So, with that in mind, it's worth reminding ourselves of the basics of what it is that government is, how it derives its power, and how and why it is so important to limit its ability to use that power. As the old saying says,
'Government, like fire, is a troublesome servant and a terrible master'.
|You want to use the Power... don't you...?|
enthusiasms for 'doing good!' unto others, that we're most in need of being tempered by an understanding from history - that is what it is was that made our form of government possible, it is what made, and makes, it exceptional, and without which, neither it, nor we, can be exceptional - at least not in a good way.
So what is Government? Stripped of the finery and fanfare:
Government is the means of harnessing the collective power of a community towards... ends.What those ends are, who determines them and authorizes the pursuit of them, and most importantly, what it, and they, will not be allowed to do, depends upon how well your society delimits the powers of those holding the reigns of power. Where Government gains its power 'to do' what it will, is by enforcing claims, in whole or in part, upon the possessions, time and lives of its people, and if there are no limits to its claims or ends, then it will turn the collective power of your society, towards accomplishing whatever those in government (or those with their ear) desire to do, and with all of their very best intentions urging them on to do whatever 'it' might be.
Despite the aspirations of our Declaration of Independence, government does not need your consent - it can gain legitimacy from that, sure - but that's a later development, a 'nice to have' (in the eyes of those in positions of power within it), which is in no way necessary for it to wield its power over you.
At this point it might be useful to take note of a rather shocking point, especially shocking for those of us, like myself, who look to government as the means of establishing justice and defending our rights, and that point is this: those are not the most basic requirement that a society demands from their government! And with a very grudging nod towards Hobbes, what people do demand, first and foremost, is: Order. As Hobbes put it,
"...For before constitution of Soveraign Power (as hath already been shewn) all men had right to all things; which necessarily causeth Warre: and therefore this Proprietie, being necessary to Peace, and depending on Soveraign Power, is the Act of that Power, in order to the publique peace...."I disagree with him, that that provides either a definition or justification for government, but it is, and should be, a frightening and sobering realization that that is the tipping point of political gravity that is always tugging at our perceptions, eagerly awaiting for us to forget our balance and fall back down to its baseline. That point is extremely dangerous to ignore, or to evade the realization that the government that does not effectively provide that fundamental service, will not stand for long; as a society sufficiently shaken up, will sink to any level, in order to enforce that basic compliance upon its own people, if they think it'll mean escaping from chaos - real or perceived (and if you think that doesn't apply to modern man, it's you who are being primitive in your thinking). That ground floor of order forms what I've called the 'Societal Baseline', and is what I was pointing out in an earlier post that looked into the Yanomamö Indians in the Amazon, it is what makes the brutality of a tribal thug, preferable to having no order at all, and it is that point which all real progress, is measured through the horizontal (legislative, via Govt) and vertical (ethical, through the people) distance a society manages to put between itself and that baseline.
The first step of real progress, up and away from that baseline, comes when a society's begins forming rules for its governance, rather than following exclusively upon the wishes of its rulers, and in making them known for all to see and understand, they give a sign that they are developing what can loosely be called 'laws'. As societies' begin doing so, they begin forming political structures that move beyond the moment to moment exercise of brute force, by brutes, and take on the various forms of all of the familiar ___cracys' and ___archy's (you remember, democracy, oligarchy, etc), which takes them further up the winding path of Chieftains, Tyrants & Kings, until they finally arrive at the Prime Ministers and Presidents that typically head up what we like to think of as legitimate, Representative Governments.
If you examine the laws of a society as they progress along that path - if they manage to continue along it - there's an essential characteristic that you'll see becoming more and more pronounced, which is what makes it possible for their laws to be able to be regarded as capital 'L' "Laws" with a straight face, rather than just an assortment of rules written down by thugs, and it's a development of an idea that I went into some depth upon in previous posts (two in particular, pt 2:Why a Govt of Laws, and not of men? & pt 3:Who Benefits from transforming Rules into Laws), which, sparing you a few thousand of those post's words, can be summed up in what's best captured in two translations of one potent phrase from Aristotle's Politics,
'The law is reason unaffected by desire',and
'The Law is reason free from passion.'The more that a people's laws adhere to and exhibit that sensibility, the more legitimate they and their Laws, are likely to become - it is the means of putting the point upon the arrow of political progress; pointing their society in the right direction, onwards, upwards, and away from that societal baseline of barbaric order. And while it may seem a bit counter-intuitive, that characteristic, in the raw, is also what is being crudely expressed in that primal desire for the societal baseline of Order; seeking relief from the chaos brought on by violent passions and desires that've run rampant. Surprisingly, at least a little bit, it is in seeking that order that they also find that the seeking itself, demands an exercise of methodical reasoning in order to bring even that baseline condition about, and continuing with that, developing and reflecting upon that, refining that, that is the natural means of eventually implementing Laws that one day will tower above the mere scribblings of one or another tyrant's demands of the moment.
Following closely on Aristotle's essential ideal, are two from the Roman jurist, Cicero, with his,
"No one can be judge in his own cause; Hear the other side", and,
“True law is right reason in agreement with nature"These are also logical developments of Aristotle's advice to separate your passions and desires from your attempts to realize justice; in pursuing that it soon follows that a fair and impartial hearing should be given to both sides of an issue, it is a result of seriously taking that advice to heart, and as a result, your laws, and the application of them, become more reasonable, and those applying and enduring them also begin seeking conclusions derived from factual evidence, rather than reacting to impassioned desires.
These are not inventions of The West, they are discoveries about what is common to all of mankind, but they were first fully realized in The West. Following these dictums, and ridding the writing and administering of a society's laws of personal passions and biased desires, is, in the real sense of making progress away from the baseline, Progressive, and it will be accompanied by a visible increase in the methodical, reasonable nature, of their laws. On the other hand, shedding that quality, seeking to appeal to the passions and desires of the many, is Regressive, and deliberately seeking to do so, while justifying those actions and stirring up the passions of the people in order to satisfy the ambitions of their rulers (whether they be one, or the many), is what I refer to as being Pro-Regressive. If you want to know whether your society's laws are truly Progressive, or Pro-Regressive, look at how those who propose them, urge you to embrace them.
The direction that our laws move in can be objectively measured as progress over what came before, moving from chaos, to order, to recorded and predictable rules, to rules which make sense together and integrate with each other, developing a progressively less contradictory nature - reasonable, understandable, and flexible enough to be applied in a variety of circumstances, yet rigid enough to be familiar to, and understood by 'the common man'; that is the path of progress. As these advanced ideas, and the attitudes which accompany them become the norm, such laws as that people govern themselves through, begin to lose their erratic nature, as both the people and their laws become more ordered, more reasonable, more respectful of their fellows lives.
The Best of Times, and the Worst of Times
But as wonderful and profound as such progress is, a society has to be on their guard against their own hubris, for while they may have become convinced of the soundness of their good intentions, the nature of government has not changed - not one bit - and the raw force and power which it is, will seep through such blind spots, like groundwater through an old foundation, progressively saturating and weakening it. Government is power, it is force, it can fine, punish, stifle, intimidate, imprison and persecute, it can kill and it can destroy, it is like fire, a troublesome servant and a terrible master, and if you dare presume that you can fully domesticate such primal forces through law, that you can safely use that primal power best suited to preventing or punishing actions, to initiate and do good unto others for what you consider to be for their own good, then you fail the test of Tolkien's Ring of Power, and turn towards darkness with all of the urgency and false light of your very best of intentions.
It is at this point, that the question arises as to who it is that will, and should, write a society's laws. How are they to be chosen? The means of binding both laws and its officers, from engaging in erratic or passionate actions, is best made by means of those laws themselves being ordered by objectively higher laws (see Cicero's “True law is right reason in agreement with nature"), so that society becomes compatible with what all can see as being true and right.
But how will they be written, and how will those charged with writing and attending to them, be chosen? This is where 'The consent of the governed' begins to come into play, but how so? Is their consent to be gathered and given in any way shape, manner or form? Are there good and bad ways to gain that consent? Is it possible to curry that consent in such a way as to subvert the consent of the governed, for the benefit of those who would govern them?
There's more to the matter than simply encouraging individual choices and preferences; giving political power to the administration of our laws, if those laws are to be Laws, rather than rules in drag, they must be written and applied in a manner as free from personal passions and desires as is possible. Simply having all of the people of that society participating in that process, appealing to them to 'express their choice!', means putting people into power over the laws, by means of inciting passionate desires for wide approval and calls for collective action, which means turning against the very thing that the Laws, and the administration of them, are designed to bar from issues of Law!
And yet, the consent of the governed is vital to a 'Representative Government' - that's the puzzle at the heart of the first of our terms, 'Representative'.
What the 'Representative' portion of 'Representative Government' must never forget, is that the 2nd word in its term is representative of a fearsome and dangerous power, one that feeds upon your own confidence in your own ability to master it, and especially through your belief that you can 'do good' by imposing your own best judgment upon the choices that other people are trying to make for their own lives. The 1st word in that term must keep in mind, that it can, at best, tame the beast inherent in the 2nd word, but only as a trainer tames a tiger, and that if you turn your back upon it, thinking that your laws alone will keep it in its place (as if they somehow had the power of judgment outside of your own ability to govern yourself), then you can rest assured that your own government will use them as the means of devouring you, from the inside out.
Despite all of the fear mongering, the real threats to a 'Representative Government' rarely come in the form of thuggery and violence from external 'others!', instead they come upon a society from within themselves, through there own good intentions (and thinly disguised desires), by the means of which Frédéric Bastiat's understood all too well:
“Government is the great fiction through which everybody endeavors to live at the expense of everybody else.”As a people begin to give in to that con, then soon enough they will discover how the expectations of achieving unworthy ends, through high minded laws, is a most perilous matter. If We The People fail to require that our Representatives be, and be selected by means as free of passionate desires as the laws they are to be in charge of, then the troublesome servant will have become the master of them, once again. Unless they and their laws are bound down by recognizably external, and constitutional fixtures, their representatives will become every bit as representative of the most tyrannical of individual tyrants - and especially as they do so in the name of "We The People!".
Progress is made when the people support taking substantial steps towards turning their power towards the service of judgment, rather than passionate desires. The Representative portion of our term 'Representative Government', is the means open to us for doing that, at least in part, it is the means of seeking and using good judgment, cool, reasonable deliberation and disinterested action, in service to those interests. But before getting into the best means found for electing the Executive of such a system of laws - the Electoral College - we need to dig a bit more into what we mean by the 'Representative' portion, of Representative Government - next post.