The Ideal of Right Law

Despite the preponderance of self-interest throughout our history, the pursuit of “Right Law” and the ideal of some ultimate universality has claimed the attention of political thinkers and writers since early Greek and Roman times.

“I find that it has been the opinion of the wisest men that Law is not a product of human thought, nor is it any enactment of peoples, but something eternal which rules the whole Universe by its wisdom. Reason has always existed, derived from the Nature of the Universe, urging men to right conduct and diverting them from wrong-doing; and this Reason did not first become Law when it was written down, but when it first came into existence; and it came into existence simultaneously with the Divine Mind.”

These principles were expressed by the Roman philosopher Cicero in The Republic. While such ideals can be traced yet further back to the early Greek political philosophers, it was the Romans and Cicero in particular who gave to the Greek doctrine of Natural Law a statement in which it was to become universally known throughout Western Europe down to the Nineteenth Century.

Cicero continues: “There is in fact a true Law – namely, right reason – which is in accordance with nature, applies to all men, and is unchangeable and eternal. By its commands it summons men to the performance of their duties; by its prohibitions it restrains them from doing wrong. To invalidate this Law by Human legislation is never morally right, nor is it permissable ever to restrict its operation; and to annul it wholly is impossible.”

Particularly important here is the assumed distinction between the fundamental laws of nature which are a product of the Divine Mind, and man-made laws. Man-made laws should ideally reflect Natural Law; if they do not, they are in Cicero's view, worthless.

George H. Sabine (A History Of Political Theory) comments:

“None of the great Roman jurists doubted that there is a higher law than the enactments of any particular State. Like Cicero they conceived of the law as ultimately rational, universal, unchangeable, and divine, at least in respect to the main principles of right and justice. The Roman Law, like the English Common Law, was only in small part a product of legislation. Hence the presumption was never made that law expresses nothing but the will of a competent legislative body, which is an idea of quite recent origin. It was assumed that “nature” sets certain norms which [government’s] law must live up to as best it can and that, as Cicero had believed, an “unlawful” statute simply is not law.”

The essence of Natural Law is that the Ruler, the State or the Legislator is always subject to the Law of God, or the Moral or Natural Law, the Higher Rule of Right which transcends Human interests and Human institutions. Thus the Ruler or Legislator becomes an interpreter of a Higher Law, rather than an instigator or originator of law reflecting perhaps the interests and profit of himself or the group he represents.

This general principle of government – that authority is justified only on moral grounds – may appear somewhat alien today. But it achieved almost universal acceptance within a comparatively short time after Cicero and remained a commonplace of political philosophy throughout the Middle Ages, becoming a part of the common heritage of political ideas.

The concept of Natural Law was fundamental to the political philosophy of Henry Bracton whose written comments particularly stressed that the King must “be under God and the Law”, by which may be understood the “Natural Law” or Right Reason.

Following this same tradition Sir Edward Coke attempted to impose the discipline of “Right Law” upon the Acts of Parliament in the early 1600s.

Coke became Attorney General in 1594 and retained this Elizabethan appointment until 1606, when King James made him Chief Justice of Common Pleas and later, Chief Justice of the King’s Bench, a post he retained until 1616.

Before beginning a new career as a Member of the House of Commons in 1620, Coke devoted himself to writing his Reports and Institutes which became the basis of legal education in England and America throughout the 1700s.

As a student, Coke began to trace the medieval origins of Common Law, collecting ancient precedents that later filled the volumes appearing under the title The Institutes of the Laws of England and the Reports of Sir Edward Coke Kt. in English in Thirteen Parts Compleat. While preserving the Common Law’s continuity he reinterpreted it in his own way, reaffirming the “Natural Law“ element and defending it against all encroachments.

In his opinion given in Dr. Bonham’s Case (1610), Coke declared: “when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the Common Law will control it, and adjudge such an Act to be void.”

The ideal of subjecting law-makers to procedures of conduct and to basic concepts of “common right or reason” persisted after Coke’s death in the turbulent years of revolution. A political reform group active during the Civil War years of the 1640s later known as the Levellers, held that Parliament itself should be bound by certain “fundamental laws” assuring for example religious liberty and forbidding military conscription.

This attempted supremacy of “right” over Electoral or Parliamentary “might” was not destined to become a permanent feature of English legislative discipline or procedure. Perhaps this was because the “Common Right or Reason” had not been, and indeed still has not been clearly defined. But such concepts would later inspire in the new United States of America the idea of codifying the essential procedures, safeguards and liberties gradually assembled over the centuries into one single written Constitution.

The first written Constitutions
were motivated by two then-current political theories: Social Contract and Natural Law.

The “Social Contract” element reflected the principle that government is established as a result of a compact in which individuals promise to accept the judgements of a common arbiter. An important implication is that, having put their trust and political destiny in the hands of a Central Government, the People are thereby entitled to expect from that Government justice, honesty and competence.

And since it is all of the people who are subject to law, not only those who have voted for the specific Party for the time being in office, it follows that there is a presumed obligation upon any Party in power to act in the overall national interest, avoiding solutions favouring specific sectional interests.

Though this ideal may be difficult to define, it has nonetheless been possible to limit Government from practising the grosser extremes of natural in-justice; this is achieved through the Constitution, the function of which is to set out the specific terms of this “social contract“ including the procedures, obligations and limitations to which Government should be subject.

The “Natural Law” element in Constitutions gave them the sanctity of a Higher Law.

“The modern Constitutional State at the time of its origins was justified and to a large extent legitimatized in terms of Natural Law theory. While the ancient idea of a divinely inspired, immutable, eternal Natural Law had been secularized by the 1600s, it still provided a source of permanence in an ever-unstable world.

“John Locke used Natural Law to support the natural rights of the individual, thus limiting the powers of Government. The written Constitutions which followed Locke’s philosophy embodied such traditional natural rights in detailed provisions.”

[Constitutions That Have Made History: Blaustein and Sigler, Paragon House, New York].

Despite their growing commitment to “rule by the people” – or more accurately, the majority of the people – the Framers of the United States Constitution were under no delusions that Democracy of itself could be relied upon to guarantee good laws.

In an attempt to preserve discipline and integrity in government the Framers provided a clear and concise Constitution creating a system in which several branches of Government share power, yet limit that power through a series of checks and balances.

But even this was not enough. Many of the Framers felt that Liberty should be more specifically defined and protected. Among them was Richard Henry Lee of Virginia, who argued that the Constitution as it stood directly after its adoption would “put Civil Liberty and Happiness of the people at the mercy of Rulers who may possess the great unguarded powers given.”

He demanded such amendments “as will give security to the just rights of Human nature, and better secure from injury the discordant interests of the different parts of this Union.” The result was the first ten Amendments, collectively known as the Bill of Rights which set specific bounds on the range and extent of Law.

The significance of the Bill of Rights, as with similar Constitutional limitations on Government activity, lies in the recognition of a Higher Law endowing mankind with certain fundamental rights and liberties to which even elected Parliaments must defer.

Acceptance of a higher, Natural Law requires that “... the Legislator who formulates laws is a Priest of Justice, the practitioner of a true philosophy, not a pretender to an imitation. Natural Law meant interpretation in the light of such conceptions as equality before the Law, faithfulness to engagements, fair dealing or equity.”
[George H. Sabine: A History Of Political Theory].

A latter-day exponent of “Just Law,” Rudolf Stammler [The Theory of Justice], regarded this belief in Natural Law as the crowning glory of Roman jurisprudence:

“This, in my opinion, is the universal significance of the classical Roman jurists; this, their permanent worth. They had the courage to raise their glance from the ordinary questions of the day to the whole. And in reflecting on the narrow status of the particular case, they directed their thoughts to the guiding star of all law, namely the realization of justice in life.”

Following the Industrial Revolution and the growing complexity of regulatory detail, legislators and political philosophers gradually abandoned any attempt to focus on “the guiding star of all Law”, concentrating instead on “the ordinary questions of the day”.

But it was not, nor ever has been simply a matter of concentrating on detail at the expense of overall strategy; in fact the “opponent” of Natural Law was not and is not detail, but self-interest.

The concept of Natural Law is essentially a reflection of that universal-interest which seeks benefit, peace and stability for all. This can be achieved when the Law identifies and prevents infringement of liberty, rather than perpetuating it.

Throughout our history we pursued the alternative motivation, that of self-interest, where individuals seek to improve their own lives at the expense of others, supporting Governments and Laws which promote that objective. This resulted in slavery and feudalism, revolution and civil war, the riches and poverty of the industrial revolution, and the revenge of Socialism, the whole continuing saga symbolized in the polarization of Right and Left, each side representing a particular class or sectional self-interest.

The marked difference between Right and Left, and with it the whole concept of self-interest-motivated, confrontational politics, was not destined to last. Both Party policies, of the Right and of the Left, were class-oriented, designed to further the interests of one class, if necessary at the expense of the other.

The attraction of such policies has faded as class differences disappeared, and as people gradually came to the more civilized view that the Laws directing our social conduct should promote the liberty and wellbeing of all the people, not some at the expense of others.

Thus we return to the fundamental principles of “Natural Law” expounded by early Greeks and Romans, the “Common Right or Reason” of Coke, that “Higher Rule of Right which transcends human choice and human institution”.

Liberty and Government

The traditional concept of a universal guiding principle, a “Right Law” to which Legislators and Legislation are subservient, is many centuries old. If we did and do not formally identify the essence of “Right” or Universal Law is most probably due to the fact that “we” both in and out of Government and Parliament are more interested in seeking personal rather than universal benefit. The challenge of Governance today returns to this fundamental issue.

In our everyday lives, in personal relationships, in our use of natural resources, in our business and commercial affairs, it is possible for some to gain benefit at the expense of others. This is the essential feature of political conflict.

Our response to potential conflict is reflected in personal conduct, and in the Governments we choose or accept. Either we choose, and our Laws permit us, to continue injuring, exploiting and imposing on one another so that some may gain wealth through the impoverishment of others; or we attempt to avoid, and our Laws identify and prevent, those actions which are harmful or injurious to others so that we can all live in peace, harmony and maximum liberty.

Thus we are offered two choices. One option is that of imposition; the other of non-imposition and cooperation.

For two thousand years we have chosen imposition, an option which has been explored through the full range of slavery, feudalism, exploitation, civil wars, and the confrontation of sectional interests. True social peace and justice will only prevail when Governance is founded on the principle of non-injury, cooperation and the maximization of the general liberty.

When we begin to seek fair rules by which we can live together and collaborate productively without exploiting one another, we will find that the true nature of “Right Law”, of universal liberty, is and always has been clear and straightforward, awaiting only human recognition and acceptance.

It exists inside every one of us, for we all know what is right and wrong in social conduct – if we ever bother to ask ourselves. It exists as the fundamental basis of English Common Law; and it has been expressed by political thinkers, writers and philosophers for thousands of years.

This is the Eternal Law of Right Social Conduct: that each should pursue his or her own advancement, but in ways which respect the right of others to do likewise; that each should seek his or her own growth, but in ways which do not diminish that of others.

If we then seek to apply this principle of non-injury in Government, we find that the guiding policy is clear and simple: the purpose of Government and Law is the identification and prevention of exploitation, harm or injury between people.

This guiding Principle has already been expressed in many forms through the centuries; it is expressed clearly and concisely in the words of Thomas Jefferson: the purpose of Government is to prevent men from injuring one another.

This proposition has implications far beyond its apparent simplicity.

Clearly, Jefferson was not confining injury to grievous bodily harm, any more than he was confining the term men to the male gender. The purpose of Government in this view is to prevent people from injuring one another, and injury can take many forms which grow in number and complexity as the world develops.

There are many ways in which we can “injure” one another, in our personal activities, in commerce and industry, in our use (or misuse) of our shared natural resources. One can harm one’s fellow citizens by making and selling a machine which is unsafe in use; or through incorrect labelling of a food product which results in a user consuming an additive to which he or she is strongly allergic. The list goes on.

In Jefferson’s view it is Government’s job to identify and define those actions leading to the injury of others, then to prevent them through appropriate Laws and Enforcement.

Thomas Jefferson was not inventing a new idea.

He was taking his place in a long line of political theorists and idealists from early Greeks, through Cicero, Bracton and Coke; he shared the same principles with his colleagues as Framers of the United States Constitution and Bill of Rights, and he was passing on a continuing tradition of fundamental rightness with which we are all, in our consciences, familiar.

Thus may be defined the purpose of government.

But it is equally important to define the limitations which Society should impose upon governance. Constitutions already do this, indeed the limiting of government is the essence of their function. We can however, define both the obligation, and limitation on government with considerable precision.

Lord Denning was not inventing a new idea, but reiterating one of the mainstays of English Law so frequently expressed throughout England's history, as for example by John Stuart Mill (1806-73), “The only purpose for which power can rightfully be exercised over any member of a civilized community against his will is to prevent harm to others.”

Thus in one simple concept, we find Governance precisely defined in terms both of obligation, and perhaps more importantly, limitation.

Most people of the Anglo legal tradition (Britain, the United States and many Commonwealth countries) have always objected in principle to any excess of regulation. We dislike meddlesome government; we find unnecessary regulation tiresome and annoying; we abhor oppressive government. Yet few would object to being told they may not do something, if it can be clearly shown that their action is in some way harmful or detrimental to others. And when a person is suffering injury at the hands of another, we would all accept that person’s right to remedy and protection in law.

There are things in our lives, traditions, principles, ideals, which are so basic and fundamental we take them for granted and rarely give them a passing thought. Take for example the Presumption of Innocence. It is one of the foundation stones of justice throughout the world. Though not always practiced, it is at least universally recognized.

There are other principles and ideals, also basic and fundamental, which we unquestioningly accept, but so deeply ingrained are they in the very fabric of our lives, we don’t even realize they exist. We simply take them for granted like breathing. An example is the Presumption of Liberty.

The Presumption of Liberty is the presumption that we are all basically free to do whatever we like, to improve our lifestyle, our wellbeing, our employment and opportunities for advancement. The only qualification, the only legal prohibition, is that whatever we do, we should not in the process harm or endanger others, individuals or the collectivity.

Applied in government, the principle is clear and simple. In the words of Thomas Jefferson, in his inaugural address to Congress as President in 1801: “a wise government shall restrain men from injuring one another, yet leave them otherwise free to regulate their own pursuits of industry and improvement.”

This is a double-edged discipline. It requires of government that it “prevents men from injuring one another”, while “leaving them otherwise free” by requiring that the Law should intrude no further into our lives.

Without the Rule of Law people would be free to injure one another in the widest possible sense, each attempting to enhance his or her own personal wealth and possessions through the dispossession of others.

When Government as referee identifies those actions which are harmful or detrimental to others, then prevents such actions by Law and its Enforcement, Government is limiting individual freedom; but in so doing it creates the basis of Liberty.

When government limits its own activity, or is limited by Constitution, it avoids excessive limitations upon Liberty which would otherwise reduce it, thus creating the conditions in which the general overall Liberty is maximized.

“A wise government shall restrain men from injuring one another, yet leave them otherwise free to regulate their own pursuits of industry and improvement.”

In this simple, yet all-encompassing definition of Good Law and Good Governance, we return, surely to the age-old concept of True, Right, or Natural Law.

“I find that it has been the opinion of the wisest men that Law is not a product of human thought, nor is it any enactment of peoples, but something eternal which rules the whole Universe by its wisdom. Reason has always existed, derived from the Nature of the Universe, urging men to right conduct and diverting them from wrong-doing; and this Reason did not first become Law when it was written down, but when it first came into existence; and it came into existence simultaneously with the Divine Mind.”

Protection without Oppression
Where there is Injury, there must be Protection.
Where there is no Injury,
there is neither cause nor justification
for the interference of law and the exercise of its power.

The Art of Good Government