Pre-existing Law v Positive Law Are we an Empire of Laws or merely an Empire of Men? I want to take complex topics from political philosophers and break them down into tiny bite-size pieces to give away. Too often we simply accept that we will be governed, but we fail to stop and think about what that looks like or ask the deeper questions. “What is the proper role and function of government?” “Where does the authority to enact laws that constrain our behavior come from?” The first question I want to address is from where does the authority to enact laws come? In terms of political philosophy, the question would be, “do we as a nation embrace as our ultimate foundation solely positive law or do we accept that there are pre-existing laws?” Those societies who believe in positive law embrace the supremacy of man-made law. Those who believe in pre-existing law believe there are certain rights and wrongs that inherently exist and it is our duty to ascertain those laws and implement them within civil society. It is important to note that believing in pre-existing laws, does not prohibit you from accepting that positive laws may be appropriate within certain areas. For example, there is such a legal delineator between what is malum in se and what is malum prohibitum. In short, there are some behaviors we accept must be legally constrained as inherently wrong, like murder. Such behavior is of the magnitude that mankind does not have the discretion to condone it. Meanwhile there are other laws that man may subjectively enact for the benefit of social order, like a 35 mph speed limit, but these laws do not constrain behavior that is otherwise inherently wrong. However, whether a society accepts the legitimacy of pre-existing law or not gives insight into its foundation of government. Societies driven by the supremacy of positive law tend to embrace more of a rex lex mentality, “the king is the law.” The king doesn’t have to mean a literal king. It can be exchanged by any man or group of men from a monarchy, aristocracy, oligarchy or democracy. In short it is a governmental system where mankind himself ultimately determines what is right or wrong. Conversely, societies who embrace pre-existing law tend to adopt a lex rex mentality, “the law is the king.” Such societies accept that there are certain rights that pre-exist the creation of any governmental structure. Accordingly, they create governments that can be defined as an empire of laws NOT of men. Sound familiar? Now, based on the above information, can you discern what type of government our founding fathers established: one that embraced pre-existing law or merely positive law, and were we intended to be a lex rex or a rex lex?

Pre-Existing Laws give rise to God-given, inherent, and Unalienable Rights! So, in our last blog we talked about societies that believe there is such a thing as pre-existing laws. These types of societies embrace the belief that even sovereigns were accountable to the law, and that certain fundamental liberties existed that could not be trampled upon, not even by a King. These would be rights that all men inherently possessed. We as Americans need to look no further than the document that created us as a nation, our Declaration of Independence to see whether or not our Founding Fathers accepted pre-existing laws. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” The signers then went on to explain that the purpose and function of government was inextricably tied to the protection of such fundamental rights. “That to secure these rights, governments are instituted among men,” making it clear that a belief that certain laws not only pre-exist government, but that adherence to those principles is in fact the proper role and function of government. While the Declaration did present some examples of unalienable rights that are to be at all times protected, including both the right to life as well as the right to liberty & the pursuit of happiness, it mentions them as being among certain unalienable Rights, meaning this list is not exhaustive. When we understand this and the thoughts of the founders that we had unalienable rights to free exercise, or to worship God according to the dictates of our conscience, the right to free speech without the fear of being found guilty of seditious libel, etc, then we see that they knew the Government did not provide us with the Bill of Rights, rather, these were rights we possessed over which the government could not impede. No question, our Founding Fathers believed that there were such things as pre-existing law and that it was not only our duty to ascertain them, but to make sure that they were secured. Accordingly, since they believed in the supremacy of law, then the next question to answer is would they have deemed us a Rex Lex society or a Lex Rex, or to put it another way, an empire of men, or an empire of laws?

Are we a Democracy or a Republic and is there a difference? So we talked about the distinction between a Rex Lex society and a Lex Rex society. A Rex Lex society is one where the sovereign or the will of man is the law, making man supreme. Conversely, a Lex Rex society is one where the law is the sovereign; therefore, the rule of law is supreme. Such a distinction is extremely substantive. Clearly, in a Rex Lex society you can have numerous types of governmental structures, from a Monarchy, an Aristocracy, an Oligarchy or even a Democracy. The number of sovereigns is not the relevant factor. What is relevant is that it is the sovereign that determines what is the law. Whereas in a Lex Rex society there is an acceptance in the supremacy of law as the ultimate authority. That is why a society that accepts that there is in fact such a thing as pre-existing law is by definition a Lex Rex society. This highlights the distinction between a republic and a democracy and such distinction is not merely one of semantics. A democracy is a society that is ultimately one of majority opinion or mob rule. Whereas a republic, at least a republic as adopted and intended by our founders, is one governed by the rule of law, and in the case of the United States, the supreme law of the land is our Constitution. This is why our government is described as an Empire of Laws not of Men. This is also why James Madison discussed at length not only his concern of a minority faction trampling on the rights of the majority, but expressed equal concern over a majority faction trampling on the rights of the minority. We were never to be a nation that was to be governed simply by majority opinion. The founders were very clear about their disrespect for such a governmental structure. John Adams warned that there never was a democracy that had not committed suicide. And more colorfully, Benjamin Franklin explained that democracy is nothing more than two wolves and lamb voting on what to have for lunch. Their lack of respect for a democracy is why they chose not to give us one. It is why they decided upon a Republic, if we can keep it. I would argue that the first step in being able to keep anything is to understand what you are trying to keep. If we live in a Constitutional Republic, and that Republic is grounded upon the rule of law, but some of those laws even pre-existed the founding of our nation and our government, then it is clearly important to understand which of those laws and attendant rights pre-existed our Constitution?

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