A Government of Force or a Government of Laws?

Recent events here in America have increasingly exposed the rapid collapse of the idea of authority in late modernity. Authority, as Oliver O’Donovan has frequently noted, has a mysterious, elusive quality, and it can disappear in a hurry. This is not to say that authority may not be objective; there are indeed authorities which morally demand our respect and obedience whether or not we are inclined to grant them this claim. But to be effective, authority has to be believed in. In this, it is much like credit, and a credit crisis (that is to say, a financial crisis) has the same logic of self-fulfillment that an authority crisis has.

In a credit crisis, some parties begin to doubt whether or not creditors will in fact have the funds to repay them. They begin to demand more collateral, or earlier repayment, and become more hesitant to extend credit themselves. As a result, creditors who otherwise were perfectly solvent suddenly find themselves teetering on the brink. If any of them fail, this is taken as proof that the crisis of confidence was warranted, and credit tightens further, leading more banks to fail, and so on, potentially resulting in a full-blown depression.

In an authority crisis, people begin to doubt whether the laws that command obedience actually have any moral authority after all, or are not simply the tools of the powerful to extract compliance by force. They begin to push the limits, increasingly ignoring laws that are not actually enforced, and disobeying whenever the authorities aren’t looking. In response, the authorities step up enforcement, trying to compensate for the lack of self-government by resorting to force and punishment. The citizenry take this as proof that their earlier lack of confidence in their authorities was warranted, and that are subject to a regime of pure arbitrary force. They begin to openly defy the laws, leading to harsher crackdowns, and potentially resulting in full-fledged violent conflict and perhaps revolution.

Of course, the converse of these principles is true, but not absolutely. In large measure, a willingness to trust creditors can indeed make them more trustworthy: as credit becomes easier, creditors become more and more able to repay, and the reposal of trust is warranted. Likewise, a citizenry that takes the authority of law seriously finds that force is employed less and less to ensure compliance, and thus the citizens’ trust that law and freedom are compatible is increasingly vindicated. But of course, this cannot be an argument for simple credulousness toward either creditors or lawmakers, both of whom merit at all times some level of distrust–and at some times, a great deal of distrust. This, then, is the great challenge of the idea of the rule of law: to sustain just enough confidence in it to render it stable and self-authorizing, without giving it a free pass to abuse its power and promote injustice under the name of law.

The following passage from Alexander Hamilton’s Tully essays, penned in response to the Whiskey Rebellion of the early 1790s (the first tax rebellion against the federal government) is well-worth reflecting on in light of these meditations:

“If it were to be asked, What is the most sacred duty and the greatest source of security in a Republic? The answer would be, an inviolable respect for the Constitution and the Laws—the first growing out of the last. … [A] large and well organized Republic can scarcely lose its liberty from any other cause than that of anarchy, to which a contempt of the laws is the high road.

But, without entering into so wide a field, it is sufficient to present to your view a more simple and a more obvious truth, which is this—that a sacred respect for the constitutional law is the vital principle, the sustaining energy of a free government.

Government is frequently and aptly classed under two descriptions, a government of force and a government of laws; the first is the definition of despotism—the last, of liberty. But how can a government of laws exist where the laws are disrespected and disobeyed? Government supposes control. It is the power by which individuals in society are kept from doing injury to each other and are brought to co-operate to a common end. The instruments by which it must act are either the authority of the laws or force. If the first be destroyed, the last must be substituted; and where this becomes the ordinary instrument of government there is an end to liberty.

Those, therefore, who preach doctrines, or set examples, which undermine or subvert the authority of the laws, lead us from freedom to slavery; they incapacitate us for a government of laws, and consequently prepare the way for one of force, for mankind must have government of one sort or another.

There are indeed great and urgent cases where the bounds of the constitution are manifestly transgressed, or its constitutional authorities so exercised as to produce unequivocal oppression on the community, and to render resistance justifiable. But such cases can give no colour to the resistance by a comparatively inconsiderable part of a community, of constitutional laws distinguished by no extraordinary features of rigour or oppression, and acquiesced in by the body of the community.

Such a resistance is treason against society, against liberty, against everything that ought to be dear to a free, enlightened, and prudent people. To tolerate were to abandon your most precious interests. Not to subdue it, were to tolerate it. Those who openly or covertly dissuade you from exertions adequate to the occasion are your worst enemies. They treat you either as fools or cowards, too weak to perceive your interest and your duty, or too dastardly to pursue them.”