On the laws that govern governance

For at least about a quarter millennium there have been folk who have understood that the process of how folk are governed should, itself, be subject to rules constraining those who govern. A corpus of such rules is known as a constitution. The good sense of this position was, with hind-sight, fore-shadowed by at least several centuries: it is but a natural application of the understanding that The Rule Of Law works better than the whim of any ruler. The West tends to trace that conception back to Hammurabi, an early Mesopotamian ruler; but the little I know of Indian and Chinese history prompts me to suspect they had explored that territory even earlier – and my utter ignorance of the histories of other cultures compells me to acknowledge that I have no reason to believe the didn't get there long before Hamurabi.

Unfortunately, over the last century or two, the United States of America (USA) has demonstrated, by systematic example, the ease with which the mighty can subvert a constitution – even one arrived at by a process of earnest debate among a body of folk, generally well read in the wisdom of prior authors and not lacking in voices worthy to be counted among the wise, in a collective culture which recognised the wisdom of these. No-one who has read Niccolò Machiaveli's The Prince, particularly if they have also read more of his writings, should be surprised by this. Those who wield power are: apt to interfere in the process of government; to learn (over time) how to work round obstacles to such interference and; to arrange, before long, that those charged with de jure authority shall so weild it as to serve the best interests of those who have managed to take control of the de facto power. One may cast the same thesis in Darwinian terms: those who (keeping up the pretence of upholding the virtuous aims of the constitution at least enough to disarm the advantage that would otherwise be enjoyed by those who do uphold those aims) serve the mighty well shall – thanks to such support as the mighty can supply – prosper and rise to prominence; consequently, the de jure authority ultimately ends up in the hands of those who serve the de facto power. To put it more starkly,

Treason doth never prosper: what's the reason ?
Why, if it prosper, none dare call it treason.

Sir John Harrington (1561–1612), expanding on:

Prosperum ac felix scelus
Virtus vocatur

(Successful and fortunate crime is called virtue)

Seneca: Herc. Furens, ii. 250

All the same, we (the governed) want something better. One may fairly retort that the citizenry of the USA have paid too little attention to Thomas Jefferson's warning that The price of freedom is eternal vigilance and been seduced by convenience, selfishness and the illusion of security from perils – emotively selective perils, whose significance they over-estimate due to the persuasive mendacity of those whose interests are best served by focussing their fears there than elsewhere. None the less, the processes that have steadilly pushed them towards that are sure to apply themselves to any body of people who, collectively, weild enough power that the mighty yearn to gain their assistance.


When lawyers and judges argue about interpretation of the constitution of the USA, they commonly refer to the alleged intent of the authors: one thing that might have restrained their ability to violate the spirit of the original would have been a clear statement, by those authors, of their intent. A fair deal of guidance may be had from their earlier declaration of independence, which may justly be considered a decisive statement bearing on their intent:

When, in the course of human events, it becomes necessary for one people to dissolve the political bonds which have connected them with another, and to assume, among the powers of the earth, the separate and equal station to which the Laws of Nature and Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these Truths to be self-evident,

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient Causes; and accordingly all Experience hath shewn, that Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves by abolishing the Forms to which they are accustomed. But when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to provide new Guards for their future Security. Such has been the patient Sufferance of these Colonies; and such is now the Necessity which constrains them to alter their former Systems of Government. …

The USA, 1789.

Assorted closely connected folk are also implicated in the French revolution's Declaration of the rights of Man and the Citizen:

Men are born, and remain, free and equal in rights. They are masters of their persons; they may exercise their physical and intellectual powers freely, provided they respect the liberty of others. They may speak and write, work and invent, acquire and possess. Law is the same for all. Professions and public offices are open to everyone, regardless of birth.

The state does not find its end in itself: its reason for being is to preserve the citizens' enjoyment of their rights. The sovereign is the citizenry, the nation, which delegates authority to a responsible government. If the state fails in its duty, the citizens will resist oppression.

France, 1889.

Though the latter's good intent was more rapidly abrogated than the former's, the latter manages to proceed without dependence on a Creator (and its closing sentence has a lovely coyness about it). Sadly, neither account remembered that not all citizens are male, though in fairness one may credit each with an implicit male embraces female presumption which allows that man is used equally for male and female of my species, as a stylistic convenience rather than an expression of the declaration's intent to exclude women.


It is startling just how pertinent a speech by Theodore Roosevelt in 1910 still rings in the twenty-first century. He clearly saw corporate special interests as a great peril to liberty: it is hard to miss that they remain so in our modern world at least as stridently now as then. The site that's on has a fine collection of salient texts from the U.S.A.'s history. John Fitzgerald Kennedy's inaugural speech as president (half way down the page – and Babylon 5 fans may like to notice the phrase last best hope) is also a magnificent piece of rhetoric.

See also: the constitution of the United States of America, but take note:

I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country… Corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed.

Abraham Lincoln

The potential value of contracts

It has been observed, sporadically and usually wryly or cynically, that a formal contractual relationship between electors and elected might provide a mechanism for abating some of the worse abuses of political classes: if election promises were subject to independent verification and failure were subject to such penalties as are usual for breach of contract, politicians might plausibly stop promissing The Moon (except when they can deliver it) and care more about delivering on what they promissed: at the same time, those who suspect their promises of playing games with words would have the fine print available for examination so as to be able to expose the clever deviousness of promissing something that sounds good, though its practical reality manages no better than lip service to the high-sounding goals espoused in the politician's marketing brochure.

Of course, the reality of political office presents some obstacles to such contractual ties: for example, a new-comer seeking office may honestly intend things that, once elected, turn out to be over-optimistic. It would be proper to allow such a newly elected official a defense related to such surprises; it would equally be proper to make such a defense dependant on a full and frank explanation of the actual complications involved, specific enough to ensure that any subsequent candidate for related office would not be able to use the same surprise as the same defense. If, in fact, the city's mayor can't do anything about city hall's apalling IT project performance – thanks to some misguided long-term contract with a single supplier, for example – the first mayoral candidate to promise to fix it should only be held to that promise in so far as it was realistic to expect her to know about it (despite her reasonable efforts to uncover any corrupt relationship between her predecessor/opponent and the IT supplier); but escaping liability via this defense would involve making public the ghastly mess of dodgy contracts that prevent any remedy. Her subsequent challenger would then be unable to re-use that defense, since the court's records are something he can realistically be expected to know about.

It has also been observed, 'though less often, that citizenship does not consist entirely of entitlements (though one might be surprised to hear this, given the enormity of some citizens' senses of entitlement); and the associated responsibilities are a matter that citizens should be obliged to acknowledge and live up to. As a citizen, I acknowledge that every part of the administration of my nation is, ultimately, my responsibility. Formally, it is a responsibility which I and my fellow-citizens hold jointly and severally – that is, each of us must look on the whole as that is my responsibility; the work it should take us to live up to that responsibility shall be magically less than one might expect, so long as our fellow citizens take up the same responsibility alongside us, and we have every right to take our fellow citizens to task in so far as they don't, but their failure (if any) doesn't get us off the hook if we fail in our responsibility. Ultimately, I am apalled at the way Britain is run because I consider myself morally responsible, for all that I can't see any practical means to live up to that responsibility: I would dearly love to see a constitutional arrangement under which it could not deviate so far from my consent without my being able to drag those responsible before a judge on charges of violating the responsibilities they tacitly accepted in connection with the authority delgated to them. If we could take out that tacit and make it as explicit – and legally binding – as a contract, there might be some scope for bludgeoning the political elite into less despicable behaviour; but before we demand such explicit accountability from our elected representatives, we should look to our own responsibilities and consider how we can commit to our side of the bargain.

I must also observe that the moral right to enforce law is far better founded when it is grounded on the individual's expressed consent to the law and acceptance of its down-sides. The application of this basic notion is wide. An individual who cleaves to a particular subculture (e.g. religious sect) may properly declare self willing to be bound by, and subject to the punishments prescribed by, that subculture; subject to the usual precautions against coercion, it would be proper for such persons to be so bound – and, by agreeing to be so bound, gain such respect and privileges as their subculture grants to those who do so. An individual may agree to pay taxes or abide by regulations as prescribed by certain branches of the nation's administration, in exchange for gaining certain privileges; you don't get health-care or social security unless you agree to pay the taxes levied by those parts of the nation's administration which consider these indispensable; you aren't allowed to operate dangerous (to others) machinery (e.g. cars) in a public place except in so far as you agree to pay certain taxes (e.g. those relating to the maintenance and upkeep of the road network, but probably also some related to health-care, so that the victims of your mistakes can be assured of emergency medical care even if you can't afford to pay for the damage you've done) and abide by certain rules (like only operating your dangerous machinery when you are of sound mind – and, for example, not under the influence of drugs that might interfere with your competence at operating said machinery).

This moral demand transforms the concept of the consent of the governed from a matter of enough of my peers decided I should be made to abide by this rule into I agreed to abide by this rule (albeit possibly only because enough of my peers decided that such consent was a reasonable thing to demand as a pre-requisite of being granted some privilege I really wanted). It incidentally creates the scope for various categories of citizenship: not in the we're a club with privileges and we chose not to let you have them sense, but in a manner that revolves around your consent to accept the responsibilities that go with certain privileges. It is, of course, possible for a nation to corrupt this notion – by classifying things which should be unconditional rights as privileges and/or by tying prigileges to duties that are unreasonably onerous or that aren't properly related to the associated privilege. It would be improper to tie my freedom to ride my bicycle to a duty to show some relevant public official (let alone any citizen, with the right to drive a car, who asks) round at least thirty acres of grazing land and, in the process, introduce that official to each of at least five dozen cows (by name, naturally, with my bicycling freedoms to be withdrawn if others who independently know those cows' names refute my introductions); this would clearly be unreasonable. The judiciary (with a little help from lay juries) should be able to keep the legislature from getting away with such abuses.

The framework hinted at by the above could even be extended to provide a way to deal with the legal status of assorted drugs. Instead of outlawing (for example) heroin, one could have a regimen under which:

some folk have formally pledged to abstain from heroin

this they would be able to present to interested parties, e.g. potential employers, where it might work to their advantage; but it might also involve consenting to certain penalties if ever caught using heroin or to more stringent penalties in cases where non-pledgers would also have been in trouble; and might waive their freedom to refuse drug tests in some situations

others have formally declared themselves to be using heroin

for some drugs, certification of having officially made such a declaration might be a pre-requisite of purchasing it legally; but the formal declaration might include commitment to declare it in certain situations where it might prove unfavourable, e.g. to your doctor (if exercising health-care privileges) and employer.

others might chose to remain in the gray area between

gaining no privileges thereby, but equally freed of some legal obligations concerning discussion of drug-use with (potential) employers and retaining the freedom to decline drug-tests in many situations.


The position of children requires particular attention, though it takes me further from my main topic.

Generally, it is accepted that parents are responsible for their children. Parents have a duty to address their childrens' basic needs (e.g. food and shelter) and to teach the little monsters to behave – at least towards the rest of society – in ways consistent with relevant law and mores. For certain laws we allow exemptions to children: if your 4-year-old son punches me with all his might I can complain – I may even be able to drag you to court if you let him repeat the exercise more often than you could reasonably be expected to prevent, and I'm almost certainly allowed to use moderate force to restrain him while I summon you to remove the little wretch – but he's in no danger of being subjected to the legal sanctions I would suffer if I punched you with all my might. At the same time, you are responsible (to the extent that you can be compelled to pay) for any damage your child causes to me.

On the other hand, many Western (or, in Willi Brandt's nomenclature, Northern) nations (e.g. Australia) recognise the notion of a delinquent parent. If a child's home environment is not conducive to that child growing up to be a responsible citizen, the citizenry at large has authorised our agents to take such children into one form or another of collective care. We are painfully aware that such surrogate care is hard to systematically do better than the horrors of leaving children to be raised by self-centred idiots with no training and even less sense of responsibility; so we prefer to leave children in the care of their natural parents. None the less, some parents leave the rest of us aghast and others should genuinely be locked up (where they'd have no opportunity to raise their children); children of such parents might be capable of growing up to be better citizens than their parents but they've very little chance at all of doing so if left in the care of their parents.

For children to learn to be responsible citizens they need (among other things) to learn that they are in charge of their own lives (or they're unlikely to learn that they're responsible for their own lives). When we put a child in collective care, it is particularly important to ensure that the child is taught this lesson: not just because their parents set a bad example in relation to this, that we need to counter, but also because our own oversight, of the care system we've put the child into, can only work if we obtain – and respect – feed-back (on how that system works) from that system's clients – i.e. the children. It is therefore necessary to give children (at least in so far as we've taken over their raising) real choices about their living circumstances: yet necessary to understand that children are particularly susceptible to coercion (particularly by their parents and day-to-day guardians).

Existing legal systems also impose rules on the age at which a child may marry, have sex, begin operating dangerous machinery in public places, purchase alcoholic beverages or take various kinds of paid job, to take some of the better-known examples. These issues generally warrant some careful attention: the general interest of liberty argues for keeping such restrictions to a minimum; a general respect for families tends to argue for allowing parents some authority over their children; and our collective sense of What Is Right for children has inclined many cultures to impose some restrictions regardless of either parents or children. Fitting the complex issues here into a contractual or covenant frame-work may well not be easy, at least in general. That does not mean it's hopeless: but it does mean that, even if we can formulate it thus, the citizenry should pay close attention to how the practicalities pan out, so as to adjust the rules as we learn how they work. We may chose to include other processes (e.g. semi-arbitrary age limits), but the child's own agreement and recognition of responsibility should play as great a part as is practical.

One of the complications of dealing with these issues in terms of informed agreement is that one needs some basis for believing the child does comprehend what's agreed to and what it means to agree to it. I would be inclined to argue that the same may be said of many folk not classified, by the law, as children. Roughly following the model of what we do at present, we could have a process where the child's own declaration suffices after a certain age but, prior to that, suitably responsible adults can serve as guarantors for the child's understanding, competence and so on – for example, one might make these guarantors jointly and severally responsible for the consequences of the child's exercise of the privileges associated with the new status: but one might limit that liability in time; e.g. to the first two or five years. Alternatively, one could allow the child (perhaps only for the first few years) a legal stance of not having understood what they'd agreed to, which would trigger dragging the adults into court as co-defendants (whether alongside the child, when the child is accused of violating their agreement, or on the side of some folk accused of exploiting or abusing of the child) and, probably separately, on charges of not having faithfully and dilligently assessed the child's competence when they signed off as guarantors; once the child has dealt (at least once, perhaps some small number of times) with situations, implicating their relevant competence, without resorting to this stance, it would be implicitly waived for all future cases.

These same knotty problems might, all the same, point the way to their own solution: the adults responsible for deciding the child's competence have, ultimately, come through the same rites of passage. An adult cannot have the authority to under-write a child's competence to agree to various matters without having agreed to equally serious matters and lived up to such agreements for respectable periods of time; violation of the very agreement the child enters into would be more significant than violation of an unrelated agreement of similar significance – for example, your speeding violation or tax evasion a decade ago would at worst prompt relevant public servants to question you a little before accepting your competence to declare your god-son's competence to enter into a marriage, but your string of broken marriages and court judgements relating to unpaid child-support would leave the lad looking for some other responsible adult to swear for him. In general, this would open the door for all pledges to be subject to a process of scrutiny, by public officials, relating to the pledger's competence: by default, adult-enough folk should be deemed competent absent contrary hard facts; younger folk would need to find adult-enough folk to support them, with parents, close relatives and legal guardians probably having special status; suitable evidence of having handled meaningful responsibility in the past would count (at least) as well as age as concerns adult enough.

Sex raises particularly tricky questions. An adult who colludes in a too-young child's entanglement in it might reasonably be judged incompetent to certify a child's competence to agree to things, in general. Adults charged with the welfare of a child (normaly the child's parents) might be held legally responsible for the welfare of any children of that child (as incentive to educate their child about reproductive issues), with the welfare of the child being apt to be transferred to someone else if that becomes relevant. In place of an age of consent, we would then have a rite of passage in which the child took over responsibility for own potential children while parents relinquish control over child's private life; beyond some adult-enough age, the child would be allowed to initiate this (subject only to satisfying a public official as to competence to comprehend what's agreed to, which I take as required in each of the scenarios following); below some too young age, there'd be no way; in between, there'd be various culturally-defined constrains – for example, parental consent might suffice as soon as not too young but (even without their consent) pertinent affidavids of suitably competent (and disinterested) adults might suffice at some point between then and adult-enough.

A modest proposal

The general problem of mapping law onto contract is likely highly complex (though probably worth thinking about). However, where it comes to rules that govern governance, we're dealing with the end of the problem where it really is right and proper to hold relevant parties to what they're agreeing to, tacitly or otherwise. In particular, the legislature should be bound by the rules of the constitution even if they are subsequently found to have been incompetent to understand what they agreed to.

So what I propose is that concerned folk, that love Freedom and believe in The Rule Of Law as a central plank of the means to create circumstances conducive to Freedom, should endeavour to give concreate expression to the rights, privileges and duties associated with citizenship, public office and related rôles – and that the right form in which we should endeavour to express these things is roughly that of the contract; more accurately, it has the form of a covenant. The individual makes a commitment to abide by certain constraints; this should include declaring consent to be bound by certain rules and to accept certain punishments, within certain frameworks. If you want to operate dangerous machinery in a public place (e.g. drive a car), or chose to offer your services as a legislator (e.g. stand for public office), you would have to promise (in some enforceable manner) to uphold suitable responsibilties properly related to the privileges and authority you thereby seek.

I'll have a crack at it myself, but the point of the exercise is mostly to get other folk to see what they come up with, so that we get somewhere near to comprehending the enormity of the problem and the extent to which some things are so damn serious we should do them even before we've solved the whole problem. My take on this is to use XHTML and CSS so that I can specify a bunch of promises to be made by parties in various rôles, ranging from those who draft amendments to the constitution (promising to diligently think about what they're doing) to those who take up the privilege of getting to vote in referenda and elections to select public officers (promising to diligently think about what they're doing).

Post script

Interestingly, I find (2009/May) a novel declaration of independence, that doesn't speak of instituting new government when discarding old, so much as of discarding government.

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