“In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men”.
That passage from the 18th century, and the phrase “government of laws and not of men”can probably be attributed to the mind of John Adams in particular, but to the cutting edge of political thought in general.
Tyrannical exercise of power was seen as evil, and a separation of governing powers, with those powers distributed between adversarial portions of the populations was a hard headed, realistic solution. Given the understanding of the level of violence at the time and in the preceding centuries it would have been obvious to political thinkers exactly what kind of mischief men could and would get up to. Many were looking for a form of government that resolved conflict through a balanced resolution of conflicting interests.
The central idea of a government of laws is that the law is supreme. It is based on the assumption that the government governs with the consent of the governed, and the governed participate in framing the laws that govern them.
The idea of a government of men is that some single individual or group is supreme. The law is their tool. The consent of the governed is not required. It is based on the assumption that some people are superior to the rest of us, although this is generally described in more socially acceptable terms.
In a government of men the laws are subjectively enforced, with enforcement dictated by outcomes, and with desirable outcomes determined by those in power.
Some opponents of the people in power in this system do not oppose the system. They like the system but are unhappy with who holds the levers of power.
In a government of men the levers of power confer increasing advantage. Those in power are free to change the rules as they see fit, without the consent of the governed. In this way they control outcomes.
The laws and the rules are malleable and depend on the interests of those in power. The number of laws increase depending on how successfully the outcomes are achieved.
The feeling is: majority rules, we won, get over it. Might makes right.
In a government of laws the laws are objectively enforced, with enforcement independent of outcomes. Desirable outcomes are defined as the result of good laws. If the outcomes are bad the laws are defective. The laws are perfected by the governed as the governed see fit.
Some opponents of the people in power in this system do oppose the system and want it changed to a government of men. This is neither a left nor right issue. It is a charge that can be leveled today at political executives (or contenders for executive power) from Dick Cheney through Barack Obama and Stephen Harper to Justin Trudeau. They are unhappy with a system that restricts their power (for better or worse).
Other opponents of the people in power like the system and endeavour to either obtain the levers of power or (and this is particularly important to perennial minorities) use the law as protection of their interests. These minorities do not have the latter option in a government of men (there are many examples of minorities being imprisoned or killed, legally, by men who write, interpret and execute the law by making the law subject to their desires).
In a government of laws the levers of power confer advantage, but not increasing advantage. Those in power are restricted in changing the rules, and require the consent of the governed. Those in power cannot change rules to control outcomes.
The laws and the rules are unchanging and do not depend on the interests of those in power. The number of laws increase more slowly, and everyone knows what they are and can govern their actions accordingly.
The laws and rules are fixed and are independent of individual interests. They are based on reasoned morality (for example, be prepared to have laws applied to everyone, equally, meaning in short, do unto others as you would have done unto you).
The feeling is: the majority rules but must take the minority into account, and might does not make right. Everyone has the protection of the law, especially the minority.
In short, in a government of law the law is supreme.
In a government of men the law is a tool of the powerful.
When law is supreme it requires widespread consent to change it.
When powerful men are supreme law requires only the consent of the powerful.
A person who wants to make a lot of money in a government of law has no special interest in government aside from competing for government contracts. Laws do not change to promote a special interest. They change when the governed agree that the outcomes are undesirable.
A person who wants to make a lot of money in a government of men has a clear special interest in government. Laws do change to promote a special interest.
We’ve had governments of men repeatedly through history at all levels and in all places. Whether its a milk quota, a war on terror or a favourable zoning change, laws make people money.
We have government of law from time to time in differing degrees, when we are at our best.
In practice its clear that we, at present, in what is generally referred to as the West, have a mix of the two. When a single man can use government and law to kill another we have a government of men; if the deceased man’s survivors can take the killer to court and win a wrongful death suit we have a government of law.
We think of law as fixed and immutable. However, there are professional legislators continually making laws. We can ask if these laws are required to deal with new items or events that the governed had not previously encountered or if the new laws are required to confer private advantage to someone.
People who want power over others want to influence outcomes, for better or worse.
Better and worse are usually subjective and particular rather than objective and
universal. Green sustainable density appears to be a good thing to some, and re-zoning Marpole against the wishes of its inhabitants is just a means that is justified by the desirable end. It may not look like a good thing to the inhabitants of Marpole.
If you believe that people own themselves and should be free to do whatever they
like provided the do not do harm to others, and if you do not believe in the initiation if aggression then you are a good candidate for a government of law.
If you believe that you have the right to band together with others in order to
force people to do your bidding you are a good candidate for a government of men.
Both positions can be logically supported, but only one is moral. Might, an accident of birth or product of circumstance, does not make right.
