Equal Liberty, Justice, and Sovereignty Under Law
Copyright © Barnabas D. Johnson
Isonomia "equal law" is the historical and philosophical foundation of liberty, justice, and constitutional democracy. Aristotle considered it the core ingredient of a civilization that seeks to promote individual and societal happiness. First ordained by the ancient Athenian lawgiver Solon (c. 638-558 B.C.), isonomia was later championed by the Roman Republic's finest orator, Cicero; but it was subsequently eclipsed for a millennium until (in effect) "rediscovered" starting in the eleventh century A.D.
This so-called "Justinian Rediscovery" put rediscovery "in the air"; soon, so-called "Aristotelian Rediscovery" took hold, too; the "result" was not what the founders of the Western Legal Tradition intended, which was the Kingdom of God on Earth based on Christian law, that is, Justinian law. The result, rather, was a synthesis of the Greek genius for systematic thought, the Roman genius for pragmatic administration, and the medieval Judeo-Christian-Islamic preoccupation with the "uses" of faith and reason to secure a common humanity under a common deity.
Empathy, Liberty, Equality. These concepts are often linked, a triune "much of a muchness"; there is a good reason for this; it is rooted in the history of the idea of isonomia, the parent of demokratia.
Our most precious legacy is our understanding originating in our evolving capacity for empathy that we must be equal in our liberties and hence equal in the restraints upon our liberties.
We must be equal under the law, and hence equal in the making of laws. Liberty and law are coevolving, and any "constitutional democracy" worthy of this oh-so-precious name must reflect that sequence of foundational ideas.
See Note on Coevolution.
These liberties and, hence, necessary restraints freedom "bounded" by justice predate written constitutions. The purpose of constitutional democracies is to secure our equal liberties by embedding them in equal justice. As Albert Venn Dicey wrote in his classic, The Law of the Constitution (8th ed., 1915), p. 198-99, constitutional governance requires "the absolute supremacy or predominance" of the Rule of Law, which requires "equality before the law" and a recognition that "the law of the constitution ... [is] not the source but the consequence of the rights of individuals."
See Rule of Law.
The purpose of "limited governments" possessing enumerated powers is to secure unenumerated rights, privileges, immunities, and other fundamental blessings of liberty. In this sense, the most important passage of the Constitution of the United States is the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
See Note on Fundamental Rights.
See "Original Meaning" of the Constitution.
Arguably, empathy ("fraternity"?, "brotherhood"?, "solidarity"?) is the most fundamental within this triune formulation. It encompasses patriotism ... properly understood, intelligently focused, and hence wisely balanced by other fundamentals and their corollaries. Our capacity for empathy, our sense of meaningful belonging, has been evolving a long time, slowly calling forth its most fundamental corollaries: liberty and equality.
Liberty is the most "popularly grasped" of these three; accordingly, dumbing it down to bumper-sticker proportions should be especially avoided. Indeed, dumbing down all elements of constitutional democracy amounts to sacrilege, hubris. The worst hubris is that of high officials who ignore, punish, or destroy the carriers of "bad news" rather than bow to the necessity for public discussion regarding the public's business including probative claims that ineptitude or corruption by public officials warrants public censure, indeed global condemnation. Personal liberty is a public necessity, worldwide. See Conversation of Democracy.
Equality that is, equal justice and opportunity under law is the hardest yet most necessary to understand, to establish, and to maintain. It is the focus of this essay.
These three "abiding principles" empathy, liberty, equality are defined and refined in relation to each other. Even so, empathy is the historical key. Nothing that has a history can be comprehended without examining its history, imbedding it ultimately in History Writ Large.
Humans differ from animals in our advancing capacity to "stand in each other's shoes" and see the world from others' perspectives. This is the essence of our "theory of mind": I recognize that you recognize that we both know that humans, empathetic beings, think this way. Through the advance of empathy, our forebears discovered and we and our offspring must continue to explore a sequence of deepest insights:
1. Who would not be a slave should not be a master of slaves.
2. Who would enjoy equal rights and opportunities must uphold them for all.
3. Where the rights or freedoms of one are trampled, the freedoms of all are imperiled.
Our capacity for empathy undergirds our determination to have the "blessings of liberty" apply equally to all sane adults; accordingly, as suggested at the onset, we accept only equal restrictions upon our liberties; hence, we ordain and establish constitutional democracies upholding equal justice under law.
These abiding or changeless values guide us as the stars guided the ancient Greek helmsman, the kubernetes or governor. But good governance based on abiding values like equal justice requires more.
First, it requires an honest recognition that, while equal justice isonomia has ancient origins, it is an "abiding value" that abides only tenuously. It is little understood and less applied in too many situations and regions, worldwide. It is not something that one "gets" and then "has" ... and can therefore relax with, secure in its eternal embrace. No, it must be fought for and won, time and again, generation after generation. The same is true also of constitutional democracy.
Second, like all abiding values, implanting and implementing equal justice requires deep understanding of what, for lack of a better phrase, we shall call the art of governance.
Socrates, according to Plato's Georgias, first proposed the metaphor of the kubernetes and the art of "governance" (which is an English word originating with that Greek word). In doing so, Socrates was addressing a perhaps the key preoccupation of the Sophists (of whom he was the greatest, though Plato despised the Sophists; this website will delve into that fascinating story in due course; it provides one of the most powerful instances of the Ecology of Mind at work ... when the dew was fresh upon the leaf of thought, the sapling tree of government). These Sophists, teachers of virtue and persuasion, sought to integrate knowledge of the changeless, the naturally changing, and the humanly changeable, with a view to making the first two "instruct" the third, thereby inducing impeccable choice, will, and action: aretι.
I believe that Socrates' metaphor captures and "domesticates" the deep wisdoms of that ancient Greek trinity of ontology, epistemology, and teleology; he bends philosophy to his will, to human purposes, in ways that still ring true.
The art of the helmsman requires integrating knowledge of the changeless stars with knowledge of the naturally-changing the winds and waves of circumstance in order to choose, and act, and react, with reference to the angle of the rudder, the trim of the sail, but more ... to change these (a) in relation to each other, for each affects the other, and (b) in relation to achieving an ultimate goal, such as safe passage across open seas to prosperous harbors.
This is the art of cybernetics goal-focused governance that cultivates and harvests feedback, continuously monitoring "progress" in light of hierarchies of facts and values, including ultimate objectives. Law is the quintessential cybernetic calling.
Integrating knowledge of the seemingly changeless, the naturally changing, and the humanly changeable or "governable" in order to choose wisely and act impeccably constituted the core enterprise of ancient Athenian philosophy.
See Mythos, Logos, Nomos.
This focus remains central to our current global quest for understanding and guidance, although we have modified our understanding of the "changeless" to accommodate our appreciation of how even the most fundamental values of civilization have changed, and hence are likely to change in the future. For example, the "separation of Church and State" was not always an abiding principal, and perhaps in the future a new global "religion" will allow, indeed require, a new integration of science (what is) and values (what ought to be), leading to altered abiding values affecting the ideal of good governance.
Even so, what is most striking to a student of Greek philosophy is how "modern" those earliest Athenian conceptions of freedom and order, of justice and equality, still seem.
A superb compilation of recent scholarship on this subject is Josiah Ober and Charles Hedrick, eds., Demokratia: Conversations on Democracies, Ancient and Modern (1996). One is struck by how much more seems known now than was known even recently about the origins of Nomos, isonomia, and demokratia. But one is also struck by how many points remain shrouded in linguistic and historical fog.
To be an ancient Athenian citizen was special. You were free, and equal in your freedoms with those other great men who could similarly put on armor, climb upon a horse, and gallop off to defend Athenians (Athenian citizens) from slavery. Later, smaller landholders, who could not afford a good horse but could afford a shield and spear, realized that their close-formation phalanxes were also essential to Athenian defense, and hence freedom. These "hoplites" accordingly demanded and eventually got equal status as citizens. Later, when the value of close-formation rowing on warships was proved with Persia's defeat at sea Persia won on land, but lost its fleet and had to abandon its effort to subjugate the Greeks the simple artisans and shopkeepers who had mustered for such vital marine service were included among Athens' citizens; accordingly, they too were entitled to isonomia. This word initially included what demokratia would be invented to denote: equal political participation. Such participation was a corollary of isonomia. Put differently, demokratia means nothing without isonomia. Democracy, alone, is never enough. In our own time we see, again and again, that democracy must be grounded in justice, equality under law, or it fails. It must be constitutional democracy government subordinated to personal liberty and equal justice, governance (most broadly defined) secured by the Rule of Law.
True, women, resident aliens, and slaves were not included in this Athenian demokratia; but give credit where it is due: a germ idea, equality of freedom equally defended, had been born.
Note here that "equally defended" does not mean "identically defended"; whether as equestrian, hoplite, or oarsman, each citizen was deemed essential to the common defense.
In modern times, "equality of all" is premised on the recognition that security involves far more that military security. Economic, intellectual, cultural, and similar bulwarks including "distributed intelligence" as such secure modern societies; all who "help the world along" are essential. What is most essential to the liberty of all, however, is that the liberty of each is secured. While it is better that some be wholly free than that all be partially free, it is best that all be wholly free.
See Note on Distributed Intelligence.
Freedom implies obligations, including the obligation to understand how majority and coalition rule is best balanced by minority and individual rights, and how this balance serves those Open World values that keep civilization ever young, always nimble, eternally hopeful yet also stable and secure. Hope is the mainspring of life. But it must be built on a firm foundation of genuine confidence, which itself is founded on genuine competence including competence in understanding and enhancing liberty bounded by justice, choice bounded by wisdom.
Again, isonomia predated demokratia. The ancient Greek sequence, of thinking as of coevolving reality, was that if we are equal under the law we should be equal in the making of law. And again: isonomia required not merely any kind of law. It required general law, prospectively applied, binding all equally, subject to reasoned development. That ideal remains. It is the essence of the Rule of Law based on the Rule of Reason a special kind of reasoning, what I call, following Socrates' famous formulation, "cybernetic reasoning": the reasoning of the kubernetes, which cultivates and harvests feedback, the abiding lessons of history, the records of current successes and failures, with the purpose of avoiding past mistakes and enhancing future wellbeing. Such cybernetic reasoning, integrating the facts and values of history, science, and futuristics, goes beyond the Ecology of Mind and calls forth an Ecology of Values.
Isonomia was the foundation of justice and democracy. Aristotle considered it the core ingredient of a civilization that seeks to promote individual and societal happiness. First ordained by the ancient Athenian lawgiver Solon (c. 638-558 B.C.), isonomia was later championed by the Roman Republic's finest orator, Cicero; but it was subsequently eclipsed for a millennium, until (in effect) "rediscovered" in the eleventh century A.D. by the founders of the Western Legal Tradition, the law students of Bologna who synthesized the Greek genius for systematic thought, the Roman genius for pragmatic administration, and the (Western Christian) preoccupation with the "uses" of faith and reason to secure a common humanity under a common deity.
See Note on the Origins of the Western Legal Tradition.
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Note on Coevolution: Societies, no less than individuals, are products of both nature and nurture. These are coevolving historical legacies. Nurture is often called second-nature. True, some animal "societies" exhibit second-nature in rudimentary ways. But, through humans, nature and second-nature have been forming increasingly-complex ideas, institutions, cultural know-how, and networks of distributed intelligence — including law — which, together, compose our emerging global civilization. See Evolution and Coevolution. (Go back)
Note on Fundamental Rights: The nature and scope of fundamental rights is a huge subject; its comparative-law elements are especially vast, complex, and controversial; the Jurlandia website intends to explore those elements in detail, in due course.
In the United States, this subject necessarily involves examining (a) what it means to have a government of limited, enumerated powers in which the people are principals and their government(s) are, in effect, their agents, and (b) how to enforce under the Constitution, the supreme law of the land those unenumerated as well as enumerated rights, privileges, immunities, and related blessings of liberty which the people form their government(s) to secure.
Those unenumerated rights, etc., are arguably too numerous to catalogue; and some of them are so fundamental they "go without saying"; they are the focus of the Ninth Amendment of the U.S. Constitution, which ordains: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
The ultimate question must always remain: What gives governmental limitations on liberty their "binding quality" so that we, and our governments, are required are conscience bound to obey. "[I]f the term 'law' is to carry the moral implication that there is a duty to obey, then the requisite binding quality must go in before the name 'law' goes on," according to Professor Randy E. Barnett, in his book Restoring the Lost Constitution: The Presumption of Liberty (2004), p. 12.
John Sherman, Senator from Ohio, provided a good summary in 1872: "[T]he ordinary rights of citizenship, which no law has ever attempted to define exactly, the privileges, immunities, and rights ... of citizens of the United States, such as are recognized by the common law, such as are engrafted in the great charters of England, some of them in the constitutions of different States, and some of them in the Declaration of Independence, our fathers did not attempt to enumerate. They expressly said in the ninth amendment that they would not attempt to enumerate these rights; they were innumerable, depending upon the laws and the courts as from time to time administered."
In determining the nature and scope of these fundamental rights, privileges, and immunities, said Sherman, the courts "will look first at the Constitution of the United States as the primary fountain of authority. If that does not define the right they will look for the unenumerated powers [see next Note], to the Declaration of Independence, to every scrap of American history, to the history of England, to the common law of England, the old decisions of [British judges] Mansfield and Holt, and so on back to the earliest recorded decisions of the common law. There they will find the fountain and reservoir of the rights of American as well as English citizens." Barnett, Restoring, at p. 67. (Go Back)
Note on Unenumerated Rights: Sherman should have used "rights" here instead of "powers"; perhaps. Except that it makes no difference if one accepts the "agency theory of government" in which individuals have unenumerated powers, and hence rights, and they delegate some of their powers (the "enumerated powers") to a limited government. That government governs best which governs least ... by institutionalizing self-governance and accountability under the Rule of Law governed by the Rule of Reason. (Go back)
See Due Process of Law.
Note on Distributed Intelligence:
Every person knows many things, including that many things we do not personally know (or do not know well) are known by others (or known better by others).
Constitutional democracies are "learning organisms" that enhance the opportunities for each "me" to become the best "me" possible, each of us following our bliss (well, whatever we think is worth following!) and, accordingly, learning — as best we can — about what most interests us.
This requires that we become humble, recognizing our dependence on those who know more than we do about some subjects. As we do this, of course, we come to respect the processes that allow — indeed, encourage — each human to contribute fractionally to the whole of human knowledge ... without (let us hope) fragmenting "Knowledge" — the Advancement of Learning — as such.
Friedrich A. Hayek provided the classic analysis of "distributed intelligence" — although he did not use that phrase. He asserted that in economics, for example, a huge number of individual choices based on each individual's fractional knowledge of the whole (of competing products, services, prices, etc.) provides a vast feedback system that processes vast amounts of information ... far more than economic planners and Soviet-style commissars could ever be able to know and process.
A modern example of this phenomenon is the blogosphere. The limited knowledge that each blogger possesses, added to that of all others, filters vast pools of information in ways that the conventional, centralized media (newspapers, television networks, etc.) cannot compete with. Of course, the topics of the blogosphere often include issues first raised by the mass media; increasingly, the converse is also true. Individual bloggers and mass-circulation opinion-leaders become mutually co-dependent; none (other than the truly disconnected) can exist and think and write in isolation from the Ecology of Mind.
Yet I think we need to be careful: The nascent error-correction processes associated with the blogosphere can result in informational "perfect storms" that go haywire, insane, drawing all into a vortex of misinformation that "informs" public-policy formulation, and commentary thereon, with "reliable" (almost everybody believes it) nonsense. Where a government intends to deceive, or institutionalizes a reckless disregard for the truth or falsity of its claims, a well-functioning press and blogosphere, etc., aided by conscientious whistleblowers, will eventually ferret out the truth (we must hope!); but much damage may have been done in the meantime.
Distributed intelligence is a fact of life; but we need to examine it's strengths and weaknesses very critically. Doing so, however, we must make use of distributed intelligence; we have no choice. No individual can possibly know enough to safely unplug from the Ecology of Mind.
This is the fascinating challenge: We must use distributed intelligence (a) to discover what it is (and where it is heading), and (b) to counsel together about how to make it work better.
Understanding anything requires our growing appreciation of its connections with everything. Human intelligence becomes increasingly distributed and decentralized. Understanding becomes increasingly emergent.
Note on the Origins of the Western Legal Tradition: (Excerpt from Post-Soviet Law Reform and Legal-Education Reform.) Several centuries after the Greek lawgiver Solon (c. 638-558 B.C.) ordained isonomia, the Roman statesman Cicero (c. 106-43 B.C.) claimed that isonomia was also the "first law" of ancient Rome.
Subsequently, Roman law abandoned this principle. Much of Roman contract and tort law, for example, hinged on the identities of the parties: aristocrat-aristocrat, aristocrat-plebian, plebian-plebian, etc.
Equality under the law was "rediscovered" in that great synthesis of Greek philosophy, Roman law, and Judeo-Christian-Islamic learning that started more than a millennium after Cicero, in Bologna. This is often referred to as a synthesis of the best elements of the Greek and Roman civilizations, but by the end of the first millennium "religious learning" also played a crucial role: If we are equal before a just and loving God, then surely we must be equal before the law especially where, as the Bolognese believed, all true law flows from a divine Source that can be "known" by both Faith and Reason.
All the students at Bologna in its early years were professional clergy who saw themselves as mediators between humanity and divinity; the profession they invented, that of lawyer, naturally came to play a similar "mediating" role between citizen and state or, eventually, between citizens in relation to their common law, their isonomia.
This synthesis of Athens, Rome, and Jerusalem gathered momentum throughout Europe, as new universities were founded and branched into fields like theology and philosophy, and this "awakening" eventually led to the Renaissance. From the standpoint of law reform, this synthesis was perhaps most significant (a) in systematizing law and legal studies, and (b) in starting the process of undermining Justinian's dogma that the emperor indeed, the government is above the law. The most powerful weapon against this Justinian innovation was the concept of "natural law" which, originating in Athenian Nomos, became a major constituent of the "definition of law" that developed from this Bolognese wedding of Athens and Rome, Christianity playing Cupid.
Let us delve deeper: Following Christendom's disappointment that the long-awaited "Second Coming" establishing the Kingdom of God on Earth had not arrived after 1000 A.D., there was a formal separation of Eastern Christendom from Western Christendom in 1054. In many ways the West looked up to the East, to Byzantium, although already by mid-century we can see that the West was overtaking the East intellectually. Of greatest significance for this Report, the East was far less fragmented and it still operated under Justinian law, whereas the West was restless, in growing intellectual ferment, and Justinian law had been inoperative for several centuries. The closest the West had to a single legal system was early canon law, the law of the Western Church. This included penitential law, which was widely taught to clerics primarily though casuistry, essentially the case-law method.
Around 1075, Western Christendom, under Gregory VII the powerful Hildebrand of Tuscany, who had declined offers of the papacy four times over the prior 20 years initiated a "revolution" intended to make the West more like the East by imposing "Christian law" upon all secular princes. By "Christian law" the West (somewhat vaguely) meant Justinian law, for Justinian (483-565) had been a great Christian emperor. This "revolution" turning back to an earlier, glorious era was the first true revolution in the West, initiating a fundamental change in almost everything: politics, theology, and philosophy, of course, but more it inadvertently invented the Idea of Progress (ironically, considering its initial goal); yet, above all, this revolution led to invention of a "concept of a legal concept" which did not exist before, whether under the Roman empire or (apparently) anywhere else. The Romans had many kinds of contracts, as suggested, but they never had the concept of a contract as that "concept of a concept" was developed at Bologna and thereafter.
Pope Gregory VII (1073-1085) sought to "make" a new Kingdom of God on Earth based on Christian law. But where was such law to be found? Gregory's ally Matilda of Tuscany (so the story goes) reminded him of a law museum under her control in Bologna, and shortly after 1080 this museum became the nucleus of a law school that initiated not only "Justinian rediscovery" but also "Aristotelian rediscovery" and "rediscovery" generally. Around 1087 this nascent law school hired Irnerius (1060-1125) as a teacher. He was a pioneer. His method of instruction was not unlike that by which penitential law had been taught the case method but he also relied on "putting arguments" and making students debate for and against various propositions, with special emphasis on examining the canons of Justinian law that seemed to conflict with the Bible and the writings of the Church Fathers. It was this focus on systematic argument that made Bologna receptive to the "Aristotelian rediscovery" that might have been "in the air" at its founding but definitely "got off the ground" with Abelard around 1117.
This Bolognese synthesis of Athens, Rome, and Jerusalem had many elements, including (as noted) converting some of the clerics the educated class into professional lawyers. An initially unintended consequence was that many Bolognese graduates eventually used their training to support the interests of secular rulers against the Church. More importantly, however, these lawyers started a process of bringing both Church and State under "natural law" an idea, as we have seen, rooted in the ancient Athenian Nomos: the Rule of Law based on the Rule of a special kind of reasoning.
Indeed, the professions of "lawyer" and "judge" were invented by that synthesis. Roman law evolved by essentially "common law" processes, case by case, but these processes were not driven by judges. Legal disputes were resolved by arbitrators trusted and chosen by both sides; these arbitrators did not ordinarily have much knowledge of the law; for that, they relied on the jurisconsults, scholars who kept track of evolving legal principles and aided the law's development through their "professional literature" of commentaries. These scholars did not ordinarily represent parties in disputes, and were not in that sense lawyers.
Now, Justinian is credited with creating a "code" of civil law (law essentially governing private disputes), but in fact this famous work was not a systematic exposition so much as a collection of the writings of those jurisconsults whom his compilers found most useful. Interestingly, in addition to emphasizing his royal prerogative that he was above the law Justinian forbade all further commentaries. His work was perfect, complete. The dearth of knowledge we have about pre-Justinian law is largely due to his decree that vast amounts of historical material mostly legal commentaries be burned once his Project was complete. One cannot help wonder whether this man really understood what "law" properly understood is all about.
At Bologna, Irnerius and his successors "disobeyed" Justinian. They brought legal commentary and the concept of law based on systematic inquiry to a higher art than ever before. They "corrupted" Justinian law through systematic inquiry, thereby turning a collection of laws into a system of law not Roman law but canon law and the foundations of that "romanized" common law which would become the European Jus Commune. Despite the subsequent development of national legal systems first in England (whose legal system was far more influenced by that "romanized" law than is generally appreciated) and then in France, Germany, and other European states this Bolognese synthesis, upholding fundamental principles of law-based governance, lives on within the "deep consciousness" of all Western legal systems.
In Byzantium, on the other hand, "pure" Justinian law was obeyed, commentaries remained forbidden, and new imperial legislation was piled onto old without the "systematization" characteristic of the Western Legal Tradition.
Transported to Russia, Byzantine law became an ever more tangled "collection" albeit, over time, much Russian law was secret, unknown, unknowable even from one emperor to the next. It was a "collection" that could not even be collected, let alone systematized and codified! When, two centuries ago, Speransky was told by the Russian emperor to codify Russian law "but don't change any of it" he despaired. He could not even find half of it!
Russia was just beginning to become influenced by the Western Legal Tradition when the Russian Revolution made a new religion of Party over law. Whereas Russia really never had law, properly understood, the Soviet Union actively warred against any conception of law recognizable as being based on what the Nomos was, let alone has become.
Unfortunately, like so many Soviet victims, historical truth-telling the idea that accurate history matters died. It must be reborn. As the Soviet-era saying went: History is unpredictable. But now, with the USSR's demise, genuine history is doubly precious.
We dwell upon this specific historical era when the Western Legal Tradition started not only because of its intrinsic importance to legal theory but also because it played almost no role in this post-Soviet region's history and development. The roots of this problem go far deeper than merely "Soviet times"; in that sense "Soviet mentality" stands for historical processes at work long before Lenin. The problem might better be termed "Byzantine mentality".
It is tragic. It is real. And it must be remedied. "Ordered liberty" depends for its lifeblood on that truth which makes us free. Not that other historical truths and eras are unimportant; much of importance happened under the rubric "Western Legal Tradition" during almost a millennium of subsequent development. All of that is important. But, for reasons stated, its origins are especially important. Here. Now.
(numbered as in full essay available here)
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