On the Other Hand...
by Jim Davies
The Civics Class They Never Taught
There are three ways in which any society can be arranged. Society is made up of rational human beings, and rational human beings must have data from which to predict the likely consequences of any interaction with others. So as to be able to interact, therefore, there must exist some kind of indication of what consequence will follow; that is, rules.
The first way (which I very much favor) is for it to have all rules made by voluntary contracts between its members.
So, if in some extreme and perhaps bizzarre example A contracts with B to help end A's life, then B would be perfectly honorable in carrying our the contract and killing A. In such a society, a Dr Kavorkian would have no hassle at all.
Otherwise, A would be preserved from homicide and all other damage by B because no such contract exists; the interaction would not be authorized by A. Were B to go ahead and intrude anyway into A's life, A would have cause to claim compensation in the justice system which would no doubt arise in this free, or "anarchist" society - so called because no person or persons would be ruling anybody; that is what the word means, "absence of a ruler." In this properly free society anyone can do anything he wishes, and therefore can NOT impose his will on someone else, for then that person could not do likewise.
The second (which America's Founders tried to put in place) is for society to have rules imposed upon all its members, but only after a majority has agreed to impose them and only if those rules conform to a set of limits. Those "limits" pose a difficulty. What is their source? A majority? No, for that would be no limit at all. A supermajority? - how big and why? God? - but what priesthood is to interpret His will, and how is the priesthood chosen? Everyone? - with 260 million, that's a big sheet of paper to sign.
Notice anyway, this is not a free society. It's often called by that name, but it's not. Everyone is limited, and so not free; all members have to submit their behavior to the will of the ruler (in this case temporary, elected rulers) sometimes against their wills. The process of debate and limited- majority-rule may ensure that the rules imposed are less onerous than in case 3 below, but they are onerous anyway; the essential, human element of self-rule has been removed. Each member of the society is forced to behave in a way he or she may not wish to behave. Such an arrangement may be called the "rule of law", for all the rules are codified and published, and every member of the society including the rulers themselves are subject to those laws.
Some proponents of this arrangement claim that it's the freest kind of society possible in practice. I disagree. The first kind, outlined above, is the only kind worthy of that description. When Winston Churchill said democracy is "the worst kind of government there is, except for all the others", he omitted that.
The third possible kind of society is for its rules to be set by a ruling class, which exempts itself from all or some of the rules. There are many sub-divisions of this kind; a monarchy, whether arbitrary and absolute, or not; a dictatorship, in which a strongman rules by decree until deposed by force; a Party Committee, put in place by "elections" that give no actual free choices to the voters; or a pure democracy, in which the majority rules without limits. We have seen examples of all of these all over the world in this century.
This third kind is the most repugnant to liberty-lovers, for not only is each member of such a society deprived of self-rule, he has no hope of modifying the rules under which he lives, and may not even know what the rules are (for the rulers could make a rule that says the rules will be announced after the occurrence they will govern or affect.) He is a pawn, under the control of one or more rulers and their whims; he is in no degree the owner of his own life.
Naturally, in such a society there is little motivation to live at any higher standard than subsistence, for tomorrow, the surplus one may produce may be confiscated by the rulers. And sure enough, the closer any real society is to arbitrary or absolute rule, the poorer it is. The term "banana republic" conveys an image of poverty as well as corrupt, non-codified rule, and it's no coincidence; in universal practice, the more government, the less prosperity.
This country was set up deliberately to fall into Category Two above. The Founders recognized that governments limit freedom, but apparently never gave serious thought to giving us a Category One society. Enlightened though they certainly were compared to all other politicians living then or now, they were politicians anyway and suffered the same blinkered vision as Churchill.
But here's the rub: today, despite their best efforts, America is rapidly falling out of Category Two and in to Category Three. Yes, the process is not sudden. Yes, Henry Hyde can still speak passionately about the importance of the "rule of law" when proposing to impeach the President; he, and others, seem to believe that laws should apply to everyone without exception.
But every single branch of government is placing itself above the Law.
The President lies under oath and expects to get away with it, so setting himself above the Law. The Senate allowed him to do so, thereby setting itself too above the Law. The President has also put himself above the Law by waging war without Congressional declaration. He and the Congress have set themselves above the Law (e.g. in Amendments 4 and 9) by enacting lesser laws to spy on citizens' private conversations without Court order, censoring free speech on the Net, prohibiting the sale and consumption of certain drugs, and in a thousand other ways. And the judiciary has joined them both in viciously enforcing an income-tax law that does not exist; men, above the Law.
So, we are rapidly becoming a banana republic. If you think you can fix it, by political action, good luck. If not, it's time to go where government ain't.
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