How Laws are to be Understood and Obedience Yielded: On the Purpose of the Law and the Place of Civil Disobedience

I found a very interesting and excellent summary of basic liberal federal democratic political thought, one that is also exceedingly concise and brief.

The work is "A question answered: how laws are to be understood, and obedience yeelded? Necessary for the present state of things, touching the militia", from 1642.

The text is found in columns 1183-5 (spanning from the near the bottom of 1183 to near the top of 1185) of volume 2 of The Parliamentary History of England, from the Earliest Period to the Year 1803: From which Last-mentioned Epoch it is Continued Downwards in the Work Entitled "Hansard's Parliamentary Debates", ed. William Cobbett, John Wright, Thomas Curson Hansard, Great Britain (Parliament), Scotland (Parliament), pub. by T.C. Hansard for Longman, Hurst, Rees, Orme & Brown, 1807.

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                              Original Text
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          The foregoing Message was ordered to be sent down to the commons.
          A Paper dispersed about, concerning the Nature of Allegiance.] The king's second Message was occasioned by a printed Paper, then industriously dispersed over the kingdom, concerning the regal power in the Militia; which we give as follows ,from Husband's Collections; they not being in the Journals,

          "A QUESTION answered: How LAWS are to be understood, and OBEDIENCE yielded: Necessary for the present State of Things, touching the MILITIA.
          "Question: Now in our extreme distractions, when foreign forces threaten, and, probably, are invited, and a malignant and Popish party at home offended; the Devil hath cast a bone, and raised a contestation between the king and parliament, touching the Militia. His majesty claims the disposing of it to be in him, by the right of law; the parliament saith, Rebus sic stantibus, et nolente rege, the ordering of it is in them." Answer: "This Question may receive its solution by this distinction, That there is in laws an equitable and a literal sense. His majesty, let it be granted, is intrusted by law with the Militia; but it is for the good and preservation of the republic, against foreign invasions, or domestic rebellions; for it cannot be supposed that the parliament would ever, by law, intrust the king with the Militia against themselves or the common-wealth, that intrusts them to provide fur their weal, not for their woe: So that when there is certain appearance or grounded suspicion, that the letter of the law shall be improved against the equity of it, (that is, the public good, whether of the body real, or reprersentative) then the commander, going against its equity, gives liberty to the commanded, to refuse obedience to the letter: for the law taken, abstract from its original reason and end, is made a shell without a kernel, a shadow without a substance, and a body without a soul. It is the execution of laws, according to their equity and reason, which, as I may say, is the spirit that gives life to authority; the letter kills. --- Nor need this equity be expressed in the law, being so naturally implied and supposed in all laws that are not merely imperial, from that analogy which all bodies politic hold with the natural; whence all government and governors borrow a proportionable respect. And therefore, when the Militia of an army is committed to the general, it is not with any express condition that he shall not turn the mouths of his cannon against his own soldiers; for that is so naturally and necessarily implied, that it is needless to be expressed; insomuch that if he did attempt or command such a thing, against the nature of his trust and place, it did, ipso facto, estate the army in a right of disobedience; except [ = unless] we think that obedience binds men to cut their own throats, or at least their companions. - And, indeed, if this distinction be not allowed, then the legal and mixed monarchy is the greatest tyranny; for if laws invest the king in an absolute power, and the letter be not controlled by the equity; then, whereas other kings that are absolute monarchs, and do rule by will and not by law, are tyrants per force; those that rule by law, and not by will, have, hereby, a tyranny conferred upon them legally: and so the very end of laws, which is to give bounds and limits to the exorbitant wills of princes, is, by the laws themselves, disappointed; for they hereby give corroboration, and much more justification, to an abitrary tyranny, by making it legal, not assumed; which laws are ordained to cross, not to countenance: and therefore is the letter, where it seems absolute, always to receive qualification from the equity, else the aforesaid must follow."

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                              To summarize:
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Laws have an "equitable sense" and a "literal sense". That is, there is the "spirit" and the "letter" of the law. The king may very well be entrusted as the commander-in-chief of the army, and there may very well be few, if any, explicit stipulations limiting his power under the "literal sense" ("letter" of the law), but there is also the "equitable sense" of the law, its "spirit", whether or not this is written anywhere. Just as it is assumed that a general will not turn the weapons in his control on his own forces under his command, so too, it is assumed that the king will rule for the good of his nation and his people. It cannot be that the parliament would entrust the king with power to rule to the detriment of those under his sovereignty. We read,

So that when there is certain appearance or grounded suspicion, that the letter of the law shall be improved against the equity of it, (that is, the public good, whether of the body real, or representative) then the commander, going against its equity, gives liberty to the commanded, to refuse obedience to the letter: for the law taken, abstract from its original reason and end, is made a shell without a kernel, a shadow without a substance, and a body without a soul. It is the execution of laws, according to their equity and reason, which, as I may say, is the spirit that gives life to authority; the letter kills.

In other words, when matters will be better when the "literal sense" is abandoned in favor of the "equitable sense" of the law, i.e. when the "spirit" of the law is superior to the "letter", then, if the ruler goes instead by the strict letter of the law over its spirit, then he "gives liberty to the commanded, to refuse obedience to the letter", i.e. his execution of the literal law is tantamount to giving permission to his subordinates to rebel. For the letter of the law, when executed without regard to its spirit or purpose, is dead, and does only harm. If the commander abuses the technical letter of the law to his own advantage or to the detriment of those beneath him, making himself what the Ramban calls a "scoundrel with the license of the Torah", then his subordinates have the implicit and axiomatic right to rebel, as if the commander himself had explicitly tendered that right. Indeed,

And therefore, when the Militia of an army is committed to the general, it is not with any express condition that he shall not turn the mouths of his cannon against his own soldiers; for that is so naturally and necessarily implied, that it is needless to be expressed; insomuch that if he did attempt or command such a thing, against the nature of his trust and place, it did, ipso facto, estate the army in a right of disobedience; except [ = unless] we think that obedience binds men to cut their own throats, or at least their companions.

Just as it is assumed that a general will not betray his own men, and just as no one must obey a command to commit suicide by slitting his own throat, so too, every law has an implicit condition that the law is to be obeyed only when it leads to good and justice, and not to evil or injustice. If we held otherwise, then it would be that just as some monarchs are absolute tyrants by means of the lack of law - ruling only by their whim and fancy, with no constitutional or legal limits - that similarly, some kings can become legal tyrants, ruling through the law and constitution, using the letter of the law to their own personal advantage, and abusing those under their sovereignty. The very purpose of the law is to promote justice and good and equity, and to limit the king from doing anything that is not to the benefit of his countrymen. If the purpose of the law is to do justice and right, then how can anyone be allowed to use the law for injustice, even if the technical letter would apparently condone his particular deeds? The "literal sense", the "letter" of the law, which appears absolute, is in fact not so absolute, for it must receive instruction from the "equitable sense", from the "spirit" of the law. Any command from the king which agrees with the letter of the law but violates its spirit, is an illegal command, and can (or must) be disobeyed. The king, in issuing an unjust command, has implicitly joined his command with a permission to all to disobey his command.

Perhaps we could say that the government of Israel and the Israel Defense Forces exists only to defend the land of Israel and its people? Therefore, if, the IDF or the Israeli government passes any law or issues any command which is to the detriment of the people or the land, then we may draw our own conclusions.

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                              The original printed text,
                              as scanned and digitized
                              by Google here:
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                              Ibid., column 1185,
                              we read the king's reply:
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          The King's Complaint against the said Treasonable Paper.] The king's Message to the lords, on occasion of the foregoinggain Paper, was follows:
          "His majesty having seen a printed Paper, intitaled, 'A Question answered: How Laws are to be understood, and Obedience yielded?' Which Paper he sends together with this Message, thinks fit to recommend the consideration of it to his house of peers; that they may use all possible care and diligence for the finding out the author, and may give directions to his learned counsel, to proceed against him and the publishers of it, in such a way as shall be Agreeable to the law and the course of justice, as persons who endeavour to stir up sedition against his majesty. And his maj.[esty] doubts not but they will be very sensible how much their own particular interest, as well as the publick government of the kingdom, is, and must be, shaken, if such licence shall be permitted to bold factions spirits, to withdraw his subjects strict obedience from the laws established, by such seditious and treasonable distinctions. And of doctrines of this nature his maj. doubts not but that their lordships will publish their great dislike, it being grown into frequent discourse, and vented in some pulpits, by those desperate turbulent preachers [ = the Calvinists, Protestants, Puritans, Presbyterians, etc.] who are the great promoters of the distempers this time, 'That human laws do not bind the conscience;' which being once believed, the civil government and peace of the kingdom will quickly be dissolved. His majesty expects a speedy account of their lordships exemplary justice upon the authors mid publishers of this Paper."
          The lords being of opinion, That the king's Complaint against the authors and publishers of the foregoing Paper (as containing seditious expressions and treasonable distinctions) was in the nature of an inquisition; and holding it proper for things of that kind to begin in the house of commons, and to be brought up to their lordships in parliamentary way, sent it down to them accordingly. But it was never more heard of in either house.

In summary: the king felt these words to be seditious and treasonable, that this evil Puritan belief "That human laws do not bind the conscience" (but rather, that justice and morality and G-d's laws alone bind the conscience) would cause the fall of the government. The king trusted that the lords would realize that it was in their own best interest to proceed against the author and publisher of the seditious pamphlet. But the lords merely submitted the matter to the parliament, from where it was never heard again. Note that the king had no real argument against the words of the pamphlet; he couldn't argue logically against it, or prove that its arguments were false, so all he could do was make an ad-hominem attack that the words were "seditious" and "treasonable". In other words, the king felt a threat to his own power, and so he attacked the pamphlet, but he couldn't muster any real arguments against it.

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After I wrote and posted this entry, I realized something:

If I wanted to promote sedition and rebellion against the government, but didn't want to be guilty of anything, I could just quote Puritan tracts. In my above blog entry, all I do is quote the pamphlet and provide commentary to explain the pamphlet (mere elucidation of its plain-meaning). So far, that's just pure history, something any professor in university can do.

The only opinion I express there is,

Perhaps we could say that the government of Israel and the Israel Defense Forces exists only to defend the land of Israel and its people? Therefore, if, the IDF or the Israeli government passes any law or issues any command which is to the detriment of the people or the land, then we may draw our own conclusions.

But who could disagree with that statement of mine? I don't actually advocate anything, anything at all!!! All I say is that if such-and-such and if such-and-such, "then we may draw our own conclusions". That's an indisputable objective statement - how can I be found guilty of sedition for saying "we may draw our own conclusions"? That's an objective fact!! I didn't say our opinions would be favorable to the government, only that we've have conclusions of some or another sort!

Samuel Rutherford and others were sentenced to death for their sedition against the king of England. But thanks to Rutherford and other Puritans, all we have to do is cut, copy, and paste suitable and edifying passages from their works, and produce new tracts promoting sedition in such a way that technically, the work is merely a work of objective historical-fact reporting. Gershom Scholem once said, "Qabala is nonsense, but the study of nonsense, that is scholarship!". In like wise, I'll say, "Incitement and advocacy to rebellion is sedition, but quotation of historical incitement and advocacy to rebellion, that is scholarship!".

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For those of you who've read this far, I have a special treat for you. There's been a controversy recently of Orthodox rabbis ordaining women as rabbis. (See my post Daat Torah and Women's Semikhah.) I just found an excellent source to support those who oppose women's ordination. In 1588, Protestant political revolutionary John Knox wrote his "The First Blast of the Trumpet Against the Monstrous Regiment of Women". Knox's primary concern was that Catholic monarchs were idolaters and not fit to rule, but in this pamphlet, he further argued that women in general (specifically Mary I of England and Mary, Queen of Scots) were not fit to rule. Inter alia, he argued,

For who can denie but it is repugneth to nature, that the blind shall be appointed to leade and conduct such as do see? That the weake, the sicke and impotent persons shall norishe and kepe the hole and strong? And finallie, that the foolishe, madde and phrenetike shal governe the discrete and give counsel to such as be sober of mind. And such be al women, compared unto man in bearing of authoritie. For their sight in civile regiment is but blindness; their strength, weaknes; their counsel, foolishnes; and judgment, phrensie, if it be rightlie considered.