So a couple key points noted in the preceding post, was that judging the laws by their outward appearances alone led to confusing the Rule of Law, with its Doppelganger, the Rule of Rules, as well as the importance of having laws that are universal in nature, laws that apply to all, rather than to only a favored, or frowned upon, few. That lack of universality, the adding of exceptions and loopholes to the laws, is partly what Ben Franklin had in mind when he declared himself to be a "mortal enemy to arbitrary government and unlimited power". Arbitrary, here, means:
"adjective - based on random choice or personal whim, rather than any reason or system."When government acts arbitrarily, it takes on the assumption of power unrestrained by proper limits, which is the raw status of savagery at the societal baseline, where a ruler (one man or many) exerts power over others by their word alone, and may change form one moment to the next with the desires of that ruler. The chief distinction between whether that power flows directly from the mouth of a single leader, or through a process of extended discussion through councils and representatives to be written down for public display, is the placement of some deliberation and delay upon their execution, but neither puts real limitations upon the scope and reach of that power. Finding what can properly supply those limits, has been the holy grail of Western government since the establishment of the first democracy in Athens.
What can properly limit the powers over those who are living under them?
There are many who do believe that it is enough to have one law that limits the extent of another. Proponents of this, which include most of the law school faculty of the last one hundred plus years, might say (and many do),
"Having an interconnected set of agreed upon laws, publicly available, 'transparent', and written down is sufficient to qualify as Law, eliminates the 'arbitrary' and establishes a Rule of Law."I disagree.
And so did those revolutionaries who, unimpressed with the fancy red coats and gold braid which that primitive ideal had been dressed up in by the British crown, banished it from our shores, in order to establish a revitalized body of laws in their place on these shores.
But was that all they did? Were the 13 new state's laws, and the later Federal Constitution, limited by nothing more than their own laws? Before asking what those limits might be and where they might come from, lets look a bit closer at what is, or isn't accomplished, when a law is agreed to and written down - and does that act alone make it proper 'Law'?
What is it that writing a law down accomplishes, does it somehow add depth and respectability to them? Certainly not in the act of
writing them down alone, for unless something else is added to the process, they are simply words on paper, used to direct power and justify still other laws, which is but another way of saying 'a government of men, and not one of Laws' - isn't it?
Now don't get me wrong, having written laws is progress over having no laws, or over having only unwritten laws; but while it does slow the immediacy of a leaders whim, it only does so temporarily. And yes, having them written down and published does satisfy another necessity for having a Rule of Law, it enables people to become aware of their laws, it makes it clear what is and is not expected of them, it makes it possible for them to plan their actions and lives - that is a great advance... though limited by the length of time which those laws can be expected to be left unchanged by their lawmakers. But as noted just now, in a greater sense, the writing down of laws alone won't eliminate the arbitrary, at best it can only slow down the rate of their lawmaker's capriciousness.
But enacting arbitrary laws, at an arbitrarily slower pace, is still a matter of laboring under arbitrary rule.
Saying that one law must agree with another law, while leaving it to those in power to rewrite the laws so that they can be made to intersect and authorize each other, simply slows the rulers whims down, a bit, while also perhaps magnifying their detrimental impact throughout all of the interconnections of those laws.
When laws are connected and limited by only more laws, they can have no further depth to them but that of appearances - that's all they get. They can be complex - they are in fact guaranteed to be complex, and numerous - but that's not the same thing. There can be no deeper meaning in them, only the means of the people's manipulation, and understanding that is critical to becoming able to see past the shallow appearances to what are but written threats of power - a Rule of Rules - and doing that deprives the Doppelganger of its covering shadows.
Those who cling to notions of using power as a means of social manipulation and control, are pursuing the oldest of past traditions behind the pretense of ruling through Laws - they seek to regress towards that societal baseline of power serving the power-full and those who have or seek their favor, at the expense of others (all), and such arbitrary actions and ideals are the signature of the Pro-Regressive. A question that the old Roman statesman and jurist, Cicero, might have suggested us to ask, would be 'Cui Bono?' 'Who benefits'? Who benefits from the legally sanctioned satisfaction of appetite? And will that hunger be satisfied? Who benefits? Will that be the end of it? When the hunger is satisfied, will that be the end of it? Does eating lunch put you off eating dinner? Who benefits?
An excellent video of Cicero showing Who Benefits between Rules and Laws
If a government is one of men, not laws, then those who benefit, are those who write the laws, or benefit from them.
When the powerful are unrestrained from acting upon their passions and their power depends upon the inflaming and satisfying of passions whether that be satisfying personal desires or flattering popular demand - over reasoning that is grounded in what is True across time, you have, and you will continue to have, tyranny and abuse.
If you want to understand how the township of Ferguson became #Ferguson, and how #Ferguson has now gone on to a College career at Mizzou, that is how it was done, and it will surely continue to metastasize - if you have doubts, see how #BlackLivesMatter in Dartmouth. Whatever you might think of these people, do not make the mistake of thinking that they think that Black Lives Matter - they do not. The sole purpose of making that exception, of removing the universal value of all lives, is to assert that no lives matter - with the exception of the powerful, or those favored by them. Each new instance of this hunger, is to be satisfied by additional legal concessions, favors and loopholes, and that hunger will not be satisfied. Ever.
These 'activists' are not daring idealists, they are not even agitating for anything new, on the contrary they are seeking the oldest forms of savagery which all of our ancestors sought to escape the horrors of long, long ago - they are, in a word Pro-Regressive.
Nothing new under the sun
These are certainly not new revelations that I'm making here, these ideas, and the peril of ignoring them, are older than our nation, we've just unlearned the habit of looking for them.
And yet the truth of them remains. Laws that are arbitrary in what they permit or punish, accomplish little more than putting unlimited power into the hands of a leader, and whether that leader is a single person, a committee or an entire congress, and whether those lawmakers are dressed in loincloths or three piece suits (or pantsuits), will afford no more protections to the lives, rights and livelihood of the people laboring under those laws, than what their leaders find convenient for them to retain. For now.
John Adams was another who voiced the common understanding of the time, in cautioning:
"Obsta principiis, nip the shoots of arbitrary power in the bud, is the only maxim which can ever preserve the liberties of any people. When the people give way, their deceivers, betrayers, and destroyers press upon them so fast, that there is no resisting afterwards. The nature of the encroachment upon the American constitution is such, as to grow every day more and more encroaching. Like a cancer, it eats faster and faster every hour. The revenue creates pensioners, and the pensioners urge for more revenue. The people grow less steady, spirited, and virtuous, the seekers more numerous and more corrupt, and every day increases the circles of their dependents and expectants, until virtue, integrity, public spirit, simplicity, and frugality, become the objects of ridicule and scorn, and vanity, luxury, foppery, selfishness, meanness, and downright venality swallow up the whole society. "Note the year he said that - 1774 - this concept isn't tied to any particular clause in our Constitution, but is the reason for all of them. This is the central aim of our Constitution, and constitutions as such are intended as a means towards subduing the beast of arbitrary power, a means of somehow formulating laws that are something more than merely the rules of men. Our Constitution succeeded at this better than Britain's because of something which Britain's constitution lacked - and being written down in one document wasn't it.
-- John Adams, Novanglus Letters, 1774
Given that the educated savagery ensconced at Mizzou is ever more typical of our situation in America today, maybe before we attempt to figure out what America added to our understanding of Law, which Britain's lacked (or had itself forgotten), maybe it'd be best to take a quick look at matters from the bottom up.
Western Grass Roots
One of the oldest maxims of Western Law, a keystone to the Rule of Law that divides it from the Rule of Rules, is this one, which comes to us out of ancient Greece by way of Aristotle, and on down from ancient Rome through the likes of Cicero, and then from Byzantium (Eastern Rome) through the Code of Justinian, and down to Elizabethan England's Edward Coke ( Thomas Jefferson's favorite jurist) and from there on down through to our own earliest Supreme Court decisions (Calder et Ux. v. Bull et Ux. 1798 ), and has even managed to survive many a bitter insult from modernity, in this:
"Nemo judex in causa sua (or nemo judex in sua causa"And what that means to us, is summed up nicely in the case of Day v. Savadge,5 2, where Chief Justice Hobart declared that
Latin for 'no one should be a judge in his own cause'
"even an Act of Parliament, made against natural equity, as to make a man Judge in his own case, is void in it self;"IOW, there are principles and concepts of Law, which limit all of the laws that men may desire to write, and even should they write them, vote on them, and successfully pass them, even with all of that, they are no law at all, they are void.
If, that is, the people who such laws are written to have power over, are aware of the importance of looking past the letter of the laws, past surface appearances to what makes them, or invalidates them, as being truly Laws.
It is difficult to imagine a credible claim to Justice and to the Rule of Law, which would ignore or violate this rule (imagine your friendly neighborhood used car salesmen being given the final say in any dispute with you over the promises he made), it is not too much to say that it is foundational to the Rule of Law - in that it insists upon and requires impartial and judicious judgment, rather than tyrannical decree. No one should be a judge in his own cause because he will tend towards (or be suspected of) permitting himself to do whatever it is he desires, and that is the path back down to the societal baseline of the savages, which is the very thing we look to laws to raise us up above.
Another concept, equally old and just as equally necessary to making laws into Law, rather than simply intricate lists of rules, and which is implied by the previous maxim, is the need to raise reason and good Judgment to a position of power over our passions. Aristotle put this thought into a clarity that almost invariably burns modern sensibilities, in his Politics, Book III 1286 (c. 384 B.C.E)) [Translated by Benjamin Jowett]:
'Therefore he who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men. The law is reason unaffected by desire. 'The Law is Reason unaffected by desire - and it matters not whether those desires are of the one, the few or the many. These maxims demand of us that our laws be written against a definition and some measure other than what we personally find to be desirable or beneficial, it insists upon a disinterested, objective, reasoned judgement of the full matter and context at hand, rather than the opinions of a single one, or those of a majority, of interested men - how?
How is that done? Obviously the desirability of a law is not enough - Democracy, as Athens (and many an imitator) demonstrated, collapses in turmoil and chaos as the desires of the majority are taken as its sole authority for exercising power. To cast out the arbitrary nature of power, laws must be justifiable, logical, objective, their lawmakers must strive for them to be free of contradictions in the pursuit of legislation and verdicts, that are true and Just.
It requires a methodical Rule of Law, rather than simply ruling through rules.
The understanding and insistence of this requires that judicial rulings and punishment - power - be conformed to justifiable methods and reasoning, rooted not simply in what some men have written, but in conformity to general Truths that are open to all to understand, which precede and transcend any particular moment, and that are held as guides for what will be written down as, and be recognizable to all as being, Laws, a view which requires that Justice be their paramount goal.
Without that... it's just one power agreeing with another, at our expense - two wolves and a sheep voting on what's for dinner.
Effectively reasoning upon particulars requires the identification and use of timeless concepts and principles, so that judgment can be passed upon particular instances without being unduly influenced by them, or by whose particulars they are that are being deliberated upon. That philosophical turn of mind is what makes it possible to think of, and reason upon, rules that would be more than particulars in focus and favoritism, Reason unaffected by desire - Laws. The old school of Law that best captures this ideal of Laws conforming to truths that can be inferred from nature, is that of Natural Law, it characterized an understanding of the Law in our Founder's era, requiring as it does, that we rise above particulars and into concepts and principles that would protect men's lives and property, rather than subdue them to the power of the powerful - that is the very basis of a Republican form of government - the rule of law , as opposed to Democracy, which, in legalizing what the majority desires, is literally the rule of men.
The two maxims mentioned above are the foundations, without which, what America added to the understanding of the Rule of Law could not have been conceived, let alone added to it, and without which America would not, could not, exist. But of course Britain's laws were largely founded upon Natural Law as well, see especially Magna Carta, and it the British were most definitely aware of, respected and practiced, those two maxims of law, and many others... and yet they didn't measure up to what was developed in America - why not?
In the rawness of America, especially in settling it, the pride, ideals and pretensions of Western Thought collided with its unvarnished reality, and in that a millenia of puffed up abstractions and pretensions of the old world, fell away from the new world, like old slag, revealing a few shiny new nuggets of liberty, which increased the wealth of the entire world.
What they were, and how they can still be discovered, even today, is what we'll start looking at in the next post.