Corporeality VII: Divisible and Indivisible Political and Military Leadership

by

Howard Adelman

I begin with a summary of the political theory implicit in the Exodus story that I have related before, but this time from a slightly different angle. Joshua was the commander of the armed forces, the military commander. But he was not the Commander-in-Chief. Neither was Moses. The Commander-in-Chief was Aaron, the High Priest, who was responsible for upholding the fundamental laws of the nation and, therefore, ensuring that the use of force was in conformity with those laws. Ancient Israel, even before it became a state, was not a democracy; the responsibilities of legislating had not yet been assigned to a separate body. Israel as a nation of princes was an aspiration and not then a reality. A fourth function, interpreting and applying the laws, was assigned to a judiciary following the advice to Moses by the Midianite, Jethro.

The division of responsibilities can be represented as follows:

                                                Moses – political leader                                                                                                                          !       – responsible for receiving the law

Aaron —————————————————————Joshua

 responsible for upholding the constitution                                                                 military commander

commander-in-chief

!

Judiciary – responsible for applying and interpreting the law

However, when it came to the use of force outside the boundaries of the constitution, when it came to fighting an unjust war targeting civilians – whether this meant slaying the children of enemies or using force to ethnically cleanse the land of one’s determined foes – this was the responsibility of God. Joshua was only responsible for leading the Israelites into battle within the confines of just war principles.

But a major competing theory emerged rooted in the Latin classics. One of the great adventures of being an undergraduate at university is the opportunity to read the classics and, most of all, reading a book just published that would become a classic itself. In 1957, Ernst H. Kantorowicz published The King’s Two Bodies which he had written as a fellow of the Princeton Institute of Advanced Studies. In my recollection, I did not read the volume until 1960 or 1961. What an exciting read and a great moment of revelation! The following is a very compressed version omitting any semblance of relaying the diachronic development of the idea.

Mediaeval political thought differed from Hebraic classical political thought by putting forth the doctrine of consolidated military power and political and moral authority. It did so, not by a division of powers, but a consolidation of powers in one being who had an eternal non-corporeal power and a corporeal exercise of that power. In this mediaeval political theology, the king has a natural body that weeps and laughs, feels pain and demonstrates courage, and eventually suffers and dies. He also has a spiritual body inherited from the doctrine of the dual manifestation of Christ developed in the thirteenth century in which there was both an individual body (corpus personale) and the collective body (corpus mysticum) of Christ identified as Christ’s mystical half embodied in the church. “The new term corpus mysticum placed the Church as a body politic, or as a political and legal organism, on a level with the secular bodies politic which were then beginning to assert themselves as self-sufficient entities.”

The king, as a derivative of this conception, was also said to have a spiritual body which served as the symbol of the royal office and the right to rule versus the actual implementation of that rule which could be flawed. The king’s mystical body along with the divine right to rule endowed the king with a unique character: the king could do no wrong. Further, his successor was ordained to take over when he died. “The king is dead. Long live the king.”

The king was, at one and the same time, a corporeal mortal being and an embodiment of the spirit of the nation. In the latter sense, the king is sovereign and the expression of the body politic. In the above terms, the king was Moses and Aaron, Joshua and the judiciary rolled into a single person who had two complementary sides, a physical, imperfect and mortal self (a natural body), and a spiritual body that expressed the spirit of a nation. The latter was the body politic that could be neither seen nor heard, but through the office of the king could express its will and give direction to the polity, devise policy, manage the public weal and lead the polity into battle. The Church subsequently included the clerical bureaucracy itself as the “mystical body of Christ” and, in return, the Western polity became known as the Holy Roman Empire. The latter was the consecrated host; the former became “the corpractpus mysticum the head of which was Christ and whose limbs were the archbishops, bishops, etc.” Eventually as the notion of the nation re-emerged from its Hebraic roots with the Protestant Reformation, the populace, the people, the nation inherited the weakened remains of the corpus mysticum previously literally embodied in just the general body politic, the res publica. Citizens were now willing to die for the nation.

I do not have either the time or space to depict how the notion of indulgences developed in parallel as different expressions of that sense of sacrifice from the eighth to the fifteenth century, for I simply want to concentrate on two radically different notions of governance. Suffice to say that by the fifteenth century, the widespread business of printing indulgences had evolved from the twelfth century Indulgence of the Cross and was known by 1454 as the Gutenberg Indulgence (GI). After all, Gutenberg was not only an inventor of the printing press, but a very clever entrepreneur who knew how to make his own fortune off the lucrative “tax” practices of the Church. (He was not the first entrepreneur to make millions from the largesse of community coffers – Donald Trump’s father.) The GI was a piece of boilerplate that testified that the confessor was in a state of grace and would escape purgatory. Hence, the emergence of the Renaissance and the Enlightenment as the GI evolved in a new form, the publication of broadsheets. As greater and greater numbers of ordinary citizens could read, they became totally revolted at the corruption at the heart of the Roman Catholic Church at the time.

The United States of America emerged as a body politic on the cusp of the transition from the indivisible corporatist notion to the divisible notion of the body and, on the surface, represented the rejection of the indivisibility doctrine. Hence the conception of the division of powers! On the other hand, the United States emerged as a democratic monarchy, as a political state which elected its king who, in his persona represented the indivisibility of both the body politic and the leader who must represent the spirit of the people and defend that spirit from enemies both within and outside the body politic who would undermine and divide the nation.

What happens if the indivisible head of state charged with maintaining and enhancing the indivisibility of the body politic believes that his protection function is so important that it usurps any doctrine of civilian control? Think of General MacArthur versus President Harry Truman where the Commander challenges the Commander-in-Chief in the name of protecting the nation and its interests from its most formidable enemies. Military mutiny is one thing. Military dictatorship is another. For what if the Commander-in-Chief himself believes that it is his primary responsibility to protect the body politic from enemies within and without and requires the CIC to stretch his/her powers.  By locating the role of Commander-in-Chief and political leader in the one person, the U.S. was open to the development of a military dictatorship.

The founders were well aware of this danger and tried to imitate the monarchy of Britain as developed to that time by offsetting the role of the monarch as both the embodiment of the nation’s will, with the responsibilities of Commander-in-Chief, with offsetting powers assigned to the legislature, in the American case, Congress. Hence, the division of powers! The history of the United States of America could be written as a tale of these two conceptions, the indivisible powers of the leader offset by conception of divisible powers among different institutions. This is particularly true when the issue is not the obvious one of military dictatorship, of the Commander-in-Chief seizing all powers into his own office, but when the Commander-in-Chief is prone to adventurism, prone to offsetting his/her political restrictions in one area to another in which the controls on his initiatives are most ambiguous and most difficult to assess whether they are necessary for the defence of the state.

The constitutional vesting of the commander in chief power aims to establish a politico-military culture in which military coups become unthinkable, as they have been for the United States. But once the offices of civilian head of government and military commander in chief are fused (what I have called “fused dominion”), a complementary danger to military coups arises, namely that the leader will himself use the military to seize or abuse power or, just as importantly, launch military adventures. As I hope to show, the constitutional framers were acutely aware of these dangers, and in response they created a strongly separationist constitutional conception of the commander in chief. Justice Jackson got it right when he wrote in his famous Youngstown concurrence, ‘The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office.’ In brief, the basic theory behind civilian control of the military is to use a civilian commander in chief to check the military, and then set up civilian powers to check the commander in chief. Constraining military and constraining the civilian commander are two distinct problems, strophe and antistrophe, and together their solutions generate the political theory of the commander in chief authority. David Laban (2008) “On the Commander in Chief Power,” Southern California Law Review 81, 477-571.  scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1597&context=facpub

Tomorrow: Indivisibility and Divisibility within the U.S. Presidency