The Madness Has a System to It

Two great posts by my fellow contributors to RedStateEclectic encourage me to publish what were originally comments to Eric Parks' Pointless Pusillanimous Prognostication - the other post is Deborah Yost's recent Picture Worth 1,000 Words:

In my vision of a free society, the three branches of Government - the Executive, the Legislative, and the Judicial, would have a different character compared to prevalent practice.

The Legislative would be split into two, let's call them, chambers with distinct tasks. Legislative I would be concerned with Law proper, the general legal framework equally applicable and obligatory to all, including, of course, the Executive. Legislative II would be responsible for derivative Law - statutes, or what ever we choose to call it - which do not have the general, abstract character of Law proper, but contain (in large measure) specific directives to regulate and concretely manage the legitimate tasks of the Executive like, possibly, for instance, running the police force). The Executive would have a very much smaller and far less prominent role compared to today.

People would largely run their own lives, and if problems arise between people, they would take their issues to the Judiciary, whose many judges practice the Common Law, which must be in conformity with the Law proper, which in turn will be very circumspectly, very gradually and incrementally altered here and there if the experience of the many judges throughout the country show the need for such careful change.

National elections would not address highly specific issues (it is an idiotic idea to think that the average man is competent to understand and judge any specific issue a campaign happens to touch upon) but the fundamental questions of the Law proper - especially questions concerning alterations to the fundamental Law, and the question whether the Executive has faithfully remained one under the Law.

We can expect a people to form an OPINION on fundamental issues concerning the basic nature of the society they live in (which would focus people's attention on the right issues as opposed to making them "participate" superficially in a flood of undigested special questions, most of which should not be dealt with by the Executive) - what we cannot expect is that there is a uniform will of the majority concerning thousands of detailed issues - and, again, most of these issues should not be dealt with by giving anybody's WILL precedence, but by awaiting the outcome of an overall game played such that everyone observes the same rules of just conduct (Law proper).

Addendum:

The distinction between WILL and OPINION is important, because it helps understand the degeneration of democracy from a protection against tyranny to a source (and proudly believed in source of legitimation) of tyranny. We have good grounds to respect the opinion of the people but not the will of the people.

What is the difference between the terms WILL and OPINION, as used here by me?

WILL implies a specific outcome shaped specifically in the way a person wills that outcome. OPINION has room for a general disposition that does not necessarily entail a specific course of action or outcome. I am of the OPIONION that people should have protected property/ a protected private sphere, but I have no WILL what they should do within their protected property/private sphere. At least, I should not be allowed to exercise such a WILL if I have one.

We should focus on our ideas concerning the rules of the game, but not endeavour to impose our WILL so as to bring about specific outcomes (however desirable they may appear) that are not in line with the rules of the game.

Under the rule of law, as opposed to the rule of man, no one will be granted such a WILL, no king, no government, no majority.

The fundamental question in a free society is: are our rules good, not: what do you want?

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Undermining the intent of the Constitution, whose daily perversion is the main product of politics nowadays, has a long tradition in America that took its course practically from the time the Constitution was instituted.

One of the most powerful sources of the perversion of the Constitution, possibly THE most important, is the result of merging two entirely different tasks of the legislative in one and the same representative body.

Hence, my above proposal to strictly separate Legislative I (concerned with Law proper) and Legislative II (concerned with derivative Law).

Legislative II issues commands, directives, propositions designed to manage specifically for specific purposes (like how the police should be organised, which budget it should be given etc.)

So long as such directives are applied to legitimate tasks of the executive, i.e. tasks compatible with the Constitution and the rule of law, there is nothing wrong with issuing rather specific commands (compatible with and subservient to Law proper).

However, if you merge the power to instruct people specifically what they are to do with the altogether different task of stating generally applicable rules of just conduct (Law proper, the concern of Legislative I) you are bound to end up with a government that uses the dignity of Law proper to interfere concretely in a million different things that are not the responsibility of the Executive (which is effectively instructed by the Legislative). By this system, Government decides which "rules" it is to follow, it makes its own "rules" at will. That's tyranny.

When the fundamental difference between Law proper (a legal system consciously and adamantly maintained to preclude the humouring of special interests) and derivative Law (my term), which does have specific concerns in mind, escapes people's minds (which it has for a very long time), the sense of what a government's true responsibilities (and the attendant limits of these responsibilities) are disappears.

Law (in the sense of the products, any products of the legislative) becomes a blend sharing the dignity of the rule of law and the arbitrary power of an institution pretending to have the ability and the mandate to micromanage an entire society.