
problem, having noted how federalism has come to be understood by
many as no more than a matter of intergovernmental relations.
It is possible that covenant ideas emerged spontaneously in
various parts of the world. If, indeed, covenant thinking is
rooted in human nature as well as nurture, it is to be expected
that some people everywhere would be oriented toward the idea
somehow. In the course of this book we will explore some
examples of such spontaneous developments outside of what became
the covenantal mainstream: Beduin and American Indian tribal
confederacies, the Scandanavian oath-pacts, and the Hungarian
national covenant, to mention a few. In fact, it is not
sufficient for random individuals or even groups to be disposed
to it for an idea to take root and spread. Somehow a culture of
civilization must emerge which embodies and reflects that idea.
The first such civilization or culture area was that of ancient
Israel, located on the western edge of southwest Asia, whose
people transformed and perfected a device originally developed
among the Amorite and Hittite peoples who inhabited the area.9
The first known uses of covenant were the vassal treaties through
which the lesser rulers and their domains through pacts secured
by oath before the respective deities involved. These
international or intra-imperial pacts laid out the form which
covenants have taken ever since, which included five elements: an
historical prologue indicating the parties involved, a preamble
stating the general purposes of the covenant and the principles
behind it, a body of conditions and operative clauses, a
stipulation of the agreed-upon sanctions to be applied if the
covenant were violated, and an oath to make the covenant morally
binding. Often a sixth element was included as well, provisions
for depositing the covenant document and of periodic public
reaffirmation or recovenanting. These first covenants
simultaneously established the political purposes and moral bases
for covenanting. This is as true for ancient Hittite vassal
treaties, the covenants of biblical Israel, the Scottish national
covenant of the 17th century, and the Declaration of the
Independence of the United States of America, to name but four
examples.
Either parallel to or derived from these ancient vassal covenants
there emerged domestic political and religious usages of
covenant. The two were connected in the Bible to form the
classic foundation of the covenant tradition.10 God's covenant
with Israel established the Jewish people and founded it as a
body politic while at the same time creating the religious
framework which gave that polity its raison d'etre, its norms,
and its constitution, as well as the guidelines for developing a
political order based upon proper, that is to say, covenantal
relationships.
Biblical adaptation of the forms of the vassal covenants involved
a transformation of purpose and content so great as to mean a
difference in kind, not merely degree. A covenant was used to
found a people, making their moral commitment to one another far
stronger and enduring than that of a vassal to an imperial
overlord. The Bible draws a distinction between "sons of the
covenant," bnai brit in Hebrew, and "masters of the covenant," or
ba'alei brit. Bnai brit is used where the covenant has created a
new entity whose partners are bound together as sons within a
family. The covenant that unites and forms the Jewish people in
the biblical account makes all Jews bnai brit (as the
organization of that name indicates). On the other hand, where
the term used is baalei brit, it is essentially an international
treaty. It does not create a new entity, but establishes a
relationship of peace and mutual ties between quite separate
entities who remain outside of the limited purpose pact.
This new form of covenant was not simply witnessed by Heaven, but
brought God in as a partner, thus informing it with religious
value and implication for the Israelites, who saw no distinction
between its religious and political dimensions. The covenant
remained a theo-political document with as heavy an emphasis on
the political as could be. The strong political dimension
reflected God's purpose in choosing one people to be the builders
of a holy commonwealth which could be a model for all others.
It was only later with the rise of Christianity and the beginning
of the long exile of the Jews from their lands that covenant took
on a more strictly religious character for some, in which the
political dimension was downplayed, if not downright ignored by
Christian theologians, on the one hand, and diminished by Jewish
legists on the other. Christianity embraced the covenant idea as
one of the foundations, reinterpreting the old biblical covenant
establishing a people at a polity as a covenant of grace between
God and individual humans granted or mediated by Jesus.11 Jewish
legists simple took the basic covenantal framework of Judaism for
granted and concentrated on the fine points of the law as applied
to daily living or the expected Messianic redemption.12
Within the Jewish world, the political dimension of covenanting
received new impetus in the 11th century to provide a basis for
constituting local Jewish communities throughout Europe. That
effort ran parallel to the establishment of municipal
corporations throughout that continent which were legitimized by
royal charter, usually negotiated between the municipality and
the throne.13 While these efforts found some expression in
political thought, it was really not until the Reformation that
covenant re-emerged as a central category, first in political
theology and then in political philosophy.
It was at this time that the covenant idea emerged as a powerful
force in the second major cultural area, that of western and,
most particularly, northwestern Europe. What cultural
predispositions lay behind the receptivity of the peoples of that
culture area to covenant as a concept remain to be uncovered, if
they can be. It cannot be an accident that the federal theology
emerged simultaneously in the 16th century in four separate
places in Switzerland (Zurich, Basel, Berne, and Geneva), where
confederal political arrangements had been dominant since the
late 13th century.14
The reformed churches turned to the covenant concept with relish,
finding in it the most appropriate expression of their
theological ideas and expectations for church polity. The
federal theology which they articulated (federal is derived from
the Latin foedus, which means covenant) stimulated the renewed
political application of the covenant idea which was given
expression first by political theologians and then by political
philosophers such as Althusius and in the next century was
secularized by Hobbes, Locke, and Spinoza.15 By the late 17th
century, the concept had come full circle with its political
dimension having taken on an independent life of its own.16
The connections between covenant and natural law go back to the
seventeenth century philosophic revolution of Hobbes, Locke, and
Spinoza which transformed ancient natural law into modern natural
law or natural right. Partisans of classic political philosophy
view this transformation as a betrayal, gutting, or simple
falsification of both classical and medieval natural law
theories. Leo Strauss has made the strongest case for this view
in Natural Right and History.17 In one sense, they are quite
correct. However, it is possible to look upon the transformation
in another way, namely the covenantalization of philosophy. That
is to say, the recognition of the power of the philosophic
tradition in shaping the idealized frameworks of western man
which had led to an intolerable gap between ideal and reality in
everyday life and therefore the necessity to reconstitute the
natural law idea within a new system derived from very different
premises. That indeed is what Hobbes, Spinoza, Locke, among
others, try to do.
Hobbes and Spinoza are the two most important figures in this
process. The great student of medieval philosophy, Harry Austryn
Wolfson, has made a strong case for the thesis that medieval
philosophy began with Philo and ended with Spinoza.18 We all
know that medieval philosophy is, mainly, a synthesis of biblical
and Greco-Roman intellectual systems. What Philo did was to take
the biblical outlook and integrate it into the Greco-Roman
systems; i.e. covenant thought into natural law philosophy, to
set a pattern followed by the Church Fathers, the great Catholic
and islamic philosophers, and even Jewish and Protestant thinkers
prior to the 17th century. Spinoza, in essence, reversed the
process. He knocked the props out from under the edifice of
medieval philosophy in an effort to replace it with a causual
modernism. Whatever his intentions, in his effort to create an
entirely new system, what we have come to call modern thought, he
opened the door for the resurrection of the primacy of covenantal
thinking. While it certainly cannot be said that undoing Philo's
syntheses, he desired to make biblical thought supreme, he did
open the way for the major political product of the Bible, the
covenant idea, to flourish once again.
So, too, with Hobbes, another unabashed modern who controlled the
expression of his new system only in so far as he thought it
politic to do so. Hobbes, like Spinoza, set out to undermine
ancient philosophy and religion and replace both with a modern
ideational system, but in doing so reestablished the possibility
of covenantal thought. That indeed was the first consequence of
his effort, one which persisted for some two centuries and which
again calls to us today.
From northwestern Europe, covenantally grounded civilization
spread to the new worlds opened by northwestern European
colonization. Such covenantal societies ranged from the United
States settled by the covenanters from the British Isles in the
early 17th to South Africa settled by covenantal people from the
Netherlands in the late 17th to New Zealand settled by British in
the 19th. Where settlers from those traditions were dominant,
new peoples were established by covenant and they in turn created
constitutions which concretized the covenantal dimension through
a network of political institutions. In the 18th century, the
American Revolution translated the concept into a powerful
instrument of political reform but only after merging it with the
more secularized idea of compact. American constitutionalism is
a product of that merger.19
Covenant, Natural Law, Federalism, and Constitutionalism
Over the centuries, covenant, natural law, federalism, and
constitutionalism became intertwined. When, for example, the
Americans formally declared themselves an independent people in
the Declaration of independence -- itself a covenant creating a
new relationship based on natural law precepts -- they then saw
constitution- making as a way of further covenanting or
compacting together in order to create civil instruments designed
to carry out the Declaration promises.20 The resulting state and
federal constitutions were seen as compacts embodying the
principles of natural law, especially in their Declaration of
Rights. The propriety of subsequent legislation was, therefore,
to be judged in light of its "constitutionality," or in other
words, its conformity to both natural law and covenants, one step
removed.
Normally, then, a covenant procedes a constitution and creates
the people or civil society which then proceeds to adopt a
constitution of government for itself. Thus a constitution
involves the implementation of a prior covenant -- an
effectuation or translation of a prior covenant into an actual
frame or structure of government. The constitution may include a
restatement or reaffirmation of the original covenant as does the
Massachusetts Constitution of 1780 in its preamble:
The body-politic is formed by a voluntary association of
individuals: It is a social compact, by which the whole
people covenants with each citizen with the whole people,
that all shall be governed by certain laws for the common
good.
but that is optional.
Covenant relationships have often been compared to marraiges in
their permanency, promissory trust, mutuality of responsibility,
and respect for the integrity of each partner within the
community created by wedding (an ancient Anglo-Saxon term for
sealing a contract). The analogy also highlights the way in
which covenant links consent and kinship. In the
biblical-covenantal view of marriage, two independent and
otherwise unrelated persons consent to become "one flesh" and
establish a family.
In politics, covenant connotes the voluntary establishment of a
people and body-politic. Again, the American Declaration is an
excellent example. The diverse inhabitants of the thirteen
colonies consented to become a people. It was not without
reason, therefore, that Abraham Lincoln fondly described the
union created by that act as "a regular marriage,"21 The
partners do not, of course, always live happily ever after, but
they are bound by covenant to struggle toward such an end, a
commitment will understood and made explicit by Lincoln during
the Civil War. At the same time, covenants beget constitutions
almost as a matter of course but also influence every dimension
of constitutionalism.
Following Aristotle, every political system is delineated along
three dimensions: its moral constitution, its socio-economic
constitution, and its frame of government, which taken together
link the two faces of politics.
1) The moral basis of the constitution refers to the generally
accepted ideas about how people in a particular polity should
live. It includes the conception of justice which is held to be
the guiding standard of the polity, the picture of the good
polity in the minds of citizens, plus other opinions about what
kinds of political and social actions are right and good. 2) The
socio-economic basis of the constitution refers to the ways
people actually live. In includes such things as class
structure, ethnic composition, type of economy, and the actual
distribution of power, in other words, who is important and
influential and why. 3) The frame of government refers to the
institutions and structures of government itself, including the
document (or collection of documents) that sets out the
institutions of government, establishes their powers and limits
of those powers, and indicates who shall govern and how the
governors shall be chosen.
Unlike many philosophic conepts, covenant addresses all three
dimensions of the political system. It delineates the system's
moral foundations, offers mechanisms for constructing the
system's frame of government, and suggests a behavioral dynamic
to shape the system's socio-economic basis.
Covenant, Compact, and Contract
Covenant is tied in an ambiguous relationship to two related
terms, compact and contract. On one hand, both compacts and
contracts are in a sense derived from covenant, and sometimes the
terms are even used interchangeably. On the other hand, there
are very real differences between the three which need
clarification.
Both covenants and compacts differ from contracts in that the
first two are constitutional or public and the last private in
character. As such, covenantal or compactual obligation is
broadly reciprocal. Those bound by one or the other are
obligated to respond to one another beyond the letter of the law
rather than to limit their obligations to the narrowest
contractual requirements. Hence, covenants and compacts are
inherently designed to be flexible in certain respects as well as
firm in others. As expressions of private law, contracts tend to
be interpreted as narrowly as possible so as to limit the
obligation of the contracting parties to what is explicitly
mandated by the contract itself.
A covenant differs from a compact in that its morally binding
dimension takes precedence over its legal dimension. It its
heart of hearts, a covenant is an agreement in which a higher
moral force, traditionally God, is a party, usually a direct
party to, or guarantor of a particular relationship. Whereas,
when the term compact is used, moral force is only indirectly
involved. A compact, based as it is on mutual pledges rather
than guarantees by or before a higher authority, rests more
heavily on a legal though still ethical grounding for its
politics. In other words, compact is a secular phenomenon. This
is historically verifiable by examining the shift in terminology
that took place in the 17th and 18th centuries. While those who
saw the hand of God in political affairs in the United States
continued to use the term covenant, those who sought a secular
grounding for politics turned to the term compact. While the
distinction is not always used with strict clarity, it does
appear consistently. The issue was further complicated by
Rousseau and his followers who talk about the social contract, a
highly secularized concept, which, even when applied for public
purposes, never develops the same level of moral obligation as
either covenant or compact.
The Bible and the Origins of the Polity
The Book of Genesis begins with humanity emerging from one common
ancestor and then, after the Flood, dividing into three branches
or grand families: that of Ham, that of Shem, and that of Japhet.
Ham and the Hamites are located principally in Africa, although
they cross over into Asia in Canaan and the lower Mesopotamian
valley for a brief period. Shem and the Semites are located in
southwestern Asia, while Japhet and the Japhetites are located to
the north of the Semites and westward into Europe.
If one reads the biblical text closely, we discover that
hierarchical government originates among the Hamites, first in
Nimrod's empire and then in Egypt. The organic state, on the
other hand, originates with Japhet and his descendants,
particularly in Yavan, among the Ionians, or Greeks. The
covenantal polity originates among the Semites, particularly the
western Semites, culminating in the covenantal polity of Israel.
Both Egyptian and Greek mythologies reinforce this biblical
classification. The origins of the biblical world are in
creation, while those of the Ionian world, by their description,
are through generation, that is to say, organically. In the
first, God, by His will, creates heaven and earth and all things
therein, including man and woman with whom He covenants. For the
Greeks, the gods are begotten. Gaia, the earth, begets Ouranos,
heaven, with whom she then mates to bring forth Kronos and his
brothers and sisters, after which there are a series of matings
and struggles which create the gods as the Greeks knew them and
the world as we know it. The result is a world developed
organically but around competition, which competition is resolved
by agreements among elites, as distinct from the world of God's
creation in which God and man are linked by covenant. According
to the myths of the Hamites, individual gods came down to earth
and assumed human form, each to rule his people through a power
pyramid as in pharaonic Egypt.
The myths of the Japhetites, or at least those of them in Ionia,
gave birth to philosophy, just as the Semites gave birth to the
Bible. Both philosophers and prophets are concerned with the
pursuit of justice and righteousness. Hence they require a just
political order for their teachings to be fulfilled. Each sought
that political order within the context of the fundamental
orientation of their civilization. For the prophets, that
orientation was covenantal.
A covenantal politics, then, is directed simultaneously toward
linking people and communities as partners in common tasks and
allowing them space in which to be free. The very idea of a
covenant between God and humankind contains this implication in
its most radical form. The omnipotent Deity, by freely
covenanting with man, limits His own powers to allow humans space
in which to be free, only requiring of them that they live in
accordance with the Law established as normative by the Covenant.
This view is reflected in the midrashic literature. In Genesis
Rabbah 38:13 it is specified that Abraham chose God by the way he
lived before God spoke to him, while the Sifrei makes the same
point with regard to the mutual relationship between God and
Jacob. In a sense, this is part of the polemic between Judaism
and Pauline Christianity which emphasizes the unilateral
character of God's action as a form of grace.22
The Puritans' recognition of this aspect of the covenantal
relationship between God and man in sixteenth and seventeenth
century Britain and America became the basis of their federal
theology. John Winthrop, the great Puritan Governor of
Massachusetts, referred to this relationship as "federal
liberty," or the freedom to freely obey the Law.23 A century
later, when the federal idea was secularized by the descendents
of the Puritans, "federal liberty" was redefined in terms of what
actions were or were not constitutional.
The ambiguous origins of the Hebrew word brit tell us much about
this fettered freedom or liberating bondage. Of the two Accadian
words which scholars suggest are related to it, biritum means
"space between" while beriti means "fetter" or "binding
agreement." This notion of dividing and then binding together is
present in the Hebrew phrase lichrot brit (literally: to cut a
covenant) and on the ceremony which went with that term, which in
earliest form involved the halving of an animal and passing
between its two parts to symbolically reunite them. It
survives in the Jewish ceremony of brit millah (the covenant of
circumcision).
Theologians tend to describe foundations of theistic belief
systems as a kind of revelation. Actually, a more accurate term
would be divine communication. According to the Bible, God did
not so much reveal Himself to His people, that is to say, move
from being hidden to being visible, as to enter into direct
communication with them. When God speaks to humans, He does so
more in the way of a normal communication than a revelation. It
is rather matter of fact, as if dialog between God and man is
expected. This is a covenantal posture and outlook. Covenant is
not a matter of revelation which essentially is a unilateral act
among radical unequals. The conditions of covenant require
communication with both sides participating, in which the radical
inequality is overcome at least for purposes of the
communication.
It can be said that the ties of covenant are the concretization
of the relationship of dialogue which, when addressed to God,
makes humans holy and, when addressed to one's fellows, makes men
human. As the Bible itself makes clear, the covenantal bonds
transform a mystical union into a real one, making life possible
in an all-too-real world and, at the same time, creating the
possibilities for a whole new realm of what Max Kadushin has
called"normal mysticism," or the fusion of the highest goals of
the mystics' quest with the demands of everyday living. The
progress of civilization can be traced as corresponding to the
periods in human history when the historical vanguard has
recognized the vanguard idea and sought to concretely apply it to
the building of human, social and political relationships.
In sum, a covenant-based politics looks toward political
arrangements established or, more appropriately, compounded,
through the linking of separate entities in such a way that each
preserves its respective integrity while creating a common
association to serve those purposes, broad or limited, for which
it was called into being. These purposes range from keeping the
peace through a permanent but very limited alliance of
independent entities to the forging of a new polity through the
union of previously separate entities to create a new whole. A
covenant-based politics is not simply a symbolic matter; it has
to do with very concrete demands for power-sharing and the
development of institutionalized forms and processes for doing
so. Whether in its theological form or secularized as the
compact theory of the origin of civil society, the covenant
principle has manifested itself in different ways, in different
times and places, regularly reemerging as one of the fundaments
of politics.
Notes
1. See for example, G.H. Dodge, The Political Theory of the
Huguenots of the Dispersion (New York: 1947); E.J. Shirley,
Richard Hooker and Contemporary Political Ideas (London: 1949);
R.H. Murray, The Political Consequences of the Reformation (New
York: 1960); Christopher Hill, Intellectual Origins of the
English Resolution (Oxford: 1965) and books listed in Appendix .
2. Cf. Robert Michel, Political Parties; A Sociological Study of
the Oligarchial Tendencies of a Modern Democracy (New York: Free
Press, 1966).
3. H.R. Niebuhr, "The Idea of Covenant and American Democracy" in
Church History/23 (1954), pp. 126-135. Donald Lutz has collected
most of the relevant documents in Documents of Political
Foundation Written by Colonial Americans (Philadelphia: Center
for the Study of Federalism, 1980).
4. See "Make the Symbol Appeal Everywhere" in The Boston Globe,
December 17, 1979, p. 14. The Covenant Letter issued
periodically by the Center for the Study of Federalism Workshop
in Covenant and Politics regularly documents contemporary uses of
covenant.
5. T.R.H. Davenport, South Africa, A Modern History
(Johannesburg: Macmillan South Africa, 1977); W.A. de Klerk, The
Puritans in Africa (London: Rex Collins Ltd., 1975); Leo
Marquard, The Story of South Africa (London: Faber and Faber
Ltd., 1966); and Marquard, A Federation of Southern Africa
(London: Oxford University Press, 1971).
6. Quotations are from George E. Mendenhall, "Covenant",
Encyclopedia Britannica.
7. Thomas Hobbes, Leviathan, Chapters XIV and XV. See also
Vincent Ostrom's discussion of Hobbes' articles of peace in his
Leviathan and Democracy (forthcoming).
8. Daniel J. Elazar, "Covenant as the Basis of the Jewish
Political Tradition", in The Jewish Journal of Sociology, Volume
XX, No. 1 (June 1978), pp. 5-37.
9. See, for example, Delbert R. Hillers, Covenant, The History of
a Biblical Idea (Baltimore, Johns Hopkins Press, 1969).
10. Ibid.
11. Ibid.
12. Gordon Freeman, "Rabbinic Conceptions of Covenant" in Daniel
J. Elazar, ed., Kinship and Consent: The Jewish Political
Tradition and its Contemporary Uses (Ramat Gan: Turtledove
Publishing, 1981).
13. Menahem Elon, "Power and Authority in the Medieval Jewish
Community" and Gerald Blidstein, "Individual and Community in the
Middle Ages" in ibid.
14. B. Bradfield, The Making of Switzerland (Zurich: Schwietzer
Spiegel Verlag, 1964); Daniel J. Elazar and John Kincaid, eds.,
Federal Theology and Politics (forthcoming). Denis de Rougement,
La Suisse (Lausanne: La Livre du Mois, 1965); William Martin,
Histoire de la Suisse (Lausanne: Librairie Payot, 1943); and
Walther ab Hohlenstien, Urschwiezer Bundesbrief (St. Gallen:
Ausheferung Durch Das Staatsarchiv, 1956).
15. Thomas Hueglin, "Covenant and Federalism in the Politics of
Althusius" in Daniel J. Elazar and John Kincaid, Federal Theology
and Politics (forthcoming).
16. See Vincent Ostrom, "Hobbes, Covenant and Constitution" in
Publius, vol. 10, no. 4 (Fall, 1980).
17. Leo Strauss, Natural Right and History (Chicago: University
of Chicago Press, 1953), Chap. V.
18. Harry Austryn Wolfson, Philo (Cambridge, Mass.: Harvard
University Press, 1947), Vol. II, Chap. XIV.
19. Edmund S. Morgan, Puritan Political Ideas, 1558-1794 (New
York: Bobbs-Merrill, 1965), and de Klerk, op. cit. See Donald
Lutz, "From Covenant to Constitution in American Political
Thought," and Rozann Rothman, "The Impact of Covenant and
Contract Theories in Conceptions of the U.S. Constitution" in
Publius, vol. 10, no. 4 (Fall 1980).
20. Rothman, op. cit., and Daniel J. Elazar, The Declaration of
Independence as a Covenant, a working paper of the Workshop in
Covenant and Politics, Center for the Study of Federalism.
21. Daniel J. Elazar, "The Constitution, The Union, and the
Liberties of the People," in Publius, vol. 8, no. 3 (Summer
1978), pp. 141-175.
22. See Eugene Milhaly, "A Rabbinic Defense of the Election of
Israel," Hebrew Union College Annual 35, 1964, p. 108f.
23. John Winthrop, A Model of Christian Charity (1628).
