The Volokh Conspiracy
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Is the head of the government subject to the law, or above the law? This was the central question of the political crisis that caused the English Civil War in the 17th century, against the absolutist claims of King Charles I. The answer to this question is one of the foundations of the Declaration of Independence.
In 1644, the Scottish Presbyterian Samuel Rutherford published "Lex, Rex, or the Law and the Prince." The point of the title was that the law precedes the king; the monarch must obey the law. "Lex, Rex" refuted the royal absolutists who claimed rex est lex loquens – the king is the law speaking.
The antecedent for King Charles's principle was the despotism of the late Roman Empire. The antecedent for Rutherford's was the Old Testament. There, the definition of the Hebrew nation is the people who live according to the law given by God. The Anglo-American ideal of "the rule of law" embodies Rutherford's principle. The law, not the individual who heads the government, is the supreme ruler. The true source of law is not the king's will, but God's will. King-made "law" that is inconsistent with God's law of natural justice and goodness is mere pretend law, not true law.
Rutherford used the Scholastic model of questions, assertions and arguments. Unlike some other Protestants, Rutherford quoted from and built explicitly on the Thomas Aquinas and other Catholics, such as the Spanish Second Scholastics Francisco Vitoria and Francisco Suárez. Like the Scholastics, Rutherford paid great attention to Aristotle and to the political history of ancient Greece and Rome.
He agreed with the Scholastics that man was by natural birth free. "Every man by nature is a freeman born, that is, by nature no man cometh out of the womb under any civil subjugation to king, prince, or judge, to master, captain, conqueror, teacher, &c." Accordingly, sovereignty was inherent in the people, and was only conditionally granted to kings by the people.
Like previous resistance theorists, Rutherford extrapolated a right of resistance from the natural right to self-defense. Thus, because God has dominion over life and death, suicide was a crime against God. A person who did not defend himself "is guilty of self-murder, because he is deficient in the duty of lawful self-defence." Like most Catholic or Calvinist philosophers of the time, Rutherford moved seamlessly between natural law and the Bible, considering them perfectly compatible.
One way a well-ordered society preserved a proper balance of power was ensuring that government did not have all the weapons: "To denude the people of armour because they may abuse the prince, is to expose them to violence and oppression, unjustly; for one king may more easily abuse armour than all the people; one man may more easily fail than a community." (Rutherford was using "armour" in the older sense, by which "arms" and "armour" were interchangeable.) On the final page of "Lex, Rex," Rutherford stated that the "public magazine, militia, armour, forts, and strongholds" did technically belong to the king, but only in the sense that he was the trustee to see that they "be employed for the safety of the kingdom." The true owner of the militia, the weapons and the forts was the people.
Rutherford cautioned that a single bad act by a ruler did not justify revolution. Only if the ruler were systematically destroying the fundamental structure of society would the tremendous step of revolution be necessary. The 1776 American Declaration of Independence echoed Rutherford's belief, explaining that "Governments long established should not be changed for light and transient cause. . . . 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 [the people's] right, it is their duty, to throw off such Government." The Declaration then provided a litany of King George's abuses which proved the King's intent to destroy civil society: "a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States."
Although not explicitly religious, the Declaration made a covenantal argument, that the king was violating his contractual duties that the people had entrusted him to perform: "that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it."
Rutherford argued that the people must address government abuses through methods that create the lowest level of disruption that was practically possible. Supplication was the first choice, flight the second option and use of force the last resort.
Similarly, the Declaration of Independence explained that the Americans had repeatedly asked the British for redress of their grievances and been met with constant rebuff. Fleeing to another country was not a realistic option for the entire American people. Accordingly, violent revolution was justified.
Rutherford also relied on Roman law, especially Justinian's "Corpus Juris." The "Corpus Juris" said that "it is lawful to repel violence by violence." Like many writers of the Middle Ages and Reformation, Rutherford argued that the principle meant that it was lawful to resist unlawful tyranny. He acknowledged that sometimes tyrants were sent by God to punish a people for their sinfulness. But it was still lawful to resist tyrants. After all, God sometimes sent famine to punish a people, but it was lawful in a famine to attempt to grow crops and obtain food.
There was little risk that the right of revolution would lead to chaos. Just as the Bible clearly explicated the fundamentals of faith, so that heresy was easy to discern, natural law made tyranny easily discernible. The well-formed conscience would tell the people whether obedience to a law was contrary to natural justice. In some cases, an individual would have the duty to use violence against a king, as when a king attempted to force someone to commit adultery or sodomy. For general political oppression, the proper leaders of resistance were the intermediate governors (e.g., barons, local officials or, in an American context, the state governments) rather than the people themselves.
"Lex, Rex" was instantly banned in Britain and Scotland. In 1688, Rutherford was charged with high treason, but died before he could be tried.
Despite the ban, "Lex, Rex" was widely read by Protestant dissidents and marked a major evolution in Protestant political thought. More than any previous English-language text, "Lex, Rex" developed a theory of the how, when and why of revolution.
"Lex, Rex" was transmitted to the American public mainly through John Locke's "Two Treatises of Government." Locke's second Treatise developed a secular version of Rutherford's right of revolution, mixed with other Calvinist theory, and with non-religious sources. Thomas Jefferson later explained that the Declaration of Independence did not aim to express new principles, but was based on "the American mind," including ideas expressed by "the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, &c." (Letter to Henry Lee, May 8, 1825.)
President John F. Kennedy, in his 1961 inaugural address, said that "the same revolutionary beliefs for which our forebears fought are still at issue around the globe." Among those issues, around the globe and here in the United States, is the rule of law, Lex Rex. American presidents have sometimes acted as though they were above the law; the behavior and rhetoric of candidates Clinton and Trump does not inspire confidence they consider themselves bound to rule according to law.
Independence Day can be a time for reflection about whether the United States will continue to be, in the words that John Adams put into the 1780 Massachusetts Constitution, "a government of laws and not of men."
The above essay is adapted from my forthcoming book, "The Morality of Self-Defense and Military Action: The Judeo-Christian Tradition."