Okay, so I had quite a lot written in response to this that I just deleted because I was getting too frustrated and it was getting off target anyway. I truly do not understand why I can't seem to find the words needed to make you see the point here. It's clearly a paradigm issue. Once you see it, you'll wonder why you ever thought otherwise because what I'm saying here is quite air tight. (Of course, you think your position is just as air tight!)
Au contraire...
You've definitely revealed several weak points in my position that I previously did not have answers to, but which have now been shored up. So thanks for that!
And if you can establish the
must I outline below, then my position collapses outright, because Bob's arrangement would in fact be unjust and therefore indefensible.
That said, perhaps I'm not the only one suffering from a little paradigm blindness here.
But that's why we're here, isn't it!
And I think this post actually gets us considerably closer to identifying where the core disagreement really is.
I've condense my response to a direct response to what you said at the end of your post, and even that ended up being quite long.
Justice is what establishes the moral justification for jurisdiction, and that follows from the very meaning of the word.
Jurisdiction, noun:
1: the power, right, or authority to interpret and apply the law.
https://www.merriam-webster.com/dictionary/jurisdiction
The constitution (the highest law of the land) establishes which offices possess that jurisdiction and how they exercise it. Justice, however, is what establishes the moral legitimacy of the laws themselves. You seem to be demanding that I establish the former before you'll acknowledge the latter, but would be to put the cart before the horse. Obviously, it's possible to have laws that are unjust. We have plenty of those right now, but we're discussing what a just government ought to look like, and in that context, the laws and the jurisdiction established to enforce them must be grounded in justice. Otherwise, what are we talking about? One of us would be advocating an unjust governmental arrangement, which has been my point all along. The laws governing criminal justice must be based on principles of justice, not the other way around. It is not law that defines justice. It is justice that determines what the laws should be.
Agreed, with one important qualification.
Justice is antecedent to positive law. The constitution does not create justice, and the jurisdiction it establishes ought to be morally consistent with justice.
But that is not the same thing as saying that justice, merely by definition, uniquely determines what jurisdictions a constitution
must create.
Justice can supply moral reasons for creating jurisdiction without every such reason becoming an absolute requirement to create that jurisdiction.
Jurisdiction answers the legal question of who possesses authority to interpret and apply the law. Justice supplies the moral standard by which that allocation of authority can be judged.
And there may be more than one morally permissible allocation.
So I agree that justice must justify and constrain jurisdiction. What I do not grant is that “justice justifies jurisdiction” gets us automatically to:
Justice requires some domestic human authority to possess punitive jurisdiction over every officeholder, including the highest earthly ruler.
That still requires an argument.
Where I think you have now gotten is this:
1. Justice objectively determines what is right and what punishment wrongdoing deserves.
2. Civil government has been delegated authority by God to administer civil justice.
3. Therefore, those constituting a government have a genuine moral reason to distribute jurisdiction so that the government can carry out that purpose, including against rulers who themselves commit crimes.
I think that gets you farther than your earlier argument did.
For shorthand, I'll call that
should, but I mean a genuine
prima facie reason in favor of the arrangement, not yet an overriding moral obligation.
What I don't think you've established is
must.
In other words, you've established a genuine consideration of justice in favor of making every ruler domestically reachable.
You have not yet established that this one consideration of justice categorically overrides every competing consideration involved in structuring a government.
And by “prudential” I do not mean “morally irrelevant.”
I mean the practical judgment required when several legitimate considerations of justice must be administered by fallible men and cannot all be perfectly secured at once.
Protecting the innocent is a matter of justice.
Punishing the guilty is a matter of justice.
Preserving rightful authority is a matter of justice.
Preventing usurpation and abuse of coercive power are matters of justice.
Maintaining civil order is a matter of justice.
The difficulty is that no human constitutional arrangement can perfectly maximize all of them simultaneously.
That is why prudence enters the picture.
And that distinction matters because justice itself is perfect, but our
human administration of justice in a fallen world never will be.
No constitution can guarantee all of the following:
- That every guilty man will be punished.
- That no innocent man will ever be punished.
- That every wicked ruler will be removed.
- That no righteous ruler will ever be wrongfully removed.
- That every judge will judge rightly.
- That every prosecutor will act justly.
- That every institution will remain independent and uncaptured.
- That every conflict of jurisdiction will be resolved peacefully and correctly.
Those are all things a just government ought to desire.
But no arrangement of sinful, fallible men can perfectly secure all of them.
Scripture itself repeatedly recognizes that justice is administered among sinful men under non-ideal conditions. That does not make injustice just. It means that the human administration of justice necessarily involves limitations and prudential judgments.
So the constitutional question cannot simply be:
What power would help us correct this particular injustice?
It must also include:
What new powers, risks, and possible injustices are created by granting that power?
I'm not arguing that some particular individual automatically acquires jurisdiction over the king the moment the king commits murder. I'm arguing that a just government ought to be constituted in such a way that someone has that jurisdiction in the first place. In either of our proposed governmental arrangements, the constitution establishes the jurisdiction of its various officers. Your arrangement terminates human criminal jurisdiction at the king and does so without any demonstrated moral justification. Mine provides a lawful means of prosecuting even the highest magistrate. Neither arrangement derives its particular offices or their respective jurisdictions directly from Romans 13. Both are human arrangements for exercising authority that God has delegated to civil government. The question is which arrangement actually fulfills the moral purpose for which God delegated that authority.
And this is where I think the disagreement has finally become very precise.
You have supplied a moral reason why a constitution
ought to make the king reachable:
Doing so allows civil government to punish a murderer who happens to occupy its highest office.
That is a real advantage of your arrangement.
But an advantage is not yet an absolute requirement.
Because the power you create to solve that problem is itself governmental power.
A constitutional check does not eliminate power. It reallocates power to someone else.
Your arrangement gives some other human authority the power to investigate, adjudicate, convict, and ultimately remove the king.
That can be used against a murderous king.
It can also be used against a righteous king.
The same institutional machinery that prevents one possible injustice introduces the possibility of another.
That does not make your arrangement unjust.
It means it has a tradeoff.
And so does mine.
You've already conceded that a murderous king deserves punishment, that he can become morally unfit to rule and that a constitution can legitimately establish a means of removing him. You've also acknowledged that such a provision isn't inherently unjust. So, there's no longer any dispute about whether a government can legitimately establish such jurisdiction. The question is whether justice requires it, and that's the question I've been answering all along.
Right.
And this is exactly where I think we now are.
You have established:
CAN.
We agree a constitution can establish such jurisdiction without thereby being inherently unjust.
And I think you have now supplied a meaningful argument for:
SHOULD.
By that I mean there is a genuine moral reason in favor of making a murderous ruler domestically reachable. There is an obvious good accomplished by doing so.
But a moral reason in favor of a power is not yet an overriding obligation to create that power.
Your conclusion requires:
MUST.
That is the step I still don't see established.
To get from
should to
must, you need something stronger than the fact that your arrangement better secures one particular consideration of justice.
You need to establish that domestic reachability of every officeholder is a categorical requirement of justice, such that the competing considerations of justice involved in creating that jurisdiction cannot permissibly outweigh it.
Otherwise, we are comparing competing institutional arrangements for fallible men.
And once we reach that point, prudence is unavoidable.
Your position would have us deliberately establish an office whose occupant cannot be prosecuted by the government for murder or other egregious crimes, even though that same government possesses God given authority to prosecute murderers. What moral principle justifies that exemption?
This still describes the arrangement as an “exemption,” which assumes that universal domestic jurisdiction is the moral baseline.
But that is precisely the
must you haven't established.
My position does knowingly accept a particular failure mode:
The highest earthly ruler may commit a crime for which no domestic authority has jurisdiction to punish him.
Your position knowingly accepts different failure modes:
The authorities empowered to judge the ruler may falsely accuse him, abuse their jurisdiction, become captured by the same faction, collude against him, or create irreconcilable conflicts among competing organs of government.
And yes, there is a distinction: my jurisdictional limit is deliberate, while some of those outcomes would be abuses of your machinery.
But deliberately limiting a power because of the injustices that power can produce is itself a normal feature of constitutional design.
The reason for deliberately limiting a power can be precisely that every power we create will eventually be exercised by fallible and sometimes wicked men.
Neither arrangement eliminates the possibility of injustice.
The relevant question is whether justice categorically forbids one of those tradeoffs.
You say it forbids mine.
That is what you still need to demonstrate.
You keep insisting that human jurisdiction must terminate somewhere, but that's precisely the proposition that needs to be justified. Why must jurisdiction terminate at a particular person rather than being distributed among offices according to their respective responsibilities?
It does not necessarily have to terminate at a particular
person.
That is an important distinction.
Authority can be distributed among offices.
But distribution does not abolish finality.
When a concrete dispute is actually resolved, some human judgment ultimately becomes operative. And if two constitutional authorities make irreconcilable claims about their respective jurisdiction, the words written on the page do not resolve themselves.
Men interpret them.
Men adjudicate them.
And ultimately men either enforce a judgment, one authority yields, or the system remains deadlocked until the conflict is resolved some other way.
So the question is not whether authority can be distributed. Obviously it can.
The question is whether distributing it eliminates the problem of final earthly decision when the authorities themselves disagree.
It doesn't.
At most, it changes where and how that finality appears, or leaves the dispute unresolved.
The fact that governmental authority ultimately comes from God doesn't establish that every exercise of that authority must descend through one uninterrupted hierarchy ending in a single, judicially unaccountable individual. Romans 13 certainly doesn't establish any such requirement.
Agreed.
Romans 13 establishes the source of human governmental authority. It does not hand us a complete constitutional diagram.
The question of whether final earthly authority should be concentrated in one office or divided reciprocally among several offices is therefore a question of governmental design.
Which is precisely why the tradeoffs matter.
Once neither arrangement has been shown intrinsically unjust, we have to ask which arrangement is more likely to produce just government among sinful men.
That is where Bob's argument belongs.
I'm also not suggesting that justice creates jurisdiction out of thin air. I'm arguing that justice imposes a moral obligation upon those establishing a government to provide the jurisdiction necessary to administer it. The same God given authority that empowers civil government to punish murderers can be constitutionally assigned to an appropriate office for the purpose of holding even the king accountable. The constitution supplies the legal jurisdiction. Justice supplies the moral reason for establishing it.
And this is the strongest formulation of your argument so far.
I agree that justice supplies a moral reason for establishing such jurisdiction.
What I do not yet see is why it supplies an overriding moral requirement to establish it regardless of the other powers and risks that jurisdiction creates.
That is the difference between
should and
must.
If the sole purpose of constitutional design were maximizing the probability that every guilty person receives the punishment he deserves, then your conclusion would follow much more readily.
But that is not the only concern of just government.
A just government must also concern itself with protecting the innocent, preventing usurpation, preserving rightful authority, maintaining civil order, preventing the abuse of coercive power, and resolving disputes over who actually possesses authority.
Those concerns can conflict in practice.
A fallen government cannot maximize every one of them simultaneously.
That is why constitutional structure necessarily involves tradeoffs.
You keep asking what gives another human being the authority to prosecute the king. The answer is precisely the same thing that gives anyone the authority to prosecute anybody else! God has delegated the administration of civil justice to human government. The particular distribution of that authority is a matter of how the government is constituted, and that constitution ought to be consistent with the moral purpose for which government exists.
Agreed again, with one qualification.
The constitution
ought to be consistent with the moral purpose of government.
But that does not mean every governmental power that would advance one aspect of that purpose therefore
must be created.
Otherwise that principle, standing alone, provides no principled stopping point.
Every additional power capable of preventing or correcting some injustice could be defended on the grounds that justice provides a moral reason for creating it.
But governmental power itself creates opportunities for injustice.
So constitutional design requires more than asking:
Could this power be used justly?
It also requires asking:
What can this power become in the hands of unjust men?
Lastly, your distinction between guilt and jurisdiction is perfectly valid, but it doesn't answer my argument. It merely explains how your proposed arrangement would operate. What I want you to explain is why justice permits us to deliberately establish a government that protects its highest officer from legal accountability for the very crimes that government was established to punish. What makes that arrangement morally just?
And I think this is where everything finally comes together.
The progression is:
1. Justice is objective. Murder deserves punishment.
2. Punishment must nevertheless be administered through rightful authority.
3. Civil government receives punitive authority from God.
4. You have now supplied a real moral reason for constitution-makers to distribute that authority so that even the highest ruler remains reachable.
5. That establishes a genuine moral reason, a prima facie
should, but not yet a categorical
must.
6. Perfect human administration of justice is impossible in a fallen world. Every governmental structure therefore has failure modes.
7. A constitutional check does not eliminate power. It reallocates power, and that new power creates its own possible injustices.
8.Therefore, unless universal domestic reachability is itself demonstrated to be an absolute requirement of justice, constitutional design necessarily becomes a matter of prudential tradeoffs among competing risks and goods.
9. Only then do we reach the question Bob is actually answering: which arrangement of fallible human rulers is more likely to produce just government?
So I think you've moved the argument forward.
You've gotten from
can to a meaningful
should.
What I still don't see is the
must.
And without that
must, pointing to a foreseeable failure mode in Bob's system does not establish that Bob's system is unjust.
It establishes that Bob's system has a tradeoff.
So does yours.
