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Rule by Judges by Charles A. Coulombe

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Essay

Rule by Judges

"The Bench" (1753), a 18.2 cm x 14.8 cm oil on canvas by William Hogarth (1697-1764).

Photo: © The Fitzwilliam Museum, Cambridge, licensed under CC BY-NC-ND.

Since Thomas Paine created his argument from a Bible in which he did not believe, opponents of Monarchy have endlessly repeated his charge that God hated Kings and preferred rule by Judges. Leaving aside God’s proscriptions for Kingship in Leviticus (which predates the story recounted in 1 Samuel) as well as the question of whether or not He prefers Monarchy to Kritarchy, all of us living in the Western nations toil under the latter.

Now, we should not imply that the regimes over which Their Honours, Worships, Lordships, and sundry other titles of High Mightiness preside are without the pomp and pageantry all government requires—far from it! As a rule, court houses across the globe appear as a cross between palace and cathedral, resplendent with granite, marble, stained glass, sculptures, tiling, and various artworks depicting the majesty of the law.

This heritage is often mirrored in the garb of judges and attorneys. The British and Commonwealth systems, with their colourful robes signifying different courts and their wigs, are perhaps the best known. But just as eye-catching are the robes of the French judiciary, unchanged since the Ancien Régime. If Kaisers Franz Josef and Wilhelm II returned to see the law courts in Vienna and Berlin, they might well be surprised to see how much of the judicial garb of their time has lasted to the present. Even in the United States, where judges in most jurisdictions wear only black—a remnant of the then-colonial judiciaries’ mourning at the death of Queen Anne in 1714—their robes still set them aside from the common herd. The Solicitor General of the United States appears before that country’s Supreme Court in Morning Dress.

The supposed sacredness of judicial proceedings are underscored by the elaborate ceremonial thereat. In most jurisdictions the Judge is addressed by an elevated title, and evidence presented in a ritualised manner. In many American courts, the day’s work is preceded by the bailiff solemnly intoning “Oyez, Oyez,” and calling all with business to draw near. He then frequently calls upon God to bless the United States or the particular State “and this honourable court.” Throughout the British Commonwealth there are elaborate openings of the judicial year, and Red Masses (votive Masses of the Holy Ghost offered for judges and lawyers) are an annual feature of most American courts.

This farrago of architecture, apparel, and ritual is a constant reminder of the patrimony of the legal systems of the West, which have Christian and Monarchical origins. Those traditions both permit the Sovereign to set certain officers apart to dispense his justice in his name and in accordance with the doctrines of the Christian Faith. While Altar and Throne have been overturned, their unique child, the judiciary, has outlived them. Indeed, freed from their parents’ restraint, the Judges in most western countries have usurped all power in Heaven and Earth, being able to change reality at will. Their words are, well, law, and not even Henry VIII nor Louis XIV could equal their dominion. They purport to be able to alter marriage, regulate the most intimate facts of human nature, and even define what is human.

It was not always thus. In those far-off feudal days when not only the judicial trappings we have mentioned but the whole panoply of legal officials—coroners, sheriffs, bailiffs, constables, notaries, and all the rest—came into being, there was a very different notion of what the law was. From the time of the Edict of Thessalonica under Theodosius the Great in A.D. 375, Catholicism was the animating principle of European governance, a fact underscored by Justinian in his code. This remained true in the barbarian Kingdoms that grew up on and beyond the Empire’s soil as they accepted the Faith. 

Whether based upon written law (as in the Roman system and those that descended from it) or the customary law (as in the Germanic tribes and our English Common Law), these realms saw law as something Divine. Pre-existent and given by God, it could only be discovered by human governance—not created. Human legal codes were just only to the degree that they conformed to that Higher Law. God, through the Church, gave authority to Emperors, Kings, and Princes—but that authority (the right to say what ought to be done) required its bearer to wield it in accordance with that same Law. Once the governing power was established, it had a right to obedience from its subjects. As the Venerable Dom Gueranger observed:

So long as those rulers comply with the compact, or do not turn to the ruin of their people the power they received for its well-being—so long their right to the obedience of their subjects is the right of God himself—whether they exercise their authority in exacting the subsidies needed for government; or in passing laws which, for the general good of the people, restrain the liberty otherwise theirs by natural right; or again, by bidding their soldiers defend their country at the risk of life. In all such cases, it is God Himself that commands and insists on being obeyed: in this world, He puts the sword into the hands of representatives that they may punish the disobedient; and in the next, He himself will eternally punish them, unless they have made amends.

It was with this understanding that the Emperors and Kings of Christendom initially sat in judgement over their subjects who violated the King’s Peace through murder or mayhem or did injustice to one another. As Otto von Habsburg wrote: 

It is frequently forgotten that the true ruler has always been the guardian of law and justice. The most ancient monarchs—the kings of the Bible—came from the ranks of the judges. St. Louis of France regarded the administration of justice as his noblest task. The same principle can be seen in the many German ‘Palatinates,’ since the Count Palatine (Palatinus) was the guardian of law and justice delegated by the King- Emperor. The history of the great medieval monarchies shows that the legislative power of the king—even of a king as powerful as Charles V—was severely limited by local autonomies. The same is true of the ruler’s executive function. He was not, in the first place, a law-giver or head of the executive; he was a judge. All other functions were subordinate, and were only exercised to the extent necessary to make his judicial function effective.

Since the Sovereign could not be everywhere, he appointed judges to represent him. The place where a judge rendered his verdicts was called a “court” in most if not all European languages precisely because the judge was a deputy of him whose chief place of governing was first called a court. Every court where a judge presided was, in a sense, a branch office of the Imperial or Royal Court. But since the clergy were frequently called upon to serve their Monarch in this manner, judicial robes developed, in much the same manner as academic ones and for the same reason.

But there was and remains a terrible caveat to this rosy picture. As Dom Gueranger further explains:

How great, then, is not the dignity of human Law! It makes the legislator a representative of God, and at the same time, spares the subject the humiliation of feeling himself debased before a fellow man! But in order that the law oblige, that is, be truly a law, it is evident that it must be, first and foremost, conformable to the commands and the prohibitions of that God whose will alone can give it a sacred character, by making it enter into the domain of man’s conscience. It is for this reason that there cannot be a law against God or his Christ or his Church. 

When God is not with him who governs, the power he exercises is nothing better than brute force. The sovereign, or the parliament, that pretends to govern a country in opposition to the laws of God has no right to aught but revolt and contempt from every upright man; to give the sacred name of law to tyrannical enactments of that kind is a profanation, unworthy not only of Christian, but of every man who is not a slave.

With the Reformation, of course, that balance was broken by every Monarch who adopted the new religion. Hence, there were Catholic rebellions from Ireland to Finland. Invariably the Protestant princes used the Catholic legal system already in place to accomplish their goals. Shortly thereafter, Europe moved beyond the Seas, and the process started whereby European-style courts would emerge across the globe. ‘Enlightened’ Catholic Sovereigns such as Joseph II of Austria  during the Age of Reason misused the law in the same way as Henry VIII and his confreres had against various religious orders—especially the Jesuits. From 1688 down to the present, various revolutionary regimes used their judiciaries for ideological ends, perverting the whole idea of law ever further.

In those countries where revolutions failed, did not happen, or were reversed, the dominant force became Liberalism. 

Now here we need a few definitions. What we call Liberalism in the United States, our cousins in Europe and Latin America traditionally called Socialism; what we call Conservatism, they called Liberalism; what they called Conservatism, we do not have as an organised body—at least not since 1783. What Liberals of all descriptions shared was a belief in Man’s perfectibility through his own efforts. Two things characterised the highly national ‘Conservatisms’ which Americans do not have: a belief in the Fall of Man, and opposition both to the ideas of whatever revolution had afflicted their own countries in particular and that of 1789 in general. 

In the Liberal State, the judiciary in the final analysis acted purely as a mouthpiece for the mores of the elites. Some idea of what our American dominant classes were like can be gleaned by the United States Supreme Court’s declaration in the 1892 decision of Church of the Holy Trinity vs. the United States that the United States are a “Christian Country.”

It is, however, the nature of Liberalism to erode, not to create. Slowly at first, and then ever more quickly, in a process exacerbated by the two World Wars, the moral consensus that had survived political upheavals in the West was shattered in the 1960s. At the same time, the courts became ever more activist, enshrining the ‘New Morality’ in country after country when it would have been defeated if offered to the electorate at the polls. Abortion, euthanasia, and gay marriage have been enforced in jurisdiction after jurisdiction, usually at the behest of judges, occasionally by legislatures, and in Ireland, by referenda. Court-ordered euthanasia comes to Austria in 2022.

Once enacted by courts, these atrocities become enshrined with all the sacredness of the Law and enforced by the coercive power of the Modern State—a power that, as control the COVID era has shown, is supreme. Even to question this control is to risk being accused of extremism.

Indeed, the attempts of the Orbán government in Hungary to rein in the supreme power of their judiciary has roiled a storm of protest from outside. The ‘independence’ of Hungary’s courts is compromised, the European Union cries! But the reality is that the Orbán government is responsible to the electorate in a way that the existing courts were not. The behaviour of most courts in Western Countries over the past six decades has been undemocratic in the extreme, given the unpopularity of so many measures they impose—at least at the time they were imposed. People usually accommodate themselves to law, especially when the alternative is to be punished under that law. But is it the rightful role of the judiciary to alter society? If it is, don’t taxpayers have the right to know in what name—and to what end—their society is being altered?

Our ancestors were far wiser than we; they knew that a legal system cannot be an end in itself. It must serve a higher power. If to-day’s courts and judges are to be allowed to retain the prestige and trappings of their illustrious predecessors, let them be once more made to serve what those judges of the past served. If not, let our judiciary be stripped of its trappings, and show itself openly as what it is in fact: a major means of subjecting the populace to the current whims of their masters. Of course, then, they must no longer expect the obedience due real law—but the resistance owed to tyranny.

Charles A. Coulombe is a columnist for the Catholic Herald. His most recent book is Blessed Charles of Austria: A Holy Emperor and His Legacy (TAN Books, 2020). It was reviewed in our Winter 2020/2021 print edition. He is also a Contributing Editor to The European Conservative.

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