"The Theory of Government by Natural Law"
(the paradox of freedom)
"A legitimate government, for its continued existence must limit itself to those matters that are common to all the members within the community, and only those matters:"
" 35 Lest we forget, and as is amply demonstrated by history -- Governments Kill. In the 20th century alone, it is estimated that governments have killed 170 million people. This is to be compared with the 133 million people who were murdered over the first several thousand years of human life, with China's emperors and the Mongols being classified as the top killers. It would seem that there is a correlation between the level of government power, to the level of those innocents who have been killed. But, Alas! This power/death relationship has not stopped people, wittingly, or not, from placing ever more and more power in the hands of those who control government; such, as leads to ever more and more killing. This is easily demonstrated by a review of 20th century history. The most murderous system was the "Soviet Gulag State" -- some 62 million died, most through communistic state policy of committing genocide: the Don Cossacks, Ukrainian peasants, and Estonians. The communists even resorted to killing themselves as massive purges were carried out by the communist party: the communist regime in Russia, over a 75 year period, killed off 35 million men, women and children -- all in the interests of state planning. The communists of 20th century China, too, have carried on with this country's sad and ancient record of mass murder. Hitler, with his ovens, ranks 3rd in the 20th century for mass murder: he and his henchmen of the Third Reich killed off 21 million of those whom they felt did not fit in with their vision of things. The state planners in Russia, China and Germany, as we can see, for the 20th century, take the top three prizes; however, on this dismal and deadly list of 20th century governments, who butcher people, we will also see: Japan, Cambodia, Vietnam, North Korea, Turkey, Poland, Rumania, Yugoslavia, and Mexico: all have killed their dissenters and in the process have received little attention from the rest of us. (We will not include in the analysis, the terror bombings of civilian populations during the Second World War by Great Britain and the U.S. whereby 816,000 innocent people died.) These are the grim, government, killing figures from both our long and recent past; but let me remind you, government killing continues, to-day: in Afghanistan, in Angola, in Bosnia, in Chechnya, in Georgia, in Iraq, in Liberia, and in Rwanda, and in country, after country, after country. (The figures set out in this note are taken from a work by political scientist, R. J. Rummel, in his book, Death by Government.)"
..............................
By Peter Landry.1
Herein I shall deal with questions about people and how they organize themselves under leadership, under rules for conduct, under government. The central questions asked by this paper are: What is government? And, What is a government's purpose, its powers, and its perils. Through the writings of the classic political thinkers, these and other questions of a collateral nature are examined.
Collateral questions such as: How does government come about? Is it an automatic process, or an invention of man?
What power does government have over a person? And who is it that sanctions this power? And for what purpose?
Are there limits in the exercise of government power? And if there are limits, what, for the individual, are the practical problems and remedies when these limits are exceeded?
As David Hume expressed it, "one poison may be an antidote to another."2 A touch of one, even with its sickly effect, may save the fatal consequence of another. Freedom is essential to the life of an individual. Without it the individual will wither; and withered parts are useless, indeed, a burden on the whole. A person, however, cannot have a licence to do anything he or she likes. Rules for behaviour must be made and enforced, but not so much as to fatally poison freedom; but only a touch to preserve it. Thus, government is like a purifying poison, a stabilizer; needed, not for itself, but so to permit the highest level of individual freedom without anarchy.
To go into the Hobbesian and Lockeian theories about Pre-Social Man is more than I intend to do at this place; suffice it to say that Thomas Hobbes thought, in uncivilized times, in times before government, there existed continual war with "every man, against every man."3 This Hobbsian view is to be contrasted with that of John Locke. Locke thought that the original state of man was happy and was characterized by reason and tolerance. He thought that all human beings, in their natural state, were equal and free to pursue matters, considered as inalienable rights -- life, health, liberty, and possessions.4 One will have to make up their own mind as to whether man has a natural morality, or not. However, I am bound to point out that Locke's theories on the nature of man have held sway for three hundred years. It was to be the middle of the 19th century before the theories of evolution (theories supported by hard facts) were to be discussed and accepted; Locke's views are consistent with evolutionary theory. That which distinguishes man from the animals, is man's capacity to communicate and cooperate with one another, a capacity which evolved slowly over millions of years and which could not possibly evolve in the "solitary and brutish" world which Hobbes thought existed.
To the individual, other than to himself, justice counts for nothing: what drives man, primitive or otherwise, is self-love. Man by his nature is driven to seek "power, ambition, lucre, lust"; and will take from others to achieve his goals, unless restrained. The principal constraint for any one individual is this: he does not want to lose what he has in the attempt in getting more; and, above all, he does not want, himself or his family, to get hurt -- worse, yet, to lose his liberty, or his life.
Primitive man had to spend, at least, as much of his wealth and his time defending himself as he would in taking away the wealth of others. He would be ahead, if only he could trade one off against the other. But how to do that? One way, it seems the only way, is to have every one, within striking distance, submit to a common power, such as a great king, one to be supported, to be made and to be kept powerful, so to fight off enemies from abroad. "All join to guard what each desires to gain." Thus, it is this very same "self-love" that drives man to collect together under "government and laws."
It is at this point that I choose to say something about anarchy. Most of us shudder to hear the word -- anarchy.5 It is as if one might be immediately picked up by the police by even thinking of it. It is, however, but a word, one which "describes a state where there is an absence of government. A theoretical social state in which there is no governing person or body of persons, but each individual has absolute liberty (without implication of disorder)." From the definition, as found in the OED, there is no "implication of disorder"; no matter, the writers through the ages have treated anarchy as if it invariably leads to disorder. An absence of government, it seems to have been concluded (generally on no evidence at all), would bring on a state of lawlessness. Carlyle6 thought anarchy to be "the hatefullest of things," and one of the most admirable thinkers of all time, Francis Bacon, associated "absolute anarchy" to that of "confusion."
The question of what it would be like to live in a state of anarchy, is one of the great philosophic questions of all times. On one side of this question, for example, was the French socialist, Pierre Joseph Proudhon who declared "that as man becomes morally mature the artificial restrictions of law and government can be dispensed with."7 Proudhon dreamed of a state of nature where all property (to Proudhon "property was theft") belonged to the whole and that "perfect man" would take from the store of property only that which was needed, that all men "by nature and destination" are to be in a society where all would be equal and free, and have no need for a government as everyone went about in a loving and sharing way. The critics answered that for such a state, as was visualized by Proudhon, a new race of mankind would first have to be regenerated. Until then, a state of anarchy was but a "delightful dream." This whole notion of the history of men moving towards a perfect state, under-pinned the philosophy of Marx and the Russian revolution of the early 20th century.8 Collectivists or socialists do not normally ascribe to the notion that history lives and is inextricably moving, as if animate, -- to some glorious end state; indeed a person's disbelief in this is what distinguishes him from a communist. Both communists and socialists,9 however, believe, contra to the hard evidence of history, in the perfectibility of man.
One need not resort to choosing between Hobbes and Locke, or, indeed come to any hard conclusions as to the nature of man at all, in order, to conclude, first off, that anarchy would not work and that some level of government is needed for the better working of society: for man, as is crystal clear, is not perfect; and, if he be headed anywhere in particular, including to that of an angelic state, his estimated time of arrival be, at least, a millennium away. The fact is, however, that too much government, as an antidote to anarchy, will leave society as the patient, worse off.
"Slavery results from laws, laws are made by governments, and, therefore people can only be freed from slavery by the abolition of governments. ... And it is time for people to understand that governments not only are not necessary, but are harmful and most highly immoral institutions, in which a self-respecting, honest man cannot and must not take part. ... And as soon as people clearly understand this, they will ... cease to give the governments soldiers and money. And as soon as a majority of people cease to do this, the fraud which enslaves people will be abolished. Only in this way can people be freed from slavery." (Leo Tolstoy)10
Anarchy comes from the Greek; it means no law or supreme power. Anarchism exists where people, individually or by voluntary groups, are left to totally sort out their own affairs. Should this work? The answer might come when one studies the nature of man. At his center, at his heart, every man is an anarchist. He only wishes that his neigbour be governed; as for himself, he wishes but to be left alone.
Anarchism is a theory of the absolute and complete liberty of the individual. The wish, one that man has carried in his heart through the ages is that he should have no master but one that suits his own mood. It is the extreme of liberty; at the other end of the pole is totalitarianism, absolute control possessed by government, or, almost by definition, in one person (one can think of Bismarck, Hitler and Stalin, and the many others who, throughout the world, emulate them to this day).
Personally, I do not believe anarchism would likely work, though -- while probably not the best way for society to conduct itself -- anarchy is bound to be vastly superior to totalitarianism. In its scheme anarchism has one primary rule, and it is, "mind your own business." And under anarchism the primary crime is when one interferes with another's business.
It was Thomas Paine who said, "The instant formal government is abolished, society begins to act. A general association takes place, and common interest produces common security." Thus, one might say that anarchism is a state of affairs that does not last, directly a government is done away with, it is almost immediately reformed, usually in its simplest cast.
For most of us, we need some order in our lives much before we can get on with leading it. We are not so much concerned with our own personal disorders, for presumably we have some control over ourselves; but, primarily, we would like to bring the disorderly conduct of others under control; we have to know what to expect of them if we are to make our own plans. It is the activities of other persons with which we are concerned, activities which have potential to impact on us, for good or for bad.
There is a word for order in a community of individuals, it is polity. Polity is the understanding of each, within the group, as to who is to do what. Polity is required in all groups, whether it is two friends out for a sail across the water, or a larger group such as a bunch of boy scouts out for a hike, or a very much larger group such as the millions which make up a nation. One should not conclude that a set of rules must be intentionally set down for polity to exist,11 indeed, there is no need to think that government, as we know it, for the polity of a country (civil organization, or civil order) need exist at all. Anarchists think not; as we have seen, they believe that civil order might well be a spontaneous and natural event, just like the polity of bees. The prevailing opinion, however, is that government, at least to some degree, is needed to bring civil polity about.
Government is the continuous exercise
of the power to control
all the individuals that
go to make up a community.
Usually we think of this community as
the whole of all those who live in some
sort geographical area, the larger political units being sovereign countries.
This government power is
exercised by a body of persons who have become charged with the authority of governing.
They may take charge by
some voluntary arrangement,
real or imagined, by all those within the community, or the governing group
may well have seized government
power by force.
In many of the "primitive" governments,
and I dare say in many of the smaller human groups found in society, a person will simply arise and be accepted as a leader because of his or her superior leadership abilities.
"The commonwealth seems to me to be a society of men constituted only for the procuring, preserving, and advancing their own civil interests.
Civil interests I call life, liberty, health, and indolency of body; and the possession of outward things, such as money, lands, houses, furniture, and the like.
It is the duty of the civil magistrate, by the impartial execution of equal laws, to secure unto all the people in general and to every one of his subjects in particular the just possession of these things belonging to this life. If anyone presume to violate the laws of public justice and equity, established for the preservation of those things, his presumption is to be checked by the fear of punishment, consisting of the deprivation or diminution of those civil interests, or goods, which otherwise he might and ought to enjoy. But seeing no man does willingly suffer himself to be punished by the deprivation of any part of his goods, and much less of his liberty or life, therefore, is the magistrate armed with the force and strength of all his subjects, in order to the punishment of those that violate any other man's rights." (Locke.)
Because of pure fear (it is an unproductive and an unhealthy state) people have, since the earliest times, preferred to band themselves together in a group under a strong leader. The principal fear from which people seek relief, is the fear of other people; either from within or from without the group.12 The simple fact is that there exists other people, who might injure the group, or take their property, or, -- often in the same aggressive act -- do both. In putting themselves under a leader strong enough to frighten off, or to deal with the victimizers of the world, the members within the group still continue to run a risk, the risk of being a victim to the leader, himself; but, since the leader would like to stay in power, it is a lesser risk. At any rate, if the members are molested by the leader, they can expect that the molestations will come from only one source;
and the abuse, harm, injury and plunder, in total, they hope, will be less than what the people would otherwise experience if they were not within the group under a strong leader.
(For thousands, and thousands of years it never struck the members of groups, nor hardly the leaders, that the members should have much say in the choice of the leader, or have a say in his continuing support: that the leader should be strong and not molest the members too badly, was good enough. Except for the Greeks and the Romans the idea of democracy for most people was just that, an idea; for many people of the world it is still just an idea. Historically, workable democracies, in a representative form, have only recently appeared on the world stage. Best now that I tell you to keep the notion of "democracy" separate from that of "government." The ideal known as democracy, may, in reality, exist or not, no matter --
in its name bloodless revolutions come about and new governments are had [forget whether it makes any difference, or not]. My point is this: no matter how a government comes into being -- democracy, or not -- a given group needs a strong leader, one who, while not being a bully himself, can deal with the bullies of the world.)
What is it that we as individuals expect of government? Not much, I would assert, beyond the regulatory apparatus necessary to carry on national defence, and of maintaining public order and personal safety. If you are of a socialist bent, -- one, who might trace his views back to Plato through Hegel and up to Marx, -- then a broad and a somewhat limitless role is cast for government. At least this much we can all agree upon: government's role is to include the function of defence, of police, and (to a limited extend) to public health and other services which do not lend themselves to voluntary effort.13 It was Bentham's view that, to these fixed categories, governmental functions should be so limited.
"With the view of causing an increase to take place in the mass of national wealth, or with a view to increase the means either of subsistence or enjoyment, without some special reason, the general rule, is, that nothing ought to be done or attempted by government. The motto, or watchword of government on these occasions, ought to be - Be Quiet; ... [And that government be well advised to that request] Diogenes made to Alexander: `Stand out of my sunshine.' We have no need of favour - we require only a secure and open path."14
Bentham used the expression, "national wealth," and, we might ask: what is it? Simply, to beg the question, it is the sum of all the individual wealth in the nation. Carlyle thought that power is wealth.15 But, power itself is not wealth but rather the route to it. Henry George (1839-97) gave a practical definition to the concept: wealth, according to George, "is all material things produced by human labour, having exchange value."16 A more ethereal meaning to wealth was given by John Ruskin when he declared what to him was a great fact, to be clearly stated -- "there is no wealth but life."17 After a short consultation with the OED2, I came to the view, from the standpoint of the individual experiencing it, that wealth is the condition of being happy and prosperous. Note, that in its primary meaning, it, wealth, is a human feeling, a feeling of well-being; in its secondary meaning it connotes things in which material riches consist, goods and/or possessions. While it is by no means beyond controversy, it is in this last sense, the same sense taken by Henry George, that the "science" of economics takes its meaning of the word, wealth; viz., most economists use the word as a collective term for those things, the abundant possession of which, by individuals, constitute the riches and/or prosperity of a community.
But the most fruitful examination of the idea of wealth comes about when one focuses on what John Stuart Mill had to say about the matter (it is always fruitful to look to the writings of John Stuart Mill). Mill defines wealth as all things which possess exchangeable value. The objects which represent wealth need not necessarily be things which in themselves be useful or agreeable to the possessor, as long as the possessor thinks his property are tradeable for such things as those that will bring him direct pleasure, or use; then, for him, such "useless" possessions are wealth. As any study of the notion will show, certain things can only have wealth to its possessor, such as those things which are gratuitously afforded by nature.18
"Wealth, then, may be defined, as all useful or agreeable things which possess exchangeable value; or in other words, all useful or agreeable things except those which can be obtained, in the quantity desired, without labour or sacrifice.
... To an individual, anything is wealth, which, though useless in itself, enables him to claim from others a part of their stock of things useful or pleasant." (Mill.)19
"The purpose of government," as Thomas Jefferson said, "is to allow for the preservation of life and liberty, and the pursuit of happiness."20 (Note the use of the words "allow" and "pursuit.") Government cannot give life, it cannot give liberty, and it cannot give happiness; it can only take such things away. Liberty, or freedom, is a topic which arises in any discussion concerning government; and it arises, not because government can contribute to freedom, in any way, but rather because government invariably, due to its very nature, encroaches on freedom. Government is to be treated as a trained guard dog, to be led out into the crowd by its handlers under strict control and sharp command. Usually the mere presence of Government power is enough to remind people to leave the liberty of others alone so that each person, unfettered in any way except by proper law, through individual choice, might create wealth; and to use it or preserve it, as they should choose. Only the individual, each in his own way, can create wealth; and by individuals doing this does the wealth of the nation come about. Wealth thus comes about because people have the freedom to choose, in every instance, what they individually calculate is best for them; the trillions of individual decisions that freely occur every day in our economy is what keeps us all going. To maintain an environment in which exchanges between people, within the law, voluntarily occur: this, -- if the goal is to increase the store of wealth in the country -- is the sole function of government. It is there to punish the citizen who encroaches on the freedom of another, government's role is as a referee, it must stay clear of the play; it must leave the business of creating wealth to those who can do it, to those that can only do it, to those outside of government. Government cannot create wealth it can only destroy it.
"The object of this essay is to assert one very simple principle, ... that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightly exercised over any member of a civilized community, against his or her will, is to prevent harm to others." (Mill, On Liberty, 1859.)
"If every person has the right to defend - even by force - his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly. This principle of collective right - its reason for existing, its lawfulness - is based on individual right. And the common force that protects this collective right cannot logically have any other purpose or any other mission than that for which it acts as a substitute. Thus, since an individual cannot lawfully use force against the person, liberty, or property of another individual, then the common force - for the same reason - cannot lawfully be used to destroy the person, liberty, or property of individuals or groups." (Bastiat, The Law, 1850.)
Some among us have the notion that government fulfills a need of human society for a "directive apparatus." We do not need government for this reason. Assuming puny men could figure out how to construct such an apparatus, the cost would be immense; and what for, the whole event happens automatically. Society is quite capable of running itself and as the beating of a heart, and just as essential, no thought need be given to the topic. Production and distribution of all valuable goods and services in society are ultimately brought on by and through the voluntary co-operation of most everyone; we do it through the operation of contract, a most powerful legal concept. "Demand and supply, and the desire of each man to gain a living by supplying the needs of his fellows, spontaneously evolve that wonderful system whereby a great city has its food daily ... in multitudinous varieties ... while the quantities of the numerous commodities required daily in each locality are adjusted without any other agency than the pursuit of profit."21
In dealing with the question, viz., what is the purpose of government, I am obliged to point out its loftiest duty: and that is to instill, primarily by example, the great personal virtues that need to be prevalent in the huge herd that is to be governed; necessary not only so we can all get along better with one another, but, primarily, -- and here I refer directly to the Confucian notion of good government22 -- so as to make the governed follow its legitimate directives, willingly and without the expense and destruction of compulsive government force. The muck and mire in which an over-extended government invariably finds itself is hardly conducive to the exercise of this lofty duty of setting a good example. An over-extended government is invariably obliged to resort to the use of force.
Authority intoxicates,
And makes mere sots of magistrates;
The fumes of it invade the brain,
And make men giddy, proud, and vain ...:
By this the fool commands the wise,
The noble with the base complies,
The sot assumes the rule of wit,
And cowards make the brave submit.
(Hudibras, Butler, 1680.)
"... he who wields it [power] is often but the puppet of circumstances, like the fly on the wheel that said, "What a dust we raise!" It is easier to ruin a kingdom and aggrandize one's own pride and prejudices than to set up a greengrocer's stall. An idiot or a madman may do this at any time, whose word is law, and whose nod is fate. Nay, he whose look is obedience, and who understands the silent wishes of the great, nay easily trample on the necks and tread out the liberties of a mighty nation ..." (William Hazlitt.)23
Power is an odious thing, we generally can smell it a long way off; those who wield it are automatically disliked. Our personal level of contentment, and therefore, I imagine the general level of contentment in society, is directly proportionate to the number of those who exert power over us. For this reason alone there would be good reason to severely limit the power of government. But there are much better reasons, and, at any rate, I run ahead of myself.
What is power? In its simplest definition, power is the ability to act upon a person and make them do something. Power, as Locke explained,24 is twofold: it can either be active or be passive. It is active when one exercises power by the threat of using force, or of the actual use of force. However, one may get another to do something, not through force; but, rather, through argument, by reason and by example. One uses passive power to get another to do something because ultimately it is in the best interest of the doer, himself, to do or not to do something: this is passive power. One uses passive power to show another that to take or to refrain from a certain action will ultimately advance the welfare of the person to whom the explicit or implicit request is being made. An exercise of passive power comes about when the doer is convinced without the threat or the application of force. Passive power is continually exercised by all of us, every day; we, to one degree or another, continually exercise power over ourselves and over all of our acquaintances. Passive power is asserted and met without any interference in the liberty of anyone, otherwise it would not be passive power. Passive power is the peaceful manner in which humans have evolved and by which they continue to sustain their lives. However, active power is another matter. The fundamental law is that no one may use active power except only in the defense of his person, his family and his property; and it is this power that we delegate to government, for its use, almost exclusively. Government is to use the threat of force or actual force, strictly, and only against those in the community who have chosen to break the law, criminal law, as carefully and as fully defined as is possible.
As a civilized society we are obliged to proceed on this basis: that which "cannot be compassed by reason, wisdom and discretion" is something that is outside the law (Montaigne). Government has a right to use force against those who are outside the law. The only moral (and practical) object in the use of force, generally, is to use it as a defense against one who is using it offensively, or it is apprehended that they are immediately about to do so: it is an individual's right to meet force with force. Each one of us, according to the teachings of Locke has this right. This right is impliedly granted to government, however, it is a reversionary right. If government uses it in any way other than in a defensive way: government, by Lockian theory, loses the right to use force; it loses its legitimate power.
In all of this we cannot lose sight of the purpose of government, a topic with which I had previously dealt. Let me, in my reminder, once again, resort to the "Philosopher of Freedom," John Locke. I quote from his Second Treatise:
"The great and chief end, therefore, of men's uniting into commonwealths, and putting themselves under government, is the preservation of their property. ... Men when they enter into society give up ... liberty [of a kind] ... yet it being only with an intention in every one the better to preserve himself, his liberty and property, [the power thus conferred] can never be supposed to extend farther than the common good, but is obliged to secure everyone's property... [This power] is limited to the public good of the society. It is a power that hath no other end but preservation, and therefore can never have a right to destroy, enslave, or designedly to impoverish the subjects... To this end it is that men give up all their natural power to the society they enter into, and the community put the legislative power into such hands as they think fit, with this trust, that they shall be governed by declared laws, or else their peace, quiet, and property will still be at the same uncertainty as it was in the state of Nature.
...
It cannot be supposed that they should intend, had they a power so to do, to give any one or more an absolute arbitrary power over their persons and estates, and put a force into the magistrate's hand to execute his unlimited will arbitrarily upon them; this were to put themselves into a worse condition than the state of Nature, wherein they had a liberty to defend their right against the injuries of others, and were upon equal terms of force to maintain it, whether invaded by a single man or many in combination. Whereas by supposing they have given up themselves to the absolute arbitrary power and will of a legislator, they have disarmed themselves, and armed him to make a prey of them when he pleases.
...
It is true governments cannot be supported without great charge, and it is fit every one who enjoys his share of the protection should pay out of his estate his proportion for the maintenance of it. But still it must be with his own consent -- i.e., the consent of the majority, giving it either by themselves or their representatives chosen by them; for if any one shall claim a power to lay and levy taxes on the people by his own authority, and without such consent of the people, he thereby invades the fundamental law of property, and subverts the end of government. For what property have I in that which another may by right take when he pleases to himself?" (Locke, Two Treatises of Government, 1690.)
The most serious problem with power, to which Lord Acton referred, and which is quite separate from the aggravation of dealing with besotted magistrates: is that it corrupts.25 Read history and one will see that it is the rare leader who did not become corrupted.26 Trust in God, or trust in professionalism; neither will help. Put the best possible person in charge and often what one will end up with is the worst possible problem. There is a Latin proverb which I ran across in one of my law books and which covers the situation: Optima corrupta pessima (The best things, corrupted, become the worst). Given the choice, then, the best thing, as Thomas Jefferson pointed out, is to "guard against corruption and tyranny ... before they shall have gotten hold of us. It is better to keep the wolf out of the fold than to trust to drawing his teeth and talons after he shall have entered."27 This, dear reader, is a separate and a distinct argument for keeping government down to the barest of minimums.
In any analysis of governmental power, the question soon comes to mind -- How is it, that government can maintain its power? How is it, as David Hume observed, "the many are governed by the few?"28
"The slaves of custom and established mode,
With pack horse constancy, we keep the road
Crooked or straight, through quags or thorny dells,
True to the jingling of our leader's bells."
(Tirocinium, Cowper.)
"The power of the state comes out from the willingness of the people to obey, - Why do they obey, and at what point will they not obey? It was Hume who expressed surprise of the easiness with which "the many are governed by the few"; those who govern have the force of opinion on their side, forget whether the opinion is right or wrong." (Edmund Burke.)
Why people obey government, and often obey government to the point of ruin, -- is a puzzling question. It may be simply a mystery; which we will assign simply to the powerful workings of custom and the mesmerizing effect of the "jingling bells" of the demigods -- who knows? There is little evidence that the crowd, the mob, the great unwashed,29 has any political sense of things. Legal scholars have this idea that people follow government because, to do so, is constitutionally correct, -- never mind that the mass of people have no conscience thought about the process, at all; government has authority because, as we have seen, the people voluntarily give (in a constructive sense) this limited authority to government. This authority is not permanently given, it is but lent, and the grant and its limits are to be found in the country's constitution, something each country has, whether it is written down somewhere or not.
So, it is the country's constitution from which the government takes its power. It uses its constitutional power to make laws and to enforce them. A government cannot ever exceed the authority granted to it by the constitution. A constitution by its very nature will limit the authority of government, -- at least to this extent: government in its law making function can make no law which has the effect of abrogating natural law; and government, at all times, must put itself under the rule of law.
The subject of legal philosophy is a subject for old men at law schools, and, if you have come this far with me, I do not want to lose you now; but, for any thinking citizen, some basic concepts must be considered.
First off, let me quickly touch on the Rule of Law: The law, whatever that maybe, is there for all to obey, including those in government. The rule of law is a doctrine which is derived from theories of natural law (the next following subject). In English law, the rule of law is a concept which has been used as a mechanism to control government power; it is a tool used exclusively by the courts.
And now, more generally we ask, "What is the law." It has been, and continues to be, a much studied subject, but a quick, short and authoritative definition is this: law is "a rule of conduct imposed by authority." Normally, we think of this authority to be a person or persons, but it need not be. There do exist laws of an unearthly authority; laws which one might attribute to God, or more simply to nature. These laws exist entirely independent of man; they were around before man came on the scene and will be around long after he takes his ignoble exit. "That part of God's Law which bindes alwayes, bound before it was written and that is the law of nature." (John Donne.) I write of scientific laws, such as those that were discovered by the likes of Copernicus, Galileo, Einstein, etc. From brilliant human minds, through the reasoning process, came descriptions of natural relationships, natural laws.30 Scientists do not create a thing, they describe that which exists. So, a natural law is descriptive, and, I should not have to add, cannot be broken by man. The fact is that natural law, to the extent possible, must be brought into account for all calculations; one must proceed in harmony with it or suffer the consequences. Natural law has neither been brought into force by human beings, nor can it be enforced by them; it has automatically brought them to the state in which they exist. Now, while natural law is not something that any one of us thinks about too much, we all pretty well live in accordance with it. One must eat to live. One must grow or hunt for food. As part of this process, one must plan ahead and one must work. "Self-preservation is the very first and fundamental law of nature." (Berkeley.)
On the other hand, a prescriptive law is a rule of conduct imposed by the authority of government,
a rule which has been decided upon by a human being or human beings; it imposes a relationship that
does not naturally exist (otherwise why bother); it is a law that comes purely out of the human imagination; it can never run contrary to a natural law (at least not for long); and, by its nature, can be broken by man.
(Examples of prescriptive laws would be those that require that one must stop at a red light, or one must pay taxes.) The outcome in any contest between natural law and prescriptive law is inevitable. The best that can be expected by those who support prescriptive law that runs contra to natural law, is, that the inevitable outcome might be delayed;
but, only at a considerable cost,
usually in human misery and blood.
Before proceeding: we are obliged, for analytical purposes, to break prescriptive law down into a third level consisting of two categories: restrictive law and positive law. A restrictive law is a law which directs a person or persons not to do something; and positive law is a law that obliges one or more to do something. "Do not litter," is a example of a restrictive law, it always has a negative; this, as opposed to, "Pick up your litter," which, of course, is a example of positive law.
(Canada, as is the case in most all of the countries in the world have taken to passing prescriptive laws, most of it in the worst form, as positive laws. The reasons for this I examine elsewhere. One would think that such a fundamental question as to the type of laws a country is empowered to pass would be covered by its constitution, -- and I would argue that there is little room in the British constitution for positive law [a constitution which, with its common law heritage has been adopted by Canada], an argument that I intend to take up elsewhere -- but, at any rate, our free spending politicians and the social engineers on the payroll have paid little heed to the Canadian constitution, whatever it may be. The fact of the matter is, that, whether in pursuit of constitutional goals, or not, there has been a pouring out from our law making assemblies of prescriptive law in great smothering quantities, particularly, in the last twenty-five years; most all of this legislative law has been in the nature of positive law, made in pursuit of the great delusion, viz., we can cure all the difficulties of mankind by legislation.31 Not only have our "elected representatives," qua legislators, passed, [driven by pressures brought on by all sides] huge volumes of written law, but they have given off this power [as if they can?] to their "unelected" bureaucratic friends who have run with it in great style, loading up on all and sundry, further and much more extensive volumes of governmental regulations. Regulations made by bureaucrats under the authority of a particular act are, neither made openly like acts of the legislature, nor are they published and distributed in the same way. This domain of "government regulations" is a vast area of law, hidden and dangerous. More than enough of it is substantive law, that is law that effects the rights of citizens. Now, mind you, any citizen might, with enough money and perseverance, go up against government, test "a regulation" before a court of law, and, I believe, in the majority of instances, the judge would likely throw the offending regulation out the nearest court window; but the realization of what a judge would likely do with most of their regulations does not deter government bureaucrats from grinding out regulation after regulation, much of it substantive law, much of it harmful to our fundamental rights. As to what kind of laws legislators are allowed by our constitution to pass, is an area, I submit, which desperately needs constitutional protection; for, as we can see from the experience of the last twenty-five years, or so, our trusted leaders, the ones we elected, have exercised little control over themselves and have created a huge economic problem for the country which has caused much greater problems than any of the problems which the legislation was designed to cure.)
How to control or check government power was a question which a Frenchman by the name of Montesquieu pondered back in 1748.32 Montesquieu thought the best way to limit government power is to particularize the power into distinct parishes, and then, in turn, to assign these parishes of power to the appropriate departments of government. This control mechanism recommended by Montesquieu might be best illustrated by the kind of control mechanism that exist in the control of nuclear missiles. My understanding of it is that no one person can launch such a missile. There are, I believe, three responsible persons each equipped with a key, each duty bound to check the "codes" before personally inserting and turning the key. Montesquieu, and the political thinkers who followed him (noteworthy are the framers of the American constitution of 1787), were anxious to see the existence of a controlling apparatus, so that raw government power should not fall into the hands of a power hungry individual or group of power hungry individuals. Government was to be broken down into three functions: executive, legislative, and judicial. A member of the government in one of these functions has full power but only within his appointed function. One department (legislative) is to make the laws, another (executive) is to run the country under the laws and another (judicial) is to enforce the laws against all. It is a fine idea, and we can see the trappings of it in most governments that exist in the world today. What needs to be asked is whether it functions as it was imagined it might. This is a topic which I cannot examine here at this place, but there are a number of questions to ask, including what impact the party system has on the separation of powers?
Having determined that we need government, it follows, government must have the authority to make laws, and the power to enforce them. Being that "every law is an infraction of liberty,"33 it follows that the mere existence of government is an infraction on the liberty of those to be governed. The degree of encroachment of our freedom (the right to choose) is proportionate to the degree of our suffering in life. The right to choose is a life sustaining right; curtail it and you curtail life. The greater number of laws and the bigger the government: is all the worse for us. It is of extreme importance that we check government and have in mind continually the fact that government takes its authority and power from the citizens, us. This authority and power is usually found to be granted in the constitution of the country. We should, by our constitution, give no more authority and power than what is absolutely necessary to suit our purposes; to achieve our goals.
As we have seen, in our analysis, the reason people band together under government is so that they will not be abused, harmed, injured and/or plundered of their goods by those people, marauders, either from within or without the country, who would run amok without the threat of government force to keep them in check. Government, according to John Locke, will lose its right to exercise its power, however, when government abuses its people worse than any imaginable group of marauders that might be operating in the absence of a government. (At least without government, a person might take steps to deal with marauders, steps a person might not take when of the mistaken view that their interests were being protected by government.) Further, in Lockian theory, if government abuses the exercise of the power given it by the people, why then, the people have a natural right to rebel, as did the people of New England in 1776. A legitimate government, for its continued existence must limit itself to those matters that are common to all the members within the community, and only those matters: for example, matters such as civil and national defence. I fear, that here in Canada, government, on a regular basis now, involves itself in matters that are not common to all the members; but, rather, to particular groups, officially pitting one against the other and justifying their acts of plunder in the name of "social justice," a most ambiguous and obscure expression.
Of course, there are those among us, unfamiliar as they are with history, who still hold leaden socialistic thoughts, who really do believe that the answer to the big government disease is to increase the dose of the big government cure. They have come out and have declared they stand full square for all that which is good and just. These idealists also declare, in the very same breath that realists can have no such notions. They have cast themselves in the role of the deliverer of succor to all those who suffer in mankind. Now, to remedy injustices is an admirable goal, one that any thinking person, I should think, would share; -- but assuming that we will know an injustice when we see one, by what method shall we go about curing it? Shall we commit an injustice with the view to curing an injustice? A person can scarcely be held to be credible when he expresses that he has the ability to see how much effect will follow so much cause when he or she declares that he or she has the ability of dealing with social complexities of an extremely involved kind. But our elected assemblies are full of such people who by their actions profess to have such abilities; or who, and this is likely more the case, are led around by people whom they believe have such astounding abilities. The plain fact is that legislation lets loose additional factors creating, more often than not, further problems, often more serious than the problems it was intended that the legislation should cure. There then follows a compounding effect as the legislators pass more laws with the view to getting at the "legislative mischief" which was set in motion with the earlier legislation. All of this legislation has attending costs, not the least of which is the enormous labor we expend annually on our law making and law enforcing machinery.34 But as serious as this expense is to the economic health of our country, it is not as serious as the additional and axiomatic problem which comes about when there is too much legislation; it brings all law, to an increasing degree, into disrepute. When people have no respect for the law, it matters not how many policemen you have, civilized society breaks down; anarchy will follow.
Thus government puts us all at great peril.35 Government can cause injustices; it can waste valuable resources; it can bring our necessary laws into disrepute; it can lose its authority and let the country fall into anarchy, with the result of much misery and loss of life. All of this cries out for constitutional limits on governmental power. For the protection of all its citizens, government by a country's constitution should be set up along very simple and limited lines, one that can be continuously monitored and automatically checked.
What is needed for a country, for its own protection and for its stable and efficient operation, most everyone will agree, is a strong government; but one which is constitutionally restricted to its proper and very limited role (basically to respond to the criminals who operate both within and from without a country's borders). The passing of laws (legislation), viz., the provision for the use of government force, is also to be constitutionally circumscribed. It is to be abhorred, whenever an individual in society is forced to give in to the desires of those who have set themselves up as knowing, Platonically, what is best for everyone else. The theory that the community is to permit government to use force with a view to uniting all its citizens and by so doing make them share together the benefits which each individually can confer on the community, for the benefit of the community -- while attractive in its statement, is a false theory; it is demonstratively an unworkable theory, which throughout history has been tried in practice, time and time again, and the result is always the same. A totalitarian state emerges and causes immense misery to all within the state. When, in its legislation, in its use of force, government suppresses the welfare of the individual; when its efforts are aimed to foster the attitude that one should not proceed to please oneself, government commits a fatal error in the achievement of its laudable object, the betterment of the whole. The essential problem in proceeding in this manner is that individuals cannot contribute to the whole, indeed will be a drain on the whole, unless they are allowed to be free and productive, that is to say allowed to suit themselves. Human beings are not robots; they did not come to possess the independent spirit, so characteristic of man, by serving others; a person is not a fixed entity; he came about through an evolutionary process; he is a superior being because of the exercise of free choice: and free choice continues to be essential to the individual's life and the life of a civilized community.
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1 Peter Landry is a lawyer and has been, for many years, in private practice in the City of Dartmouth. He invites correspondence on the topic and may be contacted at P.O. Box 1200, Dartmouth, Nova Scotia, B2Y 4B8, or at peteblu@blupete.com.
2 Political Discourses (1752), ii., 38. This is known by those who study the subject as The Paradox of Freedom. There is nothing new about this; it was expressed by Plato. The argument as put by Sir Karl Popper runs this way: "freedom in the sense of absence of any restraining control must lead to very great restraint, since it makes the bully free to enslave the meek." [Popper Selections; Edited by David Miller; (Princeton University Press, 1985).]
3 Leviathan.
4This Lockeian view is coined in Shelley's words as follows: "Government has no rights; it is a delegation from several individuals for the purpose of securing their own."
5 It took on hideous tones on account of the activities of the Russian terrorist Mikhail Bakunin (1814-76), his associates and imitators.
6 Thomas Carlyle, Heroes (1858).
7 Chambers Biographical Dictionary (Edinburgh, 1990), often referred to in my papers simply as Chambers.
8 This is a false theory. See the work of Sir Karl Popper, The Poverty of Historicism (1957) (Routledge, 1969): "The fundamental thesis of this book [is that] the belief in historical destiny is sheer superstition, and that there can be no prediction of the course of human history by scientific or any other rational method ... [it is dedicated to] the memory of the countless men and women of all creeds or nations or races who fell victims to the fascist and communist belief in Inexorable Laws of Historical Destiny."
9 One wag described a communist as a socialist with conviction.
10 The Slavery of our Times, 1900.
11 If you understand the legal notion behind the legal words "common law" then you will understand that a great body of English law exists which was never written down, but still it was followed, and still it was enforced; the very strength of England, certainly in the past, is attributable, I would say fully attributable, to the stabilizing and enriching institution known as the common law.
12 The absence of fear brings peace, with peace people can lead productive lives; the group, together with its leader, will prosper. It is a valuable commodity, peace; the history books refer to it as the "Lord's Peace" or the "King's Peace."
13 Professor W. H. Hutt expressed it this way: "The term [individualism] is an extremely convenient one to express the views of those who would confine the functions of the State and various public authorities to a relatively small province, i.e., maintaining law and order, the army, the navy and other means of national defence, the enforcement of contracts, the maintenance of public services which cannot conveniently by entrusted to private enterprise, and in general the provision of a fair field for the play of individual energy." ("Individualism in Politics," as found Henry Hazlitt's book, The Free Man's Library (Princeton, N.J., Van Nostrand, 1956) at p. 29.)
14 Diogenes (c412-323 BC) was a Greek philosopher, a cynic who "searched with a lantern in the daylight for an honest man." This quote is from Bentham's The Principles of Morals and Legislation (1780).
15 "Power is wealth, in these days, or of arms and adherents as in the old days."
16 Progress and Poverty.
17 Ethics of the Dust (1865). Ruskin likely had in mind the meaning of value rather than wealth.
18 Thus, we see about us devastation and ruin of all things which have no value as tradable property; whether it is breathable air or drinkable water, or the "goods and services" provided "free" by a socialistic government. It is on account of this principle, as is demonstrated in nature, that things gratuitously afforded by anybody, including the state, have little or no value. This, fundamentally, as attractive as the idea might be, is why socialism cannot work -- people waste free stuff, always have and always will: it is in the nature of man to do so. We waste the free bounty of nature just as we waste the wealth of a country in a socialistic state.
19 From such a definition of wealth, it seems to me, that one can conclude that any "free" government goods or "free" government services do not add to the store of a country's wealth, but rather will lead to the gradual destruction to the wealth of the nation. [Principles of Political Economy (1848).]
20 See The Federalists Papers.
21 As found in the introduction by Herbert Spencer to A Plea for Liberty, An Argument Against Socialism and Socialistic Legislation (New York: Appleton, 1891) at p. 17.
22 Confucius lived during the turbulent times of the Chou dynasty (c.1027-256 BC). He urged a system of morality and statecraft to bring about peace, stability, and just government. Confucius was of the view that both the governed and those who governed were to be principled and virtuous; and that the first order of business for government was to instill in the population, as a whole, such virtues as to make good government easy. This was a system where one treated both inferiors and superiors with propriety.
Confucianism laid down practical social concepts. Confucianism is not forced; it is not dogmatic: it is less a religion than it is an ethic by which people live.
23 "On Great and Little Things."
24 Locke in his An Essay Concerning Human Understanding explained power this way: "Power is another of those simple Ideas which we receive from Sensation and Reflection. For observing in ourselves, that we do and can think, and that we can, at pleasure, move several parts of our Bodies which were at rest; the effects also, that natural Bodies are able to produce in one another, occurring every moment to our Senses, we both these ways get the Idea of Power. ... [Power is thus,] twofold, viz., as able to make, or able to receive any change: The one may be called Active, and the other Passive Power."
25 "Power tends to corrupt and absolute power corrupts absolutely." This was written in a letter written to Bishop Creighton in 1887.
26 One of the few that comes to mind is George Washington. He was, at the end of the American revolution, a powerful general at the head of troops loyal to him alone, and, yet, he surrendered his sword to the American people and surrendered himself to the doctrine of democracy; in all of history there were but a few men like Washington.
27 Notes on Virginia, 1782.
28 An Enquiry Concerning Human Understanding (1748).
29 "Masses are rude, lame, unmade, pernicious in their demands and influences, and need not to be flattered but to be schooled. I wish not to concede anything to them, but to tame, drill, divide, and to break them up, and draw individuals out of them." (Ralph Waldo Emerson, Conduct of Life, 1860.)
30 We come to an understanding of what a natural law is by one, or by a combinations of two ways; "implanted by nature in the human mind, or [is] capable of being demonstrated by reason." (OED2.) The choice depends on one's philosophical view: does a person come into this world with a blank, a tabula rasa and then, as life unfolds, acquires knowledge through the use of the five senses and a process of reflection; or does a person come delivered and equipped with a primary set of ideas, innate ideas. The correct answer lies in either the ideas of Locke and the Empirical School, or Descartes and the Rational School.
31 One of the finest problems in legislation is to determine "what the state ought to take upon itself to direct by the public wisdom, and what it ought to leave, with as little interference as possible, to individual discretion." (Edmund Burke.)
32 Montesquieu was an admirer of John Locke, indeed, he spent two years (1729-31) in England. His work, The Spirit of Laws, written in 1748, held up the British Constitution to the admiration of the world. Montesquieu's doctrine on the separation of powers was picked up by the framers of the American constitution.
33 Jeremy Bentham.
34 A great amount of the cost of past government, as measured in monetary terms, has ended up as government debt, which we now carry, all of us. An article in the Financial Post (September 25th, 1991), reveals that Canada's government gross debt totals about $1,000 billion, that is to say one trillion dollars. The total is comprised of $460 of federal debt, $290 provincial debt, $46 billion of municipal debt and $320 billion in the Canadian Pension Plan's unfunded liability. Most of this debt, because of the interest that must be paid periodically -- over and over again -- has seriously impacted on government expenditure in other areas, other areas which most of us might readily agree need government attention. And the bad times brought on by government spending (government spending always leads to inflation and/or taxation) impairs its credit with the international lenders to such an extent that it has no choice but to either tax more, or to inflate more, or to spend less; or any combination there of. But if the government is not to exacerbate the problem, then it has no choice, at all; -- it must spend less and wait for things to self-correct.
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Peter Landry
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