Constitutions and Controversies

I have said it before and will say it again - a republic is not a stable constitution.    To be clear, I am using republic in the sense of a government without a king or queen.   This meaning goes back to ancient Rome.   It goes back to the history of the city, I should add, rather than its Latin language in which "res publica" literally means "the public thing" and could be translated "commonwealth".   This is why there is a need to clarify the meaning of republic, because the Latin word was often used to translate the Greek politeia, which means constitution or commonwealth, even in works by Plato and Aristotle which clearly do not exclude kings from the concept.    A republic in the sense of a kingless government, a government without a crowned head of state, is unstable and the more democratic the republic, the less stable it is.   This is because it is the nature of elected assemblies that their members form factions or parties.   Sometimes these are basically carbon copies of each other, who compete for office, but basically offer the same thing to the electorate under different brand names.   This is usually a sign of stagnation, decadence and corruption.   Conversely, they might offer radically different and fundamentally opposed, ideologically driven agendas.   When this happens the assembly of elected representatives and the electorate itself tend to become polarized and to view the issues that divide them through the Manichean lens of a struggle between Good and Evil.   In this situation filling the office of head of state by popular election is like lighting a match and setting it to a powder keg.

 

This is one reason, although not the only one or even the most important one, even though it might be the most practical, why I am a lifelong Royalist and Monarchist.    The person who occupies the office of head of state is the person who represents the country as a whole.    It is difficult to do this when the office is filled by the partisan politics of popular election.   The more polarized partisan politics become, the greater this difficulty becomes.   When you have arrived at the point where half of the country says “not my president”, regardless of who wins the election, it is now completely impossible for the elected head of state to function as representative of the whole of the country.   A hereditary king or queen is the best head of state, and the only kind who can fully do justice to the role of representative of the whole country, because only a hereditary king or queen is capable of being fully non-partisan and even non-political since he or she owes the office to hereditary right rather than popular election.

 

While our republican friends south of the border have often boasted that their country has the longest history of the peaceful transfer of power  that is clearly not the case,   In 1861, their country literally divided over the previous year’s election of Abraham Lincoln, the first president from the newly formed Republican Party.   The states south of the Mason-Dixon seceded and formed a new federal republic, the Confederate States of America.   The states that remained in the Union then invaded the South and conquered them in what was the bloodiest war in their history, costing more American lives than their other major conflicts combined.   While my country, the Dominion of Canada, was founded in Confederation two years after the end of this war, the monarchy we share with the United Kingdom and the other Commonwealth Realms is much older.   The last time the Crown changed heads in a way that could be described as less than fully peaceful was when George I, the first Hanoverian king succeeded Queen Anne, the last Stuart monarch, in 1714.   The following year, John Erskine, Earl of Mar, led a number of Scottish landlords in an uprising aimed at restoring the throne to Queen Anne’s brother James Francis Edward Stuart who had been excluded from the succession by the Parliamentary requirement that the heir be a Protestant, but the Jacobites did not come anywhere close to achieving their objective.   The last Jacobite rising took place in 1745 and was defeated in the Battle of Culloden in 1746, but since this did not coincide with a succession – it took place about half way through the reign of George II – it does not invalidate my saying that the original Hanoverian succession was the last to be less than fully peaceful.   Even if one wished to argue this point, however, the rising of ’45 predated the American Revolution by three decades and so my point, which is obviously that the Crown has been passed from head to head peacefully for longer than the American republic has been around, is made either way.

 

It is also worth noting that in the same period in which the Crown has been passed down from heir to heir peacefully, Parliamentary elections have been held and governments elected in the United Kingdom, the Dominion of Canada, and the other Commonwealth Realms without anything comparable to the results of the 1860 US Presidential Election.   This also can be largely attributed to the stabilizing factor of the monarchy.   Having a unifying monarch at the head of the state reduces the destructive potential of partisan politics in the elected assembly.   Furthermore, in Parliament under a royal monarch the official role of Opposition is assigned to the runner-up in each election, making it much less of a winner-takes-all contest, which also reduces the destructive potential of partisanship.   The official designation of the Opposition party is Her Majesty’s Loyal Opposition, which re-emphasizes the unifying role of the monarch as the personal representative of the whole country, to whom loyalty is owed whether in government or Opposition.   Finally, Parliamentary government tends to be multi-party rather than two-party, and it is difficult for partisanship to develop into a polarized, Manichean, Good versus Evil, when the options are greater in number than two.

 

The current crisis of the American republic is a good illustration of how the combination of an elected head of state and a radically polarized electorate makes for a volatile combination.   It was evident long before November 3^rd that whoever won the 2020 United States Presidential election, approximately half of the country would say “Not my President”.   While those whom Auberon Waugh labelled the chattering classes have been accusing the incumbent of trying to undermine the democratic process, overturn the election results, and impede the peaceful and orderly transition to the next administration by alleging massive voter fraud amounting to an election theft, the reality, of course, is, that if the election was stolen through massive voter fraud, if the media themselves are either knowingly pretending this was not the case or simply turning a blind eye to the evidence because of their obvious and unhinged bias against the incumbent and the courts have been simply dismissing the evidence without really giving it a fair hearing out of cowardice,  corruption, or even a misguided desire to try and prevent the rift in their country from getting worse even if it means sacrificing truth, all of this, and not Donald the Orange’s attempts to expose all these shenanigans, is where the real threat to the American democratic process is to be found.   It is worth pointing out that these same chattering classes who are now claiming that to allege election fraud is to undermine democracy have spent the last four years making claims about Russian collusion in the election that put Trump into office that have a lot less substantiating evidence behind them than the charges concerning the 2020 election.   While they were handed a pile of ammunition to use against Trump on Epiphany by the foolish actions of some of his supporters – a small portion of the much larger number that had shown up to his rally and the majority of whom behaved lawfully and orderly just as he himself told them to – in storming Capitol Hill and forcing the evacuation of Congress, it should not be forgotten that the same pundits who are now making full use of that ammunition are the ones who have been pretending that Black Lives Matter riots are “peaceful protests”.   BLM has been attacking and terrorizing people since Trump was first elected, with these media commentators turning a blind eye to it, or even in some cases encouraging it.    This, of course, does not justify lawless and violent action on the part of the MAGA protestors, although it is worth noting the distinction Ilana Mercer has just made that the difference “between pro-Trump patriots and BLM detritus” is that the latter “trashed, looted and leveled their countrymen’s livelihoods, their businesses” while the former “stormed the seats of corruption.”  

 

What all of this demonstrates is that the polarization of America is again approaching the level of that of 1861 if it has not already arrived there or even surpassed it and that once again controversy over the election of their head of state threatens to tear their republic asunder.   While Trump’s media enemies would love to make him the scapegoat for this polarization, in actuality he is the product of it rather than its cause.   The polarization goes back to the election of Barack Obama, not, as progressives might argue, because white America is so racist it couldn’t stand the thought of a black president – it voted for him, after all – but because Obama, who had a unique opportunity to bury American racial division and promote true unity, chose to squander it, by bringing Critical Race Theory, a neo-Marxist form of racism that promotes racial hatred against white people because they are white by maintaining that all whites are racist and only whites are racist, out of the Ivory Towers of academe and into government policy.  I shall, DV, have more to say about this at a later time, but for now will simply say that the result was the polarization of American into dualing Manicheanisms, that is to say people convinced that they are the Children of Light fighting on the side of Good against the Children of Darkness fighting on the side of Evil, that are of a racial nature, which is an extremely combustible combination.   One of the Manicheanisms, the one which has rallied behind Trump, is approximately half-right.  The Democratic Party has indeed, at some point after 2004, become completely sold to Evil, although this does not make the Republicans the Children of Light.

 

I hope, for the sake of our American neighbours, that they can find their way back from the precipice upon which their republic is now teetering.   For my own country, I will say once again, God Save the Queen!

It is Way Too Late for That Brian

Brian Pallister should have been an actor.   Judging from his performance last Thursday he would have been much better in that career than in his chosen profession of politics.   Granted, prior to this year, he did a fairly decent job as premier of the province of Manitoba.   He was certainly a major improvement over his predecessor, Greg Selinger of the NDP, although that is setting the bar of comparison extremely low.   This year however, faced with the true test of leadership, a crisis manufactured by the irresponsible news media and the even more irresponsible medical profession, he failed that test big time.   His tear-jerking, emotional-laden, speech on Thursday may very well indicate that he has missed his true calling, the stage.   His timing, however, needs some work, for the performance would have been much more convincing had it come in March.   Adjustments would have had to be made, of course, as it would have made little sense to talk about stealing Christmas in the middle of Lent.   An emotional appeal to Manitobans to follow public health guidelines would have been much better received if he had led with that, however, instead of tacking it on after nine months of arrogant posturing, threats, and bullying.

 

Pallister’s speech came a couple of days after the release of an Angus Reid Institute survey that indicated that his approval rating had dropped to the lowest of all premiers in the Dominion.   Although he had been asked to comment about this on the day the poll results were released and gave a brief answer it is generally understood that his remarks on Thursday were his real response.  

 

He claimed that he understood why do not like him.  “I understand that, I totally do” he said.   Certainly, he seemed to be aware of the reasons:

 

I’m the guy who has told you that you cannot shop…I am the person who has told you you can’t go to work.  I am the premier who has said you can’t run your business because we have the toughest restrictions in Canada, and it affects people who put their lives into their businesses.  I am the person who has come before you and said you can’t go to church, you can’t see your friends, you can’t travel. I’m that guy.

 

While some dispute this explanation for his drop in approval – Wab Kinew, the current NDP leader, and his butt-kissers in the media think it is due to his having re-opened the economy, which, except for the fact that he shouldn't have closed it in the first place, was the one thing he did right this year – these all seem to be fairly good reasons for disliking him.  It would appear that being aware of the reasons does not actually translate into understanding them, however, because from this starting point, Pallister launched into a bunch of self-justifying hocus pocus about the difference between being liked and respected, illustrated by a story from his school days about being disciplined by the principal for being late and told by the headmaster “You don’t like me right now, son, and that’s okay.  I want you to respect me in ten years.”

 

Does he seriously think that lesson applies here?

 

A teacher who disciplines a child for being late does so to prevent the bad habit of tardiness from forming.   Tardiness is a habit which hurts people both professionally, because employers don’t like to either hire or advance people who are tardy, and socially, because, formal occasions where it is fashionable to be late aside, people do not like to be kept waiting by their friends, dates, etc., all the time.   Like all bad habits, it is easier to break when it is just forming than when it is fully developed.   The principal who yells at a student for being late is, indeed, doing him a favour, and so the line from Pallister’s anecdote does indeed apply in that situation.

 

What Pallister is doing is completely different.

 

To tell people that they cannot go to work or run their business is to do the very opposite of what the teacher who tries to discipline tardiness out of his student does.   Rather than correcting behaviour that is bad and harmful it forbids behaviour that is both good and necessary.   Rather than helping people it is hurting them.   There is nothing in what Pallister is doing that deserves respect, either now or years down the road.

 

He, of course, justifies what he is doing on the grounds that it is “saving lives”.   He said:

 

I will do what I believe is right, and right now I need to save lives.

 

We have been hearing this from him for quite some time.   It is, however, utter nonsense.  

 

It is only ethically permissible to hurt Person A to save Person B under certain very limited circumstances.   If Person A pulls a knife on Person B with the intent to kill then we are justified in harming Person A to prevent Person B from being killed.   In this scenario, however, the action of Person A which threatens Person B will definitely have the effect of the death of Person B if not prevented and is done with malicious intent.   Neither of these things is true with regards to the lockdown scenario.    If Person A opens his store there is no certainty that anyone will die from the Wuhan bat flu as a result.   Indeed, when we consider the survival rate of the disease, who the people most likely to die from it are, and the circumstances pertaining to their contracting it, it is, in fact, extremely unlikely that anyone will die as a direct result of Person A opening his store.   Furthermore, there is no malicious intent, no mens rea, in Person A’s opening his store.   His intent is quite good and honourable, to earn a living for himself and his family, by selling people goods that they want or need rather than to be a burden on the public purse.   There is nothing wrong with what he is doing, unless, of course, he is selling nuclear waste to children or some such thing.   Finally, that forbidding Person A from opening his store will harm him is certain, the only uncertainty being the extent of the harm, whether it completely destroys his business and drives him into bankruptcy or not.   The lockdown scenario simply does not meet the standards of when it is ethnically permissible to hurt Person A to save Person B.

 

Immediately after that self-justifying prattle about saving lives Pallister said the following:

 

If you don’t think that Covid is real, right now you’re an idiot. 

 

What an interesting remark from someone who claims that he is doing the right thing and hopes we will eventually respect him for it.    In the same sentence he completely misrepresents the views of those who oppose him and insults them.   To say that someone does not think that Covid real is to say that he questions the existence of either the SARS-CoV-2 virus or the sickness it can produce with symptoms ranging from shortness of breath, fever, and cough to a life-threatening, organ-damaging, severely painful, pneumonia.   I think very few of those who oppose the lockdown question the existence of either of these things.   Opposition to the lockdown is based upon the fact that lockdowns do a lot of very real harm - they devastate the economy, load future generations with piles of debt, damage the fabric of society, dissolve communities, and create mental health problems that themselves result in many fatalities that would not have occurred sans lockdown - and only a small amount at best, of questionable good.   The most informed opposition to the lockdown is also based on the fact that the government imposing what amounts to a total suspension of our constitutional and prescriptive basic freedoms for the supposed sake of keeping us safe from a disease with a survival rate higher than the seasonal flu for otherwise healthy people under the age of 65 and with which the average age of those who die is higher than the average lifespan of Canadians is a giant leap away from civil freedom and towards totalitarianism.

If Mr. Pallister really wants to do the right thing and be respected for it then he had better learn to himself respect the Common Law, the constitution, and the limits these place on his powers as First Minister of the Crown in this province, for until he respects these he is a disgrace to his office.

His speech culminated in an emotional appeal to Manitobans to stay apart at Christmas, full of self-pity about having to be the Grinch that steals Christmas from us this year to keep us safe, so that we will have plenty to celebrate next year.

Well, it was a good performance, but to return to the point made at the beginning, it would have been a lot more persuasive if it had not followed ten months of ordering us around, telling us to snitch on neighbours who don't do as their told, threatening us with punishment, calling us names, setting obscenely high fines for breaking very petty rules, and wasting a million dollars that would have been put to better use hiring extra hospital staff and opening extra beds on contracting a private security organization to help enforce his draconian rules.

Save The Senate!

As the ongoing trial of disgraced Senator Mike Duffy continues to loom large in the news the media has been treating Canadians to a daily diet of opinion columns and letters to the editor asking why we don’t just get rid of the Senate. For someone with a high regard for the intelligence of either the general populace, the letter writing segment of it, or the class of professional scribblers who earn their bread and butter by composing opinion columns, it must surely be disheartening and disillusioning to realize that so many of those they so admire have displayed, through asking this question, their acceptance of an easily refutable premise. As one who does not hold any of these groups in high regard I do not share this disillusionment – merely a sense of disgust.

Suppose someone were to come forward with evidence that high ranking police officers have been taking bribes, trafficking confiscated narcotics, and otherwise abusing the powers and privileges that come with being charged, in Her Majesty’s name, with the enforcement of the laws of the land? I imagine you are all shocked at the very suggestion of such an unheard of possibility. Once you revive from your faint, snap out of your catatonic state, or otherwise recover from the trauma that has just been inflicted upon your psyche ask yourself if, in the event, perish the thought, that such evidence were to be found, it would be reasonable to argue that because of such corruption, law enforcement agencies therefore ought to be abolished. Perhaps someone reading this who is an anarchist by way of political ideology would say that such an argument is reasonable but if he is a true anarchist he would say that all government agencies including the police are illegitimate regardless of whether we can point to specific examples of corruption or not. Otherwise, I expect, very few would conclude that the abolition of law enforcement is a reasonable response to police corruption.

That point that I wish to make is that you cannot deal with corruption and abuse of office by tearing down institutions and offices once such corruption and abuse is manifest within them. If we were to seriously attempt to do this then very soon we would have no institutions left but corruption would be as much present among us as ever it was before. This is because the source of corruption, as Christians and conservatives have always known although the fact continues to elude liberals, progressives, and socialists to this very day, is not institutions but the human heart. If you tear down an institution because you find corruption in it, you will also find corruption in whatever you erect to take its place because it too must contain the human element. Unless, of course, you are envisioning the replacement of man by machine ala James Cameron.

The Canadian Senate, let it be said, does not do a very good job of representing the principle it is supposed to embody and has not done so in a very long time. If the principle is a true one, however, and important to the balance of Parliament, then an imperfect and badly flawed representation is better than no representation at all. The House of Commons embodies the principle of representative democracy – that we, through the representatives we sent to Parliament, have a say in the laws we live under. The Crown embodies the principle of dignified, prescriptive authority that transcends popular politics. This is the more important of these two principles because governments can only derive power and not authority from winning elections – the power of numbers that comes from having a majority or at least a plurality behind you. A government that has power but not authority is a tyrannical government even if its power is democratic power. In our constitution, the government possesses authority as Ministers of the Crown in whose name they act and power as elected representatives of the people. What then does the Senate represent?

The Senate represents the principle that laws should not be enacted in haste, that reason should govern passion, and that legislation written by the representatives of the people should be reviewed by those representing experience, public spirit, and the wisdom that comes from age before it is allowed to become law. As I said, the Senate does not represent this principle well. Indeed, it would not be going too far to say that it does an abysmally poor job of representing the principle. Nevertheless, the principle is a sound one and it is better that it be represented poorly than that it not be represented at all. Note how the impulse to tear down the institution because of the corruption within it is the very opposite of the principle of not acting in haste and allowing reason to overrule passion. To give in to such an impulse would not bode well for our country.

If abolishing the Senate is a bad idea, and it is, the Upper Chamber is badly in need of reforms. I would suggest the following reforms as being particularly appropriate and necessary: 1) that the advisory role to the Crown on appointment to the Senate be taken from the Prime Minister’s Office and placed in the hands of a committee that itself is independent of the Prime Minister’s Office - perhaps consisting of representatives of the provinces, 2) that we increase the minimum age of Senators from thirty to perhaps forty-five or fifty, 3) that we either scrap salaries for Senators altogether or reduce them to something that is a mere honorarium while 4) updating the Constitutional property requirements for Senators to reflect a century and a half of inflation. (1)

These proposed reforms, which unlike the Triple-E alternative advocated by the old Reform Party, seek to be respectful and true to the tradition upon which our Parliament is founded, would go far towards ensuring that the Senate is filled by public spirited individuals with the wisdom of experience rather than cronies of the Prime Minister looking for a cushy position with a large salary and expense account. This would lessen greatly the biggest problem with the Senate as it currently stands while helping it to much better represent its principle in Parliament.

Of course, these proposals would be anathema to someone like Warren Kinsella who in his Toronto Sun column last weekend argued that the Senators were hastening the demise of the Senate by their own words and actions and gave as his chief example of this, Nancy Ruth’s remarks about the quality of airline food given in answer to the auditor general’s question about why she had charged a different breakfast to her expense account. Kinsella spoke of her “arrogance” and her “appalling condescension and contempt”, an interesting choice of pejoratives coming from someone who often tells Canadians what they think or feel as if those who thought or felt differently from him were not “Canadian”, examples of which can be found in the very same article. Kinsella led into this by providing details about the Senator’s background in the Jackman family, using her wealth against her to paint a portrait of patrician pride. Thus I infer that he would not approve of my proposal that only those of independent means be allowed to sit in the Senate.

Reading Warren Kinsella’s column solidified more than ever my conviction that the Senate must be retained and that the reforms which I have proposed would be for the best. After all, which is the more reasonable response to a rich Senator complaining about how airline breakfasts “are pretty awful”? To tell the Senator that she can pay for her breakfast out of her own independent means or to insist that the Upper House of Parliament be abolished altogether?

(1) For a more detailed exposition of these proposals see: http://thronealtarliberty.blogspot.ca/2012/08/senate-reform.html

Three Cheers For the Supreme Court

Those who sit as judges in Her Majesty’s courts perform a role that calls not only for an extensive knowledge of the law but for the virtues of justice and prudence and above all else for wisdom. The higher the court and the more final its decision the more vital it is that that its member judges possess these qualities. It is of the utmost importance, therefore, that the Chief Justice of Canada and the eight Puisne Judges who with the Chief Justice make up the highest court in the land, be models of Solomonic wisdom.

I have not always been impressed by the decisions that our courts have issued. Indeed, decision after decision to give the perpetrators of serious crimes a slap on the wrist while allowing frivolous and expensive lawsuits by people whose feelings have been hurt or, even worse, who wish to use the courts to harass their ideological opponents, have often left the impression that the path to appointment to the bench starts in the monkey cage at the zoo.

This was not the case with the ruling the Supreme Court handed the Prime Minister’s Office last Friday. Asked to review the constitutionality of Prime Minister Harper’s proposals for reforming the Senate, the Supreme Court told him that any such reforms would require the consent of the provinces. To make major reforms he would need the consent of a majority of the promises, to abolish it outright would require unanimous consent.

In issuing this ruling, the Supreme Court did its job and did it superbly. It did not create new law by fiat, but reminded the Prime Minister – and the Opposition Leader who has been beating drums for Senate abolition – of what they should have already known, namely, that Canada has a constitution, with a formula for amendment, and that there are no shortcuts to amendment because changing the constitution is a far more serious process than changing the law and is not something to be done on the quick. This is something that Stephen Harper, of all people, should have known because he is leader of the Conservative Party, and respect for the constitution and an unwillingness to allow it to be changed at a whim is a fundamental Tory principle.

It is not a question of whether Senate reform is in itself desirable or whether or not the specific reforms proposed by Prime Minister Harper are good or bad. That the Senate is in need of serious reform has been obvious for decades. The need is there but it is not urgent, despite the recent media hype over how certain Senators have abused their expense accounts. The Prime Minister’s proposals were for Senators to be elected to office and for term limits to be set for them. While I can understand why he thinks these are good ideas they are not the kind of reforms I would like to see. I think that the Senate should remain an appointed body but that control over who the Governor General appoints should be removed from the Prime Minister’s Office and put in the hands of an appointment committee composed of representatives of the provincial governments. I would like to see the property ownership requirements for Senators be updated to reflect the inflation that has taken place since 1867 and their salaries either eliminated or reduced to an honorarium. Rather than impose a term limit on Senators, I would prefer to see the minimum age for Senate appointment raised to about fifty. I think these reforms are more appropriate for Canada than the Triple-E model that the Reform Party favoured but I would not want to see them brought in without provincial consent either. The constitutional amendment formula must be respected because to fail to respect that process is to fail to respect the constitution itself.

The proposals for Senate reform that I just suggested differ from the Triple-E model that the Reform Party advocated and which is the basis of Prime Minister Harper’s proposals in that they are not based upon the assumption that making the Senate better means making it more democratic. The equation of good government with democracy is a very modern and very erroneous idea which lies beneath both the desire for an elected Senate on the part of the supposedly right-wing support base of the old Reform Party and the desire to abolish the Senate on the part of the left-wing NDP. The reforms that I would prefer to see are based upon respect for Canada’s parliamentary monarchy form of government and the tradition from which we obtained that form of government. They take into consideration both the current problems with the Senate, the role the Senate was intended by the Fathers of Confederation to play in government, and offer suggestions as to how to get fix as much as is possible the former and help the Senate to perform the latter that are consistent with the history and tradition of our constitution.

The problem with the Senate is that it is used by whichever party happens to be in power in the lower House as a means of rewarding people who have served the party by providing them with a cushy position that comes with a large salary and fat expense account and a minimal amount of responsibility. When Canada’s Fathers established the Senate, modifying the House of Lords in the British parliamentary model to fit the Canadian situation, they intended for it to serve as a sort of brake on those in power in the lower House. The Senate would review the legislation they passed and provide a “sober second thought” so that the party which commanded a majority in the lower House could not simply rush through legislation that might ultimately be to the detriment of the country. Needless to say, the Senate cannot very well perform this function if it is constantly being stacked by the government to which it is supposed to act as a brake.

Removing control of appointments to the Senate from the Prime Minister’s Office would prevent the Prime Minister from being able to stack the Senate and use it as a rubber stamp on whatever he wants thus enabling it to serve its original function better. Updating the property requirements for Senators and removing the perks of the position would help insure that Senate seats are filled by public minded and spirited people rather than those hoping to grow fat off the public purse. Raising the minimum age for Senators would help make sure that the Senate does provide the needed “sober second thought” because wisdom, contrary to the folly of the youth-worshipping zeitgeist, comes with age.

All of these reforms would be superior to just making the Senate more democratic. The ancients recognized that just as there are good kings and bad kings, and an elite may be either a wise and public spirited aristocracy or an arrogant and selfish oligarchy, so democracy can be both good and bad as well. Therefore, they reasoned, the best constitutional arrangement would include a king, an aristocracy, and a form of democracy so that each of these elements of government would check the tendency towards the bad in the others and bring out the tendency towards the good. This is, of course, what we have in the parliamentary monarchy system that we inherited and adapted from Britain. The desire to democratize the non-democratic elements misses the point altogether and replaces the wisdom of the ancients with the folly of the modern.

Reforms that respect the constitution and the tradition on which it is based are democratic in another sense of the word, the best sense of the word, that of which G. K. Chesterton wrote when he said that he wanted a democracy that does not exclude members of a society from the franchise on the grounds that they are no longer among the living. It is tradition to which he was referring, the only kind of democracy that can give a vote to all members of a society, the dead and the unborn as well as the living. In this sense of the word democracy, the will of the people is not to be equated with whatever the majority of the populace can be persuaded to say they want at any given moment. This concept of democracy suits our constitution well for in it, the task of representing the people as an organic whole, including past and future generations as well as the present, is assigned to an office that is above elections and the political process, the office of the Queen.

The Supreme Court, by insisting that any government wishing to make significant changes to the structure of the Senate must follow the amendment procedure in the constitution, has declared that the government must respect the constitution and the tradition upon which it is built. Critics of their decision may complain that the Court is standing in the way of the will of the people and of democratic reform, but it is in keeping with the Chestertonian “democracy of the dead” which is the best form of democracy and perhaps the only one truly worthy of honour.

So three cheers and kudos to the Supreme Court. This time, at least, they did their job well.

Kings and Constitutions

Plato and Aristotle, philosophers of fourth century BC democratic Athens who envied Sparta her kings and aristocrats, observed that there are three simple forms of government – the rule of the one, the rule of the few, and the rule of the many – which observation has been a fundamental of political science ever since. They also observed that governments can be good or bad and that the basic difference between the two is that bad governments use their power to benefit themselves at the expense of the larger society whereas good governments use their power for the benefit of the common good. While this is hardly an earth shattering observation it is the source of a question that has troubled political science ever since – what is the source of a government’s legitimacy, its right to govern?

The anarchist would answer that there is no such thing as government legitimacy and that all governments are illegitimate institutions that seek to monopolize coercive force by forbidding in others the actions they themselves commit. While there are some things that can be said in favour of this, anarchism is ultimately untenable because it is incompatible with human nature. Men are social beings, whose nature it is to live together in community and society rather than apart from one another in isolation. We therefore require a set of laws and an institution that will make, administer, and enforce those laws. We need government.

Having ruled out the anarchist position, we are left with basically three possible answers to the source of government legitimacy. A government that is legitimate, that has the right to govern, is either delegated that authority from above, obtains it from below, or finds it to be inherent in itself.

The last of these possibilities is as unfeasible as the anarchist answer. While a distinction can be made between the idea of a government finding the source of its authority within itself and that of a government exercising its power for its own benefit the two concepts are so close to each other as to make the technical term for a government that derives its authority from itself, autocracy, a virtual synonym for bad government. It is not surprising, therefore, that most political theorists have held to one variation or another of the other two options.

The second possibility, that government obtains its authority from below, from those it governs, is the prevalent theory of the modern age. It is the foundation of the modern theory of democracy (1) and proclaimed to be a self-evident truth in the preamble to the American Declaration of Independence. Even Communist governments professed a belief in this view of government legitimacy and hence frequently renamed the countries they took over "The People’s Republic of Such-and-such". In the democratic, liberal, West this was regarded as a pretence because the states so described were one-party police states, which held phony elections for show, in which the government was not accountable and the people were tightly controlled. The Communist response was that the Communist Party was the voice of the people and therefore only in a Communist state where the Communist Party controls everything could the government truly be said to represent and derive its powers from the people. In this we see that the idea that governments derive their powers from the people has more than one interpretation and in not all of these interpretations are frequent elections, multiple parties, competition or even freedom itself absolutely essential to the idea.

Thomas Jefferson’s Lockean assertion notwithstanding the idea that governments derive their legitimate authority from those they govern is not at all self-evident. Indeed, it would be more accurate to say that it is self-evident that they do not so derive their authority. If this theory were applied to any other form of authority it would undermine that authority. Imagine telling parents that the only legitimate authority they have in the home is derived from the consent of their children! To say that authority flows from the governed to the governor is to assert nonsense, to contradict the very nature of authority. If legitimate authority is something given to the possessor of that authority from those under that authority then what happens if someone under authority does not like a law passed by that authority and decides to withdraw his consent?

If those under government can withdraw their consent from the authority of that government at any time then they have not conferred any real authority on government at all and we have anarchy. If, on the other hand, the authority the governed confer upon government by their consent cannot be withdrawn the government can do whatever it wants with the authorization of “the people” and we have tyranny. Jean-Jacques Rousseau, the “father of modern democracy” is also the “father of totalitarianism” who asserted that once a government was formed that expressed the “General Will” of the people no dissent from the will of that government should be tolerated. The middle solution between these two extremes is to do what most liberal, Western, democracies do which is to schedule regular elections and to treat these as a binding contract conferring authority which must be obeyed on the government until the next election. Whatever might be said in favour of this solution, years ago American conservative commentator Samuel Francis noted a growing tendency in modern mass societies governed by modern bureaucratic democracies to combine the lawlessness of anarchism with the oppression of tyranny in a synthesis he dubbed anarcho-tyranny. The meeting point between two extremes can be a moderate mean that is preferable to either extreme but it can also combine their worse points into one.

Some would argue for the idea of government legitimacy based upon popular consent based upon the fact that the worse a government is the more likely the people it governs are to either leave if they can or to organize against the government and rise up and overthrow it. This argument, however, is more a description of the natural consequences of governing badly than of the source of a government’s right to govern. Ultimately, the present popularity of the idea of authority by popular consent is due not to is being self-evident nor even to its having convincing arguments in its favour, but to the fact that it flatters the people, telling them that they are the true bosses and that those in authority over them are so by their allowance and toleration.

What about the remaining possibility that the right to govern is delegated to civil authority from above?

For those of us who are Christians this possibility is not optional. It is explicitly taught by St. Paul in the thirteenth chapter of his epistle to the church in Rome:

Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation. For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same: For he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil.

While among those who profess Christian faith there are some who would set aside the Scriptural authority of the writings of St. Paul against the explicit recognition of such by St. Peter and the orthodox tradition of the church, what the Apostle has taught here is also present in the direct words of Christ Himself Who told Pontius Pilate “Thou couldest have no power at all against me, except it were given thee from above.” (John 19:11).

The idea that authority is delegated to civil government from a higher authority – God, in the words of Jesus and St. Paul quoted above – is in keeping with what is observable about the natural movement of all other kinds of authority, i.e., that it flows from the top down. It runs contrary, however, to the humanistic spirit of the Modern Age. That spirit is all about the emancipation of man’s will from external constraint and his freedom to re-make himself and the world around him in accordance with his own desires. The only authority recognized by the spirit of modern man is that of his own will and such authority as he chooses to set up. Against the Christian doctrine that civil government derives its authority from above, from God, the modern spirit asserts the accusation that such a teaching is a recipe for arbitrary and unaccountable government. This, however, is simply an indication of the practical, if not overt, atheism inherent in the modern worldview. For if civil government’s authority is delegated to it by God then civil authority is accountable to God for its stewardship of that authority. It is government that bases its authority upon the will of man that is truly unaccountable and arbitrary. Indeed, the teaching of the divine origin of the authority of civil government is a doctrine that limits government authority, for if God were to delegate unlimited power to civil government He would be making civil government equal to Himself. The power God delegates to civil authority must therefore be limited and it is limited by the purpose for which God has delegated that authority, identified by St. Paul in the passage quoted above.

There is another way of thinking about civil government’s authority in which it is delegated from above. That is to regard a country’s constitution as being a higher authority than its government and to regard the government’s authority as being delegated to it by the constitution. This need not be regarded as a substitute for the Christian doctrine or a theory that is in competition with it. It is completely compatible with it if we think of the constitution as being the vessel by which authority is communicated from God to government.

Today, the word constitution is often understood to mean a legal document listing and limiting the offices and powers of government. This is not the sense of the word I am using here. I mean constitution in the sense in which Aristotle used the term in his Athenian Constitution. In this older sense of the word a constitution is a system of organization. It could be defined as “the way things are set up”. In this sense of the word, the constitution of our American friends and neighbours is not the document that begins “We the People of the United States, in Order to form a more perfect Union…” but the federal republican system of government as established by that document. Or it would be had not “the Civil War finally blew the old Republic to pieces” as H. L. Mencken put it in his foreword to James Fenimore Cooper’s The American Democrat.

The framers of the American republic believed that a charter, a document defining and delineating the powers of government, is the best safeguard of the rights and liberties of a country’s people and the security and stability of a country’s constitution against those who would subvert the constitution for their own tyrannical purposes. Hence the association of the concepts of charter and constitution to the point where the distinction was blurred. Mencken’s comment, quoted above, places this belief in a somewhat ironic light, the “civil war” to which he referred having taken place less than a century after the American charter was ratified. With all due respect to America’s founders I disagree with their position and would insist that prescription is the best safeguard of these things. Prescription is establishment by ancient use. It commands the respect that is due to age and conveys the right of presumption due to that which has stood the test of time against the unproven claims of innovation and experiment. The embodiment of a country’s constitution in institutions that have been established as “the way things are” from ages past it is a far greater guarantee of stability and security than the fact that a document “says so”.

The idea of a constitution grounded in prescription as the immediate source of government legitimacy – the ultimate source being God – finds support in an alternative theory of democracy proposed by G. K. Chesterton. Chesterton began the fourth chapter of his Orthodoxy, a chapter entitled “The Ethics of Elfland,” by saying that as he matured he had discovered that the remarks he had heard when he was a boy from old men about how the abstract idealism of youth would give way to pragmatic realism in middle age were all lies. He declared that he now, at the time he was writing, more than ever before, believed in Liberalism, and its ideal of democracy. The principle of democracy, he said, could be expressed in two propositions, “that the things common to all men are more important than the things peculiar to any men” and that “the political instinct or desire is one of these things which they hold in common.” Therefore “the democratic faith is this: that the most terribly important things must be left to ordinary men themselves – the mating of the sexes, the rearing of the young, the laws of the state.” He then went on to say that “It is obvious that tradition is only democracy extended through time.” He wrote:

Tradition may be defined as an extension of the franchise. Tradition means giving votes to the most obscure of all classes, our ancestors. It is the democracy of the dead. Tradition refuses to submit to the small and arrogant oligarchy of those who merely happen to be walking about. All democrats object to men being disqualified by the accident of birth; tradition objects to their being disqualified by the accident of death. (2)

To this I would add that tradition can also be regarded, in a sense, as extending democracy in the other direction as well, and extending the franchise to the unborn. For tradition is that which binds the generations, past, present, and yet to come, into a common unity. If tradition is regarded as true democracy, democracy that gives a voice to those who have gone before and those yet to come by uniting their voices with that of those present now into one then the biggest problems of the modern theory of democracy disappear. For these problems only arise because the theory of modern democracy, in which “the people” are those who live under the government in the present, asserts the ridiculous proposition that it is the governed govern the government. If “the people”, however, are not just the masses assembled at any one moment but the organic whole of a society through time, including past generations and future generations, and tradition is the voice of “the people” so defined, then the contradiction disappears, for the organic whole of a society through time is much larger than those under government at any given moment, and thus cannot be equated with the governed. Furthermore, whereas modern democracy, which makes the masses of the moment sovereign, threatens the stability and security of the prescriptive constitution, because the opinion of the masses changes from moment to moment and has no common unity other than that which is supplied by the demagogue who seeks to subvert the constitution, tradition, as the voice of the people through time, changes slowly, and is supportive of the prescriptive constitution.

I would further assert, again contrary to the theory of government and constitution so dear to our neighbours to the south, that if the truest and best democracy is that in which the sovereign people is the society as an organic whole of past, present, and future generations, and tradition is the voice of that people, then the institution which best serves as the focal point of the authority conveyed by the tradition-grounded, prescriptive constitution upon civil government, so as to embody the voice of the people in the present, is precisely that institution which serves that purpose in our own constitution, the office of king, presently occupied, by a queen, Her Majesty, Elizabeth II.

Aristotle believed that a constitution which mixed the rule of the one, the few, and the many was potentially the best constitution available to man. This mixture is present in both the parliamentary monarchy of the United Kingdom, Canada, and in the republican system of the United States. In the United States, the office of the president fills the place of the rule of one. It is an elected term position, and in the constitutional scheme of the United States, the president is elected as the representative of the country as a whole, whereas senators are elected to represent states, and congressmen to represent districts. The office of king in our own constitution is a hereditary, life, position. The modern democratic mind finds this objectionable. I would say, however, that it is precisely this that makes the office of king a suitable expression of the voice of the people. The office of king passes from one generation to the next through time, just as in the organic whole of the nation, one generation follows another. As Roger Scruton has put it "the monarch is so convenient a symbol of the trans-generational ties that bind us to our country." (3) The modern mind claims the office is outdated, but it is in our times, times of turbulence and dynamic and rapid change, that an institution that represents stability and steadfastness is most needed.

Those who prefer a republican system over even a parliamentary monarchy and a charter over tradition and prescription maintain that the office of king is a threat to the rights and liberties of the people. It is only bad kings that threaten those rights and liberties, however, and it is no solution to make every office an elected one, for bad elected officials are as much of a threat to the rights and liberties of the people as bad kings, and often a worse threat because, holding office only until the next election, their interest in the affairs of the public is a short-term one. (4) Indeed, a king who inherits his throne and has therefore been trained all his life for the duties of the role he is to fill is far more likely to be a good governor than an elected politician. To be an elected politician one must first run in an election, which indicated a love for power, a quality that is not exactly desirable in one who is to exercise it. There is a reason our basic word for an evil and oppressive governor, tyrant, comes from a root that originally meant "usurper", i.e., one whose love for power leads him to seize it for himself and to exercise it improperly.

There have been bad kings, of course. One bad king was King John who ruled England from 1199 until his death in 1216. He was a particularly bad king. After famously attempting unsuccessfully to usurp the throne from his brother Richard the Lionheart when the the latter was imprisoned in Germany during his return from the Crusades, (5) when John did finally accede to the throne upon Richard’s death with the support of his mother and most of the nobility it was over the claim one rival claimant did so over the claim of his nephew Arthur, son of his older brother Geoffrey. Arthur’s claim was supported by the French king Philip II and John went to war. He captured, imprisoned, and almost certainly murdered Arthur but his military adventures proved disastrous, costing the Crown much territory and earning him the nickname “Lackland.” His efforts at diplomacy fared no better, involving the kind of marrying, divorcing, and bending canon law for which Henry VIII would later become known. Between this and his conflict with Pope Innocent III over ecclesiastical appointments he managed to get himself excommunicated – and at one time the entire country interdicted. He combined incompetence in foreign policy with tyranny at home and eventually faced a revolt from the barons.

That John was forced to sign the Magna Carta Libertatum in 1215 is often cited as evidence that kings are a threat to liberty, that charters are the best safe-guards of liberty, and of the progressive view of history in which society becomes better and better as government evolves towards liberal democracy. This point of view ignores several facts. When John affixed his seal to the document at Runnymede it was a victory for aristocracy not democracy as it was the barons and not a popular uprising that forced him so to do. Furthermore, the Magna Carta was not an innovative, progressive, document. It did not force the king to recognize new restraints upon his powers so much as to acknowledge those already existing in the English law and constitution. Many of the rights and liberties identified in it go back at least as far as the ninth century reign of Alfred the Great of Wessex. Most had been recognized in the Charter of Liberties issued by Henry I upon his accession to the throne a century earlier.

Centuries later there was another revolt against an English king. This time, however, the intention was to subvert the constitution. Following the extinction of the Welsh line of Tudor, the throne of England had passed to the House of Stuart, uniting the thrones of England and Scotland. The first Stuart king to rule over England was James I (VI of Scotland) who was succeeded by his son Charles I. Charles, the first English monarch raised in the Anglican faith, inherited the legacy of the English Reformation that had taken place during the century that the Tudors had ruled. The Church of England, with Catholic bishops in Apostolic succession and a Protestant confession had become the established church. A party of Calvinists who had suffered persecution during the brief return to Roman Catholicism during the reign of Mary and many of whom had fled to Switzerland where they were infected with republicanism and Presbyterianism, had been gradually increasing in strength since the reign of Elizabeth I. Not at all pleased with the Elizabethan settlement, they increasingly demanded that the Church of England be stripped of bishops, priests, vestments, ornaments, liturgy, and anything that did not come directly out of the pages of Scripture. These demands were resisted by King Charles who wished to keep the Anglican Church the way it was. When he married a Roman Catholic and allowed her to keep and practice her religion, the Puritans saw this as a conspiracy to re-establish Roman Catholicism in England. They became paranoid and their demands became increasingly odious and personally offensive to the king. They hijacked the discussion in Parliament, in which they had become the dominant party, refusing to co-operate with the king or deal with the government business before the Parliament, turning it instead into a soapbox upon which to vent their hatred of Roman Catholicism. Eventually the king dissolved Parliament and governed without it for eleven years. This was within his constitutional right at the time, and he governed well, but it infuriated the Puritans and when he called Parliament back together they were even less willing to co-operate. It broke out into the English Civil War, the result of which was that the king was arrested and, in a kangaroo court conducted after the Puritan army forcibly removed his supporters from Parliament, condemned to die. (6)

If King John had been a bad king because he ignored the established constitution which his barons forced him to acknowledge in the Magna Carta, the Puritans who rebelled against King Charles I, illegally tried him for treason and killed him, were determined to overthrow the established constitution, both of the state and the church. While they called Charles a tyrant, he, unlike John, was a popular king. The Puritans, on the other hand, used the power they seized to oppress the people. They stripped the churches of their organs, ornaments, and other decoration. They called these idolatrous and claimed to be motivated by ideals of purity and simplicity but the effect was to rob the people of the beautiful art and music that had been universally accessible in the churches. They got rid of the festive seasons of Christmas and Easter and passed laws forbidding sports and amusements on Sundays, even outside church hours, although this was the only day of the week such were available to them.

In his final speech before his death, King Charles insisted that the liberty and freedom of the people consists of "those laws by which their life and their goods may be most their own" and not in blurring the difference and distinction between subject and sovereign. He pointed out that had he submitted to the demands of the Puritans, had he "given way to an arbitrary way, for to have all laws changed according to the power of the Sword", he would not have been brought to the scaffold and so he was "the martyr of the people." The subsequent abuse of the people during the Puritan interregnum more than justified this assertion.

In the example of King Charles, rightly canonized a saint by the Anglican Church in the Restoration, we see the example of how a king can be the upholder of the constitution and defender of the people protected by that constitution, against forces in the elected assembly that seek to subvert the constitution and oppress the people in the name of liberty. This, of course, is the proper constitutional role of a king, and the reason the office of king will never be outdated, despite what progressives and modernists may say to the contrary.

(1) There have been other theories of democracy which do not rest upon this idea.

(2) G. K. Chesterton, Orthodoxy, (New York: Image Books,1990; original publisher New York: Dodd, Mead and Company, 1908), p. 45.

(3) Roger Scruton, A Political Philosophy, (London: Bloomsbury Publishing, 2006), p. 11.

(4) This argument was developed by Hans-Hermann Hoppe in Democracy - The God That Failed: The Economics and Politics of Monarchy, Democracy, and Natural Order ( Rutgers, New Jersey: Transaction Publishers, 2001). Note that Hoppe, while arguing that monarchy is preferable to democracy, is himself an anarchist.

(5) John is remembered for this more often than for the events of his own reign, even the signing of the Magna Carta, for the simple reason that it became the background to the Robin Hood legend, in which the villainous king-to-be is depicted as the sinister mastermind behind the outlaw’s main enemy the Sheriff of Nottingham.

(6) http://www.thronealtarliberty.blogspot.com/2013/01/the-martyred-king.html

Freedom in Society

The basic political definition of freedom within the tradition of the English-speaking world could be “the right to do whatever is not specifically forbidden by law”. Anarchists, who regard freedom as the absence of law, would obviously object to this definition. It is an important starting point however, because it is the opposite of the notion that people are only allowed to do whatever they are expressly permitted to do by the law.

In these two concepts we see the essential difference between a society that is constitutionally free, and a society that is constitutionally tyrannical or totalitarian. A constitutionally free society has clear, specific rules as to what you are not allowed to do but otherwise leaves you free to make your own choices. A constitutionally tyrannical society has specific rules as to what you are permitted to do and if you do something that is not on that list you could be in trouble with the government. English-speaking countries are by a long-standing tradition constitutionally free societies.

It should be apparent from this that freedom is quantifiable. In a constitutionally free society, the more laws there are the less freedom you have. There is a form of tyranny which can exist within the form of a constitutionally free society because “the right to do whatever is not specifically forbidden by law” does not particularly mean much when there are laws against everything.

Clearly then if we wish to live in a free society we should be aiming for less laws rather than more. This brings us to the question of what kinds of actions should laws forbid.

Evelyn Waugh admirably expressed the Tory (1) position on this question when he wrote:

I believe in government; that men cannot live together without rules but that these should be kept at the bare minimum of safety. (2)

Laws should be limited to what is necessary. This is true, not only for the sake of maintaining liberty in a free society, but also in order to ensure that the laws we do have are effectively enforced. When laws are multiplied, society’s law enforcement agencies have a tendency to concentrate on laws that are easily enforced but less important over laws that are more important and more difficult to enforce. This produces the situation that Dr. Samuel Francis dubbed “anarcho-tyranny”. (3) Picture a city where the police department goes to great effort to make sure the traffic regulations are kept while gang violence runs amok and unsolved homicide after homicide cases pile up, and will you get the idea.

Now, you have undoubtedly noticed that I have not actually answered the question of what kinds of actions should laws forbid in asserting that laws should be limited to those which are necessary. That assertion merely leads to the question being rephrased as “what laws are necessary?”

How do we determine whether a law is necessary or not?

We can only do so, by examining the purpose of law itself. Laws exist as a means to a particular end and their necessity is determined by whether they are essential to achieving that end.

What purpose do laws serve? What is their ultimate end?

The right answer to this question is that laws exist to facilitate society and to ensure its safety and security.

Society consists of people and between people conflicts often arise. It is to be preferred that people settle their disputes peacefully themselves, but if they cannot do so, the need arises for the dispute to be arbitrated. This produces a need for laws which we would categorize as “civil”. Their purpose is to keep disputes from escalating into violence that threatens the fabric of society.

Lets say you and your neighbor disagree as to where the property line dividing your yards is to be located. Your neighbor would like to put up a fence that will cut through your flower garden whereas you believe the fence should be erected so as to include an apple tree your neighbor claims as his own on your property.

How is this to be resolved?

One way is for you and your neighbor to go throughout the neighborhood, gathering support from your friends, and then fight it out between the two parties, destroying property and shedding blood in the process. This is not the optimal solution.

The other way is for society to have clear laws as to how disputes of this nature are to be settled and a magistrate with the authority to hear your side and your neighbor’s and issue a ruling based on the law which both you and your neighbor must abide by.

Civil laws of this nature facilitate society, that is, they make it possible for people to live in peace together in that collective venture we call society.

The other major category of law is “criminal law”. Criminal laws prohibit acts like taking or vandalizing another person’s property, assaulting or killing another person, or raping or kidnapping someone. If you commit a criminal act you are forced to pay a penalty to society, after you have been caught, arrested, and been proven guilty in a court of law. The purpose of criminal law is to protect society and its members from harmful and destructive behavior.

This brings us back to the question of which acts should be proscribed by law – and to the classical liberal answer to that question.

Classical liberalism or libertarianism as it is more commonly known as today asserts that society’s laws should only prohibit actions which harm people other than the person committing the action in their person or property. This is called the “harm principle”. It was the basic thesis of John Stuart Mill’s famous On Liberty (4) but the concept is present in the writings of earlier liberal thinkers as well.

Liberalism’s harm principle should not be dismissed lightly. As an answer to the question of which acts should be illegal and which should not, there is much to commend it. Actions, the criminality of which are uncontroversial among sane people, such as murder, rape, theft and the like, all fall under the category of actions which are harmful to others.

There are, however, problems with the libertarian position which appear when we look at the underlying philosophy behind it and its application to controversial actions.

The philosophy behind the harm principle is the philosophy of classical liberalism. This philosophy asserts that only “individuals” (persons by themselves, not as members of any larger group) are real, that society is a voluntary association of individuals, and that political society and its laws exist to protect the rights of the individual.

One of the earliest liberal thinkers was the 17th century English empiricist John Locke. Locke’s held that in a hypothetical (not necessarily historical) “state of nature” prior to society, all men as individuals are absolutely sovereign over themselves and possess absolute rights to their life, liberty, and property. In this “state of nature”, however, men are vulnerable to violence from other people. Therefore, to protect themselves and their rights, men form societies, which are contracts between sovereign individuals in which they agree to relinquish a portion of their sovereignty to society, so as to obtain laws to protect their rights against the violence of others. (5)

The problem with all this, however, is that it is manifestly wrong and is indeed the exact opposite of what is observable about the nature of human beings and their societies.

All human societies that are older than a single generation existed prior to the people who make up their membership. More importantly, when we look at society in its most basic form, the family, we see that it is not a “voluntary association of individuals”.

The family is the simple form of society, the building block from which more complex societies are established. Each of us entered the world as a member of a family that we did not choose to enter. We were sired by a father, and born to a mother, neither of which we chose. We do not chose our relationships to our parents, nor do we chose our relationships to our siblings.

The family is prior to the individual person, therefore society is prior to the individual person.

Indeed, there is no such thing as an “individual” the way liberalism conceives him. Liberalism’s “individual” is a person, detached from all society, identified not by that which distinguishes him from other people, but by that which supposedly makes him the same as all other people, i.e., a set of “natural rights” which all individuals are supposed to possess equally.

A person apart from society, however, is not living in a “natural state”. Take a hermit living on top of a mountain, in a remote cave, or out in the desert somewhere? Is such a person living in a more “natural” state than a man living with his wife and children in a community with other men who live with their wives and children? Of course not! These kinds of people, are extremely rare, for precisely the reason that their behavior is not normal or natural for human beings.

Furthermore, a person in isolation from society, is not in the position of having rights but no means to enforce and protect them. Isolated from society, a person has no rights whatsoever. A “right” is by definition a claim on other people and therefore cannot exist in the absence of society.

If liberalism’s philosophy of the sovereign individual being logically prior to society is false and contrary to all observable evidence (and it is), it follows that liberalism’s answer to the question of what is the primary purpose of law, i.e., to protect the rights of individuals, cannot be correct.

Now, if the philosophy of classical liberalism is wrong, and its view of the purpose of law is wrong, does that mean the harm principle is also wrong?

No.

As mentioned previously, if we look for laws which are found universally throughout civilized human societies and which forbid actions that few if any would dispute are criminally wrong, we find these laws tend to correspond to the harm principle.

We also find, when we look into the thought of pre-liberal Western ethical philosophers and theologians, that the harm principle itself is older than liberal individualism.

The most famous work of St. Thomas Aquinas, the 13th Century Dominican priest, is his Summa Theologica. The second part of this treatise is devoted to ethics. Here Aquinas raises the question of “Whether it belongs to the human law to repress all vices?”

In his answer, Aquinas states:

Now human law is framed for a number of human beings, the majority of whom are not perfect in virtue. Wherefore human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained: thus human law prohibits murder, theft and such like. (6)

The Thomistic position is both similar to and different from the liberal harm principle. The main difference is that Aquinas’ view affirms society and lawfully constituted authority whereas the libertarian view of J. S. Mill is subversive of society and authority.

The subversive nature of liberalism is such that, despite its protestations to the contrary, liberalism is no friend to the free society. When society and legitimate authority within society are undermined, the result that ensues will be either chaos, tyranny, or a mixture of both. It will never be a free society in which people enjoy both freedom and the benefits of society.

Society as we have seen, is not a “voluntary association of individuals”. It is organic in nature, consisting of a variety of social institutions (family, church, cultural and economic associations of various natures, neighborhoods, communities, etc.) which exist in multiple layers in which society expands outward from the family to become the sovereign polity. Within each social institution and every level of society there are positions of authority.

What is authority?

Authority is the right to command obedience. It is distinct from power, which is the ability to compel obedience by force. It is not completely separate from power, however, because authority includes the right to use an appropriate degree of force to ensure that rules are obeyed.

Where is authority located?

Authority is vested in offices or positions, rather than in the people who occupy those positions and exercise the authority.

What is the source of authority?

The source of authority is the constitution of society. The constitution of society is not a charter written on paper like the British North America Act or the Constitution of the United States of America, important as those documents may be. The true constitution of any society is its system of organization, written in its traditions, and established by prescription.

Society’s constitution is not the voluntary contract that liberalism conceived it to be. Rather, it is as Edmund Burke (7) conceived it:

a partnership in all science, a partnership in all art, a partnership in every virtue and in all perfection…not only between those who are living, but between those who are living, those who are dead, and those who are to be born…linking the lower with the higher natures, connecting the visible and invisible worlds, according to a fixed compact sanctioned by the inviolable oath which holds all physical and all moral natures, each in their appointed place. (8)

That description could better be called a “covenant” than a contract. The covenant of society, like all covenants, functions according to the faith of its members.

When members of a society believe in their constitution they will respect the offices of authority established by that constitution (if not necessarily the people who occupy the offices at any given time). The more faith people have in their constitution, the more respect they have for the constitutional authorities, and the more they voluntarily obey the rules without the use of force.

This has a direct relationship to the degree of freedom in society. A wise ruler will seek to govern so as to maintain faith in society and its authorities, and will therefore seek to effectively enforce essential laws without burdening the people with excessive regulations. A foolish ruler, who prefers to maintain order through naked power, will not be concerned about maintaining people’s faith in society by limiting the laws to the few essential laws effectively enforced.

Thus is a functioning society held together by faith. Governors keep faith with the people on their part, by enforcing the laws that are necessary and not passing excessive laws. The people keep faith with the government by respecting the authorities and voluntarily obeying the laws.

In this we see that there is a relationship between legitimate government and consent. It is not the relationship liberalism suggests, however, but rather the inverse. Liberal theory once again has the cart before the horse. Government does not derive the legitimacy of its authority from the consent of those it governs. Rather people voluntarily consent to government when they believe it to be exercising legitimate authority derived from a legitimate constitution.

How does a constitution obtain legitimacy?

The one word answer is “prescription”.

Prescription is the word we use to describe the process whereby a social arrangement gains legitimacy by virtue of having passed the test of time. Rationalists will scoff, but people have far more faith in a social arrangement that has weathered the storms of time and served society well for generations than in an abstract theory that looks good on paper as to why such-and-such a social arrangement is best.

Do not mistake me. I am not saying that we should accept something that is obviously unjust simply because “that is the way it has always been”. I am saying that the generally accepted legitimacy of a stable constitution of society is something that develops over the course of generations through a long period of time.

It can be overthrown, however, in a very short period of time, by government which abuses its authority and betrays the faith of the people, or by subversive doctrines like liberalism which tell people that their personal interests are more important than those of society.

Most of us in the English-speaking world wish to be free. We also wish to be, like all normal human beings, members of societies. We therefore wish to enjoy freedom within society.

The traditional constitution of English-speaking countries in which we are legally free to do whatever the law does not specifically proscribe, contributes towards the fulfillment of that wish. So does the basic idea expressed by St. Thomas Aquinas, that human laws exist to restrict not all vices, but major vices, primarily those in which harm is done to others.

Since we value being part of a society, however, a real society and not liberalism’s “voluntary association of individuals”, we must resist allowing Aquinas’ concept to be twisted into the anti-social, subversive individualism found in the theories of classical liberals like J. S. Mill.

(1) As is my usual custom, here I use “Tory”, not to mean a member/supporter of the Conservative Party necessarily, but a traditionalist conservative, particularly those within the British and Canadian traditions who support the parliamentary monarchy and the Christian Church.

(2) “A Conservative Manifesto” found on page 161 of the 1986 Penguin edition of The Essays, Articles and Reviews of Evelyn Waugh edited by Donat Gallagher, taken from Waugh’s Robbery Under Law.

(3) The oldest reference I can find for this is “Anarcho-Tyranny USA”, the speech Dr. Francis’ gave to the John Randolph Club in 1993 and published on pages 14-19 of the July 1994 issue of Chronicles: A Magazine of American Culture. In the text of the address Dr. Francis makes reference to his having used the term in earlier columns, but I have no bibliographic details about these. He wrote about it until the end of his life, and revisited the topic in “Synthesizing Tyranny”, the last essay he wrote for Chronicles published in their April 2005 issue.

(4) Mill defines the principle in the 9th paragraph of his introductory chapter. Note that Mill begins this paragraph by saying that the principle should limit all social control over the individual, whether it be by actual laws enforced by the state or the “moral coercion of public opinion”.

(5) Locke’s views can be found in his Two Treatises of Government, originally published in 1689, particularly the second treatise.

(6)http://www.ccel.org/ccel/aquinas/summa.FS_Q96_A2.html

or

http://www.newadvent.org/summa/2096.htm

(7) Edmund Burke was an 18th Century British statesman who was originally a classical liberal himself. He entered politics as a member of the Whig Party (the liberal party of the 18th century). He was a friend of Samuel Johnson, the prominent 18th century man of letters, who was noted for his Tory views. Burke once wrote to Johnson’s friend and biographer James Boswell that he had dined with Johnson and “we had a very good day, as we had not a sentence, word, syllable, letter, comma, or tittle of any of the elements that make politics”. Burke may very well have been the “scoundrel” Dr. Johnson had in mind in his famous remark about (false) patriotism, recorded by Boswell. The French Revolution changed all that. Seeing the horrible violence that sprung from the “armed doctrines” of the “Enlightenment”, Burke took up cudgels for tradition, organic society, the ancient constitution, monarchy, and the church – the traditional articles of Tory faith - in a treatise entitled Reflections on the Revolution in France originally published in 1790. When Marie Antoinette was beheaded in 1793, Burke bemoaned the fact that in a “nation of gallant men…honor…and of cavaliers”, “ten thousand swords” had not “leaped from their scabbards” to defend her, and mourned the death of the “age of chivalry” and the rise of that of “sophisters, economists and calculators”. Burke had, to paraphrase Irving Kristol, become a “Whig mugged by reality” , a “neo-Tory” if you will.

(8)Edmund Burke, Reflections on the Revolution in France, Gateway Edition, (Henry Regnery Company: Chicago, 1955), pp. 139-140.