Monarchy, Democracy and the Law
Published by Ravikiran Rao July 14th, 2005 in LawIn response to Slavery is Freedom? Sauvik says that in his post, he was just talking of what Nepal’s monarch should do without taking up the general question of whether monarchies are better than democracies at doing the things that a government should be doing. It doesn’t seem like that to me, but readers can read the post and judge for themselves.
Sauvik also tries to “stoke my ire” by claiming that Democracy is slavery. Well I think he knows that I am a libertarian. My ire doesn’t get stoked when someone criticizes Democracy. I am as much a believer in the rule of law as Sauvik is. I view Democracy purely as one of the instruments to achieve that goal - an instrument which is ineffective on its own, but is useful when used in tandem with others. Sauvik’s criticism would hit home if I were to claim that the legitimacy of laws flows from the will of the people. I make no such claim, so I suppose that his criticism has passed me by.
What is Sauvik’s alternative to constitutionally limited democracy? Apparently, it is “Common Law” administered through judges. “Common Law” is the system by which Britain has been governed. “Common Law” evolved in Britain through a rather involved process. Is it Sauvik’s contention that every country has to go through such a process? Wouldn’t it be a better idea to codify those set of laws into a constitution, as the Americans did? Or is he saying that having done that, there should be no process to make amendments in the constitution, or even make laws that derive from it?
From what I understand, he doesn’t want elected legislatures to have law-making powers. He wants the judiciary to do the job by “finding law” For example, there is no need for the legislature to make a law against murder. If the constitution or common law guarantees the right to live, the court just has to “find” that murder is illegal. Leaving aside the obvious practical questions that arise from such an argument, what is the guarantee that our liberties will be secure under such a process? After all, in the US, it was a politically influenced judiciary that started “finding” powers for the federal government which had never existed before (under the interstate commerce clause). What is the guarantee that such a thing won’t happen when judges are appointed by the king?
ravikiran seems to think there is nothing called NATURAL LAW!! please note that in my post i had mentioned that what adam smith had called the ’system of natural liberty’ was living under the common law, based on natural law.
natural justice, based on natural law, holds that the law existed long before the king and will hold long after the king has gone. royal judges like BRACTON and others were steeped in natural law, ecclesiastical law as well as roman law. they believed that property existed before the law; indeed that the law existed because there was property. in those early years, 11th to 14th century, under feudalism, there were various categories of property ownership, many based on customary use (and there were no paper title deeds) in each and every case, the judges had to FIND LAW: thus their use of a sworn jury of neighbours to testify to ownership. law was not made; the king did not LEGISLATE, nor did any parliament. but the people had remedies in the law, in the form of WRITS, by which they could INITIATE legal action and seek the royal courts (with royal force behind them) for JUSTICE.
second, there is no constitution in the world that outlaws murder and theft. that is not the purpose of a constitution. britain still does not have any constitution, and the original us constitution had just 7 articles. the purpose of a constitution is to list why and how a government will act, and to limit its powers. the indian constitution is the longest in the world and lists each and every OFFICE OF THE HIGH AND MIGHTY who rule over us: from the president down to ias and ips officers (yes, they too figure in the constitution). it is thus a constitution of slavery guaranteeing none of the liberties of the people, nor their properties. in india, theft and murder are dealt with in the indian penal code, which was given to us by the brits, and the longest chapters therein deal with offences against the body of a person or his property. in britain of old, even without such a criminal code, offences against the body or property were dealt with under various writs ranging from PRECIPAE to TRESPASS.
this is regarding a quote from ravikiran, which i believe to be a very DANGEROUS AND FALSE view of democracy, or its purpose. Ravikiran says:
My ire doesn’t get stoked when someone criticizes Democracy. I am as much a believer in the rule of law as Sauvik is. I view Democracy purely as one of the instruments to achieve that goal - an instrument which is ineffective on its own, but is useful when used in tandem with others.
as we have discussed, regarding the long, long history of england, the brits were in possession of a rule of law society long before democracy came into the law and order machinery and usurped our freedoms under the guise that the purpose of democracy is the achievement of the rule of law.
democracy is a voting rule, pure and simple, and there are as many different voting rules in the world as there are democratic nations. the entire effort of these voting rules is geared towards securing the legitimacy of a bunch of jokers who can thereby claim to the ‘will of the people’, or a colletive called the state.
a rule of law society is based on individual self-ownership, and hence the ownership of all that this individual “mixes his labour with”, including originally unowned resources. the common law is based on these premises, hence offences against the body or property were easily dealt with by writs such as HABEUS CORPUS, DEBT, TRESPASS and the like. As I said, at one stage there were over 400 writs available to the common englishman. in the modern world these subjects are dealt with by a penal code, contract law and torts. the operation of such a system should NOT have anything to do with democracy. according to montesquieu and blackstone, the ’separation of powers’ would allow democracy indirect control over judicial matters. It is this that has been a disaster.
so, my dear ravikiran, do see democracy for what iT is and DO NOT hold that for a rule of law society we need democracy. we just need property rights, laws of contract and remedies in torts (from the PWD!!) - and these can and should come from an independent courts system or even competing systems.
the achievement of such a rule of law society SHOULD NOT have anything to with any democratically elected person or body, claiming whatever ‘majority’. thus, NO LEGISLATION. but very definitely rule of law.
What about countries that evolved legal systems that are separate from the english common law tradition? How similar would the “evolved” merchant law of these places be to english common law? I can easily see casteist tinges being added to nearly every law in india, if this was ever to happen in india.
If the natural law is so “natural” and derives from basic human interactions, why is it that it has not developed in umpteen societies that inevitably had kings, royal families and/or oligarchies?
the common law “evolved” in england just like language and money evolved. however, different societies had different experiences. continental europe was much influenced by roman law, and later on by the napoleonic codes. thus, there were WRITTEN LAWS on the continent, while in england customs and traditions ruled the day. however, even on the continent, the doctrine of sovereignty of the law was upheld, and feudal monarchs had their powers limited: ceratin things, like private property rights, were outside the scope of the monarch’s interference.
two points: different societies evolve differently, and that is true of the differences in legal systems between britain and the continent. second: scholars have found the common law to be the most ‘economically efficient’ and it is this that has led to the success of common law countries like the usa, australia, canada etc. unfortunately, in all these common law countries, there has been considerable straying from basic principles, leading to a great loss of liberty.
Sauvik, I know what you mean by “Natural Law”. I agree with you that it should form the basis for dealings between people in society.
But I don’t believe in God, and therefore cannot believe that this Law will be discovered and will come into force on the strength of its own rightness. I am looking for a mechanism which will discover and enforce this “Natural Law” you speak of.
You haven’t given me any such mechanism. Your argument seems to be that if only judges were properly instructed in the principles of Natural Law, it is then just a matter of interpretation and following of proper precedent.
I cannot but laugh at such a belief. I am probably much younger than you, but I know enough of human nature to understand that all people, judges included, have an unlimited capacity to twist logic to suit their own needs. They do it not because of ignorance or inadequate training, but because it serves their own ends. Sometimes they sincerely believe that the ends are so important that the means can be twisted around to achieve them.
I am willing to accept every criticism of democracy that you offer me if you are willing to do the same for the alternative that you offer - jurocracy.
It seems to me that the way to implement your system would be to have an independent judicial system that basically appoints itself - and to which entry is regulated by an examination that will test the applicant’s knowledge of common law and his powers of logical reasoning. I am not convinced that a self-perpetuating bureaucracy is conducive to the principles of liberty, however rigorous the exam that governs its entrance.
When you want to criticise democracy, you point out how it will work in practice. But when you have to defend your system, you defend what it is supposed to do in theory. It seems to me that if you want to compare two systems, the only way to do it is to look at how they work in practice.
example of natural law: i go to the fishmarket to buy fish. there are lots of fishmongers there, and when they see me, a rich man, arrive, they holler in my direction. they want my money; and i want fish. but does anyone rob me of my wallet, or do i attempt to rob fish: NO! everyone in the fishmarket has a very fine sense of what is “mine” and what is “thine” and because of this, if anyone were to attempt to steal, he would incur the moral wrath of all the traders. thus, the commandment ‘thou shalt not steal’ is very much the law in this market, although it is not enforced. it is a natural law. thus property rights are a part of natural law.
it must be noted that most people go through life without requiring recourse to the courts or police. in my post i had mentioned how the maharawal of dungarpur recruited a good judge. the monarch of nepal can do the same thing. if we are speaking of india, then it is another matter altogether. i shudder to even contemplate how this vast country teeming with people now under complete misgovernance because of democracy can be fixed. perhaps breakaway portions - if kashmir or the northeast break free - will set up a good courts system.
The simple understanding of mine and thine is there within all of us but this does not automatically correspond to the laws of property as expressed by the common law.
The simplest critique of typical common law definitions is the socialist anarchist distinction between posessions and property. Posessions are what you use. Property is what you earn rent on. The abovesaid anarchists would hold that the human beings instincts of ‘mine’ and ‘yours’ end with posession because it is very much possible to distinguish what we possess. But property on the other hand is a much more complex animal. By what right does anyone keep property? What property is legitimate? the simplest question is - does the land belong to the person who has tilled on it or does it belong to the one whose has a little bit of paper called a title issued to him from a faraway authority?
I am not a socialist anarchist, but i am just trying to illustrate that matters are not as simple as you make them out to be.
And about the last post, don’t you see the contradiction between your solutions for Nepal andIndia? You think that there is hope if India breaks up, but suggest that nepal should remain single and under authoritarian rule. Why not suggest that the king make peace with the maoists by giving legitimacy to the part under maoist control as a separate nation, which can have free trade and immigration with the royally ruled nepal? Let them compete and may the best administration win.
Sauvik, what do you expect to prove by your example? Do you think that I will argue that humans do not have a natural tendency to truck and trade? I shall certainly not oblige you on that score. I know that most people will behave exactly as you describe. You can call that “natural” behaviour if you wish. But I know that it is just as natural for humans to change their behaviour completely when they combine into a group, as you would doubtless point out in your critique of democracy.
I also know that a few people, not most, but a few have an equally “natural” tendency to rob the fisherwoman at the point of a gun. This tendency gets greatly exacerbated when they are in a situation that will not punish them for doing so. This behaviour gets even worse if these few people are charged with the responsibility of making or finding law. I am quite certain that they will find the law which suits them. Worse still, once a few start behaving that way without incurring punishment, everyone will behave that way. That too is only “natural”
abt prakash: property is all that you are IN THE EYES OF THE LAW. it is you, your body, your house, your dog, your cat and so on. the job of the city magistrate is essentially to see to it that every citizen is secure in his properties. this is based on “natural law” - as my example shows. In the old common law years, these were dealt with by writs such as PRAECIPAE (who has the ‘right’ over a disputed property, COVENANT (now contract law), DEBT, TRESPASS and so on. today, it is criminal codes, contracts and torts. all these follow from basic property rights: natural law.
pierre joseph proudhon and karl marx both hated property - but ‘natural law’ is based on it. the prawns the fisherman brings to shore rightfully belong to him although he has no written title deed from the ocean!
actually, you have a good point abt letting the maoists control their area as a competing nation. i will certainly not have any problem with that. it all depends on the ground realities, which both of us know nothing about!
abt ravikiran: you cannot call it ‘jurocracy’ because what rules is the law - and not some man. it is rule of law; not rule of man.
if mobs turn violent and commit arson then they have destroyed property that does not belong to them and should be punished. actually, i prefer that they should be forced to pay for the restitution of these properties rather than locking them up at public expense!
No anarchist would deny the catch of a fisherman who brings in his net in the evening. What he would deny is the claim of a person who sits on the beach with the title deed to the ocean taking away a share of the catch, just because the latter has a title to the ocean, granted from some authority.
But the main point i wanted to bring out is that the natural law may evolve slowly and maybe even differently in different places. Infact, the point about restitution that you made is a good example to highlight that. You prefer restitution, probably via work prisons. But debtor’s prisons and work prisons are a practice that is largely abandoned today. So, one can say that it is a practice that has failed in some way. But it makes eminent sense to a libertarian (including me).
So, wouldn’t writing this “best practice” down in a constitution be a better thing than allowing people to wander through the entire miasma of cruel and unusual punishments before they reach this practice?
And it is in this interpretation of the constitution that parliaments would be a safer mechanism than a king.
all property titles are not upheld: only legitimate ones are. for example: A is seen grabbing B’s hand and yanking off his watch. The law cannot grant B the watch without ascertaining whether the watch was indeed A’s, earlier stolen by B! That is, only JUST PROPERTY TITLES are upheld, even without written titles. I do not know anyone who can claim ownership to the ocean - the example prakash gives. stretches of rivers have often been private property and fishermen were licensed. i suppose only the STATE can lay claim to the 12 nautical mile limit under the Law of the Sea, but that is ‘territorial waters” and that does not take away any fisherman’s freedom to fish. of course, he cannot launch his boat or land it on a private beach!
restitution is NOT via work prisons: it is in paying back for damages caused. so arsonists have to PAY CASH to rebuild the properties they have destroyed (instead of languishing in jail - if at all the law works to get them convicted {which is the doctrine of “retribution”}) at public expense all over again. debtor’s prisons are a good idea, because debtors cannot repay. they cannot RESTITUTE the property they have borrowed. in old engalnd, this was also on a diet of bread and water! so it did not impose too much of a financial burden on society!