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Quo Warranto: The "Berkeley Issue"

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 least.

     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 nonacademic world.

     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 none.

     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 Warranto?

     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.

     Traditional 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.

     By "rational 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 organization." Perhaps.

     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 purpose."

     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...."

     Enough? More explicitly:

"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 italics):

"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.

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