A Legal Construct of Government the Constitution
Anarchy. Self-government. Aristocracy. Tyranny. Democracy. In every society there lie a social contract amongst peoples on how to conduct themselves and daily business, or rather, the rule-of-the-land. This social contract is declared and enforced by both legal authorities (i.e. government) as well as through the participation of its citizens. This paradigm has come to be known as ‘law’. So if ‘law’ is the construct of societal-cooperation within a particular society, what is it that which conducts governmental powers, interaction, and cooperation? Through observation of modern and historical societies we find a ‘constitution’ to be the contract by which governments inherently agree to conduct themselves. There exist both theoretical-unspoken and physically-written constitutions. As a man-made construct, constitutions are living doctrines that are amendable and dissolvable to adhere to the modern demands of the time. The Bible, Plato’s Republic, and Aristotle’s Politics show political thinkers’ various examples of governing via constitution and idealistic societies under differing circumstances. Further proof of a societies’ constitution binding its governance is provided through Cicero’s work ‘Cicero’s Republic’ and Livy’s Early History of Rome.
Judges gives political thinkers insight as to the bounds of an informal constitution between God and the Israelites. Rather than abandoning them for living an unjust life, God sends the Israelites ‘Judges’ to serve as temporary leaders. While the Israelites fall back into their bad habits once a Judge passes, God maintains his duty to the people regardless. In much of the Bible God is seen to be peaceful, merciful and yet just; however, when he deems it appropriate, he honors his peoples needs with divine blessings that aid in achieving not only his work but their goals. Judges proclaims “And the Spirit of the LORD came upon him, and he went down to Ashkelon, and slew thirty men of them, and took their spoil, and gave change of garments unto them which expounded the riddle. And his anger was kindled, and he went up to his father’s house” (KJV 14:19). This text is a tribute to the many occasions throughout the Bible where God goes against his painted character in the name of serving the people appropriately. It is through the constitutional bond between the Israelites and God that shapes early history according to the Biblical texts. Without faith in government, chaos ensues. Despite betrayal by the people on numerous occasions, whilst teaching them lessons, God keeps true to the people thus allowing Judaism to endure the tests of time.
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Plato’s Republic is another classic academic text where the bounds of government are shown through constitutional constraint. Plato constructs his idealistic society, through its creation complexities arise and they are met with various solutions. In book eight Plato gives us the hierarchy of governmental structures and the reasoning behind the structure. His thought experiment brings him to conclude that being a ruler is not about the craft of ruling or about money making; It is about guidance, and to be a ‘just’ ruler means to work in the interest or on the behalf of those people that you rule. To achieve this a ruling individual must possess the following virtues: moderation, courage, and wisdom. For Plato these virtues exist in a nature different from what the average person in todays society would think. Moderation is the acceptance and permitting of yourself to be ruled by your betters. Courage is that of fidelity to tradition; the ability to maintain the commitments in the way they have been taught to you despite outside pressures. And lastly Wisdom. Wisdom is the calculation of and implementation of policy. When and only when these virtues remain in harmony in justice achieved for Plato. But how does this relate to constitutional constraints of government? Plato asserted that, “There is in every one of us, even those who seem to be most moderate, a type of desire that is terrible, wild, and lawless,” therefore only a ‘just’ individual, one whose virtues are in harmony, can withstand the temptations of power. A just individual is not interested in self-gains but of gains for the people. Due to the cruel nature of the individual it is apparent only with constitutional constraints can rulers escape the fall from Aristocracy to Tyranny. This constitution, written or not, lies within the ‘justice’ of the ruler and the trust of the people for said ruler to maintain those bounds.
Aristotle had the pleasure of observing the history of written constitutions in Greek societies. According to Aristotle’s Politics good governments lie in the institution by which government activities are carried out. Dependent on the dynamics of the given society, Aristotle believed there was a place for every type of government. What is unique in Aristotle’s work is that he believed humans are innately political animals; anything other than a city where humans can practice their inherent nature renders a human no better than a beast. He asserts, “Man is by nature a social animal; an individual who is unsocial naturally and not accidentally is either beneath our notice or more than human. Society is something that precedes the individual. Anyone who either cannot lead the common life or is so self-sufficient as not to need to, and therefore does not partake of society, is either a beast or a god” (Politics). It is unnatural for humans to be uninvolved in such work. Politics is a system where humans come together to debate and discuss social questions. It is a system of giving and taking orders. With his understanding of institutions, Aristotle had a deeper understanding of the need for checks and balances. For the political animal the pursuit of wealth is of danger to the entire city-state for, “the truth is that men’s ambition and their desire to make money are among the most frequent causes of deliberate acts of injustice” (Aristotle, Politics). While written, as a work of men the Greek constitutions were amendable to fit the times. This flexibility gave leaders the ability to enact change in favor of the people as well as left room for greed and power lust. Due to hominid nature Aristotle argued that, “government is everywhere sovereign in the state, and the constitution is in fact the government” (Politics). As such the only constraint on power lie in the constitution.
In Livy’s Early History of Rome, Livy takes the reader though the myths of Rome’s founding and the evolution of the Republic from its infancy stage to its ‘perfection’. Romulus sought to create a free society where it subject could ascertain a particular amount of liberty but there exist elements of continued Aristocracy that left the city state in disunion. To ease tensions and ensure the Republics success a constitution of sorts was formulated. In the constitution, two ‘consuls’ of the noble standing were to be elected for two-year terms. These consuls acted almost as dictatorial kings. To counterbalance the powers of governance, the ‘tribunes’ of the plebs were decreed; effectively giving lower, poor class of citizens a political standing. The tribunes of the plebs had veto power of the consul’s decisions and were immune from their powers. In addition to creating balance of governance for each class, a religious authority was created to keep separate the power of the consuls and religion. The opposing classes successfully created a free society for the early Roman Republic. The bounds of government by its constitution protected its citizenry from tyrannical rule from either side while the opposition ensured neither side could ‘win’.
Cicero made three important distinctions, those between religious law, natural law, and constitutional/civil law. Religious law is that by which humans carry out and follow tradition. Cicero defined ‘natural law’ as, “… right reason which is in accordance with nature, applies to all men and is unchangeable and eternal” (Cicero). Civil/constitutional law is that by which is created and decreed by man. For Cicero, each form had a distinctive place in Roman culture and society. Natural law inherently commands men to the fulfill their duties and by its prohibitions natural law restrains men from doing wrong. Mans’ duty in life is to seek glory through political participation. This glory could only be achieved through acting virtuously. Through being in harmony with natural law, constitutional law would fundamentally be just and restrict governing bodies from ruling tyrannously. Cicero states, “to invalidate [natural] law by human legislation is never morally right, nor is it permissible ever to restrict its operation, and to annul it wholly is impossible”(Cicero). By building the state on natural law citizens would be protected from the oppressive power of tyranny while also preventing the chaos of anarchy.
In each of these historical texts lie a significant understanding to the importance of a constitution. Humans by nature possess evil and virtuous qualities; as such, the well-being of nations cannot be trusted to said individuals absent constraint. The Bible gives insight as to the importance of trust and reliability in a governing power. Plato offers insight as to the qualities befitting ‘justice’ a just ruler and just society through his thought experiment. Aristotle laid the argument as to the ordinary nature of humans and the dangers they can pose to society absent institutions. Livy brought to light the balance of power and its position in protecting a free state. In his disdain for the current state of the Republic, Cicero imputed the importance of morality in rule and the necessity of restriction from the laws of man absent it. The common theme within each of the literary text is the necessity of constraint within governing bodies. Rules, law, and social norms liken to cooperation amongst average individuals but the leaders whom these citizens look to for guidance and protection are often rendered exempt from their command; constitutions are the peoples’ justice and the people’s protection. The existence of a constitution, defines the expectations and limitations of the governing power. While some constitutions prove better than others, the contract between the government and its citizens allows for stability and liberty amongst society.
Aristotle. Aristotle’s Poetics. New York :Hill and Wang, 1961. Web.
Bible, Judges. King James Version; 14:19. Web.
Cicero, Marcus T. “THE REPUBLIC OF CICERO, TRANSLATED FROM THE LATIN; AND ACCOMPANIED WITH A CRITICAL AND HISTORICAL INTRODUCTION.” Alice’s Adventures in Wonderland, by Lewis Carroll, Project Gutenberg, www.gutenberg.org/files/54161/54161-h/54161-h.htm.
Livius, Titus. “Book 2.” Lee Harvey Oswald’s Motivation in the Kennedy Assassination, J. M. Dent & Sons, Ltd., London, 1905 , mcadams.posc.mu.edu/txt/ah/Livy/Livy02.html.
Plato. Plato’s The Republic. New York :Books, Inc., 1943. web.