9.1 Foundations for Law and the State

The network of relationships among people that is termed society is not simply a random affair; it requires organization and supervision. To achieve this, there have developed the related institutions of the law and the state. For its part, law exists to codify the moral/ethical consensus of a society and to provide the "ought" with some force to back up the "shall". It prevents citizens from harming or exploiting each other and protects the nation itself from those who would destroy it from within or without. It regulates behaviour in personal and commercial ways and punishes transgressors for the benefit of society as a whole.

In times past, law's presumption was that it flowed from the emperor or king who gave it either benevolently or despotically to protect the royal regime and its peoples. Later--in particular because of the Magna Carta and to a lesser extent because of Irish Brehon law--the presumption became rex lex, that is, that law rules over all, including the monarch. This principle came to underlie the laws of modern Western democracies. Even more fundamental is the assumption, applied in such situations as war crimes trials and international trade cases, is that there is such a thing as justice in an absolute and abstract sense--even when it may be missing from the laws of one or more nations. This concept is not exclusively due, even in the West, to Judeo-Christian principles being incorporated into law but was also present in Greek philosophic thought.

Another assumption is that the people and institutions covered by the law agree to be regulated. Even if the ethical consensus is cultural rather than religious, there must be one, for if the law is not either respected as an authority in itself or as deriving from another (higher) source, it will not be obeyed without the application of force (which itself is a higher appeal). The best laws in a democracy are those in which the citizens perceive they have a personal stake, and are therefore willing to obey even if they may also have reasons to dislike them. Even better are those laws with which few citizens will ever come into conflict because their acceptance is so universal. This presumes, however, that the citizens take an active role in exercising and so maintaining their democratic freedoms, or they will surely lose them.

It is also worth observing that because law itself depends upon and derives from the ethical consensus of society, the law's direct impact on society is secondary to that of the underlying values. To put it another way, law does not so much change behaviour as it regulates the exceptions to what the moral consensus regards as acceptable behaviour. This dependence of law upon ethics, and the simultaneous assumption that there exists an absolute justice means that law assumes the existence of an absolute ethic from which it may derive justice. Thus, there are fundamental conflicts between the assumptions of relativistic moral theories and those of law, and these are difficult to reconcile without changing one or the other. For if morality is relative, so is the law on which it is based, and there is no abstract justice, nor is there any means of deriving or enforcing national or international law. For example, there would have been no case to make against the Nazi war criminals or modern terrorists under a strictly relativistic law, and this illustration alone is a powerful argument for a form of absolutism in both realms. Moreover, without a pervasive and compelling ethical consensus, society cannot survive the high-tech empowerment of many unrestrained individuals with the ability to destroy everything.

Even if the influence of law upon society is neither direct nor immediate, the law does touch and is touched upon by technology. For instance, the Romans had great success with their legal system because they viewed it as a management technique for an orderly society, and so long as they continued to do so, their law proved very durable. The extensive ocean-based trading systems of the European imperial powers enabled by ship-building technology led to a system of maritime law. The industrial society had to develop laws to regulate all its technologies in order to protect its users and the society at large. Today, the ability to store and compare fingerprints, retinal patterns, and DNA records has become critical to the resolution of many criminal cases, and has potential to partially restore confidence in the modern legal system.

The state, on the other hand, is not only involved in both law and technology, but also affects its citizens' lives directly and immediately in these and many other areas. The state has two principal reasons for its existence. One is to devise and enforce laws of all kinds to promote orderly behaviour and commerce, through which it serves to institutionalize the economic life of the community. The other is to provide leadership for the people being governed--to represent them to other peoples; to have its leaders act as role models for virtuous behaviour; and to plot a course for the future by making choices for resource allocation. Because the body of law is large, and tends to develop slowly, the state's impact for change can be much greater in the leadership role than in the legislative.

Every state must also convince its people of its ongoing right to rule them, for unless they are so persuaded, they will eventually destroy that state and bring forward a new state and new leaders. This appeal for legitimacy can be by force, and often has been. Indeed, the overwhelming experience of the majority of the Earth's peoples has been government by tyranny. Sometimes, philosophical or theological foundations for the state have been given, such as the "divine right of kings" or Plato's "philosopher-king" concept. There have almost always been alliances of religion and state in the business of governing, and these have added an authority to the state that it has not always been able to find on its own. It is interesting to observe in this connection that the Bible itself, though cited as an authority by many Western states through the centuries, makes no statements whatever about an ideal form of human government--only about the duties of citizens in the state and the obligations of leaders to their people. Its teachings on universal justice, human dignity, and the equality of all persons have, however, been a powerful indirect influence in the development of democratic forms of government.

The modern secular state has no exemption from this need to appeal for its legitimacy to higher authority of some kind. In today's totalitarian states of the left or the right, xenophobic nationalism or statism takes over the role of religion in this respect. The Caesars were quite consistent in viewing the Christians as a threat to their state--the idea there was a higher authority than their own persons was indeed subversive. Likewise today, the current leader may be honoured, praised and paraded in ways not particularly distinguishable from the worship of a deity, except in terminology. Totalitarianism may attempt to establish the state itself as the highest authority, but it is more common to appeal to other loyalties as higher still--the party, the cause, the revolution, or an assortment of political dogmas are common choices. These all share a vagueness that must be supplemented with a daily dose of propaganda to keep citizens loyal. This can work quite well if other information flows are restricted or can be overwhelmed, for lack of substance is no more an obstacle to a clever marketer in the political realm than in the economic one.

In the modern democracies, personalities are also emphasized, but the objects of such adoration are more likely to be entertainers or athletes than politicians. The original operating philosophy of the democratic secular state was that its people could collectively and more or less infallibly determine the will of God and/or what was absolutely right, then express these in action. Instead of the "might makes right" of tyranny, democracy proclaimed "majorities discern right". The fundamental assumption was that most of the people, at least when voting, would collectively know what is best and act upon it. That is, democracy is founded on something more than the whims of the electorate and the manipulation of these by clever advertising or demagoguery. There is an assumption built into the very fabric of the democratic idea that a generalized or universal morality or ethical consensus exists and that the people can be trusted both to know what this is and to reflect that knowledge consistently in their actions. Should this notion be lost, say if the prevailing view became that the state serves neither a deity nor abstract principles, but simply the current will of the majority, democracy would be in as much jeopardy as if its peoples simply failed to exercise its practice.

All this is not to say that propaganda and other emotional appeals are not employed in democracies, for they most certainly are. However, they are used more in the service of political or entertainment personalities who are seeking public acceptance than by the state itself. The legitimacy of the democratic state is more or less assumed by those involved, though this was not always so. Such a state does not usually require propaganda to support its existence, though it may to sway public opinion to its policies--at least to the point of making people believe they have been consulted, and are therefore part of the enterprise. Moreover, political parties tend to abuse power by using state funds to trumpet their virtues in the effort to get re-elected, but this is an aberration in an otherwise cleaner record. The democratic state is fundamentally dependent upon a mutual trust in the collective rightness of its electorate and in the integrity of its leadership, not on propaganda.

The notion that there exists a knowable "right" is therefore implicit to Western democracy. It depends for its very existence on an absolutist ethic, for it claims to be absolutely superior to tyranny. If the best ethic is relativistic or situationist, an arbitrary form of government would have as much claim to legitimacy as does a democracy--that is, neither would have any. Provided the concepts of free speech, universal justice and liberty are themselves absolutes with a higher moral authority than any form of government, the people governed know these principles to be true, and act upon them, rule by the wishes of the majority is legitimate.

This establishes an interesting paradox, for the freedom to hold differing views can exist only in a state whose chief absolute is that such freedom is necessary, yet the genuine pluralism this implies could easily lead to an ethical chaos that produces anarchy or tyranny and so destroys freedom. Likewise, pluralism can easily slide into the notion that all idea systems--including the absolute ones underlying democracy itself--are not just tolerable, but of equal value. If this happens, the philosophical foundations of democracy evaporate. The democratic state is, therefore, a fragile institution--always open to the possibility of being persuaded that its values are only relative and of being taken over by an arbitrary and tyrannical ruler--yet always needing to remain confident enough of its fundamental absolutes to give even those greatest enemies a free platform to attack it verbally.

What is more, as the World Trade Center incident shows, democracy's enemies can also use those freedoms to assemble physical attacks without much fear of discovery until it is too late.

How can this confidence be maintained in the future? As shall be seen, technology may have something to do with it, for it opens up some interesting possibilities for both types of state.

The Fourth Civilization Table of Contents
Copyright © 1988-2002 by Rick Sutcliffe
Published by Arjay Books division of Arjay Enterprises