Government Under the Law

October 27, 2008

Government Under the Law

Most Americans, and other Westerners, claim to value a government under the law. But to what law do they refer? This law could be a law the government sets for itself, but then the statement would be meaningless: even a despotism is likely to have some standard procedures, yet no one would consider such a government to be under the law. Indeed, such a system does not strictly fit the statement, for the government would be simultaneously over and under the law, rather than purely under it. Thus, the government cannot be the source of this law.

Perhaps, then, this law is a law set by the people, yet unique to the government. But following this standard, any representative government (directly or indirectly) would be under the law, for the people in those circumstances establish a law for the government, but that law may yet be highly mutable. The Athenian admirals were executed in consonance with the laws established by the Athenians, yet few would consider the Athenian ochlarchy to be government under the law. Really, this is naught but a special case of the first instance, where the government sets the law; for in a representative, the people are the government, and thus no law alterable (or even once established and then immutable) by the people can base a government under the law.

Thus the law under which a government under the law operates comes not from the government, nor from the people. Whence else can it come? If from some external, active source, merely considering that source of law to be the government restores the objection. Thus, the law must be eternally immutable, existing outside any human agency: the natural law. A government under the law means a government under the standards of human rights established in the essential order of the universe.

Government under the law and rule by law compared

This definition of government under the law dissatisfies some, for it describes a government where the laws accord with natural law, but in which men may still rule. Should we not seek a form of government in which laws and not men rule? No, for it is impossible. Government under the law is possible, if difficult to attain and to maintain; rule of law cannot exist. Only that possessed of agency can truly rule, and agency is to God and his rational creations alone; to say that anything else rules is merely to inaccurately say that men rule in accord with laws. But they are under no necessary compulsion to do so. If a judge judges by whim, and not by law, what power has the law to punish him? Only another ruler, a man and not a law, can do so, and that ruler is either under the authority of another man or is a law unto himself. What legislator, legislating from inclination and contrary to the Constitution, has been struck by lightning emanating from the violated article? To ask the question is absurd, for parchment cannot act.

Government under the law is a condition of government, transient with each new law and each new judicial decision, and not a form of government. No form of government can assure adherence to natural law by elevating laws above men; we must only seek that form most likely to uphold natural law.


Pax Americana

October 18, 2008

Entering the term “Pax Americana” in Google produces 433,000 results. Some use the term in derision; too many in approbation. While our politicians have not endorsed the term, many have embraced the concept of a global peace enforced by the United States. Yet let us look at the antecedent of all this, the Pax Romana. Is such a hegemony a worthy goal?

The Pax Romana is a period of roughly 150 years, from 27 to 180 AD, in which the Roman Empire enjoyed a period of relative security. And for the citizens of Rome, this was certainly a period of prosperity and safety. No barbarians or wayward generals crossed the Rubicon; the emperors were, for the most part, good, at least relative to those of other times (at least if one omits consideration of Nero and Caligula). But the citizens of Rome were not the entirety of the world, and while many others shared the Roman Empire, few shared the Roman Peace and this “peace” was still a time of war and of oppression. This was the peace of Claudius’s legions as they conquered Britain; this was the peace of the one million civilian dead when Titus besieged Jerusalem; this was the peace of Boudica and the bloody suppression of her war for freedom: a time of peace for the rulers; a time of suffering for the ruled. But not even the rulers escaped unscathed, for they found it to be impossible to rule others while retaining their own virtue. For Rome this was a time of prosperity, but not the prosperity of Republican austerity: instead, this was the prosperity of “bread and circuses”, of decadence, of depravity. As the empire rose in might, as the Roman eagles spread across the world, the Romans forgot what it was to be Roman, forgot the ideals of citizen service, of governmental accountability, that had first built the prosperity of Rome, replacing them with spectacle, with handouts, with despotism. And thus, the Roman Empire fell, its foundations cut away by its final, superficial triumph.

So, what out we to expect from a Pax Americana? Peace in our time, perhaps. But not a peace of virtue, of mutual desire and mutual cooperation. Rather, a peace by war, and not even by the threat of war, but by the active use of war. And since this would a peace of force, of hegemony, let us not speak of ourselves as a global police force and of “making the world safe for democracy”. Justice is not to be found in violence, aside from the redress of specific wrongs. Furthermore, as our society comes to rely on war, the slave will become the master. Just as the Roman Republic could not grant the powers to its generals necessary for the latter to expand the empire without risking the ascension of those generals into supreme power, consummated first in the triumvirates and ultimately in the Caesars, we cannot expect to found a world order dependent on the military and still expect to retain control of that military. Let us remember that few men in the history of the world valued their form of government more highly than did the citizens of the Roman Republic, and yet the Roman Republic became the Roman Empire. Let us not feel so secure in our Constitution as to allow forces that must in time destroy that Constitution. Peace through force we may have; but if we desire a just or a lasting peace, let us look to cooperation and not antagonism.