Constitutional Monarchy

[Clete]

TL;DR: "A removal mechanism controlled by the king cannot restrain him. A removal mechanism not controlled by the king outranks him."





Clete,

I'm going to answer posts 303 and 307 together, because the removal mechanism in 303 depends on the altered judicial structure in 307.

Let me start out by saying that I completely understand the concern. An evil king is a real danger. I won't deny that. The question is whether your proposed remedy actually solves that danger, or whether it creates a deeper structural problem.

As I understand your proposal, an accusation against the king would begin low in the judicial hierarchy and then be escalated upward. If the accusation survives that process, the highest-ranking judges would hear the case, determine whether the king had systematically violated the Constitution or Criminal Code, and, if necessary, remove him. Then, in post 307, you propose a judicial structure that is not merely appointed at the king’s pleasure, but derives its authority from the Constitution itself, with judges selected from below and confirmed upward.

That is a more careful proposal than a democratic recall or parliamentary impeachment. But I still think it fails.

The problem is simple:

Either the king has meaningful control over the judiciary, or he does not.

If the king has meaningful control over the judiciary, then an evil king need only appoint, promote, confirm, or favor men loyal to him, dependent on him, or at least unwilling to oppose him. He does not need to abolish the removal mechanism. He only needs to control the men who operate it. A patient evil king would not wait until charges were brought against him. He would spend years shaping the judicial hierarchy, rewarding cowards and loyalists, marginalizing righteous judges, and making sure that by the time a charge was serious enough to escalate, the men above it were already compromised.

So in that case, the removal mechanism only works against a careless evil king. It does not work against a calculating one.

But if the king does not have meaningful control over the judiciary, then the judiciary has become an independent power center. And if that independent judiciary can indict, try, condemn, and remove the king, then the king is no longer the supreme earthly civil authority. The judiciary is.

That is the dilemma.

A removal mechanism controlled by the king cannot restrain him.
A removal mechanism not controlled by the king outranks him.

And that second option is not monarchy in the meaningful sense Bob was defending. It is judicial oligarchy with a king beneath it.

You say this would not put anyone above the law, because the judges would merely be enforcing the law. But law does not enforce itself. Men enforce it. Men interpret it. Men decide what counts as “systematic violation.” Men decide whether the accusation is credible. Men decide when the king has lost legitimacy. Men decide whether he is removed. Men command the force necessary to carry out the judgment.

So the question is not whether “the law” is above the king. The question is which men have final earthly authority to interpret and enforce that law against the king. The law may be above the king morally, but the men empowered to enforce it against him are above him civilly. If the highest judges have that authority, then they are above the king at the decisive point.

That brings us back to the larger principle (the overview) behind Bob’s proposed constitution. His objection to juries, committees, democracy, and bureaucracy was not merely that they sometimes make bad decisions. It was that they diffuse responsibility. They conceal blame. They create power without clear personal accountability.

Monarchy locates responsibility. One man bears final earthly responsibility. His actions can be named, recorded, judged by history, resisted by righteous men, and ultimately judged by God.

But your mechanism reintroduces diffused institutional authority at the highest level. The king may wear the crown, but the judicial class holds final power over whether he keeps it.

And history gives no reason to think such a mechanism would remain limited to obvious monsters. The first generation may use it only against a manifestly wicked king. Later generations may use it against an “unstable” king, or a “dangerous” king, or a king who “undermines confidence in the constitutional order,” or finally a righteous king who obstructs the dominant faction.

That is not hypothetical paranoia. That is what wicked men do with legal mechanisms over time.

The U.S. Constitution had checks and balances, divided powers, federalism, courts, elections, amendments, and enumerated rights. Yet those safeguards did not prevent the growth of a permanent ruling class, bureaucratic inertia, judicial invention, executive overreach, and massive violations of liberty when the ruling class decided circumstances justified them.

So I do not think the question is merely, “What do we do about an evil ruler?”

The question is whether there is any civil structure that can finally prevent an evil ruler, whether a king or a ruling class, from becoming the very vehicle that carries the nation down the path of anacyclosis.

Polybius is useful here. In Book VI of The Histories, he explains how forms of government tend to decay: monarchy into tyranny, aristocracy into oligarchy, and democracy into mob rule. So yes, monarchy can decay into tyranny. And in Polybius’ cycle, tyranny gives way to aristocracy, rule by the few who overthrow or replace the tyrant. That is a real danger. But it does not follow that the solution is to create an aristocratic or judicial power over the king, because that power has its own predictable corruption: it becomes oligarchy.

In other words, answering the danger of a tyrant by empowering the few over the one does not escape the cycle. It advances it.

A tyrant will eventually die. That does not make tyranny harmless, but it does mean the danger is personal, visible, mortal, and historically accountable. A ruling class, however, can become functionally immortal. It can reproduce itself through appointments, promotions, credentials, panels, procedures, precedent, and institutional culture.

If the answer to the rogue king is a standing judicial structure with final authority over the throne, even if its individual members change over time, then the monarchy has already been compromised. The rogue king problem has been answered by creating a rogue ruling-class problem.

That does not escape the cycle Polybius describes. It merely moves the point of corruption from the one to the few.

There will always be a ruling class. The issue is whether that ruling class is visible, personal, mortal, and historically accountable, or hidden behind panels, procedures, offices, and institutional language.

A tyrant dies. An oligarchy recruits.

Your proposal tries to keep the king under law, which is a good instinct. But structurally, it does so by placing the king under the judiciary. And once that happens, the judiciary becomes the true final earthly authority.

I haven't the time to respond to each point so I'll have to keep this generalized....

The point it seems you are missing is that judiciary is already under the law in the system that you are advocating. In other words, I am not placing the king under anything other than the law because the judiciary would have no power to make new law and there would be legal procedures in place to ensure that a rogue judge can be dealt with according to the law. All I'm doing is acknowledging that the King would be, as the highest judge, a part of that judiciary, which of course he is, and as such would be subject to the same penalties as any other judge if corruption was found in him. If there must be a hierarchy then the law itself should be at the top of the heap, not any man because the authority to have and enforce laws came from God. Why then should the man at the top of the legal system get to disregard that law if he so chooses to do so?

At bottom, the difference between our positions is that one of us believes that the law places someone above itself.

My question is...

By what right?

There can be no answer! Any right you describe would be a description of a law because that's what the law is, a delineation of rights and the consequences for violating them.

 

[Nick M]

Deuteronomy gives us some guidelines. Hopefully it won't matter soon.

 

[JudgeRightly]

I haven't the time to respond to each point so I'll have to keep this generalized....

The point it seems you are missing is that judiciary is already under the law in the system that you are advocating. In other words, I am not placing the king under anything other than the law because the judiciary would have no power to make new law and there would be legal procedures in place to ensure that a rogue judge can be dealt with according to the law.

But this simply relocates the problem.

You say the judiciary would be under the law.
So is the king.

You say the judiciary would have no power to make new law.
Fine. But that does not prevent the judiciary from using the threat of removal to influence the king’s rule. If the king knows that the highest judges can indict, try, remove, and replace him, then the judiciary does not need formal legislative power. It can control him by holding the removal process over his head.

At that point, the king may still wear the crown, but he rules under judicial supervision. That makes him less a monarch than a puppet of the men who can remove him.

And when you say there would be procedures to deal with rogue judges, the same problem returns: enforced by whom?

If those procedures are enforced by the king, then the king need only use that authority against any “rogue” judge who threatens his rule. A wicked king would simply define his righteous opposition as judicial corruption and purge the men most likely to bring charges against him. Which is exactly the point you made to me a while back when I brought up civil disobedience as a deterrent against an evil king, remember?

But if those procedures are not enforced by the king, then they are enforced by some authority independent of him. And that authority, not the king, is the final earthly authority. Over time, that is how you get an unelected evil institutional ruling class that can control the throne without openly wearing the crown.

So we are right back to the same dilemma I pointed out earlier:

"A removal mechanism controlled by the king cannot restrain him, and a removal mechanism not controlled by the king outranks him."

You have not solved the problem of an evil ruler. You have only moved the problem from the king to whichever men control the mechanism that judges the king.

All I'm doing is acknowledging that the King would be, as the highest judge, a part of that judiciary, which of course he is, and as such would be subject to the same penalties as any other judge if corruption was found in him.

Do you remember this image Bob made a while back? (one of three, iirc)



The relevant point is the authority-flow row.

This is where I think you are flattening the hierarchy. The king being the supreme judge in the land does not mean he is merely one judge within a judicial department. He is not simply the highest employee in the judiciary. He is the head of the civil hierarchy.

Righteous authority flows downhill. Authority comes from God, through the lawful ruler, and then down through subordinate offices.

A lower judge can be tried by a higher judge because authority flows downward from the superior office to the subordinate office. But if the highest judges beneath the king can try, condemn, and remove the king, then authority is flowing uphill.

If subordinate judges can remove the supreme judge, authority is no longer flowing downhill.

So the issue is not whether the king may commit corruption. Of course he may. The issue is whether there is an earthly civil authority above him with jurisdiction to punish him.

You are saying he should be subject to the same penalties as any other judge. But he is not “any other judge.” He is the final earthly civil authority. If he is punished by the judiciary, then the judiciary is the final earthly civil authority, not the king.

At that point, it does not matter that we still call him king. The bench has the final word over the crown.

If there must be a hierarchy then the law itself should be at the top of the heap, not any man because the authority to have and enforce laws came from God.

Yes, and that is already what the proposed Constitution has.

The king is under the law. He is not free to invent justice, disregard the Criminal Code, or rule as though God’s law does not bind him.

But saying “the law is above the judiciary” does not answer the question. I can say the same thing about the king. The king is under the law too.

That is the very point: both systems have men under law. The dispute is not whether someone is under the law, but who has final earthly authority to apply it when the highest authority in that system goes rogue.

You object that a rogue king may violate the law and that there must be some legal procedure to restrain him. But when I point out that your proposed judicial mechanism could also become rogue, your answer is that there would be legal procedures to restrain rogue judges.

That just pushes the same question one level higher.

Who enforces those procedures?
- If the king enforces them, then the king controls the mechanism that is supposed to restrain him.
- If the judiciary enforces them, then the judiciary is the final earthly authority.
- If some third body enforces them, then that third body is the final earthly authority.

You have not escaped the problem. You have only moved it to whichever man, panel, court, or institution gets the final word.

Every civil system eventually reaches a point where no higher earthly court exists. The question is where that point should be.

Bob’s system places final earthly civil authority firmly in one visible, mortal, historically accountable king under God’s law.

Your proposal places it in an institutional judicial class under God’s law.

So the question is not whether anyone is “under the law.” Everyone is under the law. The question is where final earthly jurisdiction resides.

Why then should the man at the top of the legal system get to disregard that law if he so chooses to do so?

He should not.

But that question assumes the very thing in dispute.

Saying there is no higher earthly court over the king is not the same thing as saying the king “gets to disregard” the law. It means he is the final earthly civil authority, not that he is morally permitted to violate God’s law.

The same problem exists in your system, just one level removed. If the highest judicial body is the final earthly authority, why should those men get to disregard the law if they choose to do so?

You can answer, “They should not.” And I agree. But that does not tell us who has final earthly jurisdiction over them.

So your objection does not eliminate the problem. It just moves it from the king to the judiciary.

Every system has someone at the top who, in the earthly civil sense, has no higher court above him. That's how God designed man to function. (Think of how even Abraham acted as the head of his tribe when he went out to recover Lot.) That does not mean he has a right to do evil. It means his accountability is not administered by a superior civil office.

The king is under God’s law. He is accountable to God, to history, to his own conscience, to public resistance, and eventually to death and judgment. But if another civil body can legally punish and remove him, then that body is the final earthly authority, not the king.

And that has far-reaching consequences... Consequences I think are more far-reaching than your proposal accounts for.

At bottom, the difference between our positions is that one of us believes that the law places someone above itself.

My question is...

By what right?

There is actually very little difference between our positions when they are considered as complete systems. In both systems, the ruler is under the law. In both systems, the judges are under the law. In both systems, everyone is morally bound by God’s standard of justice.

Both positions have men under law. Both positions recognize that law is the standard. Both positions still require some earthly authority to apply that law.

The only real difference is who has the final earthly say.

In my position, the king has the final earthly say under the law.
In your position, the judiciary has the final earthly say under the law.

So this is not a question of whether the law places someone “above itself.” It does not. No one is above God’s law.

The question is where final earthly jurisdiction resides. You place it in the highest judges. I place it in the king.

Because that is how authority is structured.

And if you ask, “By what right?” my answer is: by the nature of final earthly civil authority. Every civil system has it somewhere. Yours does too. You have not removed it. You have only moved it from one visible man to a panel of men who may or may not be just as evil as the king they seek to remove.

There can be no answer! Any right you describe would be a description of a law because that's what the law is, a delineation of rights and the consequences for violating them.

This still does not answer the issue with your addition.

Yes, law delineates rights and penalties. No dispute there.

But law does not act on its own. Law does not arrest, indict, try, sentence, remove, or execute judgment. Men do those things.

So when you ask, “By what right?” the answer is not that the king has a right to violate the law. He does not. The answer is that every civil order must have a final earthly authority responsible for applying the law, and your proposal has one just as much as mine does.

In my position, that final earthly authority is the king.
In your position, that final earthly authority is the judiciary.

You are not avoiding the need for final authority by saying “the law.” You are simply placing final authority in the men who get to interpret and enforce the law against the king.

So again, the disagreement is not whether law defines rights or whether the king is morally bound by law. The disagreement is whether final earthly jurisdiction rests in the king or in the judges who can remove him.

My position, and Bob’s as far as I can tell, is that creating a legal mechanism by which evil judges can remove a righteous king is not a solution to tyranny. It is only another road to it.

And like I said above, that has far-reaching consequences, very far-reaching indeed.