Many Cities, One Nation: A Response to Steven Smith's Pagans and Christians in the City

(Excerpt) In his treatment of contemporary legal issues and, more deeply, his analysis of the manner in which changing religious assumptions and goals shape the culture from which law naturally grows, Smith has provided both a strong critique of contemporary “secular” pieties and an explanation for the culture wars so often derided or minimized by those most determined to deconstruct traditional culture. Still, I would argue that Smith’s wide-ranging, radical rethinking of contemporary social disorder does not go far enough. As Smith’s discussion of contemporary judicial treatment of social structure makes clear, today’s legal elites are at heart totalitarian in their concern to reshape all of society and all of human nature and belief. Theirs is a concern with the very nature of our character as humans.

As such they are operating, often overtly, as lawgivers; they seek to re-found the social order in accordance with their own conception of the good and their own regulatory means and ends. Lawgiving at heart is not a legal but a political act in that it seeks to make a people through law, rather than make particular laws to suit a given people. In practical terms, it requires the concentration of power in the hands of some one or few persons claiming the right and wisdom to determine the proper character of the people and how to achieve it.