CAN A RULER BE ABOVE THE LAW?
Written by Vladimir Moss
CAN A RULER BE ABOVE THE LAW?
The clear answer to this question, according to contemporary thinking, is: no. Indeed, one of the main criteria by which “the international community” decides whether it can accept a country into its blessed company is: does the ruler of this country, whether that be a single man, an oligarchy or a parliament, follow the rule of law, not least his or its own laws? However, the recent statement by the British Prime Minister Boris Johnson that he would be prepared to break the law, if necessary, in order to take his country out of the European Union (with or without a deal with the EU) raises the question again in a particularly acute form.
The word “autocrat” means “self-ruling”. The Byzantine and Russian rulers called themselves “autocrats” because they considered themselves self-ruling in the political sphere. However, they were not absolutely autonomous because as Christians they accepted the Law of God and the canon law of the Church. Thus in the ninth-century Byzantine Epanagoge we read: “The Emperor must act as the law when there is none written, except that his actions must not violate canon law. The Patriarch alone must interpret the canons of the ancient (Patriarchs) and the decrees of the Holy Fathers and the resolutions of the Holy Synods” (Titulus III, 5).
The presumption, therefore, is that the Emperor should obey the written law as it stands, and must obey his own laws, but can make new laws and modify existing ones. However, he cannot modify or disobey the Law of the Church. In this sense, and in this sense only, he is not above the law. If he does put himself above the Law of God and the Church, he becomes an absolutist monarch, or despot. The Byzantine and Russian autocrats were not in general despots, although the Arian and iconoclast emperors, Ivan the Terrible in the second half of his reign and Peter the Great from 1700 until his death were indeed despots.
Almost all modern rulers, even if they have been elected by the people (indeed, very often because they have been elected by the people), are despotic because they believe that they have the right – even the duty – to legislate contrary to the Law of God. Thus it is lawful in almost all modern democracies to blaspheme against God and Christ, to kill unborn babies in the womb and to practice homosexuality. Moreover, those who champion the Law of God in these instances are likely to find themselves condemned by the law, even imprisoned. Therefore modern rulers do not obey the law and are strictly speaking illegitimate.
Does that mean that the Christian people should rebel against their rulers? If the rulers compel them to transgress the Law of God, then yes, they must refuse to obey. But armed insurrection is neither practical in most cases nor mandatory. The Three Holy Youths refused to obey Nebuchadnezzar’s command to worship the golden idol, but they did not rebel against his rule in general. Indeed, the Lord through the Prophet Jeremiah had told the Jews that they must accept his yoke: “Seek the peace of the city where I have caused you to be carried away captive, and pray to the Lord for it; for in its peace you will have peace…” (Jeremiah 29.7). Similarly, the early Christians refused to obey the Roman emperor’s command to worship him as god. But in general they obeyed and prayed for him, for they saw in him “a terror not to good works, but to evil” (Romans 13.3).
The great advantage of a truly autocratic ruler is that, without having to obtain the will of the people, who may be evil or corrupted or simply divided amongst themselves, he is able to sweep away bad laws and evil traditions and create new ones (or restore old ones) that are concordant with the Law of God and the Sacred Tradition of Holy Orthodoxy. Of course, he can also use – or rather, abuse - his power to do exactly the opposite: there can be no guarantee of infallibility or consistency where fallen human beings are involved. Thus Ivan the Terrible was a true autocrat in the first half of his reign, but turned into a despot in the second half.
Both good autocrats and evil despots are sent by the Providence of God for the ultimate spiritual benefit of His people. Thus St. Irenaeus of Lyons writes: “Some rulers are given by God with a view to the improvement and benefit of their subjects and the preservation of justice; others are given with a view to producing fear, punishment and reproof; yet others are given with a view to displaying mockery, insult and pride – in each case in accordance with the deserts of the subjects.”[1] Again, St. Isidore of Pelusium writes that the evil ruler “has been allowed to spew out this evil, like Pharaoh, and, in such an instance, to carry out extreme punishment or to chastize those for whom great cruelty is required, as when the king of Babylon chastized the Jews.”[2]
In our age, when the people have been indoctrinated with anti-christian teachings already for centuries, it is almost inconceivable that a popular vote should re-establish Orthodoxy or even common sense. This is not to say that there are no people who have preserved a core of healthy thinking. But such people are in a minority now, and they need a leader if they are ever to have their healthy thinking restored to a dominant place in society. God can raise such a leader now, as He has done more than once in the past. But it is essential, if that leader is to accomplish his God-pleasing task, that he is not subject to the rule of any law except God’s law; for what goes for “law” now in our society is as often as not a terror, not to evil works, but to the good…
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It may be objected to this argument that only the insistence that nobody, including the ruler, is above the law can guarantee the absence of despotism, or check a potential despot’s cruelties and arbitrariness.
However, this is a false argument for several reasons.
The first is essentially philosophical: in any state or system of government there must be a sovereign power; if there is no such power, then we are in effect dealing with a power vacuum, or anarchy. That sovereign power, of whatever kind it may be, whether monarchical, oligarchical or democratic, is necessarily above the law because it makes the laws. To say that the law-making power is subject to the law makes sense only if we are talking about existing laws, which the power has itself endorsed. But in a general sense the law-making power remains above the law because it can change the existing laws, revoking its endorsement; and in essence there is no body higher than it say that such-and-such a law or change to the law is unlawful.
In some modern states there are constitutional courts that can decree whether a proposed law or change to the law is in accordance with the highest law of the land, which is the constitution. It is on this basis that some Brexiteers in Britain assert that Britain’s entry into the European Union in 1974 was unconstitutional insofar as it made European law higher and more binding than the laws passed by the British parliament, whereas the sovereign power in the United Kingdom, according to the (admittedly unwritten) British constitution, is “the Queen in parliament”. The weakness of this argument is that, unconstitutional though this change in the sovereign power may have been according to the old system of British governance, by acceding to it in 1974 the British parliament in effect changed the constitution, signing away its own sovereignty (not to mention the Queen’s). The importance of the argument lies in the fact that it indicates that there is a sovereign power that is above existing law and able to change even the highest law, that is, the constitution, and that what happened in 1974 was in effect a constitutional coup, a change in the sovereign power (which the Brexiteers are now trying to reverse). The conclusion must be that there always is a sovereign power, but that a sovereign power can, for whatever reason, voluntarily or involuntarily, decide to divest itself of power and transfer its power to some other man, body or even state.
The second reason is historical: a potential despot, if he is determined and clever or simply powerful enough, can always manipulate the law and the law-making body in order to make himself the real sovereign power. The first clear historical example of this was Julius Caesar’s assumption of the dictatorship in the Roman republic with the blessing of the law-making senate. A more recent example was the coming to power of the socialists in October, 1917 in Russia, a coup that was confirmed by the elections to the Constituent Assembly later in the year, in which 80% of the Russian electorate voted for socialist parties. Still more recent was the election of Adolf Hitler as chancellor of Germany through a perfectly lawful democratic election.
In our time, according to some, President Trump is also striving for a kind of dictatorship through his cunning use of presidential executive orders.
That may be so, but in the present writer’s opinion, a much clearer example is provided by Russia’s President Putin. Elected initially in a democratic election, he has gradually undermined the electoral process through fraud, violence and bribery, violated the constitution (which forbade his having a third term as president) and taken all power into his own hands in what he revealingly calls Russia’s “sovereign democracy” – that is, a “democracy” in which he is sovereign. Now the very idea that he could be removed from power is mocked; liberalism, says Putin, is dead (see Timothy Snyder’s brilliant analysis in The Road to Unfreedom, London: Vintage, 2018).
All this is not to deny that, in conditions of despotism or incipient despotism, an appeal to keep the law, and make the ruler subject to it is both natural and eminently desirable. But the essential point is that real freedom – that is, the freedom to obey the Law of God – is not and never has been guaranteed by democratic procedures or the laws of the state. Men are higher than laws, and the sovereign power that makes and unmakes laws are always composed of men. If the men are good, they will produce good laws, conforming to the Law of God, which it is right that everyone should submit to; if they are evil or weak, they will submit to the prevalent Zeitgeist or the latest Bonapartist adventurer, and the result will be despotism and violation of the Law of God, however immaculately democratic and full of safeguards the constitution may be. For there is no real safety outside God, the only true ruler in the kingdoms of men, Who, as the Prophet Daniel says, raises and deposes human rulers in accordance with His sovereign will.
August 25 / September 7, 2019; revised August 27 / September 9, 2019.
[1] St. Irenaeus, Against Heresies, v, 24, 3; translated in Maurice Wiles & Mark Santer, Documents in Early Christian Thought, Cambridge University Press, 1977, p. 226.
[2] St. Isidore, Letter 6, quoted in Selected Letters of Archbishop Theophan of Poltava, Liberty, TN: St. John of Kronstadt Press, 1989, p. 36.