Our homo sapiens species has been around about two to three hundred thousand years. We probably began biologically in Africa with what we assert is our Western culture becoming ascendant in southern Europe about twenty-five hundred years ago. The Greeks and the Romans laid the foundation for our civilization and we still rely upon their theories of what a civilized society should be, especially in regard to morality and law.
History is replete with rising and falling societies that have gone from collectively agreed upon legal systems to usurpation of power by elites that caused the society to fall upon its own sword. While there are many reasons why each “eternal” nation collapsed, as Plato posited in his Republic, a society rules by consensus then by a ruling party in its own interests. The rulers define the laws based upon what the autocrats desire, then define anyone who breaks such laws a wrongdoer. This is the final stage of a great civilization. Law moves from a consensus among a majority of the citizens as to what is right and good to a decree from the powerful based upon what they want.
Thousands of years ago primitive societies found they could live better lives among themselves and with their neighbors if they cooperated on such matters as the sharing of natural resources and respect for the person and property of others. This was the beginning of morality; and still moral behavior by individuals and nations comes down to treating others as we wish to be treated. Gradually, such nascent civilizations came to realize that as Aristotle said, legal systems (laws) were necessary because people could not restrain desire for power. If people were perfect, laws would not be needed but, as we are not, to ensure justice we must have law. And if the laws remain just, a society can survive life’s inevitable chaos.
Such philosophers as Socrates, Plato and Aristotle believed the world was grounded in Natural Law. Law just existed as did gods. Mankind only needed to divine what the gods required and apply such rules to humanity. If mankind ignored this immutable Natural Law, then chaos would rein. This concept of the eternal existence of Natural Law was at the core of most of the great legal theories from the ancient Greeks up to our Founding Fathers and is still prevalent today in many countries. In America, we separated law from superstition and left it to individuals to believe or not. This separation of theocracy from democracy was a new concept 250 years ago and has helped preserve our nation through many moral crises such as the Civil War and political in-fighting today. The First Ten Amendments of our Constitution are the rock by which we thrive.
Experience has proven that relying on a fear of a god or gods to enforce laws fails in the face of human nature. We have found that it is human law that must set limits on the natural tendency of mankind to abuse power. Over the last twenty-five hundred years or so we have sought systems of law that restrain autocratic impulses and protect individual rights. The most successful of such systems so far has been the Separation of Powers legal system as set forth in the United States Constitution.
Our Constitution was not based on Natural Law but upon the theories of such visionaries as Baron de Montesquieu. (1689-1755), John Locke (1632-1704), and especially, James Madison (1751-1836) and James Wilson (1742-1798). Wilson not only was a contributing author to our Constitution but also sat on our first United States Supreme Court. These legal philosophers recognized the major problem of instituting a lasting democratic legal system was preventing autocrats from usurping powers that properly belong to the citizens.
The division of executive power and legislative power as a restraint on one another was not sufficient. The inclusion of a third branch of government, the judiciary, was the piece of the puzzle that our Founders devised to answer this fatal flaw that had occurred in other legal systems which had failed, because as power corrupted the leaders, democracy collapsed into tyranny. In America today, our Legislative Branch has generally abandoned its role of restraining our out-of-control Executive Branch and our Judicial Branch has sometimes not asserted proper restraints on both of the other branches.
Is America in a vulnerable position democratically today? Probably not, as yet. However, when the Executive repeatedly takes the country to war in spite of virtually every poll indicating a significant majority of the electorate objects, and the Legislative Branch is supine in its duties concerning the power to declare war and the Judiciary fiddles away, the will of the people is frustrated and democracy might teeter. This could be one of those times as Greece, Rome and numerous other democracies discovered when it is critical that all three branches not only stay in their lane but gird their Constitutional loins up about them and courageously execute their own Constitutionally defined responsibilities.
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