Pre-existing Law v Positive Law
Are we an Empire of Laws or merely an Empire of Men?
I want to take complex topics from political philosophers and break them down into tiny bite-size pieces to give away. Too often we simply accept that we will be governed, but we fail to stop and think about what that looks like or ask the deeper questions. “What is the proper role and function of government?” “Where does the authority to enact laws that constrain our behavior come from?”
The first question I want to address is from where does the authority to enact laws come? In terms of political philosophy, the question would be, “do we as a nation embrace as our ultimate foundation solely positive law or do we accept that there are pre-existing laws?” Those societies who believe in positive law embrace the supremacy of man-made law. Those who believe in pre-existing law believe there are certain rights and wrongs that inherently exist and it is our duty to ascertain those laws and implement them within civil society. It is important to note that believing in pre-existing laws, does not prohibit you from accepting that positive laws may be appropriate within certain areas. For example, there is such a legal delineator between what is malum in se and what is malum prohibitum. In short, there are some behaviors we accept must be legally constrained as inherently wrong, like murder. Such behavior is of the magnitude that mankind does not have the discretion to condone it. Meanwhile there are other laws that man may subjectively enact for the benefit of social order, like a 35 mph speed limit, but these laws do not constrain behavior that is otherwise inherently wrong.
However, whether a society accepts the legitimacy of pre-existing law or not gives insight into its foundation of government. Societies driven by the supremacy of positive law tend to embrace more of a rex lex mentality, “the king is the law.” The king doesn’t have to mean a literal king. It can be exchanged by any man or group of men from a monarchy, aristocracy, oligarchy or democracy. In short it is a governmental system where mankind himself ultimately determines what is right or wrong. Conversely, societies who embrace pre-existing law tend to adopt a lex rex mentality, “the law is the king.” Such societies accept that there are certain rights that pre-exist the creation of any governmental structure. Accordingly, they create governments that can be defined as an empire of laws NOT of men. Sound familiar?
Now, based on the above information, can you discern what type of government our founding fathers established: one that embraced pre-existing law or merely positive law, and were we intended to be a lex rex or a rex lex?