Due Process of Law, #2: What Makes a Government’s Actions Legit?

By Jeff Rutherford

[Part 1 was called “Can a Law be Unlawful?” and was generously re-blogged by Citizen Tom.]

Part 1 recalled that the first embodiment of respect for individual rights against the tyranny of despotism into western statutory law was the Magna Carta.  That “Great Charter” proclaimed individuals possess inherent rights to life, liberty, property, and fair judgement under an orderly “law of the land.”  But this still left a lot to work out:  Who makes the laws, what rules and principles constrain the lawmakers, and what makes a law morally legitimate?

Part 2 now begins by reaching even further back to some of the earliest philosophical essays about the ethics of governmental rulers, by the classical Greek philosophers Plato (428-348 BC) and Aristotle (384-322 BC).  In the 2014 book The Conscience of the Constitution by Timothy Sandefur, the author – an adjunct scholar at the Cato Institute — summarizes their embryonic thinking about government legitimacy:

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[pp. 72-73.]  If there is a difference between law and mere force, then there must be some qualities or criteria that law possesses and mere force lacks.  …Plato employed this argument in his dialogue, the Euthyphro [399 BC], which asks whether the gods value a good thing because it is actually good, or whether it is only good because the gods value it.  If the latter, then goodness is essentially arbitrary….  But if the gods consider something good because it actually is good, according to some objective criteria, then those criteria should also be comprehensible to us.  …Likewise, if the ruler’s acts are law merely because the ruler chooses to act that way, then all law is essentially arbitrary.  The king’s promise to comply with “the law of the land” would be meaningless, because anything he does would automatically be law anyway.

[pp. 75-76.]  In Politics [350 BC], Aristotle distinguished between governments aimed at the benefit of the ruled and those that aim only to profit the ruler.  Those ruled for the benefit of all he classified as monarchies, aristocracies, or polities, depending on whether they are ruled by one, or a few, or the many….  But states that ruled for the ruler’s own benefit he classified as tyrannies, oligarchies, or democracies.  These he likened to slavery because just as the master rules the slave for his own benefit, …so these societies are governed for the sake of the ruler – whether it be a single tyrant, a cadre of oligarchs, or a vulgar, self-interested mob.  …His point was to distinguish healthy majority-rule societies from lawless mob rule.  …Although Aristotle was not a classical liberal like America’s Founding Fathers, both he and they started with the same basic principle:  that legitimate, lawful rule depends upon a community of basic equals who agree in a sort of contract to submit to reasonable rules for protection against violence and fraud.

In the five centuries after the 1297 adoption of the Magna Carta into English statute, there ensued an awesome progression of political and legal philosophers in the British Isles and across the European continent.  The latter portion of this period has been called the Age of Enlightenment.

These gifted thinkers included Sir Edward Coke (1552-1634), Francis Bacon (1562–1626), René Descartes (1596–1650), John Locke (1632–1704), Sir Isaac Newton (1642–1727), Pierre Bayle (1647–1706), Montesquieu (1689-1755), Voltaire (1694–1778), David Hume (1711–1776), Sir William Blackstone (1723-1780), Immanuel Kant (1724–1804), and Edmund Burke (1729-1797).  Four samples of their ideas:

Bacon:  In Civil Society, either law or force prevails.  But there is a kind of force which pretends law, and a kind of law which savours of force rather than equity.  [From this unsavory kind of law flows] three fountains of injustice; namely, mere force, a malicious ensnarement under colour of law, and harshness of the law itself.

Locke:  Absolute arbitrary power, or governing without settled standing laws, [are inconsistent] with the ends of society and government, which men would not…tie themselves up under, were it not to preserve their lives, liberties and fortunes, and by stated rules of right and property to secure their peace and quiet.  It cannot be supposed that they should intend…to give to 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 [would] 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….

Blackstone:  Law is properly defined to be “a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.” Let us endeavour to explain its several properties, as they arise out of this definition.

First, it is a rule; not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform, and universal….

[Law is] a rule prescribed. Because a bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never be properly a law. It is requisite that this resolution be notified to the people who are to obey it.

Burke (in a speech to Parliament):  The properties of law are, first, that it should be known; secondly, that it should be fixed and not occasional.  No man in…any court upon earth will say that is law, upon which, if a man going to his counsel should say to him, “What is my tenure in law of this estate?” he would answer, “Truly, sir, I know not; the court has no rule but its own discretion:  they will determine.”  It is not a fixed Law – because you [meaning Parliament]…vary it according to the occasion, exercise it according to your discretion; no man can call for it as a right.

Conclusion
Timothy Sandefur’s The Conscience of the Constitution sums up the passed-down consensus of the Enlightenment philosophers on the question of “What are the properties of a legitimate law?” as follows:

[pp. 80-81] When government acts according to no limit but its own discretion – when the citizen can only know what the rules are after the ruler announces them, and only for that moment, until the ruler changes them again – then the citizen’s rights are insecure; he is vulnerable to the self-interested or abusive acts of the ruler.  He cannot make plans or deal with others safely and rationally.  These evils follow regardless of whether the arbitrary power is wielded by a monarch or by a democratic voting majority.  [** see footnote]

The published essays of the Age of Enlightenment thinkers filled the bookshelves of America’s great Founding Fathers.  And these teachings were reinforced by the Founders’ own firsthand experience with the resurgent tyranny of the English King George III. The climax of these ideas from the Age of Enlightenment was the American Revolutionary War and then the ratification of the Constitution of the United States of America in 1790.

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[** Footnote:  This excerpt from Timothy Sandefur’s excellent 2014 book makes me think acutely of ObamaCare, how it was passed in Congress, and how it has been endlessly – and arbitrarily – revised by the White House and the Department of Health and Human Services.  In the upcoming parts of this series on Due Process of Law, I intend to examine in some detail the questionable processes used to legislate and implement ObamaCare.]