Chapter 8 (The State and Its Apparatus): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.

--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,

Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of the first Chapter of Part II-- Hierarchies  of Law and Governance; Sources and Uses, Chapter 8 (The State and Its Apparatus).

 

 

 

 

Part II: Hierarchies of Law and Governance; Sources and Uses

Chapter 8

The State and Its Apparatus

I. Introduction.

We have been considering the complex interplay of distinct sub-systems that in the aggregate make up what is understood as “law” in the United States.  You have come to understand that these subsystems include both a methodological and structural element.  Each exhibits distinct cultural behaviors.  Yet each also is intimately connected to the others.  Thus common law describes both the system of substantive law administered through courts, and the methodologies that judges use to develop and apply this law.  Equity describes substantive law that is also judicially administered but beyond the framework of common law.  But it is also a reference to procedural defenses and remedial strategies that can have significant effect on the form and content of judge administered law. Where common law is focused on determining the structures and application of causes of action—referencing rights and obligations defined by conduct parameters—equity tends to consider fairness and prejudice at its core. Like common law and equity, distinct yet related legal sub-systems, statutes and regulations  are related but distinct sub-systems with characteristics somewhat different from those of judicially administered law systems. Both are instrumental expressions of legislative (or administrative will), unlike common law and equity that represents a complex interaction between judicially managed norms and the social norms within which they are embedded. Statutes and regulations are written, and that writing does not change.  Its interpretation and application, however, are either left to or administered by courts.  Courts interpret statute; statutory interpretation is central to the judicial engagement with statutes.  Regulations are established by administrative agencies—courts consider both the jurisdictional power of agencies to regulate, and the authority of other political branches to engage with such agencies.  But courts have imported the methods of common law practice to the exercise of statutory construction.  Statutes and regulations now may be burdened by a complex set of judicial interpretations that may, at times assume importance equal to or greater than the statutory language itself. The ,.

With this introductory chapter we shift our examination from the law to the institutional structures within which they are created, established, elaborated, interpreted and applied. Just as law is organized as a system in which distinct forms of law have superior or inferior power to affect behavior, so too the effectiveness of law, and the extent of its legitimate application is determined to some extent by the nature, character and power of the institution that produced it.

            To that end, this section considers can issue that most lawyers take for granted without stopping long enough to consider—does law (and law making) have a purpose? We will consider two principal schools of thought.  The first assumes that law is an instrument of the state/government with authority to enact it.  At its greatest level of generality, this view posits that law is “positive” and “instrumental.” Under this view, law is the conscious product of the national will directed toward to the attainment of a particular behavior controlling objective.  From that premise, it follows that without government there can be no law. The second assumes that law is autonomous of government.  Law exists whether or not there is a government. In this guise law is understood either as (1) a reflection of the common beliefs and traditions of the people (custom), or (2) the implementation of higher moral norms (natural, religious, rationalist or international customary norms).

II. Chapter Readings

·      John Locke, Second Treatise on Government (Thomas P. Pearson, ed., New York: MacMillan 1952) Chapters X,  XI (Of the Extent of the Legislative Power) Project Gutenberg http://www.gutenberg.org/files/7370/7370-h/7370-h.htm.

·      Carl Schmitt, Legality and Legitimacy 18 (Jeffrey Seitzer trans., Duke U. Press 2004) (1932). READ pp. 17-26

·      Larry Catá Backer, Reifying Law: Understanding Law Beyond the State, 26(3) Penn State International Law Review 521 (2008). READ PARTS I & II (pp. 521-46 of the published version); Available http://www.backerinlaw.com/Site/wp-content/uploads/2013/02/Reifying-Law.pdf.[1]

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Second Treatise of Government

John Locke

1690

[John Locke's "Second Treatise of Government" was published in 1690. The complete unabridged text has been republished several times in edited commentaries. This text is recovered entire from the paperback book, "John Locke Second Treatise of Government", Edited, with an Introduction, By C.B. McPherson, Hackett Publishing Company, Indianapolis and Cambridge, 1980. None of the McPherson edition is included in the Etext below; only the original words contained in the 1690 Locke text is included. The 1690 edition text is free of copyright.] Posting Date: July 28, 2010 [EBook #7370] Release Date: January, 2005 [Last updated: January 6, 2014]

* * * * *

CHAPTER. X.

OF THE FORMS OF A COMMON-WEALTH.

Sect. 132. THE majority having, as has been shewed, upon men's first uniting into society, the whole power of the community naturally in them, may employ all that power in making laws for the community from time to time, and executing those laws by officers of their own appointing; and then the form of the government is a perfect democracy: or else may put the power of making laws into the hands of a few select men, and their heirs or successors; and then it is an oligarchy: or else into the hands of one man, and then it is a monarchy: if to him and his heirs, it is an hereditary monarchy: if to him only for life, but upon his death the power only of nominating a successor to return to them; an elective monarchy. And so accordingly of these the community may make compounded and mixed forms of government, as they think good. And if the legislative power be at first given by the majority to one or more persons only for their lives, or any limited time, and then the supreme power to revert to them again; when it is so reverted, the community may dispose of it again anew into what hands they please, and so constitute a new form of government: for the form of government depending upon the placing the supreme power, which is the legislative, it being impossible to conceive that an inferior power should prescribe to a superior, or any but the supreme make laws, according as the power of making laws is placed, such is the form of the commonwealth.

Sect. 133. By commonwealth, I must be understood all along to mean, not a democracy, or any form of government, but any independent community, which the Latines signified by the word civitas, to which the word which best answers in our language, is commonwealth, and most properly expresses such a society of men, which community or city in English does not; for there may be subordinate communities in a government; and city amongst us has a quite different notion from commonwealth: and therefore, to avoid ambiguity, I crave leave to use the word commonwealth in that sense, in which I find it used by king James the first; and I take it to be its genuine signification; which if any body dislike, I consent with him to change it for a better.

CHAPTER. XI.

OF THE EXTENT OF THE LEGISLATIVE POWER.

Sect. 134. THE great end of men's entering into society, being the enjoyment of their properties in peace and safety, and the great instrument and means of that being the laws established in that society; the first and fundamental positive law of all commonwealths is the establishing of the legislative power; as the first and fundamental natural law, which is to govern even the legislative itself, is the preservation of the society, and (as far as will consist with the public good) of every person in it. This legislative is not only the supreme power of the commonwealth, but sacred and unalterable in the hands where the community have once placed it; nor can any edict of any body else, in what form soever conceived, or by what power soever backed, have the force and obligation of a law, which has not its sanction from that legislative which the public has chosen and appointed: for without this the law could not have that, which is absolutely necessary to its being a law,* the consent of the society, over whom no body can have a power to make laws, but by their own consent, and by authority received from them; and therefore all the obedience, which by the most solemn ties any one can be obliged to pay, ultimately terminates in this supreme power, and is directed by those laws which it enacts: nor can any oaths to any foreign power whatsoever, or any domestic subordinate power, discharge any member of the society from his obedience to the legislative, acting pursuant to their trust; nor oblige him to any obedience contrary to the laws so enacted, or farther than they do allow; it being ridiculous to imagine one can be tied ultimately to obey any power in the society, which is not the supreme.

(*The lawful power of making laws to command whole politic societies of men, belonging so properly unto the same intire societies, that for any prince or potentate of what kind soever upon earth, to exercise the same of himself, and not by express commission immediately and personally received from God, or else by authority derived at the first from their consent, upon whose persons they impose laws, it is no better than mere tyranny. Laws they are not therefore which public approbation hath not made so. Hooker's Eccl. Pol. l. i. sect. 10.

Of this point therefore we are to note, that such men naturally have no full and perfect power to command whole politic multitudes of men, therefore utterly without our consent, we could in such sort be at no man's commandment living. And to be commanded we do consent, when that society, whereof we be a part, hath at any time before consented, without revoking the same after by the like universal agreement. Laws therefore human, of what kind so ever, are available by consent. Ibid.)

Sect. 135. Though the legislative, whether placed in one or more, whether it be always in being, or only by intervals, though it be the supreme power in every commonwealth; yet:

First, It is not, nor can possibly be absolutely arbitrary over the lives and fortunes of the people: for it being but the joint power of every member of the society given up to that person, or assembly, which is legislator; it can be no more than those persons had in a state of nature before they entered into society, and gave up to the community: for no body can transfer to another more power than he has in himself; and no body has an absolute arbitrary power over himself, or over any other, to destroy his own life, or take away the life or property of another. A man, as has been proved, cannot subject himself to the arbitrary power of another; and having in the state of nature no arbitrary power over the life, liberty, or possession of another, but only so much as the law of nature gave him for the preservation of himself, and the rest of mankind; this is all he doth, or can give up to the commonwealth, and by it to the legislative power, so that the legislative can have no more than this. Their power, in the utmost bounds of it, 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.* The obligations of the law of nature cease not in society, but only in many cases are drawn closer, and have by human laws known penalties annexed to them, to inforce their observation. Thus the law of nature stands as an eternal rule to all men, legislators as well as others. The rules that they make for other men's actions, must, as well as their own and other men's actions, be conformable to the law of nature, i.e. to the will of God, of which that is a declaration, and the fundamental law of nature being the preservation of mankind, no human sanction can be good, or valid against it.

(*Two foundations there are which bear up public societies; the one a natural inclination, whereby all men desire sociable life and fellowship; the other an order, expresly or secretly agreed upon, touching the manner of their union in living together: the latter is that which we call the law of a common-weal, the very soul of a politic body, the parts whereof are by law animated, held together, and set on work in such actions as the common good requireth. Laws politic, ordained for external order and regiment amongst men, are never framed as they should be, unless presuming the will of man to be inwardly obstinate, rebellious, and averse from all obedience to the sacred laws of his nature; in a word, unless presuming man to be, in regard of his depraved mind, little better than a wild beast, they do accordingly provide, notwithstanding, so to frame his outward actions, that they be no hindrance unto the common good, for which societies are instituted. Unless they do this, they are not perfect. Hooker's Eccl. Pol. l. i. sect. 10.)

Sect. 136. Secondly, The legislative, or supreme authority, cannot assume to its self a power to rule by extemporary arbitrary decrees, but is bound to dispense justice, and decide the rights of the subject by promulgated standing laws, and known authorized judges:* for the law of nature being unwritten, and so no where to be found but in the minds of men, they who through passion or interest shall miscite, or misapply it, cannot so easily be convinced of their mistake where there is no established judge: and so it serves not, as it ought, to determine the rights, and fence the properties of those that live under it, especially where every one is judge, interpreter, and executioner of it too, and that in his own case: and he that has right on his side, having ordinarily but his own single strength, hath not force enough to defend himself from injuries, or to punish delinquents. To avoid these inconveniences, which disorder men's propperties in the state of nature, men unite into societies, that they may have the united strength of the whole society to secure and defend their properties, and may have standing rules to bound it, by which every one may know what is his. To this end it is that men give up all their natural power to the society which 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.

(*Human laws are measures in respect of men whose actions they must direct, howbeit such measures they are as have also their higher rules to be measured by, which rules are two, the law of God, and the law of nature; so that laws human must be made according to the general laws of nature, and without contradiction to any positive law of scripture, otherwise they are ill made. Hooker's Eccl. Pol. l. iii. sect. 9.

To constrain men to any thing inconvenient doth seem unreasonable. Ibid. l. i. sect. 10.)

Sect. 137. Absolute arbitrary power, or governing without settled standing laws, can neither of them consist with the ends of society and government, which men would not quit the freedom of the state of nature for, and 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, had they a power so to do, 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 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; he being in a much worse condition, who is exposed to the arbitrary power of one man, who has the command of 100,000, than he that is exposed to the arbitrary power of 100,000 single men; no body being secure, that his will, who has such a command, is better than that of other men, though his force be 100,000 times stronger. And therefore, whatever form the commonwealth is under, the ruling power ought to govern by declared and received laws, and not by extemporary dictates and undetermined resolutions: for then mankind will be in a far worse condition than in the state of nature, if they shall have armed one, or a few men with the joint power of a multitude, to force them to obey at pleasure the exorbitant and unlimited decrees of their sudden thoughts, or unrestrained, and till that moment unknown wills, without having any measures set down which may guide and justify their actions: for all the power the government has, being only for the good of the society, as it ought not to be arbitrary and at pleasure, so it ought to be exercised by established and promulgated laws; that both the people may know their duty, and be safe and secure within the limits of the law; and the rulers too kept within their bounds, and not be tempted, by the power they have in their hands, to employ it to such purposes, and by such measures, as they would not have known, and own not willingly.

Sect. 138. Thirdly, The supreme power cannot take from any man any part of his property without his own consent: for the preservation of property being the end of government, and that for which men enter into society, it necessarily supposes and requires, that the people should have property, without which they must be supposed to lose that, by entering into society, which was the end for which they entered into it; too gross an absurdity for any man to own. Men therefore in society having property, they have such a right to the goods, which by the law of the community are their's, that no body hath a right to take their substance or any part of it from them, without their own consent: without this they have no property at all; for I have truly no property in that, which another can by right take from me, when he pleases, against my consent. Hence it is a mistake to think, that the supreme or legislative power of any commonwealth, can do what it will, and dispose of the estates of the subject arbitrarily, or take any part of them at pleasure. This is not much to be feared in governments where the legislative consists, wholly or in part, in assemblies which are variable, whose members, upon the dissolution of the assembly, are subjects under the common laws of their country, equally with the rest. But in governments, where the legislative is in one lasting assembly always in being, or in one man, as in absolute monarchies, there is danger still, that they will think themselves to have a distinct interest from the rest of the community; and so will be apt to increase their own riches and power, by taking what they think fit from the people: for a man's property is not at all secure, tho' there be good and equitable laws to set the bounds of it between him and his fellow subjects, if he who commands those subjects have power to take from any private man, what part he pleases of his property, and use and dispose of it as he thinks good.

Sect. 139. But government, into whatsoever hands it is put, being, as I have before shewed, intrusted with this condition, and for this end, that men might have and secure their properties; the prince, or senate, however it may have power to make laws, for the regulating of property between the subjects one amongst another, yet can never have a power to take to themselves the whole, or any part of the subjects property, without their own consent: for this would be in effect to leave them no property at all. And to let us see, that even absolute power, where it is necessary, is not arbitrary by being absolute, but is still limited by that reason, and confined to those ends, which required it in some cases to be absolute, we need look no farther than the common practice of martial discipline: for the preservation of the army, and in it of the whole commonwealth, requires an absolute obedience to the command of every superior officer, and it is justly death to disobey or dispute the most dangerous or unreasonable of them; but yet we see, that neither the serjeant, that could command a soldier to march up to the mouth of a cannon, or stand in a breach, where he is almost sure to perish, can command that soldier to give him one penny of his money; nor the general, that can condemn him to death for deserting his post, or for not obeying the most desperate orders, can yet, with all his absolute power of life and death, dispose of one farthing of that soldier's estate, or seize one jot of his goods; whom yet he can command any thing, and hang for the least disobedience; because such a blind obedience is necessary to that end, for which the commander has his power, viz. the preservation of the rest; but the disposing of his goods has nothing to do with it.

Sect. 140. 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?

Sect. 141. Fourthly, The legislative cannot transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it cannot pass it over to others. The people alone can appoint the form of the commonwealth, which is by constituting the legislative, and appointing in whose hands that shall be. And when the people have said, We will submit to rules, and be governed by laws made by such men, and in such forms, no body else can say other men shall make laws for them; nor can the people be bound by any laws, but such as are enacted by those whom they have chosen, and authorized to make laws for them. The power of the legislative, being derived from the people by a positive voluntary grant and institution, can be no other than what that positive grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws, and place it in other hands.

Sect. 142. These are the bounds which the trust, that is put in them by the society, and the law of God and nature, have set to the legislative power of every commonwealth, in all forms of government.

First, They are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favourite at court, and the country man at plough.

Secondly, These laws also ought to be designed for no other end ultimately, but the good of the people.

Thirdly, They must not raise taxes on the property of the people, without the consent of the people, given by themselves, or their deputies. And this properly concerns only such governments where the legislative is always in being, or at least where the people have not reserved any part of the legislative to deputies, to be from time to time chosen by themselves.

Fourthly, The legislative neither must nor can transfer the power of making laws to any body else, or place it any where, but where the people have.

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Reifying Law--Government, Law And The Rule Of Law In Governance Systems

Larry Catá Backer^a1

26 Penn St. Int'l L. Rev. 521

Winter 2008

I. Introduction

In the West, the relationship of law and human organization, the relationship of law and the individual, and the relationship of the *523 individual to the organizational forms individuals embrace, has been turbulent. At various times since the seventeenth century, law has been understood as an object separate from the state and its apparatus (usually a government).¹ In this aspect, law has been constructed as the sum of the common relationships of the people amongst themselves--it is in this sense the manifestation of the people themselves as an aggregate body. Sometimes those relationships also included the political, social and economic relations of the social order. Sometimes it did not. Sometimes, this separate organism called law was considered superior to the state, or at least to the political organs of state power. Sometimes it was viewed as on par with those organs. But law, and especially the basic law customs and laws of the community could be disturbed by the state, through its government, only at great risk to itself.²

At the same time, and increasingly since the seventeenth century, law has been viewed as the expression of state power,³ or at least that of its government.⁴ In this view, the state, rather than law, is understood as organic. And law is understood as serving as the instrument of the state. In those cases, law was viewed as either process or language.⁵ As a manifestation of state power, or at least of the power of the apparatus of state, law was considered a means of ordering that manifestation of power, sometimes of cloaking that manifestation in process. Sometimes law was thought to encompass the whole of the rulemaking power of any *524 society. Sometimes law was viewed as substantially less complete--that is, as a partial manifestation of power over behavior. Sometimes law was seen as proceeding from the community, sometimes it was understood to proceed from God. Sometimes law was God. Sometimes law was God's inverse--chaos or worse. And sometimes, in Marxist lands after 1917, law was deemed a manifestation of politics and institutionalized class struggle.⁶ Thereafter in the West, “legal realists” and elements of self-styled legal post modernism echoed this suggestion.⁷ Especially since the 1990s, ironically enough, and in the context of economic globalization, law was deemed to be largely irrelevant, at least in its traditional forms and for its traditional functions.⁸

This turbulence, once confined to great battles over the nature of governance and power within states, has now become a source of great debate among those interested in the construction of transnational and international legal systems. It underlies the disputes between those advocating an authoritative and binding effect and power of “organic” and customary law in international and transnational systems, and those who view lawmaking as grounded in authentic and legitimate legal instruments produced by positive action of some fraction of the community of nations.

When law is said to “rule” in the West, then, it is meant to cover a large terrain of complex and inconsistent meaning. Thus, law itself serves as a veil over its own nature. However conceived, law remains important to the discourse of power. That people have embraced the idea *525 that law is a thing is beyond dispute. The exact nature of that “thingness” is quite another story. Yet the “thingness” of law is critically important for the ordering of power relationships among people, institutions and communities. I am little interested in the “true” meaning of law as an abstract proposition, or even as a question of fact. I am not sure the question is particularly relevant, except perhaps as a means of gaining advantage in the never ending cultural wars for control of perceptions of meaning. Human behavior is driven by what people believe and the choices they make in adopting certain “privileged” beliefs when constructing their communities, rather than any abstract truth of those beliefs.

For this essay, I explore the way in which law is reified, that is, the way that law is sometimes understood as a thing, process, aspect or character apart from and in addition to its particular content. And I explore the way that this reification has been contested, that is, the development of the notion of law as a mere instrument of power, of law as no more than its content and no less than the power of the institutions whose will it expresses. I suggest some of the important ways in which law-as-a-thing-apart has been recreating itself in the post-Soviet globalized world. I am particularly interested in the ways that law is now said to rule. In ways reminiscent of the dynamics of conversations about law in seventeenth century in England, law has become again amorphous, capable of simultaneous multiple meanings. Law is an important object for capture among those whose systems of institutionalized power relationships require an object around which to legitimate compulsion, behavior and the management of conduct at every level of human organization. I then look forward to the modern expression of these ancient conundrums by exploring the current expression of law as technique.⁹ Specifically, I explore the way in which the contested understanding of law as object or subject becomes a critical element in the management of networks of power at the international global level and in the reconstitution of legal reification in global common law and private transnational legal systems.¹⁰ I end by exploring the implications of these theories in the construction of modern transnational constitutionalism, both secular and theocratic.¹¹

*526 II. Gubernaculum and Jurisdictio

In the seventeenth century in England and the American colonies, law was reified as the great bulwark against personal and institutional power. It was a thing that stood outside of the state and its apparatus, but also within it. Law was the reification of the people and their customs, which no single person could undo, but which mediated the relations between the estates of the realm. Law, and especially the common law, as a whole could not be undone by either Crown or Parliament, but reflected them as well. Only the High Court of Parliament could serve as a law making body.¹² In this sense, law making could be understood as exceptional, requiring the invocation of an institution representative of all of the constituents of common law. The state and its apparatus and the law were thus two quite different things.¹³

This understanding had ancient roots. Aristotle clearly distinguished state (the magistrate, or power relationships) from law (the rule, or obligation and duty of individuals and behavior regulation). Though it was clear that there was a relationship between them, that relationship was not vertical. Law was not merely an instrument of state power. At the same time, the state was not merely the expression of law. Aristotle, for example, noted, “all laws are, and ought to be, framed agreeable to the state that is to be governed by them, and not the state to the laws.”¹⁴ But at the same time he cautioned that “the laws are different from what regulates and expresses the form of the constitution; it is in their office to direct the magistrate in the execution of his office and the punishment of offenders.”¹⁵ Aristotle's works had been recovered in Western Europe by the twelfth century.¹⁶ The founders of the American republic were well aware of Aristotle's work, including the Politics, which formed the basis of classical education for the American ruling classes at the time of the founding. Echoes can be found in Madison's Federalist No. 10,¹⁷ and also in Hamilton's works.¹⁸

*527 Its most important roots, however, were a sophisticated medieval jurisprudence.¹⁹ For our purposes Bracton provides the most important late medieval foundational source. As Charles McIlwain well put it,²⁰ for English constitutionalists at the end of the medieval period, there was “a separation far sharper than we make in our modern times between government and law, between gubernaculum and jurisdictio.”²¹ Within the sphere of gubernaculum, the power of those who hold authority to act is absolute. That power could be expressed by action--the enforcement action of the state--and also by enactment of law, narrowly conceived. The narrowness of the conception is grounded in the fundamental distinction between enactments of an administrative character, and the power to define a legal right. Thus, to Bracton, “leges (in the narrow sense of the word), constitutions, and assisae are nothing more than administrative orders, and therefore part of ‘government'--something which ‘pertains to the administration of the realm (pertinet ad regni gubernaculum)--and as such are properly within the king's exclusive control.’'²²

Within the authority of government, more narrowly defined, law is essentially instrumentalist in character. It serves as an expression of the king's (and thereafter the parliamentary) will. It is fundamentally administrative in character (understood in the modern French or German sense), though it is expressed in the forms of statute. It corresponds roughly to the measures whose transformation into law was so derided by Carl Schmitt²³ in his attacks on Weimar constitutionalism.²⁴ There is a residue of this notion still in the differentiation within French constitutional law, between the idea of lois, the province of the nation expressed through its Assembly, and reglement, which under Article 37 of the French Constitution are within the power of the executive authority.²⁵ And this division has been urged as a basis for global governance.²⁶

The space within which gubernaculum operates is broad but not *528 unlimited. The absolute authority of gubernaculum, was limited by jurisdictio, understood as a “higher,” or in modern terms, constitutional law. This higher law described rights, whose breach was beyond the power of government. These rights were not inherently instrumental, that is proceeding from a conscious act of government. They were positive, organic and limiting principles.

Definitions of “right,” . . . share the character of the immemorial custom they define, and these, Bracton says, “since they have been approved by the consent of those using them and confirmed by the oath of kings, can neither be changed nor destroyed without the common consent of all those with whom counsel and consent they have been promulgated.”²⁷ Government, within its sphere, had the absolute power to act, through administrative orders (in statutory or other form). But the rights of the political community, expressed in its organic privileges and customs, acquired a life of their own, unmoored from the state or the governance rights of the monarch. In the aggregate, these rights served as a body of law, an expression of an autonomous power of the political community against its governing apparatus (traditionally in the person of the monarch).²⁸ “When King John substituted his will for the law, in proceeding against vassals whose wrong had not been judicially proved, civil war and the Great Charter were the result.”²⁹ Gubernaculum had no power over jurisdictio, but was required to act within its normative limits. These limits eventually would be expressed through the courts, in its current form as judicial review. Originally it was expressed through assertions of rights by royal vassals, and in the extreme, for example in the 13^th, and 17^th centuries in England, and in the 18^th century in the American colonies, as revolution. Law, in this sense, is not instrumental, but is “positive and coercive, and a royal act beyond those bounds is ultra vires.”³⁰

This understanding of the separation of law from government, of the state from the system of rules that bind the apparatus of the state, was popularized within the English elites through Sir John Fortescue's treatise on the Governance of England.³¹ Fortescue carried forward Bracton's notions of a law existing as a limiting power beyond the government's, “formed by the rights of his subjects which the king has sworn to maintain, and which he cannot lawfully change or blemish or *529 arbitrarily transfer from one to another.”³² These traditional notions of law reified as jurisdictio found its most influential modern expression in England during the reigns of the early Stuarts.³³ In Sir Edward Coke's writings, it also served as a great basis for American constitutionalism. Coke was widely known in the colonies. His work, especially on property, though expensive, was often a prized part of personal law libraries in the American colonies.³⁴ And the views he expressed were in sympathy with colonizing communities, especially north of the Potomac River.

One of the most influential expressions of the idea of law as an entity separate from government is found in Coke's report of Dr. Bonham's Case (1610).³⁵ The case related to the power of the College of Physicians to regulate the medical trade in London. With respect to the extent of Parliament's power to grant a concession against common law, Coke reported:

And it appeareth in our Books, that in many Cases, the Common law doth controll Acts of Parliament, and sometimes shall adjudge them to be void: for when an Act of Parliament is against Common right and reason, or repugnant or impossible to be performed, the Common law will controll it, and adjudge such Act to be void.³⁶ To a great degree, law was meant to protect against the inclusions of power by setting up another power, beyond the reach of an individual, even the holder of governmental authority. It fractured power and set its mechanisms beyond the reach of the sovereign.

Law stood as the thing through which a system of opposing power--entrusted to and managed by a large class of well-socialized acolytes (the bar)--could resist the power of the state to coerce behavior. As Mary Sarah Bilder suggests:

Although during the seventeenth century, Coke and then Hale would develop increasingly elaborate understandings of the common law, the common law remained a system in which pleas to the judiciary required addressing “reason” --” the faculty acquired by training that extracted some workable rules from a formless body of immemorial *530 knowledge”--not appealing for what any ordinary person could claim was justice, equity, or mercy.³⁷ Thus, the law was intolerant of the notion that a monarch had the power to personally decide cases at common law. Corwin well recounts this idea in action in the famous confrontation between Coke and James I at Hampton Court on November 10, 1608, in which the judges of the Realm sought to resist the notion that James, as King, had authority to decide cases at common law in his own person.³⁸

Responding to the idea that reason alone was sufficient to apply the law, Coke responded that:

causes which concern the life, or inheritance or goods, or fortunes of his subjects, are not to be decided by natural reason, but by the artificial reason and judgment of the law which law is an act which requires long study and experience before a man can attain to the cognizance of it.³⁹ James well understood the implication--the King himself was under law. This, James thought, “should be treason to affirm,”⁴⁰ to which Coke responded with Bracton's words: “Quod Rex non debet esse sub homine, sed sub Deo et lege” (“The King ought not to be subject to man, but subject to God and to the law”).⁴¹ Of course, Coke meant to twist the meaning of Bracton, who wrote at a time in which the law proceeded from God through His Church. For Bracton, all authority may have derived from law, but law derived from God as Logos. With this conflation it was an easy matter (and no treason) to place King under law: that is, under God. A King acting solely on the basis of the authority of his own will acted as a mere man, like any other. Critically for Coke, the Divine connection was not relevant to make the statement true. Now it was common law as jus, not proceeding from the divine that served the purpose of differentiating between lex and homine.

This understanding of law contributed eventually to the production of a doctrine of Parliamentary supremacy under law. Law was understood to exist to some extent beyond the State, though capable of modification (in part) through it.⁴² Law was both the expression of power (in terms of ordering behavior), and also opposed to power (in terms of resisting assertions by individuals or institutions to order behavior ultra vires). Under this conception of law, government (and the *531 state) is viewed as fiduciary in nature. Its power is derivative and limited. It is thus a partial rather than a total power to order behavior. Government (first King, then King in Parliament, then Parliament alone) might ultimately express law as a conscious and positive act. But Government can never be law, nor reduce law to an instrument of governmental will. In this sense law remains an “other” to government, that is, a thing in a very real sense. It may not be delegated,⁴³ nor may it be reduced to an instrumental character. The “community perpetually retains a supreme power of saving themselves from the attempts and designs of anybody, even their legislators, whenever they shall be so foolish or so wicked as to lay and carry on designs against the liberties and properties of the subject.”⁴⁴ Law, like God, remains outside the reach of individuals, or the people, but moves with them, and serves to protect them from themselves in a complicated conversation.⁴⁵

But, law also constituted its own point of resistance. “[T]here are no relations of power without resistances; the latter are all the more real and effective because they are formed right at the point where relations of power are exercised.”⁴⁶ Law here retains its composition as thing, but now it is a thing whose purpose is to serve as instrument of the very power it appeared to resist, and managed for this purpose by the same large class of well-socialized acolytes. Thus, Francis Bacon reminds us in oft quoted language that:

Judges ought to remember that their office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law; else it would be like the authority claimed by the Church of Rome, which, under pretext of exposition of Scripture, doth not stick to add and alter, and to pronounce that which they do not find, and, by show of antiquity, to introduce novelty.⁴⁷

Judges, like law, assume an instrumental character. “Let judges also remember that Solomon's throne was supported by lions on both sides; let them be lions, but yet lions under the throne, being circumspect that they do not check or oppose any points of sovereignty.”⁴⁸

This also found an odd reflection in the American colonies. Mary Sarah Bilder reminds us of the strong colonial embrace of equity, *532 founded in part on an appeal to authority beyond the narrowness of law, bound up in the development of appeal.⁴⁹

The system that the colonists adopted and adapted contained a substantive theory of justice that differed from the rule of law. Their belief in the importance of equity from an accepted hierarchical political authority led them to create a new culture of appeal. The new culture ironically was based on a procedural device that was linked to institutions they despised (Rome, the Pope, ecclesiastical courts, the king), but with a set of meanings that held forth a promise of justice nonexistent in England.⁵⁰ Bacon and Coke represented the jurisprudential opposing poles of what would eventually require violent resolution in the English Civil War, which greatly influenced the development of American legal culture. As Kevin Philips explains in a remarkable study of the socio-religious and cultural connections between the English Civil War, the American Revolutionary War and the American Civil War, the “English Civil War is the necessary starting point . . . where the events and alignments leading up to the American Revolution began. The latter was really a second English-speaking civil war, drawing many of its issues, antagonisms, and divisions from the seventeenth- and eighteenth-century British Isles.”⁵¹ Philips argues that the pattern of rebellion and loyalty in those conflicts “leads to religion.”⁵² And the road from theology to law and politics is broad and direct, especially before the nineteenth century.⁵³

This idea of theology creating a path to law and politics reconstitutes itself in Hobbes, and the beginning of a “positivist” school of jurisprudence in which government is conceived as the monopoly holder of legitimate power. All other forms of its expression are marginalized and subordinated:

Those that speak of this subject, confound jus and lex, right and law, but they ought to be distinguished. right, consisteth in liberty to do or to forbear; whereas law, determineth, and binds people to do or to forbear. Law and right differ as much as do obligation and liberty, which are inconsistent when applied to the same thing.⁵⁴ This, of course, is one of the bases not of eighteenth century, but of *533 twentieth century American notions of law and its relationship to the state. In the early nineteenth century, Justice Marshall famously explained American political theory as grounded in a division of governmental authority in which the whole of the legislative power was vested in the Congress.⁵⁵ However, Justice Marshall did not suggest that law was merely the instrument through which this whole of the legislative power was exercised, that is that law was mere servant of legislator who otherwise acted unbounded. By the end of that century though, Americans had come to believe, as Thomas Paine has suggested at the time of the founding of the Republic,⁵⁶ that the extent of the law was co-extensive with the power to legislate, and that indeed, that law did not exist except as a concession of the legislator, or more generally the people constituted as a legislative body.

Thus, the nineteenth century witnessed a great reconstitution of the relationship between gubernaculum and jurisdictio. By century's end, jurisdictio had become something more like modern constitutionalism, conceptually less organic than medieval notions of constitutional custom (consuetudo) and more directly bound up within sovereign positivism (the right of the people to reconstitute themselves through acts of political will). These are notions indirectly expressed in English constitutionalism⁵⁷ and more directly expressed in American constitutionalism. In the Weimar Constitution and the French constitutions, of course, the positivist notion completely overcomes consuetude: the people, constituted in a national assembly become the living embodiment of right. And, in modern constitutionalism, gubernaculum becomes the sole space within which jurisdictio can be asserted.⁵⁸

In common law jurisdictions, the relationship between law and power, or more precisely, between law and the state, become increasingly conflated from the nineteenth century. And in the conflation, the relationship between them becomes multiple and inverted. The absolutism embedded in the administrative gubernaculum is extended to jurisdictio, and jurisdictio becomes an instrument of gubernaculum. The template is set in the seventeenth century in the *534 debate between Coke and Bacon. McIlwain nicely expresses this insight:

In the seventeenth century, the royalists, citing the undoubted precedents for absolutism in government alone, extended those without warrant into the sphere of mere jurisdiction; while the parliamentarians, seeing the limits of the medieval jurisdictio, with equal lack of justification, applied these to acts of government as well as to the definitions of right.⁵⁹

From the eighteenth to the end of the nineteenth century everywhere, though to the greatest extent in France:

Law was an effective instrument for the constitution of monarchical forms of power in Europe, and political thought was ordered for centuries around the problem of Sovereignty and its rights. Moreover, law . . . was a weapon of the struggle against the same monarchical power which had initially made use of it to impose itself. Finally, law was the principle mode of representation of power.⁶⁰ The scientism of law, especially as articulated in the nineteenth century by English thinkers uncomfortable with the protean ambiguity of custom, paralleled the rationalization of all human relations that was perhaps the greatest legacy of the Enlightenment. “For Bentham and Austin, the law was, indeed, capable of being a rational science.”⁶¹ Rationalization of the common law had been in the air among elites since the end of the Napoleonic Wars with Bentham's suggestions to that effect.⁶² As Alcott nicely summarizes:

What came to be called Austinian legal positivism was thus the means by which the general cultural phenomenon of positivism was allowed vestigially to affect the minds of lawyers. Law could be explained without reference to the extra-legal, the mysterious, the ideal or the moral. The Austinian orthodoxy was also prophetic, as the partly reformed parliament (after 1832) became, or came to seem to be, the engine for revolutionary transformation of British society.⁶³

In the United States, this march toward scientism affected everything in law. For example, legal education was rationalized in the nineteenth century, joining other academic disciplines in the University where its disciples have worked for over a century to make a science of the law.⁶⁴ *535 This scientism has affected the way in which the law is used to rationalize and model human behavior as well, especially in American criminal law.⁶⁵ Contemporary Americans were no less willing to abandon the unruliness of Coke and custom for Bacon, hierarchy, and rationality. Codification of the common law had been in the air since at least the time of Justice Joseph Story.⁶⁶ That work continues in the bar, through the century of legal rationalization of the common law.⁶⁷

Entities like the American Law Institute continue the work of conversion of the common law into something like an Imperial Roman Codex. The American Law Institute (“ALI”), building on the “Bractonian and Blackstonian treatises, declaring the common law on the empirical foundations of judicial decisions,”⁶⁸ fearing the “chaos in a legal world of 48 states”⁶⁹ but afraid to undertake legislative codification, invented the form of the Restatement. Restatements constituted a synthesis of sorts, “analytical, critical and constructive,”⁷⁰ seeking to reduce to a single systematic form the underlying principles that gave a legal field coherence “and thus restore the coherence of the common law as properly apprehended.”⁷¹ They serve once to synthesize and to innovate.⁷² Though not binding, ALI Restatements have proven to be authoritative in many American courts.

French constitutionalism from the time of their eighteenth century revolution expressed well this new relationship of law to state. Law was a function of will expressed through the nation, and it was the nation, rather than law, that was reified, in the French case, in the form of the assembled and legitimate representatives of the nation.⁷³ These *536 assembled representatives together constituted as the nation--another reification. Thus reified, this aggregation served to give concrete form to that abstraction, the state. So manifested, the state could express its will as law, and thus, express the state as a unitary community.⁷⁴ The Code Napoléon thus proceeded from the nation, as an act of wholly contained sovereign will.⁷⁵ Yet the Code Napoléon expressed not merely internal, but also external will. “In one aspect of his imperial policy Napoleon was consistent-- the introduction of the Code Napoléon into the annexed territories and vassal states. The Code was the container in which the principles of the French Revolution were carried throughout Western Europe, even as far as Illyria and Poland.”⁷⁶ Thus, the set of assumptions that shaped the legal culture producing the Code Napoléon also produced the set of assumptions necessary to use that Code (and others like it from other states) as part of the European imperial projects of the nineteenth and twentieth centuries.

Here one encounters a sort of reification inverted. The objectification is not systemic--there is no intangible but compelling body of law independent of the state apparatus, there are only intangible instruments of the national will whose physical expression is written rule proceeding from the lawgiver. It did not exist outside the state; its objectification was instrumental and dependant on government. This is law as technique, assuming a form generalized as the disciplines by Foucault almost two centuries later.⁷⁷ And it fit nicely into developing European notions that conflated ethnos, demos, state and government. Thus, for example, Savigny, in a way that was no longer remarkable by the nineteenth century, could articulate a systemic theoretics grounded in the idea that every people constitutes a state. “By transcending the distinction between people and state, Savigny makes it possible to think of private law as the emanation of the people's spirit (Volksgeist), and still conceptualize private international law as a system of conflicts between state laws.”⁷⁸ For these theorists, of whom Savigny serves as a great early example, it became an object of faith that “just as the people *537 only attain reality through the state, so the people's (private) law becomes law only through the state.”⁷⁹

The reification of ethnos through law as opposed to the reification of law through demos continues to drive important areas of continental law making. It has proven important in the development of European constitutional theory in the context of the construction of that great supra-national entity, the European Union. This conceptualization of law as an expression of ethno-reification through state formation was nicely expressed, for example, by the German Federal Constitutional Court in considering the character of the European Union within German constitutionalism.⁸⁰

Democracy, if not to remain a formal principle of accountability, it is dependent upon the existence of specific privileged conditions, such as ongoing free interaction of social forces, interests and ideas, in the course of which political objectives are goals also clarified and modified and as a result of which public opinion moulds political policy. For this to be achieved, it is essential that both the decision-making process amongst those institutions which implement sovereign power and the political objectives in each case should be clear and comprehensible to all, and also that the enfranchised citizen should be able to use its own language in communicating with the sovereign power to which he is subject. . . . [A]ctual conditions of this kind may be developed in the course of time, within the institutional framework of the European Union.⁸¹ State and government nicely reify people (as ethnos) through the mechanics of law that serves the ultimate purpose of preserving the autonomy of every ethnos. “Each of the peoples of the individual States is the starting point for a state power relating to that people.”⁸² The state then serves as source and limit of law. “The States need sufficiently important spheres of activity of their own in which the people of each can develop and articulate itself in a process of political will-formation which it legitimates and controls”⁸³ through an instrumentalist law, “in order thus to give legal expression to what binds the people together (to a greater or lesser degree of homogeneity) spiritually, socially and politically.”⁸⁴

*538 Napoléon, and his successors (especially though by no means limited to the great nineteenth century German theorists) marked the end of a long period of development of customary and positive law not centered on the state.⁸⁵ Roman law, for example, even as a sort of set of general principles, became formally fractured and incorporated within the ethnic genius of the law codes of European tribes now organized as fully formed Westphalian states. But even on the Continent, the medieval notions of custom and constitutions guaranteed to political subdivisions (the “ancient rights”) survived in some form. They remain a potent force to this day in places like Catalunya, whose twenty-first century struggle for autonomy is based on a political program to vindicate its fourteenth century rights derived from, and confirmed by, the Crown.⁸⁶

Carl Schmitt captures well the Continental suspicion of approaches to law whose legitimacy and content was to some extent beyond the control of government. Marginalized as mere “custom” “its actual polemical-political significance was determined through the opposition against the legislative right of the absolutist Monarchs. . . . [T]he recognition of customary law always means a limitation on the parliamentary lawmaker to the benefit of other [state] organs, especially, of course, the judiciary.”⁸⁷ This strongly echoes Coke and places a modern, state centered gloss on law as the reified “other,” separate from the state and its apparatus. Of course, this was the worst of all worlds for theorists like Schmitt, as well as for the great legal system builders of the nineteenth century in Europe, from those who crafted the Code Napoleon, to nineteenth century German law theorists busy creating a normative foundation for the construction of the Reich and the expression of its genius in law, the great Bürgerliches Gesetzbuch, the *539 German civil code.⁸⁸ For the great state builders of the nineteenth century, from Hamilton and Thomas Paine in the United States, to the state builders all across Europe, and ultimately the builders of totalitarian state regimes in Europe in the early twentieth century,

[t]he images of legal science and legal practice were (and still certainly are) mastered by a series of simple equivalences. Law = statute; statute = the state regulation that comes about with the participation of the representative assembly. Practically speaking, that is what is meant by law when one demanded the “rule of law” and the “principle of the legality of all state action” as the defining characteristic of the Rechtsstaat.⁸⁹ The positivist basic norm posits the “congruence of law and statute. The state is law in statutory form; law in statutory form is the state. . . . There is only legality, not authority or commands from above.”⁹⁰

In the twentieth century, the spirit of Francis Bacon, now rationalized as a “social science,” was strongly felt, but within an altered landscape of law and government. By mid century, among many influential circles of the Western elite, law was displaced by politics; the focus on the formal elements of systems was displaced by the substantive analysis of power. In the United States, the so-called pragmatists and even more ironically misnamed “legal realists” sought to reduce common law notions to a caricature of its system despised by civil lawyers.

Justice Scalia has been among the most astute advocates of positivist instrumentalism of the late twentieth and early twenty-first centuries. For Scalia an autonomous reified law disappeared at the same time that the common law was replaced in the United States by notions of democratic constitutionalism. Scalia's boldest pronouncement in this regard could not be clearer and is worth quoting. Referring to autonomous systems of law based on a common law framework whose autonomy was protected by an independent judiciary, Scalia writes: that such a legal system in the United States “is now barely extant, the system that Holmes wrote about: the common law. That was a system in which there was little legislation, and in which judges created the law of crimes, of torts, of agency, of contracts, of property, of family and inheritance.”⁹¹ Sounding very much like a legal realist, with strong Nietzschean roots,⁹² *540 Scalia inverts cause and effect to construct an explanation for this.

And just as theories such as the Divine Right of Kings were necessary to justify the power of monarchs to make law through edicts, some theory was necessary to justify the power of judges (as agents of the King) to make law through common-law adjudication. That theory was the “brooding omnipresence” of an unwritten law that the judges merely “discovered.”⁹³

But, Scalia argues all that has changed now. In place of both the King (undeniably overthrown in the American revolution) and the brooding omnipresence, the Americans have taken on a new golden calf. Presto! Just at the moment that the American colonies organized to form a true common law republic, something magical happened, the substitution of a reified idea, democracy for the old body of the King.

But democracy has overtaken all that. Modern governments, or modern governments in the West at least, are thought to derive their authority from the consent of the governed, and the laws they prescribe are enacted by the people's representatives. Such a system is quite incompatible with the making (or the “finding”) of law by judges--and most especially by unelected judges.⁹⁴ For Scalia, democratic theory occupies the same place as the theory of the legal effect of the “royal will” occupied for Francis Bacon in Stuart England. In both cases, a view of law as existing outside the power of gubernaculum was inconceivable. In both cases, jurisdictio outside gubernaculum was viewed as subterfuge--the necessary post hoc theorizing of a group seeking to retain power for itself under a system in which such power grabs was inconsistent with the theory of gubernaculum, and therefore inconsistent with its jurisdictio. We are as far away from our founding roots as we can get--and according to Justice Scalia all is necessary in the name of our founding roots. Scalia thus carries forward, in a very illuminating way, the extremist rhetorical style of the eve of the English civil war, and he takes up the cause of the initial loser in that battle.⁹⁵

In the Soviet Union (and its satellites) and later in the People's Republic of China, realism of a different sort prevailed, that of the Marxist-Leninist insight of the conflation of state-law-power and Party. Theorists in Europe, and then the United States, refined and combined the insights of legal realism and Marxism, in a number of politico- *541 theoretical movements usefully understood as post-modernism. For our purposes, all of these movements had one important characteristic in common--they all sought to embrace, in one form or another the reduction of law to little more than a means by which power is authoritatively communicated. There is only authority and it commands from above. Law is their instrument or the veil through which power is imposed. The only important question for law, then, was its utility in expressing political ideology.⁹⁶

But the reification of law as instrument, a commonplace by the end of the twentieth century, in turn produced its own sources of resistance.⁹⁷ One source was reactionary--a return to reification of law through religious normative systems, the same basis of law that Bracton would have understood. In the United States, this reactionary turn has its own instrumentalist turn, much of its progress has been won through a revivified Religion Clause jurisprudence. Another source is post-modern, seeking universal norms within a global human common law edifice created either through emerging international institutions (human rights universalism) or in private law⁹⁸ or in combinations of both.⁹⁹ Both are discussed below.

Another inversion of sorts was noticeable by the end of the century. Substituted for a system based on the centrality of “Law-and-Sovereign,”¹⁰⁰ was one of force relations through which the mechanism of power can be more usefully examined.¹⁰¹ But this power was essentially instrumental as well--a tool without a master, and without a purpose except as expressed in the aggregate by the consequences of its use. “The omnipresence of power: not because it has the privilege of consolidating everything under its invincible unity, but because it is produced from one moment to the next, at every point, or rather in every relation from one point to another.”¹⁰² Power, thus understood, is exercised and not possessed. It is immanent in all relationships, *542 whatever the formal methodologies of expression of those relationships. It comes from below. It is rational and intentional, “the rationality of power is characterized by tactics that are often quite explicit at the restricted level where they are inscribed.”¹⁰³ And it engenders its own resistance.¹⁰⁴ To use more traditional language, systems of power express the common practices of the people; “[m]ajor dominations are the hegemonic effects that are sustained by all these confrontations” of force relations.¹⁰⁵

Ironically, there is a strong echo of Coke's understanding of common law in Foucault's characterization of power. Just as Coke proposed the common law, a passive bottom up aggregating force, against the conscious law-as-state-instrumentalism of James I, so Foucault posits a similarly constituted concept--“power”--against the positivist instrumentalism of consciously created top down control systems. What can be more Coke-like than an assertion that “[b]y power, I do not mean “Power” as a group of institutions and mechanisms that ensure the subservience of the citizens of a given state”?¹⁰⁶ Except that for Foucault, power has no master--no systems of acolytes charged with its preservation and interpretation. Foucault offers us power/law in the form of an uncontrollable pantheism as an alternative to Coke's institutionalist model. Yet both models posit the importance of an executive authority in the state; Foucault as an increasing anachronism in the face of the disciplinary power of totalitarian technologically driven governance, and Coke as a monarch whose principal obligation is to keep the peace within the scope of his prerogatives.

The study of law as politics, and politics as power, tends to focus on Marxist-Leninist regimes. And indeed, Marxist-Leninist regimes, through the end of the twentieth century inverted the relationship of law and politics, and centered all power on the state (or more precisely on the Communist Party and the vanguard of the new order).¹⁰⁷ But it cannot be forgotten that modern fascism shares a similar view of the relationship of law to power. Mussolini suggested that:

[t]the nation is created by the State, which gives the people, conscious of their own moral unity, the will, and thereby an effective existence. The right of a nation to its independence is derived not from a literary and ideal consciousness of its own existence, much *543 less from a de facto situation more or less inert and unconscious, but from an active consciousness, from an active political will disposed to demonstrate in its right; that is to say, a kind of State already in its pride (in fieri). The State, in fact, as a universal ethical will, is the creator of right.¹⁰⁸

One of his theorists, Alfredo Rocco, suggested a concession theory of law and right, reflecting the institutionalist and corporatist mentality of fascism, and its obsession with reification.

Our concept of liberty is that the individual must be allowed to develop his personality on behalf of the state, for these ephemeral and infinitesimal elements of the complex and permanent life of society determined by their normal growth the development of the state. . . . Freedom therefore is due to the citizen and to classes on condition that they exercise it in the interest of society as a whole and within the limits set by social exigencies, liberty being, like any other individual right, a concession of the state. What I say concerning civil liberties applies to economic freedom as well.¹⁰⁹

Even current systems of globalization, in their national and trans-border organization, appear to substitute power, and power relations--that is governance and regulation--for law and government. The only difference, perhaps, is the substitution of an institutionalized “system” for state, and “rule” for “law.”¹¹⁰

It has no others. It arouses disparities, it solicits divergences, multiculturalism is agreeable to it but under the condition of an agreement concerning the rules of disagreement. . . . These rules determine the elements that are allowed and the operations permitted for every domain. The object of the game is always to win. Within the framework of these rules, freedom of strategy is left entirely open. It is forbidden to kill one's adversary.¹¹¹

Yet there are similarities with more traditional approaches. It found expression in the eighteenth century in the work of Jean Jacques *544 Rousseau: “Were there a people of gods, their government would be democratic. So perfect a government is not for men.”¹¹² Law for Rousseau was also essentially instrumental and partial. It serves increasingly as the conceptual framework from which both totalitarian and democratic governance in the West are grounded. Law becomes more and more the codification of power. It need not have a particular character. There are echoes of this in pre-Second World War German notions of Rechtsstaadt,¹¹³ and its transmogrification in the theories of Carl Schmitt.¹¹⁴ But it also bears fruit in that most liberal of all twentieth century republics, the United States, especially in the post-Second World War American ideas of process constitutionalism.¹¹⁵ Indeed, the so-called “countermajoritarian difficulty” that has enthralled several generations of American legal and academic elites,¹¹⁶ and that has served as the basis for a campaign to scare the electorate about the power of the judiciary,¹¹⁷ reduces itself to a twentieth century version of the perhaps more elegantly proffered argument of Francis Bacon. Bickel and his disciples in their turn, like Francis Bacon before him, argued that lawyers and the courts ought to exercise their authority under the authority of the sovereign.¹¹⁸ For Bacon, that sovereign took the form of the King, for Bickel, that sovereign was the “people” through their elected representatives to which popular authority had been transferred.¹¹⁹ In both cases, they move far from that other great legal tradition, still vibrant at the time of the founding of the American Republic--that understood law as organic and the sovereign power as principally executive in nature.¹²⁰

Like its eighteenth and nineteenth century counterparts, the newer approaches tend to view law as instrumental, though instrumental in a different sense. That difference, in part, reflects the possibilities for the *545 assertion of newer techniques of power made possible by advances in the technologies of control. The centrality of law--and the state--is substantially weakened once one eliminates the ideas that the state is the supreme repository of power with a monopoly over the institution of power as law, and that law proceeds in specific form solely from the acts of political communities.¹²¹ Consequently, it has been fashionable to speak of law as an instrument of power, as its mask.¹²² “Law is neither the truth of power nor its alibi. It is an instrument of power which is at once complex and partial.”¹²³ In its twentieth century mode, “power is tolerable only on condition that it mask a substantial part of itself. Its success is proportional to its ability to hide its own mechanisms.”¹²⁴ And so it appeared to function effectively in this way in both the democratic West and the totalitarian East. For both societies, law served as the veil behind which the panoptic state could be constructed--providing a regularity and formal legitimacy to many of its techniques, while deflecting the extent of their insinuation in the social order. And Western scholars have devoted substantial energy to unmasking law in the service of this or that system of subordination or more generally of its intensification of force relations of any kind.

Foucault did not live long enough to understand the way in which he both served to describe an epoch about to end and to point the way to that epoch's reconstitution. We have come to live in an age in which the form of “law with its effects of prohibition needs to be resituated among a number of other, non-juridical mechanisms.”¹²⁵ We are in a position now to better understand Foucault's assertion that:

If it is true that the juridical system was useful for representing, albeit in a nonexhaustive way, a power that was centered primarily around deduction (prélèvement) and death, it is utterly incongruous with the new methods of power whose operation is not ensured by right but by technique, not by law but by normalization, not by punishment but by control, methods that are employed on all levels and in forms that go beyond the state and its apparatus.¹²⁶

Today, power applied systems of force relations, have taken up a thread of Foucault's discourse of law/power. I want to explore the great shift from the post-modern--with its obsession with power and its techniques, with subordination and its abolition--to an age in which the techniques *546 of power have been deployed in the service of management. We live in Foucault's asylum: “to effect moral syntheses, assuring an ethical continuity between the world of madness and the world of reason, but by practicing a social segregation that would guarantee bourgeois morality, a universality of fact, and permit it to be imposed as a law upon all forms of insanity.”¹²⁷ We live in the age of true disciplinary power, power “exercised through its invisibility; at the same time it imposes on those whom it subjects a principle of compulsory visibility.”¹²⁸ The only marker of these disciplines in law, now put to another use--a post-monarchical use, in which we are all subject to the disciplinary machines. Thus, we live in a world, not of a singular hierarchy of disciplinary machines,¹²⁹ but one in which there are multiple simultaneously functioning and imperfectly horizontally integrated pyramidal organizations producing power and distributing individuals (and other organizations) “in this permanent and continuous field.”¹³⁰

What are the characteristics of law in this new age of management? What are the techniques of its power/knowledge? To what extent are the techniques of this new age explained through law? I will attempt to extract some answers through an examination of law as technique among transnational actors and God as law within emerging modern traditions of state-based constitutionalism. In this extraction I remain aware that “[i]nstitutional legal history abounds with crooked and confused paths forced unnaturally straight by previous generations of scholars whose vested interest in preserving the rule of law extended to rewriting the past. Accepting an illogicality about institutional development, we might follow a few paths to their cultural complexity.”¹³¹

__________

III. The State and Its Apparatus

We have spent the first part of this course examining the scope and meaning of law for contemporary lawyers. The answer to the question―What is law?―has produced a “lawyer’s answer”: it depends. We have come to understand that variations on the simple answer―law is the manifestation of justice―merely provide a gateway to more profound questions. Among these, the most important for the first year student of law touch on the connection between the form of law, its substance, and the culture of its function (its “Rechtssoziologie”[2] or sociology of law;[3] the way that culture shapes the relationships among courts, government, society and claimants). The student was introduced to the basic forms of U.S. law―common law, equity, statute, and administrative regulation―and the ways in which each is distinguished from the others in terms of their operational premises, development and operationalization through courts, legislatures, and regulatory agencies. We ended by considering the most current movements in the development of legal forms (and the form of their underlying substance). If administrative regulations could detach the function of law from its form, might this functional law be detachable from the state? The answer could be found in the progression from the view of social norms as a dependent variable in the operation of law to its transformation as functional law available to state and non-state actors.

With these materials we turn our attention from a consideration of law as a set of autonomous and self-referencing concepts, to law contextualized within the modern state, and particularly within the United States. The central issue students will consider with these readings introduce a core tension in the construction of a government for states. This tension arises from two distinct ways of looking at the relationship between government and law in the West. On the one hand, law has been understood as an instrument of the state and the government established with the delegated authority (from the people) with authority to enact it (in whatever form permitted). Under this view, law is understood as the product of the national will which can only be legitimately expressed as law when law making is asserted directly by the people or (more often) by the people’s representatives constituted as the government of the territory over which the state has the power to impose its rules. On the other hand, law has been understood as related to but autonomous of the state and the government established to administer its territory. It is understood either as a reflection of the common beliefs and traditions of the people who are sovereign within the national territory or otherwise reflect the implementation of higher norms, usually understood as extrinsic to the state and its people (e.g., natural, moral, rationalist or international public) norms.

This is a tension that remains central to the ideology of the state, and as part of that ideology, the foundation of the way in which individuals approach their relationship to the state (and to law). Under the instrumental view, it sometimes follows that the fundamental question of government is the manner in which it may be used to provide for the welfare of the people, and the expectation is that the government will serve as the source and protector of people’s welfare. Law then memorializes the range of protection of individual rights in law through the state. This is a view that finds expression in its modern form first in the works of Jean Jacques Rousseau[4] (especially his Social Contract or Principles of Political Right[5] (original Du Contrat Social[6]) (1762)) and then in the work of Carl Schmidtt, which the student has been asked to read.

Laws are, properly speaking, only the conditions of civil association. The people, being subject to the laws, ought to be their author: the conditions of the society ought to be regulated solely by those who come together to form it. . . . Of itself the people wills always the good, but of itself it by no means always sees it. The general will is always in the right, but the judgment which guides it is not always enlightened. It must be got to see objects as they are, and sometimes as they ought to appear to it; it must be shown the good road it is in search of, secured from the seductive influences of individual wills, taught to see times and spaces as a series, and made to weigh the attractions of present and sensible advantages against the danger of distant and hidden evils. The individuals see the good they reject; the public wills the good it does not see. All stand equally in need of guidance. The former must be compelled to bring their wills into conformity with their reason; the latter must be taught to know what it wills. If that is done, public enlightenment leads to the union of understanding and will in the social body: the parts are made to work exactly together, and the whole is raised to its highest power. This makes a legislator necessary. (Jean Jacques Rousseau, The Social Contract, Bk II, § 6 Law[7]).

Many civil law states in Europe, and Marxist Leninist states have embraced a form of this approach (e.g., Constitution of the People’s Republic of China 1982[8]). But no in the contemporary world it might be hard to provide an example of a state that has embraced a pure form of this approach. Indeed under modern constitutionalist principles even states that are inclined to this approach will also seek to constrain the government in which they have invested much faith and power. We will see an example in the German Basic Law[9] as it sought to create structural constraints to avoid the constitutional excesses of the Nazi period. And the governing ideology of the state may also serve as a constraint, however well applied. (e.g., Constitution of the People’s Republic of China 1982;[10] Backer, Larry Catá, The Rule of Law, the Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (the ‘Three Represents’), Socialist Rule of Law, and Modern Chinese Constitutionalism.[11] Journal of Transnational Law and Contemporary Problems, Vol. 16, No. 1, 2006).

The readings from Carl Schmitt, Legality and Legitimacy 17-26 (Jeffrey Seitzer trans., Duke U. Press 2004) (1932) nicely illustrate this approach. In our readings Schmitt considers the legislative state and the concept of law. He starts by considering the rise of the great legislative states of the 19th century and principally the Deutches Reich.[12] Such legislative states embrace a formalist organizational framework grounded in legislative consent as the basis for the validity of law. These formal concepts, Schmitt argues “are essentially political concepts For this reason, it was the decisive triumph of the legislature that law appeared essentially in the form of statutes and that positive law was in essence statutory law.” (Schmitt, supra17). There was a consequence for the customary law which had been a foundation of medieval conceptions of law: “the acceptability of customary law is denied where one fears it could damage the trust in the legislator so central to the legislative state.” (Ibid). Indeed, and in an insight powerfully relevant to the relationship between statutory and common law in the U.S., Schmitt proposed that “the recognition of customary law always means a limitation on the parliamentary lawmaker to the benefit of other organs, especially, of course, the judiciary.” (Ibid., 17-18).

In the legislative state, legal science is easily reducible to a simple equation―Law EQUALS statute; Statute EQUALS the state regulation that comes about with the participation of the legislative assembly EQUALS law. (Ibid., 18). The “rule of law” and a principle of legality, central to 19th and 20th century legal theory, then, is dependent on the role of the legislature; “law in statutory form is the state” and “the state is law in statutory form.” (Ibid). It follows that the citizen has a duty to obey the law as a self-referencing command―she must effectively obey herself when she (abstracted as part of the body of the state) is the sole source of the law: “only through the law in statutory form is the right to resistance eliminated.” (Ibid). Put a different way, Schmitt suggests rule of law as a set of fundamental equivalences: “The preexisting and presumed congruence and harmony of law and statute, justice and legality, substance and process dominated every detail of the legal thinking of the legislative state.” (Ibid, 19). With echoes of the Institutes Book I (Ibid, 19), Schmitt suggests that the legislative state avoids tyranny only through the development of trust built primarily upon the ability of process to ensure that law remains a manifestation of justice. Consequently, the “law-state” (Rechtssaat)[13] is essentially a process-state. Thus a system that places all trust in its all-powerful legislators can avoid arbitrary governance if it is “dominated entirely by the presumptions of the already noted trust, which first leads to the congruence of justice and formal law.” (Ibid., 20). But such law might also have a substantive element in the form of legal principles as determination of “what should be right for everyone” and as a set of managed interferences with the freedom and property of citizens (Ibid., 21).

Yet Schmitt argues both protect against tyranny only if one adheres to the idea that by definition the legislator cannot legislate anything but right (because the legislator is essentially regulating the abstracted incarnation of the aggregate of the collective self ―the population (Foucault), the people (Rousseau) (Ibid., 23). “In a democracy, law is the momentary will of the people present at the time, that is to say, in practical terms, the will of the transient majority of the voting citizenry; lex est, quod populus jubet [law is what the people order and establish]” (Ibid., 24; quoting Gaius from the Institutes Bk 1. Tit. 2. P.3.). But he notes that this set of presuppositions and potential circularities can work only where the legislative state is supported (with a nod to Rouseau) by a foundational presupposition of a “homogenous people” that are “good” and that thus posits sufficient will to support trust and process exercised through the representative legislature where the “will of the parliament is identified with that of the people” (Ibid, 24). It is only in this state that the formal concept of law can be coherently conceived.

Yet for Schmitt, functional disaster lies in the construction of this set of presumptions that must exist to support the authenticity of the legislative state and the legitimacy of its delegated lawmaking power. “If the assumptions underlying the legislative state of the parliamentary-democratic variety are no longer tenable, then closing one’s eyes to the concrete constitutional situation and clinging to an absolute, ‘value neutral’, functionalist and formal concept of law, in order to save the system of legality, is not far off.” (Ibid., 25). The result is not collapse but instead a greater reliance on process and organizational rules and to the resort to written constitutions as constraints, not on the power of legislatures to but, but on the form through which periodic legislative majorities could impose its will through formal law. The problem of the legislative state, then, is essentially the problem of representation combined with the transfer of a power over law to the re-incarnated “population” of the state in its legislature; law, justice, the state then exist in an imperfect relation.

Under the other, non-instrumental view, it sometimes follows that the fundamental question of government is the manner in its power to affect individual autonomy may be constrained and managed. The object of government may be to serve the people, but the suspicion of the use of government for tyranny and the individual interests of those who occupy positions within the governmental apparatus militates against extending excess authority to that entity. The fundamental idea here is to develop a higher law that protects people from government, and law is understood both to delegate authority to the state but to constrain it as well. This is a view that finds expression in the construction of the federal Republic in the United States and underlies the work of the Federalist Papers[14] and have their partial source in the work of John Locke,[15] which the student has been asked to read. The republic established for the United States tended to embrace a form of this approach. Yet like other republics that tend toward this view in the construction of their government, there is a sometimes strong embrace of the idea of the identity between law and the state, and of the imperative of obedience to law legitimately enacted by the actions of those representatives of the people to which law making authority has been delegated. That, for example, marked the initial reticence to including a Bill of Rights in the American Federal Constitution:

It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the petition of right assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain everything they have no need of particular reservations. “We, the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government. (Federalist Papers, No. 84[16] (Hamilton)).

Here one reads both the elaboration of a version of the traditional non-instrumental view, but here merged with a strain of the instrumental view of the state, government and law. That sometimes uneasy jumble has tended to mark the jurisprudential ambiguities of the American Republic, it seems, form its inception.

Like Schmitt, but several centuries earlier, John Locke also considered the problem of the legislative power and its relation to law; John Locke, Second Treatise on Government (Thomas P. Pearson, ed., New York: MacMillan 1952) Chapter XI (Of the Extent of the Legislative Power). Locke starts from the well-known notion of popular consent expressed through power delegation to a representative body. (Locke, supra, 75), but then moves in quite a different direction from Schmitt. Where Schmitt (and Rouuseau) view all power and legitimacy flowing through and to this legislative incarnation of the popular will, Locke viewed the legislature as the nexus of power that itself must be contained by and protected against impositions on the people.

The idea of absolute legislative power is rejected. First, the grant of legislative sovereignty is necessarily limited by the scope of the power actually transferred. But the people may never transfer the whole of its power. That notion is supported by reference to natural law: “nobody has an absolute arbitrary power over himself or over any other, to destroy his own life or take away the life or property of another.” (Ibid., 76). And embedded within this natural law reference is a principle ultimately fundamental to American political theory, the idea that arbitrary power is inherently illegitimate. Arbitrary power is measured, in turn, by the object of its use―power may be asserted legitimately only if it is “limited to the public good of society. It is a power that has no other end but preservation, and therefore can never have a right to destroy, enslave or designedly to impoverish the subjects.” (Ibid).

Second, legislative power must be constrained by what Schmitt would call legality; “the legislative or supreme authority cannot assume to itself a power to rule by extemporary, arbitrary decrees, but is bound to dispense justice and to decide the rights of the subject by promulgated standing laws, and known authorized judges.” (Ibid, 77). Third, because “the preservation of property being the end of government” (Ibid., 79), the legislative power cannot be used to deprive an individual of her property without her consent. Notice here a fundamental difference with Schmitt; there is a presumption here that customary arrangements both precede and survive the rise of the legislative state and that the object of the legislature is necessarily not instrumental in principal effect but passive an protective―in the way we have come to understand the common law. Indeed, Locke argues, an assurance of this protection lies in “assemblies which are variable, whose members, upon the dissolution of the assembly, are subjects of the common law of their country, equally with the rest.” (Ibid., 79). Fourth, and ironic in the circumstances of 21st century governance, Locke argues that legislatures must be limited in their authority to transfer the lawmaking power to others. (Ibid., 81). Such transfer of power creates the possibility of tyranny as there is a loss of direct connection between the people and those accountable to them. We will see how, over the course of the last century, U.S. jurists have sought to find ways to justify this delegation to the administrative state.

The last reading, Larry Catá Backer, Reifying Law: Understanding Law Beyond the State, 26(3) Penn State International Law Review 521 (2008), attempts to put these strains of theory together for the purpose of understanding the nature of the relationship between law and the state in the United States. That relationship remains ambiguous and in a tension that carries over from unresolved issues of governance that contributed to the English Civil War[17] the effects of which were profound on the intellectual developments in the colonies, especially in the form of the writing of Sir Edward Coke.[18]  On the one hand, law in the United States is understood in some respects to be beyond the reach of the government.  That law—natural law derived from the universal principles of human nature and divine moral and ethical commands related through Scripture and the authoritative writings of established Churches—was also understood as binding on both judges in the application of common law and equity, and binding on government when they sought to use the legislative power. On the other hand, equally prominent in the United States was a strain of thinking that posited that the core premises of the political organization of the federal union contained within it a corollary that the only authoritative source of law was the legislatures of states, and of the general government.  The tension between the two strains of core assumptions about the legitimacy of law and the sources of legitimate expression of law (making) continues to shape the landscape of legislation in the United States.

The reading describes the fundamental contradiction between two approaches to the relationship between law and government that exist in some tension in the United States.  On the one hand, there is the sense that government was instituted to serve law and thus is subordinate to it.  While government has some (sometimes great) authority to make or unmake law, from whatever source derived, that power is constrained by a “higher law” that is expressed in natural law and in the express constraints of the law creating the government (the constitution or basic law). This conception of government supports the idea of the government as one of borrowed powers, with the very specific tasks of preserving individual liberty.  It is a view that is grounded in suspicion of government and which views it as necessary only to the extent it protects individual liberties.  Because liberties are vested in the individual and expressed through communities, the point of organizing the government is to supervise and constrain its power to interfere with those rights. Strong constitutionalism and the judicialization of politics (the tendency to see the great political and social issues of the polity as inherently connected with the constitutional limitations on government to be overseen by an autonomous judiciary) is an important element of the relationship between state, law and the people. The autonomy and legitimacy of the judiciary then becomes a central element of the operation of the state.

On the other hand there is also a sense that popular sovereignty, implemented through representative government, has plenary authority.  That has two consequences woven into the discussion of the Backer test.  The first is that the state, through its representative organs is the only source of authoritative law. Everything else is subordinate and of questionable legitimacy.  Indeed, non-legislative legal systems, like common law, may be implemented only by the sufferance of the legislature evidenced by its creation of a system of courts with the power to entertain causes of action arising from non statutory sources.  The second is that the authority to apply law is not necessarily or exclusively the function of an autonomous judicial ranch with its own customs, traditions and norms. The courts exist only by the sufferance of the legislature and may assert only such power as the legislature grants.  More importantly, the legislature may, in its discretion, empower non-judicial bodies, administrative in character, to undertake quasi-judicial functions.   This conception of government supports the rise of the administrative state and of the power of the state to restrict the scope of judicial authority.  The judiciary is viewed in more limited terms and the idea of constraining the judiciary, rather than the legislature or executive, becomes prominent. Because judges are viewed as autonomous and unelected, there is a sense that, at the limit, they are an anti-democratic element that itself must be constrained.

In his famous essays published as the Spirit of the Common Law,[19] Roscoe Pound explained it this way:

Throughout western Europe the idea of sovereignty as a control from without, of the sovereign as something external to society and set over it, something with which the several individuals who compose society had made a compact binding them to obedience or to which as of divine right passive obedience was due—throughout western Europe this idea superseded the Germanic and feudal conception of a relation of protection and service growing out of tenure of land and involving reciprocal rights and duties. When this idea came to prevail the sovereign was a Byzantine Emperor. What it willed had the force of law.  Law was not something fundamental and eternal, running back of all states, it was the will of this state or that; the  command of this or that sovereign.  Whatever the moral duties of sovereigns, they were incapable of legal limitation.  They might rule under God, but they certainly did not and could not rule under the law, for they made the law.  This conception of law as will has been struggling with the idea of alwe as reason ever since.

. . . . At the Revolution, the people of the several states succeeded to the sovereignty of Parliament.  They thought of this not as feudal but as Byzantine sovereignty.  And yet they were afraid and justly afraid of these emperors they were setting over themselves even as the princeps was a fluctuating body made up of a majority or plurality fo themselves.  Hence by Bills of rights they sought to impose legal limits upon the action of those who wielded the powers of sovereignty, while adhering to the political theory of illimitable power in the sovereign itself. It was inevitable that this compromise between inconsistent theories should sooner or later produce a conflict between courts and people.[20]

Consider the Declaration of Independence of the United States of America, a transcript of which follows.  What model of government does it envision, what is the relationship between law, government, and the people, between social norms and the institutions of state?

_________

The Declaration of Independence: A Transcription

IN CONGRESS, July 4, 1776.

The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.--Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

    He has refused his Assent to Laws, the most wholesome and necessary for the public good.

    He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

    He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

    He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.

    He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

    He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

    He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

    He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.

    He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

    He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.

    He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

    He has affected to render the Military independent of and superior to the Civil power.

    He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

    For Quartering large bodies of armed troops among us:

    For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:

    For cutting off our Trade with all parts of the world:

    For imposing Taxes on us without our Consent:

    For depriving us in many cases, of the benefits of Trial by Jury:

    For transporting us beyond Seas to be tried for pretended offences

    For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:

    For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:

    For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

    He has abdicated Government here, by declaring us out of his Protection and waging War against us.

    He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.

    He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

    He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

    He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

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IV. Problem

The issue of nature of the government and its relation to law was of substantial importance from the time of the early Republic.  One of the most interesting early debates about the character of the government and its relation to law centered on the need for and the objections to what became the U.S: Bill of Rights. Some of those arguments are presented below.  Describe the differences in the assumptions about the nature of government and laws in the arguments for the inclusion of a Bill of Rights and against. Are the arguments legal, or political?  Besides the except from Roscoe Pound’s The Spirit of the Common Law, consider the following:

Federalist No. 51

The Structure of Government Must Furnish the Proper Checks and Balances Between the Different Departments

Publius (James Madison)

February 6, 1788

* * * * * *

There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view.

First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.

Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority—that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies or States, oppressive combinations of a majority will be facilitated; the best security, under the republican forms, for the rights of every class of citizen, will be diminished; and consequently the stability and independence of some member of the government, the only other security, must be proportionally increased. Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practicable sphere, the more duly capable it will be of self-government. And happily for the republican cause, the practicable sphere may be carried to a very great extent by a judicious modification and mixture of the federal principle.

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Federalist No. 84

Certain General and Miscellaneous Objections to the Constitution Considered and Answered

Publius (Alexander Hamilton)

July 16, 1788

IN THE course of the foregoing review of the Constitution, I have taken notice of, and endeavored to answer most of the objections which have appeared against it. There however remain a few which either did not fall naturally under any particular head or were forgotten in their proper places. These shall now be discussed; but as the subject has been drawn into great length, I shall so far consult brevity as to comprise all my observations on these miscellaneous points in a single paper.

The most considerable of the remaining objections is that the plan of the convention contains no bill of rights. . . . .

* * * * *

To the second, that is, to the pretended establishment of the common and statute law by the Constitution, I answer that they are expressly made subject “to such alterations and provisions as the legislature shall from time to time make concerning the same.” They are therefore at any moment liable to repeal by the ordinary legislative power, and of course have no constitutional sanction. The only use of the declaration was to recognize the ancient law and to remove doubts which might have been occasioned by the Revolution. This consequently can be considered as no part of a declaration of rights, which under our constitutions must be intended as limitations of the power of the government itself.

It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by subsequent princes. Such was the Petition of the Right assented to by Charles the First in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of Parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions, professedly founded upon the power of the people and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain everything they have no need of particular reservations. “WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” Here is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our State bills of rights and which would sound much better in a treatise of ethics than in a constitution of government.

But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is that both of them contain all which, in relation to their objects, is reasonably to be desired.

I go further and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

On the subject of the liberty of the press, as much as has been said, I cannot forbear adding a remark or two: in the first place, I observe, that there is not a syllable concerning it in the constitution of this State; in the next, I contend that whatever has been said about it in that of any other State amounts to nothing. What signifies a declaration that “the liberty of the press shall be inviolably preserved”? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government. And here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights.

There remains but one other view of this matter to conclude the point. The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain form its Constitution, and conversely the constitution of each State is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union. Is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government? This is done in the most ample and precise manner in the plan of the convention; comprehending various precautions for the public security which are not to be found in any of the State constitutions. Is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and private concerns? This we have seen has also been attended to in a variety of cases in the same plan. Adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. It may be said that it does not go far enough though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing.

Another objection which has been made, and which, from the frequency of its repetition, it is to be presumed is relied on, is of this nature: “It is improper [say the objectors] to confer such large powers as are proposed upon the national government, because the seat of that government must of necessity be too remote from many of the States to admit of a proper knowledge on the part of the constituent of the conduct of the representative body.” This argument, if it proves anything, proves that there ought to be no general government whatever. For the powers which, it seems to be agreed on all hands, ought to be vested in the Union, cannot be safely intrusted to a body which is not under every requisite control. But there are satisfactory reasons to show that the objection is in reality not well founded. There is in most of the arguments which relate to distance a palpable illusion of the imagination. What are the sources of information by which the people in Montgomery County must regulate their judgment of the conduct of their representatives in the State legislature? Of personal observation they can have no benefit. This is confined to the citizens on the spot. They must therefore depend on the information of intelligent men, in whom they confide; and how must these men obtain their information? Evidently from the complexion of public measures, from the public prints, from correspondences with their representatives, and with other persons who reside at the place of their deliberations. This does not apply to Montgomery County only, but to all the counties at any considerable distance from the seat of government.

It is equally evident that the same sources of information would be open to the people in relation to the conduct of their representatives in the general government, and the impediments to a prompt communication which distance may be supposed to create will be overbalanced by the effects of the vigilance of the State governments. The executive and legislative bodies of each State will be so many sentinels over the persons employed in every department of the national administration; and as it will be in their power to adopt and pursue a regular and effectual system of intelligence, they can never be at a loss to know the behavior of those who represent their constituents in the national councils, and can readily communicate the same knowledge to the people. Their disposition to apprise the community of whatever may prejudice its interests from another quarter may be relied upon, if it were only from the rivalship of power. And we may conclude with the fullest assurance that the people, through that channel, will be better informed of the conduct of their national representatives than they can be by any means they now possess, of that of their State representatives.

It ought also to be remembered that the citizens who inhabit the country at and near the seat of government will, in all questions that affect the general liberty and prosperity, have the same interest with those who are at a distance, and that they will stand ready to sound the alarm when necessary, and to point out the actors in any pernicious project. The public papers will be expeditious messengers of intelligence to the most remote inhabitants of the Union.

* * * * *

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Jefferson to Madison

PARIS, December 20, 1787

* * * * *

I will now add what I do not like.

First the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus law, and trials by jury in all matter of fact triable by the laws of the land and not by the law of Nations. To say, as Mr. Wilson does that a bill of rights was not necessary because all is reserved in the case of the general government which is not given, while in the particular ones all is given which is not reserved might do for the Audience to whom it was addressed, but is surely gratis dictum, opposed by strong inferences from the body of the instrument, as well as from the omission of the clause of our present confederation which had declared that in express terms. It was a hard conclusion to say because there has been no uniformity among the states as to the cases triable by jury, because some have been so incautious as to abandon this mode of trial, therefore the more prudent states shall be reduced to the same level of calamity. It would have been much more just and wise to have concluded the other way that as most of the states had judiciously preserved this palladium, those who had wandered should be brought back to it, and to have established general right instead of general wrong. Let me add that a bull of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference.

* * * * *

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Brutus II Essay

Anti Federalist Paper No. 84

On the Lack of a Bill of Rights

New York Journal

November 1, 1787

. . . . When a building is to be erected which is intended to stand for ages, the foundation should be firmly laid. The constitution proposed to your acceptance, is designed not for yourselves alone, but for generations yet unborn. The principles, therefore, upon which the social compact is founded, ought to have been clearly and precisely stated, and the most express and full declaration of rights to have been made–But on this subject there is almost an entire silence.

If we may collect the sentiments of the people of America, from their own most solemn declarations, they hold this truth as self evident, that all men are by nature free. No one man, therefore, or any class of men, have a right, by the law of nature, or of God, to assume or exercise authority over their fellows. The origin of society then is to be sought, not in any natural right which one man has to exercise authority over another, but in the united consent of those who associate. The mutual wants of men, at first dictated the propriety of forming societies; and when they were established, protection and defense pointed out the necessity of instituting government. In a state of nature every individual pursues his own interest; in this pursuit it frequently happened, that the possessions or enjoyments of one were sacrificed to the views and designs of another; thus the weak were a prey to the strong, the simple and unwary were subject to impositions from those who were more crafty and designing. In this state of things, every individual was insecure; common interest therefore directed, that government should be established, in which the force of the whole community should be collected, and under such directions, as to protect and defend every one who composed it. The common good, therefore, is the end of civil government, and common consent, the foundation on which it is established. To effect this end, it was necessary that a certain portion of natural liberty should be surrendered, in order, that what remained should be preserved: how great a proportion of natural freedom is necessary to be yielded by individuals, when they submit to government, I shall not now enquire.

So much, however, must be given up, as will be sufficient to enable those, to whom the administration of the government is committed, to establish laws for the promoting the happiness of the community, and to carry those laws into effect. But it is not necessary, for this purpose, that individuals should relinquish all their natural rights. Some are of such a nature that they cannot be surrendered. Of this kind are the rights of conscience, the right of enjoying and defending life, etc. Others are not necessary to be resigned, in order to attain the end for which government is instituted, these therefore ought not to be given up. To surrender them, would counteract the very end of government, to wit, the common good.

From these observations it appears, that in forming a government on its true principles, the foundation should be laid in the manner I before stated, by expressly reserving to the people such of their essential natural rights, as are not necessary to be parted with. The same reasons which at first induced mankind to associate and institute government, will operate to influence them to observe this precaution. If they had been disposed to conform themselves to the rule of immutable righteousness, government would not have been requisite. It was because one part exercised fraud, oppression, and violence on the other, that men came together, and agreed that certain rules should be formed, to regulate the conduct of all, and the power of the whole community lodged in the hands of rulers to enforce an obedience to them. But rulers have the same propensities as other men; they are as likely to use the power with which they are vested for private purposes, and to the injury and oppression of those over whom they are placed, as individuals in a state of nature are to injure and oppress one another. It is therefore as proper that bounds should be set to their authority, as that government should have at first been instituted to restrain private injuries.

This principle, which seems so evidently founded in the reason and nature of things, is confirmed by universal experience. Those who have governed, have been found in all ages ever active to enlarge their powers and abridge the public liberty. This has induced the people in all countries, where any sense of freedom remained, to fix barriers against the encroachments of their rulers. The country from which we have derived our origin, is an eminent example of this. Their magna charta and bill of rights have long been the boast, as well as the security, of that nation. I need say no more, I presume, to an American, than, that this principle is a fundamental one, in all the constitutions of our own states; there is not one of them but what is either founded on a declaration or bill of rights, or has certain express reservation of rights interwoven in the body of them. From this it appears, that at a time when the pulse of liberty beat high and when an appeal was made to the people to form constitutions for the government of themselves, it was their universal sense, that such declarations should make a part of their frames of government. It is therefore the more astonishing, that this grand security, to the rights of the people, is not to be found in this constitution.

It has been said, in answer to this objection, that such declaration of rights, however requisite they might be in the constitutions of the states, are not necessary in the general constitution, because, “in the former case, every thing which is not reserved is given, but in the latter the reverse of the proposition prevails, and every thing which is not given is reserved.” [Editor's Note. Brutus quotes from James Wilson's State House Speech.] It requires but little attention to discover, that this mode of reasoning is rather specious than solid. The powers, rights, and authority, granted to the general government by this constitution, are as complete, with respect to every object to which they extend, as that of any state government—It reaches to every thing which concerns human happiness—Life, liberty, and property, are under its control. There is the same reason, therefore, that the exercise of power, in this case, should be restrained within proper limits, as in that of the state governments. To set this matter in a clear light, permit me to instance some of the articles of the bills of rights of the individuals states, and apply them to the case in question.

For the security of life, in criminal prosecutions, the bills of rights of most of the states have declared, that no man shall be held to answer for a crime until he is made fully acquainted with the charge brought against him; he shall not be compelled to accuse, or furnish evidence against himself–The witnesses against him shall be brought face to face, and he shall be fully heard by himself or counsel. That it is essential to the security of life and liberty, that trial of facts be in the vicinity where they happen. Are not provisions of this kind as necessary in the general government, as in that of a particular state? The powers vested in the new Congress extend in many cases to life; they are authorized to provide for the punishment of a variety of capital crimes, and no restraint is laid upon them in its exercise, save only, that “the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be in the state where the said crimes shall have been committed.” No man is secure of a trial in the county where he is charged to have committed a crime; he may be brought from Niagara to New-York, or carried from Kentucky to Richmond for trial for an offence, supposed to be committed. What security is there, that a man shall be furnished with a full and plain description of the charges against him? That he shall be allowed to produce all proof he can in his favor? That he shall see the witnesses against him face to face, or that he shall be fully heard in his own defense by himself or counsel?

For the security of liberty it has been declared, “that excessive bail should not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted–That all warrants, without oath or affirmation to search suspected places, or seize any person, his papers or property, are grievous and oppressive.”

These provisions are as necessary under the general government as under that of the individual states; for the power of the former is as complete to the purpose of requiring bail, imposing fines, inflicting punishments, granting search warrants, and seizing persons, papers, or property, in certain cases, as the other.

For the purpose of securing the property of the citizens, it is declared by all the states, “that in all controversies at law, respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and ought to remain sacred and inviolable.”

Does not the same necessity exist of reserving this right, under this national compact, as in that of these states? Yet nothing is said respecting it. In the bills of rights of the states it is declared, that a well regulated militia is the proper and natural defense of a free government—That as standing armies in time of peace are dangerous, they are not to be kept up, and that the military should be kept under strict subordination to, and controlled by the civil power.

The same security is as necessary in this constitution, and much more so; for the general government will have the sole power to raise and to pay armies, and are under no control in the exercise of it; yet nothing of this is to be found in this new system.

I might proceed to instance a number of other rights, which were as necessary to be reserved, such as, that elections should be free, that the liberty of the press should be held sacred; but the instances adduced, are sufficient to prove, that this argument is without foundation.—Besides, it is evident, that the reason here assigned was not the true one, why the framers of this constitution omitted a bill of rights; if it had been, they would not have made certain reservations, while they totally omitted others of more importance. We find they have, in the 9th section of the 1st article, declared, that the writ of habeas corpus shall not be suspended, unless in cases of rebellion—that no bill of attainder, or ex-post facto law, shall be passed—that no title of nobility shall be granted by the United States, &c. If every thing which is not given is reserved, what propriety is there in these exceptions? Does this constitution any where grant the power of suspending the habeas corpus, to make ex-post facto laws, pass bills of attainder, or grant titles of nobility? It certainly does not in express terms. The only answer that can be given is, that these are implied in the general powers granted. With equal truth it may be said, that all the powers, which the bills of right, guard against the abuse of, are contained or implied in the general ones granted by this constitution.

So far it is from being true, that a bill of rights is less necessary in the general constitution than in those of the states, the contrary is evidently the fact.—This system, if it is possible for the people of America to accede to it, will be an original compact, and being the last, will, in the nature of things vacate every former agreement inconsistent with it. For it being a plan of government received and ratified by the whole people, all other forms, which are in existence at the time of its adoption, must yield to it. This is expressed in positive and unequivocal terms, in the 6th article, “That this constitution and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution, or laws of any state, to the contrary notwithstanding.

“The senators and representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers both of the United States, and of the several states shall be bound, by oath or affirmation, to support this constitution.”

It is therefore not only necessarily implied thereby, but positively expressed, that the different state constitutions are repealed and entirely done away, so far as they are inconsistent with this, with the laws which shall be made in pursuance thereof, or with treaties made, or which shall be made, under the authority of the United States; of what avail will the constitutions of the respective states be to preserve the rights of its citizens? should they be plead, the answer would be, the constitution of the United States, and the laws made in pursuance thereof, is the supreme law, and all legislatures and judicial officers, whether of the general or state governments are bound by oath to support it. No privilege, reserved by the bills of rights, or secured by the state government, can limit the power granted by this, or restrain any laws made in pursuance of it. It stands therefore on its own bottom, and must receive a construction by itself without any reference to any other—And hence it was of the highest importance, that the most precise and express declarations and reservations of rights should have been made.

This will appear the more necessary, when it is considered, that not only the constitution and laws made in pursuance thereof, but all treaties made, or which shall be made, under the authority of the United States, are the supreme law of the land, and supersede the constitutions of all the states. The power to make treaties, is vested in the president, by and with the advice and consent of two thirds of the senate. I do not find any limitation, or restriction, to the exercise of this power. The most important article in any constitution may therefore be repealed, even without a legislative act. Ought not a government, vested with such extensive and indefinite authority, to have been restricted by a declaration of rights? It certainly ought.

So clear a point is this, that I cannot help suspecting, that persons who attempt to persuade people, that such reservations were less necessary under this constitution than under those of the states, are willfully endeavoring to deceive, and to lead you into an absolute state of vassalage.

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[1]http://www.backerinlaw.com/Site/wp-content/uploads/2013/02/Reifying-Law.pdf

[2] http://de.wikipedia.org/wiki/Rechtssoziologie

[3] http://en.wikipedia.org/wiki/Sociology_of_law

[4] http://en.wikipedia.org/wiki/Jean-Jacques_Rousseau

[5] http://www.constitution.org/jjr/socon.htm

[6] http://www.ibiblio.org/ml/libri/r/RousseauJJ_ContratSocial_s.pdf

[7] http://www.constitution.org/jjr/socon_02.htm#006

[8] http://english.people.com.cn/constitution/constitution.html

[9] http://www.gesetze-im-internet.de/englisch_gg/

[10] http://english.people.com.cn/constitution/constitution.html

[11] http://papers.ssrn.com/sol3/papers.cfm?abstract_id=929636

[12] http://en.wikipedia.org/wiki/German_Reich

[13] http://en.wikipedia.org/wiki/Rechtsstaat

[14] http://www.let.rug.nl/usa/documents/1786-1800/the-federalist-papers/

[15] http://en.wikipedia.org/wiki/John_Locke

[16] http://www.let.rug.nl/usa/documents/1786-1800/the-federalist-papers/the-federalist-84.php

[17] http://en.wikipedia.org/wiki/English_Civil_War

[18] http://en.wikipedia.org/wiki/Edward_Coke

[19] Roscoe Pound, The Spirit of the Common Law (Francestwon, NH; Marshall Jones Co., 1921).

[20] Id., at 79.