The Essence of Being ‘a Nation of Laws’
We often encounter in the U.S. the proposition that we are ‘a nation of laws’. What does that really mean?
One thing it means is that (in theory, anyway) no one is beyond the reach of the law. Anyone, no matter what that person’s social status, is bound by the obligations of the laws of the land. The other side of that coin is (again, in theory) that everyone, regardless any person’s social standing, enjoys the full protections of the laws of the land.
Those protections come from a subtler yet more profound meaning contained in the idea of being ‘a nation of laws’. In any nation people are ‘subject to’ its laws. In ‘a nation of laws’, however, all people are ‘subjects of the law’.
This goes to the issues of sovereignty and coercion. In the U.S. ‘the people’ are supposedly sovereign, not only as a group but as individuals. Yet, to be ‘subject to the laws’ of the land is in a sense to forfeit that sovereignty as an individual, to be ‘coerced’ in the sense of being required to obey the law.
A democratic political process (with a republican or a parliamentary form of government) ameliorates the issue of sovereignty in that societal sphere: ‘the people’ as a group are the locus of ultimate sovereignty in the sense of being the final authority politically. For individuals, democracies at least establish in theory a universality in the reach and the protections of the law.
Still, democracy of itself does not entirely resolve the issue of sovereignty, even theoretically. For that we must look at the essence of the relation of people to the laws of the land.
Again, in every nation, people are subject to the laws: they are required (under various penalties for failing to do so) to obey the laws. Again, a democratic political process ameliorates the coerciveness implied in that relationship. Beyond that, however, is the difference between being merely ‘subject to’ the laws of the land and being ‘a subject of’ those laws.
That phrasing takes us back to the days of monarchy, when, as ‘sovereigns’, kings and queens ‘ruled’ their ‘subjects’. Yet, we forget that there was an upside to that relationship for their subjects: in being a subject of the sovereign they were under an obligation of obedience yet they were thereby also afforded the protection of the sovereign. (We must keep in mind that monarchs started as more local rulers, where being ‘a subject of’ this or that monarch and being thereby offered protection from the predations of some other one was more immediate than in monarchical nation-states, where the threat from another monarch was more removed).
Monarchy was a woefully arbitrary system of government. In Two Treatises of Civil Government, published in 1689 (following the civil war in England that established once and for all the supremacy of Parliament over the Crown), John Locke identified arbitrariness in human relations as injustice itself. Still, the idea of being ‘a subject of’ the laws of the land as opposed to merely being ‘subject to’ its laws carries with it the protections associated with sovereignty as well as its obligations of obedience. Therein lies the difference between living in a nation with laws, which is all nations, and living in a land of laws.