Remarks on Law and Government

Whoever controls the laws of a nation, also controls the politics of the nation. The laws determine whether a nation is a theocracy, monarchy, or a republic. The laws of a nation also determine whither the people living in a nation are subjects or citizens. It is during times of ideological struggle that laws and who makes the laws comes into sharp focus. Such is our age. There is a struggle between those that believe in a top-down paternalistic government, and those that believe in a bottom-up opportunity society. Those that believe in a top-down paternalistic government are Totalitarians or Progressives. Those that believe in a bottom-up opportunity society are usually referred to as conservatives, parliamentarians, or the right, but this was not always the case. In the Renaissance those that believed in a top-down paternalistic society were the Monarchists; those that believed in an opportunity society were the Republicans or proponents of the Enlightenment. In this essay to learn the difference between the top-down paternalistic society and a bottom-up opportunity society, we shall observe the Renaissance in England. In particular at the reigns of Elizabeth I, James, and Charles I of England. This is the age where the concept of a bottom-up opportunity society was born. We shall observe the process and some of the people that led to the birth of a free bottom-up opportunity society. Our main focus shall be on the greatest lawyer in history: Edward Coke (pronounced Cook). We shall observe the parallels between modern America and Renaissance England, in order to learn what a paternalistic society looks and functions. It would be helpful to the reader to be familiar with my previous essays: "Slavery and the Moral Crisis" and "Fichte and Schelling"; since the present essay shall address issues that were raised in those essays. We shall again be concerned with the opposition of top-down and bottom-up societies, and the place of reason (universals) in society. Before proceeding to the main thesis of this essay, it seems proper to say a few words about some of the personalities we shall be examining. Edward Coke (1552-1634) was one of the most brilliant legal minds of all time, he towered over his contemporaries, except one. He was the prosecutor on three high profile trials for treason: the Earl of Essex, Walter Raleigh, and the Gunpowder plot. For centuries prospective lawyers cut their teeth on Coke's:"Commentary on Littleton" and "The Reports and Institutes." It seems Law Schools should go back to studying Coke's "Reports and Institutes" since the obvious low quality of modern attorneys (with the exception of Mark Levin). Levin must be a lonely man, being surrounded by the intellectual homunculi that presently inhabit his profession. Coke was great advocate of the Common Law versus Statue Law or Royal decrees (executive orders). Almost everything in the U.S. Constitution and Bill of Rights has its origin in the work of Edward Coke. The trouble is Coke never wrote a work on his political philosophy. It is in his life and cases that we must look to for his political philosophy. I noted there was an exception among hes contemporaries that Coke did not tower above, that exception is Francis Bacon (1561-1626). Bacon is the founder of the Anglo- American tradition of philosophy, and one of the great thinkers of all time. Bacon was Coke's rival and opponent, and antithesis of Coke in personality. Coke was brash and confident, Bacon was self-conscious, and painfully polite. It is too bad Coke and Bacon never realized that they had complimentary visions of the future. Only the political vision of Coke would lead to a society where Bacon's vision of a future science could be realized. That the society of envisioned by Coke is the society that would fulfill Bacon's vision for science. Queen Elizabeth I (1533-1603) was one of the most important Monarchs of the Renaissance. She seemed to distill the brilliance, ruthlessness, and patriotism of the Tudor family. Her reign was like a long love affair between the her and the people of England. She ran her court like a soap-opera, but amazingly it worked. She also made England one of the most prosperous countries in Europe. She did this by low taxation, and leaving her people alone to pursue their own ends. Elizabeth was a transitional figure at a time where people learned to be loyal to a nation, instead of a Monarch or religion. People became loyal to the abstract idea of a Nation State, instead of their religion or Monarch. We observe in the modern Middle-East a place where this transition has not taken place. In the modern Middle-East people shall die for their religion or tribe, but not for the abstract idea of a Nation-State. Elizabeth's successor James I (1589-1619) was an idiosyncratic Monarch; scholar, witchophobe, and advocate of the divine right of Kings. James was a King that could order a thief be executed without a trial, but could also playfully banter with his subjects. Once when a English farmer told James the grass grows so fast in England, that if one puts in a fence post. it could not be found the next day, because the grass would hide it. James replied that, in Scotland if one left his horse in the yard, one would not be able to find the horse because the grass grew so fast in Scotland. Even though James wrote and believed that Kings were little gods on Earth, he has a light touch, and a sense of humor. It seems a shame that modern Progressives do not include James I as one of their heroes. He was a mild King with a light touch, that worked to keep his Kingdom at peace. James was a far better person that mass murdering and corrupt tyrants, like Mao and Hugo Chavez; two of the lefts heroes. King Charles I (1600-1649) was James son and successor, and also an advocate of paternalistic government. Charles inherited his father's belief in the divine right of Kings, but did not have his father's light touch or sense of humor.The last personality that shall concern us should serve as a warning to all those who believe that governments are gods on Earth: Oliver Cromwell (1599-1658). When Queen Elizabeth opened the Parliament of 1593, Coke was the Speaker of the House of Commons. In his opening address Coke asserted the ancient right of freedom of speech. The trouble with this assertion is that freedom of speech was not an ancient right, but only a few years old. The right of freedom of speech had its origin in Parliament, so that members could vote yes or no, on a bill, and give a brief reason why they voted as they did without worrying about being dragged off to the Tower. This is the origin of freedom of speech. Coke was also an advocate of freedom of thought. Coke did not want peoples private papers used against them; Coke held thought to be free, that a person should have the freedom to think whatever they wanted, as long as they did not act on their thoughts. This is of course anathema to Progressives, because they want to control speech and thought. The laws against hate speech are of course an example of the mechanism that Progressives use to shut down freedom of speech and thought. King James as an advocate for paternalistic government has no trouble punishing hate speech. When some young boys pushing a cart called the Spanish Ambassador a "devil in a dung cart" James had the boys flogged. It is also notable that James was a witchophobe. He had a hatred and fear of witches. (see D. Tyson's "The Demonology of King James I" which also includes "News from Scotland" describing James and the North Berwick coven) Of course, witchcraft laws are hate speech laws. The turning of words into talismans. This is of course a favorite technique of the modern Progressive, to charge words with power by labeling them hate speech or offensive. This is paternalistic government where a godlike state corrects the speech, and thoughts of a childlike population. The goal of Progressives is to domesticate humankind. The way to domesticate animals is to breed the adult out the animal; to prevent maturity in the animal. A domesticated animal always stays in a childlike state of dependence. The trouble is humans are wild animals, and shall stay wild animals, because who is going to domesticate the species? The method the left and Progressives try to domesticate humans is by legislation: coercive laws. This again highlights that the Progressive holds a Lamarckian view of evolution. That by changing environment, evolutionary changes can be made to a species. That a change in behavior can change genotype. This is of course, pseudo- science. It seems Adolf Hitler was the only socialist Progressive that understood Darwin's natural selection. (with the exception of Paul R. Ehrlich, Hitler's finest student in the American Left) That in order to domesticate humans or any other animal one must use selective breeding. Let us now return to the reigns of Elizabeth and James, in order to observe how a paternalistic government works in practice. If one wants to advance in a paternalistic government, one must curry favor. This is usually done by gifts and bribes, but does not have to be monetary. An example of a non-monetary way of currying favor is intelligence. Elizabeth never had to spend money for an intelligence network. Ambitious men would pay spies and informers to gain knowledge useful to the Queen. Another non-monetary example are the sugary eulogies we find in books written during the Renaissance. We do not say "currying favor" but pay for play. As for the sugary eulogies we see a multitude of political pundits praising politicians or a political party in order to gain future favors. Again like hate speech laws, we observe the same activities only under different names. So what are the arguments for paternalistic government? Modern Progressives use the same arguments as King James for paternalistic government. That the Monarch or government is the state. That there must be a strong central authority to look out for the common man; to protect the little guy against the nobles and land owners. Bacon made these same arguments while serving King James; Bacon rose to the position of Lord Chancellor. Then fell, because of his idiotic money management skills. Of course in paternalistic governments bribes and gifts are a normal part of government, but Bacon could not deven keep straight who gave what. Bacon also wrote his share of sugary eulogies trying to curry favor for himself and his projects. Let us move to Coke's last Parliament of 1628. Parliament was usually called when the Monarch needed money. The House of Commons had to authorize all taxation. The U.S government mirrors this system.The House has the power of the purse. Of course Progressives have found a way to blunt the power of the Lower house by making sure there is a large part of the population that does not pay taxes. So the people that do not pay taxes do not care who levies the taxes, thus robbing the power of the Lower House. This was the only power that Parliament had over the Monarch; yet it was powerful enough to transform society. The Parliament of 1628 was Coke's last and Oliver Cromwell's first Parliament. King Charles called Parliament into session, because he needed money. Charles tried to collect taxes without Parliament, but this proved a disaster. The Parliament of 1628 is where Habeas corpus, and the prohibiting of billeting of troops in private homes became law. In simple terms, the government could not hold people without charging a crime, and setting bail; and no more lodging troops in people's homes. Coke was instrumental in the writing of these bills. As I said in the career of Coke one can observe the origins of the U.S. Constitution and Bill of Rights. Charles had the good sense to give in on the demands of 1628, but that would change. It is too bad Bacon could not see that his vision of technological advancement and Coke's vision of a bottom-up opportunity society were complimentary. Of course Coke had the same failing. That in an bottom-up opportunity society is where technological advancement and innovation would thrive. So what is Coke's political philosophy? I shall try to do what Bacon could not, to abstract out the principles that governed Coke's political vision. The crux of Coke's political vision is his advocacy of the Common law as superior to statue law or Royal decrees (executive orders). Coke called the Common law artificial reason, We know that the term "artificial" was not a pejorative it is today. What Coke meant by artificial is that it was man made. As opposed to the eternal, immutable reason of theology and philosophy. Coke was not a metaphysician so he never explored this issue. The artificial reason of the Common law is not eternal, immutable, and most importantly finished, it is a word in progress. The Common law changes and grows as circumstances change. For Coke laws are not created by Royal fiat, but grow from ancient roots. The Common law is a continually growth, instead of a finished system. It must be remembered that Coke grew up in the great age of English navigation, so he realized that society and human knowledge was dynamic. and not a finished system. There were new lands, new crops, and new ways of doing things. Coke discovered a bottom-up system of reason. That the reason (universals) that become laws start out as the customs and practices of the community. That laws are abstractions created from the actual practices of the community. This is of course, to Fichte's view. It seems Coke provides an answer to the question of how can and individual or community submit to reason (law, universals) without them being an alien imposition. In other words how can a free individual freely submit to reason without it being a tyranny being imposed by an outside agent; in other words tyranny. A modern example of this would be when Western nations try to impose secular representative governments on Islamic populations; the Islamic populations reject the laws (universals) of western government as an alien imposition. This is the answer to how an individual or society can freely submit to law or reason and retain their freedom. Coke provides us with an answer that inspired much of German Idealism. Of course, Schelling, and Hegel would not have been willing to give up eternal, immutable, and divine reason, but Coke political philosophy could have provided an answer for Kant, and Fichte. The artificial reason of the Common law is not imposed from an outside agency: God or government. Instead the Common law is generated by the practices and customs of the community. This is what Coke means by saying the Common law is artificial. It should be easy to understand why Progressives took Coke out of the Law School curriculum. Progressives believe in teleology and final causes in law and government. That through the imposition of eternal principles they can bring about a Utopian society. Coke never thought about bringing about a Utopia, or perfect society. Being a practical attorney he probably did not believe in Utopias or perfect societies, and least on Earth. Instead Coke wanted an opportunity society, where common men like himself could rise and become wealthy through talent and hard work. Coke probably used himself as a paradigm. Coke was born at the free city of Norwich, he received a free education and worked hard, this allowed him to go to Cambridge, an finally into the legal profession. Coke wanted to create an opportunity society, where men could follow their personal conscience, and use their talents to improve themselves and society. Coke was a protestant to the core of his being. So he believed men and woman should free to work out their own salvation or damnation, as long as they did not harm others. The Common law was the instrument that would make this society possible. Of course, this is all anathema to Progressives, who believable in final causes and teleology in government. It is through coercive top-down legislation that brings about Utopia. Progressives believe there are eternal and immutable principles (equality) to bring about a perfect society. It should be obvious the influence of Coke had on the founders of the U.S.A., and why the Constitution, and Bill of Rights are so contemptible to Progressives. The Constitution and Bill of Rights are meant to restrict government. so government shall never be superior or more important than civil society. That government is the servant not the master of the people. That is the people that own government, and not the people that are owned by government. For Progressives governments are gods on Earth; as King James asserted about Kings. It should also be obvious the advantage the Common law gave to English speaking peoples, over the those of continental Europe. Society was more flexible and innovative; no one was trying to answer questions that had not yet been asked. There was no search for eternal principles. The Common law promotes a bottom-up society, so people can innovate without involving the government. The mechanism of government only steps in when there is a need for laws (universals). Every time there is a new innovation the innovator does not have to get the "okay" from the government(the little gods on Earth). There is no teleology in Coke's artificial reason; there is no perfect society, no end point. Instead society is dynamic, and must be flexible enough to be able to reap the rewards of now inventions and innovations. This is the way to a successful society; instead of chasing dreams of a Utopia. Coke realized there were plenty of talented young men (Coke was too early to appreciate women's rights); that should be given a chance to use their talents and reap the rewards. Both Coke and Bacon advocated a bottom-up approach: Coke for society, and Bacon for science. They never recognized the kinship they shared; the complimentary visions they had for society. Both were pioneers to our technological age. I have written elsewhere about historical ages where it seems people can change the world; the Renaissance was such a time. It was the golden age of Utopian literature; instead of writing books on how to change the world, Coke did it. END