Quo Warranto: The
John R. Seeley
The events of the
last few months at Berkeley -- which are reaching toward a new crisis even as I write --
have one curious character: they evoke a "response" in nearly everyone; and in
everyone who makes any response, that response is likely to be passionate to say the
In the midst of
dramatic confrontations -- in outer space, in Selma, in Vietnam -- "Berkeley" as
a conversational topic or a subject of vivid reporting and heated debate, holds its own,
when it does not dominate. And not just on the West Coast, but equally in Washington,
Boston or New York; and not merely among the young or the academic; and not only at home
but abroad. It is not just that a specter is stalking academia, but that a tremor, which
may well portend an earthquake, is rightly felt to have passed over the academic and
The sense of
seismic shock was evident even before some of the more dramatic manifestations came clear:
one chancellor already dismissed his office; another chancellor and his president
flip-flopping into resignation and out; the mighty governor of the mighty State of
California summoning his patrol from the highway and his sheriff from the hunt to support
by naked force the tottering moral authority of a great university's
"administration." And now once again -- as with Charles James Fox's insistence
on calling magistrate or king "thou" -- the desperate question of right time,
place and use of a four-letter word confounds the populace and shakes the realm. No more
in the one case than the other can the argument, taken at face value, be judged capable of
shaking the souls of men and the props of kingdoms. It must then be what the argument
"represents" -- or foreshadows -- that causes the fascinated attention of an
ever-widening public, the escalation, the "mounting action" of the students, the
increasing output of low statements from high places, and, in general, the spectacle of a
government in desperate moral and political straits, striking out in every direction and m
many cases inadvertently striking itself.
Of course, as part
of the dispute itself, there has been no want of "interpretation" as to what the
argument "really represents." It really represents, allegedly, spoiled children
crying for more because they already have too much. Or, it represents the justifiable
complaint of perspicacious students who, neglected by an overspecializing and
over-ambitious faculty, simply mistook the enemy and made the administration the scapegoat
for real wrongs -- committed by others. Or, it represents a mere protest against the
general and inevitable "alienation" that, of course, infects the university as
it infects all other institutions. Or, it is essentially a communist (or anarchisti
conspiracy, or the students are the dupes and servants of such aims. Or it is a kind of
accidental spill-over from the more legitimate confrontations of feeble right with
forceful wrong in Mississippi, Alabama, and the like. Or it is a motiveless -- or
rationally motiveless -- plot to destroy the great university, to "bring it to a
grinding halt" for the sheer joy of doing so.
The lines of
explanation are almost as various as the analysts at work. They have, for the most part,
however, one thing in common. They exculpate the administration, and they trivialize,
patronize or otherwise detract from the dignity of the students; and they do so mostly by
claiming that "the cause" is other than it seems. And by "other than it
seems," they mean not deeper or more general, but different, different in
such a sense that the alleged grievance is a mask for motives of less respectability or
Such unmasking is
a dangerous game: for the participants, because it can be played two ways; for the
onlookers, because their moral sense and their power to judge and act is weakened by a
general belief that "everything is only a cover for something else," or by the
mistaken supposition that this is true in a particular case where it is untrue -- or true
but immaterial. Every court in the land knows that, in general, it had better try the
issues as presented, and only at utmost need "look behind them" -- to the greed
of attorneys, or the cleanness of the hands of the adversaries, let alone to motives which
are always mixed, and none the worst for that. It is a sound rule.
Let us, therefore,
at least begin by taking the matter at its plain and manifest face-value. It is clear that
the students are indicting the administration (and the government) of their university:
not, or not primarily, their fellow-students, professors, the surrounding society, or the
city of Berkeley or State of California, or the police or the courts of either.
It should be plain
that the primary target is the government of the university in the generic sense of that
term and not with special reference to momentary incumbents of office, i.e., the attack is
on monarchy, not the monarch (except incidentally), on despotism, not any particular
despot. Despite the wry current comment "to Kerr is human; to be Strong,
divine," hardly anyone -- at least until very recently -- wanted Kerr to go and few,
if any, wanted any particular other person to go. Nor has there been any great talk of
replacing one or more "bad" regent with one or more better one: it is the
regency that is at stake, not this or that regent.
The structure of
the sequence of events taken as a whole is classic. It begins with the minor act of a
minor official: the tired Negro lady in Montgomery is asked or told to go to the back of
the bus; a minor University official, seemingly, attempts to restrict in a minor way the
minor use of a minor bit of University property. There is non-compliance with the order
issued -- with no lively or clear sense at that moment of the underlying or over-arching
moral issues. There is action against the lawbreakers and explanation for the action. But
the action, far from intimidating, provokes, and the accompanying explanation heightens
the antagonism to the issuing authority because it generalizes and reveals the moral
foundations for an act that might otherwise have been written off as error or
inadvertence. Action and explanation call forth a wider protest, and in turn meet with a
"response." The response is now under review, and if it represents duress or
deception (or an attempted mixture of both) it is taken as a revelation, an exposure of
the real character and animating motives and thought system of the authority in question.
And so to some sort of moral climax. From a set of sore feet in Montgomery to the
president of this nation reluctantly sendingin his troops to fill the void left by the
withering of the august authority of the sovereign State of Alabama. From an ostensible
spat over the location of the activity of "advocacy," to the questioning and
perhaps the determination by trial of whether a university so constituted and so governed
can long survive. The words "a university" are well advised; for, given the
spread of effect due to the mass media and given the conditions at numberless
universities, the question is no longer "this University" (Berkeley) but any
university, at least in North America. Hence -- as with the American Revolution and its
prodromal struggles -- the bated breath and trembling limb in every capital and cabal. The
fear is that like the sound of the shot at Lexington, so the sound of heads, being bumped
down the stone stairs of Sproul Hall, may be heard around the world.
For this is what
we are come to: the questioning of the legitimacy of a long-standing form of authority.
Again, first in a particular, (though by then very broad) matter; and then in utter
generality. When Berkeley students denied the authority of the regents and their
administration to intervene in any way between them and the Constitutional protections of
the First and Fourteenth Amendments, they were in that sphere sweeping away the
existence of a university authority altogether. When the students in the heat of that
battle began to question the provenance of the regents and the source of their authority
to govern a university at all, they had raised the question of legitimacy.
And this is what
is happening, or appears to be happening, at every university where there is
"trouble." Whether the "arbitrary act of arbitrary authority" first
complained of has to do with panty- raids or marijuana, deans who sow sexual suspicion,
the double standard of dormitory hours for men and women, dress-regulations or food, the
place of the student council or this or that regulation -- in every confrontation students
are asking: Who says? And by what right? They ask the historic question that free
men have timelessly asked of authority grown arbitrary, big and careless: Quo
And the answers
they receive are somewhat wondrous. Because they, the governors or regents or board
members, have, or give or get the money. "Because the law empowers them to."
"Because attendance here is a privilege, not a right." "Because, like it or
not, this is part of the power structure and they have the power." "It isn't
right, but there it is." "Because this is a private institution and you are
lucky to be here." "Because someone must govern!" "Because
this is a public institution and they 'represent' the public interest."
These, and like
answers culled from my correspondence and experience, go to the heart of every question,
except the question of legitimacy. And it is now only, or almost only, about legitimacy
that the students are asking. Not, what is so?; they already know or can soon find out.
Not, what makes it work?; they are already acquainted with power and its workings. But what
justifies it? What commands or ought to command my loyalty and obedience? And to this
there seems no instant answer. And in the awful silence, souls shake, and otherwise good
men look to their weapons, whether verbal as in Kerr's responses or violent as in Brown's.
Is the question
that the students ask improper? Or improper as coming from them? Or is it insufficiently
precise to be capable of answer? Or is it proper but unimportant?
We might turn to
sacred or to secular authority for an answer -- or we might content ourselves with the
empirical observation that no government that lacks a legitimation does in actuality long
endure. Indeed, it would not be misleading to say that a government shorn of legitimacy in
the eyes of the governed is already in process of dissolution: as with a fatal illness,
the question is merely how long?
In the realm of
the secular, there is perhaps no greater authority on authority and its legitimation than
Max Weber. He too regards it as a continuing and universal necessity of all government. He
sees, in effect, three and only three sources of sanctification given among men:
legitimation rests always on traditional grounds or rational grounds or on
"charismatic" ones, or some mixture of these.
grounds invoke the hallowing effect of time, of the sacredness men are willing to impute
to "what was ever thus," or "so from time immemorial." Little in
America normally claims this ground, and it is particularly difficult for the modern
"multiversity," bristling with its modernity, to appeal to it.
"Charismatic" grounds depend on the quality of one extraordinary figure whose
very character -- his exemplification or incarnation of the numinous or heroic --
"calls" others to him in what is really a common obedience to that high and holy
principle that he only "represents." Few American university presidents so
appear; and where and if they do, there would be free consent -- and hence no question of
enforcing authority. So we are left with "rational grounds" as a possible source
for the indispensable mantle of authority.
grounds" cannot, of course, be meant calculations of self-interest or mere fear of
consequences. (It is precisely out of and because of these that the occasion of dispute
has arisen.) What is meant is an established belief in the "legality" of the
pattern of rules and "the right of those elevated to authority under such rules to
issue commands." "Legality" here means morally valid law; not just
any law as it happens to be. And valid means rationally and truly defensible in terms of
still more deeply held beliefs.
We are driven back
a further stage. Since university presidents are generally appointed, in fact if not in
form, by governors or regents, such moral power as they have (except negligibly by
charisma) must be derivative from their boards. And how are these board members (or
equivalenti "elevated to authority under such rules" as would authenticate or
morally validate their "commands?" By public election, so that the will of all
is involved? Not that. By a show of certified competence, endorsed by a government and
watch-dogged by an organized profession, as judges in Britain? Not that either. By
competitive examination, like civil servants? No. By the consent of the governed scholars
generally, or faculty-and-students locally? Not exactly. By exhibited moral leadership,
either before or after appointment, so that the gubernatorial pudding is justified in the
eating? Neither their provenance nor their performance suggest so. Then what? Perhaps the
capacity to define, interpret and convey in a superior fashion the "purpose of the
If so, it is most
crucial, for as Chester Barnard (sometime president of New Jersey Bell Telephone) points
out, this is at issue not only in general but with the issue, even in a privately held
corporation, of any and every command. Having established that "in principle and in
fact the determination of authority lies with the subordinate individual," and that
the necessity of such assent "to establish authority for him is
inescapable," he lays down four simultaneous conditions, failing any one of which a
"communication" will lack authority: understandability; compatibility with
(recipient's view of) the purpose of the organization; compatibility with "his
interest as a whole"; ability to comply. It is the second and third, the
compatibility conditions -- with the organization's purpose and the recipient's
"interest as a whole" -- that are in all the University disputes at issue. The
conflict of interest may motivate the dispute; but it is to the quarrel about the
organization's purpose that we must look for justification. The very existence of the
disputes, and their acrimony, denies that boards may claim legitimacy because of unusual
success in securing and maintaining agreed definitions of "the organization's
Perhaps we should
turn back to "moral leadership" as a possible remaining ground. And perhaps we
might examine authoritative ecclesiastical pronouncement to see how this secular question
might appear in a sacred light.
As Pope John XXIII
says in Pacem in Terris:
"The order which prevails in society is by
nature moral.... Human reason is the norm of the human will, according to which its
goodness is measured [quoting Aquinas].... Human society can be neither well-ordered
nor prosperous unless it has some people invested with legitimate authority to preserve
its institutions . . . authority . . . is the power to command according to right reason,
authority must derive its obligatory force from the moral order...."
"Where the civil authority uses as its
only, or its chief, means either threats and fear of punishment or promises of rewards, it
cannot effectively move men.... Even if it did, this would be altogether opposed to their
dignity.... Since authority is chicfly concerned with moral force, it follows that civil
authority must appeal primarily to the conscience...."
And finally (my
"Since the right to command is required by
the moral order . . . it follows that if civil authorities legislate for, or
allow, anything that is contrary to that order . . . neither the laws made nor the
authorizations granted can be binding on the consciences of the citizens...."
Is the university
government perhaps not a "civil authority?" Are students perhaps not
"men" -- in the plain sense required by the context? Indeed, if proof were
required, are they not showing themselves to be men in the very question they ask, their
manner of asking it, their willingness to suffer prison, weariness, cold and contumely to
get an answer? Does the moral order demand the drawing of some arbitrary age-line at
twenty-one? Is moral weight outweighed by biological age? Are three years or less morally
disabling -- as female sex used to be?
If not, we have a
challenge to the legitimacy of an order and an authority, and perhaps neither the ground
of the challenge nor the source should unduly surprise us.
The idea of a
"government of laws not of men" is deep in the American grain. And it has never
meant what Sheriff Jim Clark or Bull Connor in the South or those at and around Berkeley
who call the students lawbreakers would like it to mean: a system where "under color
of law," substantial rights like voting can be defeated in the name of minor ones
like orderly traffic flow. It has meant by common consent and open recognition a principle
of appeal from lower law to higher, in the course of which, on desperate occasions, minor
law has sometimes been violated with impunity.
As to the source
of this new questioning, it is perhaps only because we have been given so much nonsense
about students over the last few years that we are at all surprised. There has not in fact
been a time in living memory, as far as I have known students and their teachers, when the
students were not directing their inquiries with passion upon just such problems: the
rights of governors to govern or to govern as they did. The left-right political agitation
of my day was undergirded by a passionate concern for peace-freedom-and-justice. The
so-called period of apathy of the forties was an interlude in which the passion for right
met a welter of conflicting issues none of which readily picked itself out as a possible
channel for effective action. As for the brief spell of "playing it cool," even
this represented the protest of an exquisite moral sensitivity in a world where morality
seemed to have no place or, at least, no relation to the relentless march of events. There
is a straight line from Holden Caulfield through all these seeming twists and turns to the
latest questioning of the phoney and the unfounded.
And the movement
is not limited to university students: in one after another of our high schools,
particularly the supposedly "spoiled" suburban ones, the same questions are
being asked. And no less among those who are not students -- returned Peace Corps
volunteers and the like.
I think the
questions are to be welcomed, though the university as we have known it may not survive.
I say "as we
have known it." How? As a despotism. As a "creature of the state." As a
place where neither faculty nor students -- who alone constitute the organization into a
university -- have control over its most general policy. As a place where administrative
practices that would no longer be countenanced in business are enshrined and elaborated.
As a place where PR in the worse sense is practiced to the limit: where, under the canopy
of the highest high-flown statements, commencement oratory and effusion of lofty
sentiments, clothed in the semi-sacerdotal, semi-medieval cloak of monastic tradition,
gowns, "degrees," scepters of office, hierarchies of honorable titles freedom is
fettered and honor suborned. It is not just the badness of these practices, but their
badness in the context of the virtues celebrated and claimed, that gives the protest, like
Luther's, its burning quality, its fire and force.
And it is
precisely this threat -- the threat of deep, far-reaching and long-needed change -- that
makes the current "administrators" pursue so immorally and justify so feebly
their "morality of fear" -- the morality that justifies their present
deviousness in terms of "preserving a valuable institution" -- which they are by
their deviousness destroying while it stands.
The students may
save it yet. But only if they can find other and older responsible academics, equally
bold, equally honest, equally dedicated to education -- and prepared to educate each other
by remaking the law together.
Published originally in Ramparts, 1965.
Reprinted by permission of the author. Copyright 1998 by John R. Seeley.