COMMON SENSE
& THE RULE OF LAW
Richard Salbato - May 29, 2009
When we
judge people, religion, societies, governments or history we have to start with
well established principles and common sense.
When we plan for the future of our life or even death, a good look at
history will help us with established principles because they tell us what
worked and what did not. Common sense lets us analyze the logical consequences
of what we plan on doing.
What is
common sense in families and societies is that people need freedom and
security. To have the maxim freedom for
the majority we must give up some freedom for the individual. To have the maxim security for the majority
we must contribute individually to that security. To have justice for all, we must have common
laws that are equal to all. Over the
history of the world we have learned that the only system that works to have
peaceful families and societies is when everyone has equal justice under the
law. This is what we call:
The Rule of Law
The rule of
law is an ancient ideal, and was discussed by the Greek philosopher, Plato, 350
years before Christ. Plato wrote:
Where the
law is subject to some other authority and has none of its own, the collapse of
the state, in my view, is not far off; but if law is the master of the
government and the government is its slave, then the situation is full of
promise and men enjoy all the blessings that the gods shower on a state.
Likewise,
Aristotle endorsed the rule of law, writing that "law should govern", and those in power should be "servants of the laws." The
ancient concept of rule of law is to be distinguished from rule by
law. The difference is that under the rule of law the law is preeminent and
can serve as a check against the abuse of power.
Under rule by law, the law can serve as a mere
tool for a government that suppresses in a legalistic fashion."
In 1776, the
notion that no one is above the law was popular during the founding of the
"in
John Adams
said we are “a government of laws and
not of men."
All
government officers of the United States, including the President, the Justices
of the Supreme Court, the Military and all Members of Congress, , pledge first
and foremost to uphold the Constitution. These oaths affirm that the rule of
law is superior to the rule of any human leader.
The rule of law is fundamental to the western democratic order.
Aristotle said more than two thousand years ago,
"The rule
of law is better than that of any individual."
The rule
of law, also called supremacy of law, is a general legal maxim according
to which decisions should be made by applying known principles or laws, without
the intervention of discretion in their application. This maxim is intended to
be a safeguard against arbitrary governance. The word "arbitrary"
(from the Latin "arbiter") signifies a judgment made at the
discretion of the arbiter, rather than according to the rule of law.
The purpose of
legislation according to
Contract Law
Before letting
Thomas Paine explain the history of Governments and why we in
Remember the
common sense thinking method. This
method makes us think of the long term consequences of our actions. The rule of law requires us to honor contracts
between two people, two groups of people or two businesses. If we have to go to court over these
contracts we enter a building with a picture or statue of a woman with a blind
fold over her eyes and a balancing scale in her hand. This says that the court
is blind to all but the rule of law. The
court cannot favor the rich or the poor, the well dressed or the ragged, black
over white, woman over man, or one faith over another. What does the contract say and who violated
it? Was the contract equal under the law? Was the contract voluntary or forced?
Without going
into any detail I have been watching the Federal, State and City governments
violating contracts and oaths over and over, as if they are above the law. I have seen families brake apart because they
do not respect equality under the rule of law.
I have seen priests and bishops act against the law of the Church and
their oaths, which are contracts with God.
Is The Rule of Law Democratic?
After writing the
Constitution of the
”A
“To prevent this country from ever
becoming a Democracy!”
We are a nation
of the people, by the people and for the people, with justice for all. We are guaranteed life, liberty and the pursuit
of happiness for all. But what if the majority does not want justice for the
minority? What if the majority becomes
morally corrupt? What if the majority
did not believe that black people were real people? What if the majority were
like
We have a
democratic process of electing our representatives, but under the law, neither the
people nor their representatives can violate the rule of law.
Common Sense
By Thomas Paine
SOME
writers have so confounded society with government, as to leave little or no
distinction between them; whereas they are not only different, but have
different origins. Society is produced by our wants, and government by our wickedness;
the former promotes our happiness POSITIVELY by uniting our affections, the
latter NEGATIVELY by restraining our vices. The one encourages intercourse, the
other creates distinctions. The first is a patron, the last a punisher.
Society
in every state is a blessing, but Government, even in its best state, is but a
necessary evil; in its worst state an intolerable one: for when we suffer, or
are exposed to the same miseries BY A GOVERNMENT, which we might expect in a
country WITHOUT GOVERNMENT, our calamity is heightened by reflecting that we
furnish the means by which we suffer.
Government,
like dress, is the badge of lost innocence; the palaces of kings are built upon
the ruins of the bowers of paradise. For were the impulses of conscience clear,
uniform and irresistibly obeyed, man would need no other lawgiver; but that not
being the case, he finds it necessary to surrender up a part of his property to
furnish means for the protection of the rest; and this he is induced to do by
the same prudence which in every other case advises him, out of two evils to
choose the least.
Wherefore,
security being the true design and end
of government, it unanswerably follows that whatever form thereof appears
most likely to ensure it to us, with the least expense and greatest benefit, is
preferable to all others.
In
order to gain a clear and just idea of the design and end of government, let us
suppose a small number of persons settled in some sequestered part of the
earth, unconnected with the rest; they will then represent the first peopling
of any country, or of the world. In this state of natural liberty, society will
be their first thought. A thousand motives will excite them thereto; the
strength of one man is so unequal to his wants, and his mind so unfitted for
perpetual solitude, that he is soon obliged to seek assistance and relief of
another, who in his turn requires the same. Four or five united would be able
to raise a tolerable dwelling in the midst of a wilderness, but one man might labor
out the common period of life without accomplishing any thing; when he had
felled his timber he could not remove it, nor erect it after it was removed;
hunger in the mean time would urge him to quit his work, and every different
want would call him a different way. Disease, nay even misfortune, would be
death; for, though neither might be mortal, yet either would disable him from
living, and reduce him to a state in which he might rather be said to perish
than to die.
Thus
necessity, like a gravitating power, would soon form our newly arrived
emigrants into society, the reciprocal blessings of which would supersede, and
render the obligations of law and government unnecessary while they remained
perfectly just to each other; but as nothing but Heaven is impregnable to vice,
it will unavoidably happen that in proportion as they surmount the first
difficulties of emigration, which bound them together in a common cause, they
will begin to relax in their duty and attachment to each other: and this
remissness will point out the necessity of establishing some form of government to supply the defect of moral virtue.
Some
convenient tree will afford them a State House, under the branches of which the
whole Colony may assemble to deliberate on public matters. It is more than
probable that their first laws will have the title only of Regulations and be
enforced by no other penalty than public disesteem. In this first parliament
every man by natural right will have a seat.
But
as the Colony increases, the public concerns will increase likewise, and the
distance at which the members may be separated, will render it too inconvenient
for all of them to meet on every occasion as at first, when their number was
small, their habitations near, and the public concerns few and trifling. This will
point out the convenience of their consenting to leave the legislative part to
be managed by a select number chosen from the whole body, who are supposed to
have the same concerns at stake which those have who appointed them, and who
will act in the same manner as the whole body would act were they present.
If
the colony continue increasing, it will become necessary to augment the number
of representatives, and that the interest of every part of the colony may be
attended to, it will be found best to divide the whole into convenient parts,
each part sending its proper number: and that the ELECTED might never form to
themselves an interest separate from the ELECTORS, prudence will point out the
propriety of having elections often: because as the ELECTED might by that means
return and mix again with the general body of the ELECTORS in a few months,
their fidelity to the public will be secured by the prudent reflection of not
making a rod for themselves. And as this frequent interchange will establish a
common interest with every part of the community, they will mutually and
naturally support each other, and on this, (not on the unmeaning name of king,)
depends the STRENGTH OF GOVERNMENT, AND THE HAPPINESS
OF THE GOVERNED.
Here then is the origin and rise of government;
namely, a mode rendered necessary by the inability of moral virtue to govern
the world; here too is the design and end of government, viz. Freedom and
security. And however our eyes may be dazzled with show, or our ears
deceived by sound; however prejudice may warp our wills, or interest darken our
understanding, the simple voice of nature and reason will say, 'tis right.
I
draw my idea of the form of government from a principle in nature which no art
can overturn, viz. that the more simple any thing is, the less liable it is to
be disordered, and the easier repaired when disordered; and with this maxim in
view I offer a few remarks on the so much boasted constitution of England. That
it was noble for the dark and slavish times in which
it was erected, is granted. When the world was overrun with tyranny the least
remove therefrom was a glorious rescue. But that it
is imperfect, subject to convulsions, and incapable of producing what it seems
to promise is easily demonstrated.
Absolute
governments, (tho' the disgrace of human nature) have
this advantage with them, they are simple; if the people suffer, they know the
head from which their suffering springs; know likewise the remedy; and are not
bewildered by a variety of causes and cures. But the constitution of