(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).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.
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,
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).
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]
__________
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.
__________
Reifying
Law--Government, Law And The Rule Of Law In Governance Systems
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 13th, and 17th centuries in England, and in the 18th
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.
_________
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.
__________
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.
* * * * *
__________
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.
* * * * *
__________
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.
[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.
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