Larry Barnett: Laws of Order

For centuries, we in America have thought of ourselves as a nation of law and order. Between the two, law has maintained dominance while order has remained subordinate. That hierarchy now appears to be flipping.

Democracy’s weakness is itself, which in their wisdom our founding fathers understood. Unless law takes precedence, order leads to tyranny. Hence, our “nation of laws” embodied in a written constitution was established. The courts would provide, they planned, a “check and balance” against the other two branches of government, the legislative and executive, both of which would be subject the rulings of the courts. So the theory went.

Accordingly, the legislative representatives would write the laws, the executive branch would enforce them, and the courts would step in if controversy or interpretation was necessary. Brilliant. To work, however, this plan requires an absence of corruption, which in the case of human society is a tough bill to fill.

Legislative corruption means bad laws get passed; executive corruption means laws are applied selectively; legal corruption means the law’s intent is perverted. When law is corrupted, it becomes the servant of order, meaning a minority gains power – physical, economic and social – to impose their will on the majority. We call this tyranny.

That “no person is above the law” presupposes an honest, uncorrupted court, but that too has always been a challenge. Despite ethical tenets, the rigor of law school, Bar Association rules, and the risk of impeachment, many sitting judges make partisan decisions. In theory, the higher the court, the more judicious its members, but in practice this assumption has proven itself false. Politically based appointments to the Supreme Court have corrupted the court’s process.

When court’s fail to uphold the law, or if the executive branch refuses to honor court decisions, the whole system of law breaks down, leaving order as the only active principle. And when it comes to imposing order, history often records its instrumental cruelty.

Order is the highest priority of authoritarians, and unfortunately, average people succumb or adapt to it all too easily. The imperatives of modern life – staying housed, fed, healthy and taking care of family – are nearly all-consuming, and leave little time for most people to contemplate what the nature of a good society is or could be. Self-interest takes command, and if it means bending to the iron will of order to put food on the table, so be it.

Most Americans accept that others have power to tell us what to do, and it’s a hallmark of an orderly society that we obey lawful commands. What’s ironic is that the most devoted libertarians among us are now the ones attempting to impose order on the rest of us. Libertarianism, it turns out, is just another way to control people.

Our founding fathers feared that corruption could allow tyranny to take control and impose its will, threatening democracy. Today that corruption – through the power of big money – has largely succeeded in taking control of our government. Former President Dwight Eisenhower warned us about the “military-industrial complex” but today it’s to the order of the richest men in the world we have succumbed, the “billionaire-political complex.”

The world’s richest, with trillions at their disposal, don’t care about American democracy, and the rule of law be damned, care only in establishing order, namely their own.