Thursday, January 07, 2016

The locus of authority

A presidential election cycle is a good time to discuss the nature of our political system. The more so on the heels to the Supreme Court decision imposing homosexual marriage on the nation.

Gov't ranges a long a continuum, from autocracy to anarchy. One issue in political theory is which is worse: anarchy or tyranny? For Hobbes, anarchy is worse than tyranny. Depending on which end of the spectrum you think is worse, that will affect your view of what polity is preferable. Although you will avoid the extremes, you will gravitate towards one side of the spectrum or another, based on which you consider to be the worst-case scenario.

If you think the administration of public justice is a basic function of gov't, then the Hobbesian position is a reductio ad absurdum. To be legitimate, the state must be minimally just. It can't be one big criminal enterprise and still demand our allegiance. 

Why do we even need gov't in the first place? Because human beings are social creatures. Social life generates friction. Competing and conflicting actions. For social life to exist, some behavior must be out of bounds. Impose limits on what one person can do to another. That means someone or something needs to play referee. 

Gov't poses a conundrum: one purpose of gov't is to function as a check on criminality. But what prevents crooks from becoming politicians? What prevents gov't from becoming a criminal enterprise? The same corruption that fuels crime can fuel gov't corruption. So the very same the problem that necessitates gov't makes gov't problematic.

At one end of the spectrum is absolute monarchy. The ruler's word is law. 

By contrast, it's striking that the OT theocracy was a constitutional monarchy. The king was subject to the same law as private citizens. 

This goes to the locus of authority. In the OT theocracy, ultimate authority was vested, not in kings or judges but the law. God's law.

Our system of gov't is based on the consent of the governed. On the face of it, that might seem to be oxymoronic. Governance is authority. But how can citizens be under authority if gov't can only operate with their consent? Doesn't that make each citizen his own governor? 

The solution is delegated authority. Voters elect officials who are authorized to speak and act on their behalf. Some elected officials appoint bureaucrats, or nominate bureaucrats (subject to legislative confirmation).

You cede some liberty in exchange for security, but you reserve the right to take that back. You can vote your representatives out of office. 

On that system, the locus of authority is the electorate. Likewise, the locus of authority is law–laws enacted by their duly elected representatives. That's an extension of the public will. 

This means the judiciary has no independent authority. The locus of authority is the law, not the judiciary. Judges are themselves subject to the law. Ultimate authority is vested in the electorate and the Constitution, which was ratified by the electorate. The Constitution is the expression of the public will regarding the terms of governance. 

Some people counter that our judicial system is indebted to the British common law tradition. That's true, but that's subject to two essential caveats:

i) The foundation of our legal system is written law, not common law. That's why we have a written Constitution, including a Bill of Rights. The Bill of Rights limits both gov't and majority rule. 

ii) The English common law system developed under monarchy and aristocracy. Our system, by contrast, is a repudiation of monarchy and aristocracy. Our system is bottom-up rather than top-down. 

In our system, the flow of authority is electorate>legislature>executive/judiciary 

Lawmakers are subordinate to voters, while judges and executives are subordinate to the law. The job of judges and executives is to apply laws passed by legislators elected by voters. 

Some pundits, especially Catholic pundits, or those who lean on that paradigm, defend Kim Davis by appeal to the right of conscience. That, however, plays into the hands of her critics. They say that's precisely the problem: it's an abuse of power for a public official to use her authority to further a personal agenda. And that objection is generally valid in principle. In this case, however:

i) Davis's personal agenda happens to dovetail with state law. The voters banned homosexual marriage. Her own motivations align with the will of the electorate, enacted into law.

ii) Ironically, it's the five Supreme Court Justices who are guilty of the very thing critics falsely accuse Davis of doing: they abused their power to further a personal agenda. 

What makes Obergefall illegitimate is that it's the expression of naked judicial power. But under our system of gov't, judges aren't the locus of authority. They are not above the law. A judge is not an autocrat whose word is law. Authority doesn't reside in the judge, but the text. A judge is a subordinate authority. His authority is derivative and conditional. 

That said, there are situations in which civil disobedience is justifiable. Our system isn't based on Hobbesian absolutism. Our allegiance is not unconditional. 

Finally, we might compare this to Catholicism. The papacy is an absolute monarchy–although technically the pope can't change dogma. But since the pope defines dogma, he can redefine dogma. He's the final interpreter. 

Catholic apologists say a magisterium is necessary to settle religious disputes. Someone must have the final word–otherwise, anarchy ensues. It's a Hobbesian view, transposed to a theological key. 

Problem with that position is that theological issues are issues of right and wrong, truth and falsehood, rather than authority, per se. If you have the truth, you don't need authority, and authority without truth is worse than useless. 

A Catholic apologist might counter that you need a magisterium to identify what's true. But the problem with that appeal is twofold:

i) Whether the Roman magisterium has that ability is, itself, an issue of truth or falsehood. So that preliminary question must be answered independent of the magisterium. To confirm or disconfirm the claims of the magisterium requires a vantage-point or starting-point outside the magisterium. And it renders a magisterium superfluous to the extent that you can answer questions like that apart from a magisterium.

ii) Whatever the abstract virtues of a magisterium on paper, in reality the Roman magisterium is a poor match for the job description. It acts just like you'd expect a sinful, fallible, shortsighted organization to act. Its behavior is indistinguishable from an organization that has no divine guidance, that's driven by the shifting winds of the zeitgeist. 

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