The Sovereign is Unimpeachable

[Chris-M]

This debate is dedicated to Iuppiter. As always, bear in mind that I don't usually represent my own views.

 

[1] War is the natural state. Unless there is a social mechanism in place to dictate otherwise, people are naturally violent, distrustful, and isolated. 

 

[2] The law provides a means for escaping the natural state: it specifies procedurally just rules of cooperation and provides sufficient force to assure citizens that there will be general compliance.

 

[3] For the law to exist in a meaningful fashion, however, there must be some sovereign definer who settles disputes about the law in an unchallengeable way.

 

[4] It is therefore impossible to impeach the sovereign without making the law that is the basis of impeachments meaningless.

 

[5] It is a logically impossible to impeach the sovereign in accordance with procedural justice.

Edited August 7, 2014 by Yves

[Guest Mike Spero]

I agree, but shhhh

 

An assassin might catch wind of your Templar ways >.>

[Wesker]

Sounds straight out of Leviathan.

[Chris-M]

Sounds straight out of Leviathan.

I'm actually drawing this mostly from Kant's discussion of rebellion in the Doctrine of Right. While I like Hobbes, I don't find him nearly as persuasive as Kant, mostly because the Englishman insists on pretty unsophisticated versions of nominalism and materialism. Also, Hobbes insists that the sovereign definer must be the will of a single man, whereas Kant is open to the idea that republican government might act as a corporate sovereign.

 

But you're right--Weirdly enough, the Kantian and the Hobbesian sovereigns are almost indistinguishable.

Edited August 8, 2014 by Yves

[Zabby]

[3] For the law to exist in a meaningful fashion, however, there must be some sovereign definer who settles disputes about the law in an unchallengeable way.

I would say that this is the weakest part of your argument. There is a reason to have a person or system that settles disputes in an unchallengeable way (ie a highest authority), but that person or system does not have to be a sovereign nor does it have to be the thing that produces the rules or enforces them for the law to exist in a meaningful fashion. 

[Chris-M]

The highest authority does not need to be a sovereign. 

"Sovereign" is just a term I'm using for the highest juridical authority. I'm not meaning to imply that this administration has to be a traditional monarch.

 

The sovereign definer does not have to be a legislator.

It does not have to write the law as a primary document, but it does have to decide how the procedure of the law will practically be carried out. It is therefore an in-fact legislator.

 

The sovereign definer does not have to enforce the law.

This is true only to the extent that the executive is willing to subordinate itself to the juridical system. Practically speaking, this means that the sovereign definer must exercise enough de facto power to be the highest commander of force in the land, even if the judge in question does not actually operate the guns.

 

The sovereign is not necessary to meaningful law.

Of course he is. If there is disagreement about the practice of the law, and there is no sovereign to decide such disputes, then the law has no conclusion, except perhaps by "might makes right." But even in that case, we have merely made nature and force sovereigns, who stand in the absence of human justice.

[Zabby]

 

The highest authority does not need to be a sovereign. 

"Sovereign" is just a term I'm using for the highest juridical authority. I'm not meaning to imply that this administration has to be a traditional monarch.

 

Sorry, I guess I misinterpreted your idea because you mentioned Iuppiter in your OP and that is what he would have meant by Sovereign. 

 

The sovereign definer does not have to be a legislator.

It does not have to write the law as a primary document, but it does have to decide how the procedure of the law will practically be carried out. It is therefore an in-fact legislator.

 

Can the sovereign be a system, ideal or even a computer program? You're talking about it as if it's a person hearing cases and making decisions, but what if it were something other than that.

 

The sovereign definer does not have to enforce the law.

This is true only to the extent that the executive is willing to subordinate itself to the juridical system. Practically speaking, this means that the sovereign definer must exercise enough de facto power to be the highest commander of force in the land, even if the judge in question does not actually operate the guns.

 

Unless the definer is something that can't interpret things. I don't see why this wouldn't be possible as I mentioned, it could be a system, ideal, or other artificially made device. 

 

The sovereign is not necessary to meaningful law.

Of course he is. If there is disagreement about the practice of the law, and there is no sovereign to decide such disputes, then the law has no conclusion, except perhaps by "might makes right." But even in that case, we have merely made nature and force sovereigns, who stand in the absence of human justice.

 

I did not intend to say this. If there are to be laws there has to be something that settles disputes and completely settles things. My point was that it doesn't have to a be a person, but can be a thing or system (such as might makes right).

[Wesker]

I'm actually drawing this mostly from Kant's discussion of rebellion in the Doctrine of Right. While I like Hobbes, I don't find him nearly as persuasive as Kant, mostly because the Englishman insists on pretty unsophisticated versions of nominalism and materialism. Also, Hobbes insists that the sovereign definer must be the will of a single man, whereas Kant is open to the idea that republican government might act as a corporate sovereign.

 

But you're right--Weirdly enough, the Kantian and the Hobbesian sovereigns are almost indistinguishable.

 

I must admit my knowledge of Kant is rather lacking. Once you become loyal to Hegel, you begin to think of Kant as the inferior German Philosopher. Either way, my criticism would be against proposition 1. It seems very one-sided and cynical. Human beings are a mixture of Eros and Thanatos. My anarchist sympathies are not convinced that society without the coercive apparatus of the State is "solitary, poor, nasty, brutish, and short" as Hobbes would have us believe. Perhaps it is the creation of the State (patrimonial or modernist) that generates such violent and dominating behavior. My mentoring professor for my grad program grew up in a poor, rural town in Northern Cyprus. From the stories I have heard, his rural community did not merely collapse because there was no police force or state military to ensure cooperation. 

Edited August 8, 2014 by Wesker

[Chris-M]

@Zabby

 

A sovereign can be a thing or system insofar as that thing or system has the power to guarantee the administration of the law. You could install a computer program to decide cases, for example, if there is a sufficiently plausible army backing up the decisions that program decided.

 

1. It seems very one-sided and cynical. Human beings are a mixture of Eros and Thanatos. My anarchist sympathies are not convinced that society without the coercive apparatus of the State is "solitary, poor, nasty, brutish, and short" as Hobbes would have us believe. Perhaps it is the creation of the State (patrimonial or modernist) that generates such violent and dominating behavior. My mentoring professor for my grad program grew up in a poor, rural town in Northern Cyprus. From the stories I have heard, his rural community did not merely collapse because there was no police force or state military to ensure cooperation.

 

 

I agree with Rousseau's idea that it isn't human nature that creates a state of war, but rather the corrupt influence that society has on human nature. I just don't think this is relevant--there probably isn't such a thing as "pre-social man," and even if there is, he's long gone now. The facts we have to deal with are the facts of, minimally, patrimonial society. In that situation, the evils of disorder are empirically obvious.

 

I would clarify my position, however, in saying that it isn't merely a police system that ensures the stability of the state. Social norms and civil society are at least as powerful, if not more so. While your professor's community may have lacked the usual state apparatus, I imagine there was still some social mechanism that worked to determine and enforce public rules of cooperation.

Edited August 8, 2014 by Yves

[Wesker]

I agree with Rousseau's idea that it isn't human nature that creates a state of war, but rather the corrupt influence that society has on human nature. I just don't think this is relevant--there probably isn't such a thing as "pre-social man," and even if there is, he's long gone now. The facts we have to deal with are the facts of, minimally, patrimonial society. In that situation, the evils of disorder are empirically obvious.

 

I would clarify my position, however, in saying that it isn't merely a police system that ensures the stability of the state. Social norms and civil society are at least as powerful, if not more so. While your professor's community may have lacked the usual state apparatus, I imagine there was still some social mechanism that worked to determine and enforce public rules of cooperation.

 

I assent. I am not so much disagreeing with the spirit of the first proposition as with its Hobbesian flavor. It is natural that there will be violence/war, but to say that the natural state is War, implies that War is the essence of man.

[Auren]

This doesn't account for tribal society though. Most of the time they were peaceful because they used a "I'll scratch your back, you scratch mine" kind of bartering system, usually with no form of pseudo-government. Kinda like communism without an evil dictator. It wan't until civilisation and money were invented that wars and thievery became a thing. Except for the tribal wars obviously but you might go 5 generations without seeing an outsider because of the isolated nature of tribes so they were exceedingly rare.

[Wesker]

I keep coming back to read the opening post. It tasks me, because it is difficult for me to think about a political philosophical topic in an analytical and abstract manner. I have been trained to think in terms of historicism and dialectical negation. From the Hegelian/Marxist tradition, the law itself is the abstract embodiment of a zeitgeist. The law reflects either the development of Spirit (Hegel) or the development of production (Marx). Perhaps it is better to understand the sovereign as the zeitgeist rather than the any physicalist sovereign, whether a monarch or the vague concept of the people. 

 

In other words, I think the entire argument is silly. It is a mere abstract sophistry. It is asking whether you can, by-the-law, impeach the sovereign which is the source of the law. The answer is "no" by the way the game has been set up. The truth exists outside the box. The truth is that the zeitgeist sweeps both the historical existing sovereign and the existing law away in its movement. A new authority arises that impeaches the existing sovereign which then negates itself in a new law.

Edited August 9, 2014 by Wesker

[Ananas]

This doesn't account for tribal society though. Most of the time they were peaceful because they used a "I'll scratch your back, you scratch mine" kind of bartering system, usually with no form of pseudo-government. Kinda like communism without an evil dictator.

 

That's not communism, that's just primitive capitalism.

[Lefebvre]

Heheheh :3

 

A sovereign (by that, I mean a Monarch) cannot be impeached, because the sovereign is above the law.

[Wesker]

Heheheh :3

 

A sovereign (by that, I mean a Monarch) cannot be impeached, because the sovereign is above the law.

 

At least we agree that the law is a reflection that comes out of the sovereign.

 

That's not communism, that's just primitive capitalism.

 

I would still maintain that capitalism is not primarily about exchange, but rather, finds its essence in the exploitation of labor. 

[Auren]

That's not communism, that's just primitive capitalism.

 

Well not quite. It's like if I'm a farmer, I'll give you a few bushels of wheat knowing that sometime in the future you'll help me out. Everyone uses everyone else's goods and services freely. If everything else is free you offer your stuff for free to keep the cycle going. It's good for everyone. 

[Ananas]

Heheheh :3

 

A sovereign (by that, I mean a Monarch) cannot be impeached, because the sovereign is above the law.

 

That doesn't seem at all problematic/unethical/straight-out-crazy to you?

 

 

I would still maintain that capitalism is not primarily about exchange, but rather, finds its essence in the exploitation of labor. 

 

Capitalism is personal ownership and trade. 

 

If you turn economic systems into a dichotomy of good and evil then you're not doing anything more than acknowledging your approval.

 

Pray tell, how capitalism is "exploitation of labor"? In fact, I'd like to understand your concept of "exploitation". (Perhaps a different thread needs to be made )

[Ananas]

Well not quite. It's like if I'm a farmer, I'll give you a few bushels of wheat knowing that sometime in the future you'll help me out. Everyone uses everyone else's goods and services freely. If everything else is free you offer your stuff for free to keep the cycle going. It's good for everyone. 

 

Except it wouldn't be. If you can choose to get something for free or "pay" for it, everyone will just take it for free. This eliminates any incentive for people to provide that good/service and in the end it is bad for everyone because nobody will do anything except for themselves.

[Lefebvre]

That doesn't seem at all problematic/unethical/straight-out-crazy to you? 

 

Not at all. A sovereign is above the law, as his/her position is outside and simultaneously the foundation for all law and government throughout the realm. If at some point a sovereign commits an act which may be ordinarily considered illegal then I must assume that the process set aside for forcing the abdication of the monarch would be set in place; and even then only in the case of the most serious crime would an abdication rather than, say, the appointment of a Regent be considered. Only after the abdication of the monarch and the installment of their successor should legal action even be considered. At the end of the day however, I believe in sovereign immunity for any reigning sovereign and for former monarchs who abdicated for non-criminal reasons and I believe that prosecuting/calling as a witness any member of a royal family whatsoever should be avoided as beneath the dignity of their persons.

[Zabby]

Not at all. A sovereign is above the law, as his/her position is outside and simultaneously the foundation for all law and government throughout the realm. If at some point a sovereign commits an act which may be ordinarily considered illegal then I must assume that the process set aside for forcing the abdication of the monarch would be set in place; and even then only in the case of the most serious crime would an abdication rather than, say, the appointment of a Regent be considered. Only after the abdication of the monarch and the installment of their successor should legal action even be considered. At the end of the day however, I believe in sovereign immunity for any reigning sovereign and for former monarchs who abdicated for non-criminal reasons and I believe that prosecuting/calling as a witness any member of a royal family whatsoever should be avoided as beneath the dignity of their persons.

What's the difference between forcing abdication and impeachment?

 

(When I have more time I'm going to respond to the earlier posts in this thread, but this is an easy question to ask)

[Lefebvre]

What's the difference between forcing abdication and impeachment?

 

(When I have more time I'm going to respond to the earlier posts in this thread, but this is an easy question to ask)

 

An abdication remains an act of the Monarch, and is theoretically undertaken through their own free will whereas an impeachment is not. In some countries, the government may assume royal prerogatives if the Monarch is declared incapacitated and therefore unable to rule (usually in the event of illness or insanity) but usually in that case someone -- usually the heir to the throne -- would be declared as Regent. Belgium has had an unfortunate history in this regard, notably in the cases of Leopold III and his son. Leopold III had stayed in Belgium during the Nazi occupation while his government fled into exile, and was generally regarded as somewhat of a collaborator. During the duration of the occupation his brother, Prince Charles, acted as Regent but once the war was over his return was an issue of much contention. A referendum was eventually held wherein his return was narrowly returned -- thanks largely to the Flemish vote -- but the act of his return provoked such violent strikes in the largely-Socialist region of Wallonia that the government forced him to offer his abdication in favour of his son. 

 

His son, the lovely King Baudouin, is notable for refusing to grant Royal Assent to a Belgian law liberalising the issue of abortion as he felt that it was against his Catholic convictions (<3) and he was therefore unable to sign it into law. This was unprecedented in Belgian history and in the recent history of European constitutional monarchies in general; and in order to avert a serious constitutional crisis His Majesty asked that he be declared temporarily unfit to rule. The government obliged, passed the law using their extraordinary powers, and declared him fit to rule the next day. Royal Assent is entirely a formality these days, but the same process, with modifications, could probably be used in the extremely unlikely event of a Monarch breaking the law as it would ordinarily be understood. Now it would probably be more effective to force an abdication rather than declare the Monarch unfit to rule -- sovereign immunity would presumably remain intact in the latter case -- but declaring a Monarch unfit and installing a Regency would probably be a last resort should the Monarch refuse to abdicate. That having been said, it is difficult to imagine the monarchy as an institution would survive such an event. Unlike republics, in which case no-one ever calls to toss out the republican institution in the case of scandal or impeachment, monarchies toe a much more precarious line with a public mood which is usually predisposed against them.

[Ananas]

Not at all. A sovereign is above the law, as his/her position is outside and simultaneously the foundation for all law and government throughout the realm. If at some point a sovereign commits an act which may be ordinarily considered illegal then I must assume that the process set aside for forcing the abdication of the monarch would be set in place; and even then only in the case of the most serious crime would an abdication rather than, say, the appointment of a Regent be considered. Only after the abdication of the monarch and the installment of their successor should legal action even be considered. At the end of the day however, I believe in sovereign immunity for any reigning sovereign and for former monarchs who abdicated for non-criminal reasons and I believe that prosecuting/calling as a witness any member of a royal family whatsoever should be avoided as beneath the dignity of their persons.

 

Now that's just silly. If the sovereign is "the foundation for all law" then they could do nothing "illegal." It would turn into the same argument people make for god: "if he did it, then it must be right/legal/ethical, simply because he did it."

[Lefebvre]

Now that's just silly. If the sovereign is "the foundation for all law" then they could do nothing "illegal." It would turn into the same argument people make for god: "if he did it, then it must be right/legal/ethical, simply because he did it."

The Sovereign themself is not the foundation, but rather the position which they hold viz. the Crown. The Crown is the foundation of law. To prosecute the Crown, you would have to necessarily have the Crown prosecute the Crown; which is impossible. Note that when I mentioned the hypothetical situation of a Sovereign breaking the law, I specified the law "as it would ordinarily be understood" by which I meant as it would have been understood and applied if committed by someone who was not the Sovereign. The law rests upon and within the understanding of the position of the Crown as it's foundation; as the Crown is theoretically the highest authority in the land and fount of honour, law, and liberty. Government and law as a whole stem directly from the nature of the Crown. Therefore I believe it is impossible for the Sovereign, acting in the position of the Sovereign, to break the law. However the Sovereign may commit acts which would ordinarily be understood as lawbreaking, in which case either of the aforementioned methods (forced abdication or incapability to rule; probably the former as the latter would most likely see the Sovereign technically retain their position) would be undertaken and the process of law would then proceed against the former Sovereign as according to the law and customs of the nation. Generally however, I myself would prefer that such persons are never prosecuted as it is, as I mentioned, beneath their dignity, and would prefer some informal arrangement of exile or house arrest. But that is just me.

[Ananas]

Either the sovereign (the man himself) is the full and final authority, or the position which he holds is the true authority. In the first case, he can commit no wrong, and is unimpeachable. If "the Crown" is the foundation of the authority, then the sovereign is most certainly not above the law, and his authority is only within the bounds that it agrees with that of "the Crown" which supplies his power.

It seems you are trying to have your cake and eat it.

 

 

 Generally however, I myself would prefer that such persons are never prosecuted as it is, as I mentioned, beneath their dignity, and would prefer some informal arrangement of exile or house arrest. But that is just me.

 

Any ruler who's actions are so unacceptable that his people would force his abdication ought not have dignity at all.

[Lefebvre]

Either the sovereign (the man himself) is the full and final authority, or the position which he holds is the true authority. In the first case, he can commit no wrong, and is unimpeachable. If "the Crown" is the foundation of the authority, then the sovereign is most certainly not above the law, and his authority is only within the bounds that it agrees with that of "the Crown" which supplies his power.

It seems you are trying to have your cake and eat it.

 

 

Any ruler who's actions are so unacceptable that his people would force his abdication ought not have dignity at all.

 

The Sovereign is the Crown. The Sovereign cannot be dissevered from the Crown, although the Crown can be dissevered from the Crown. As long as the Sovereign is the Sovereign, the actions they undertake are those of the Crown. You create distinctions where they do not exist.

 

The Sovereign, as a person, has an inherent dignity of their blood and tradition; regardless of their own actions. And the people do not and should not have any authority whatsoever to force an abdication. Their Majesty's Government does. To imply at any point that the people possess authority over the Sovereign is quite a dangerous thing.