All Are Bound by the Law

Law matters. 

We may have relegated its study to experts, but when law goes wrong or when law disappears, everyone knows it.

Two classical texts establish the importance of law as something important to ordinary people, not just lawyers and political philosophers.

The more well-known of these texts is Plato’s Crito. It is one of several dialogues surrounding the last days of Socrates’ life, when he was put on trial and then convicted and condemned to death by Athens’ runaway mobocracy for asking too many questions. (READ MORE from Shmuel Klatzkin: Trump and the Glorious Revolution)

In Crito, Socrates is being encouraged by his friends and disciples to do whatever it takes to save his life. His friend Crito speaks for many when he says to Socrates: 

Fear not. There are persons who at no great cost are willing to save you and bring you out of prison; and as for the informers, you may observe that they are far from being exorbitant in their demands; a little money will satisfy them. My means, which, as I am sure, are ample, are at your service.… Nor can I think that you are justified, Socrates, in betraying your own life when you might be saved; this is playing into the hands of your enemies and destroyers; and moreover I should say that you were betraying your children; for you might bring them up and educate them.

Socrates, however, refuses to save himself this way. 

He is adamant. The law is above any personal consideration and must be honored, even when its results are unjust, even when the penalty for upholding the law is one’s own life. He makes his argument carefully, in his customarily thorough manner. It is well worth the read. Here, we can only touch the high points of his argument.

Socrates imagines the laws engaging him in dialogue:

“Tell us, Socrates,” they say; “what are you about? are you going by an act of yours to overturn us — the laws and the whole State, as far as in you lies? Do you imagine that a State can subsist and not be overthrown, in which the decisions of law have no power, but are set aside and overthrown by individuals?…

“You, Socrates, are breaking the covenants and agreements which you made with us at your leisure, not in any haste or under any compulsion or deception, but having had seventy years to think of them, during which time you were at liberty to leave the city, if we were not to your mind, or if our covenants appeared to you to be unfair. You had your choice … ”

In the end, by his choice, Socrates abides by the law, refuses to escape, drinks the hemlock, and dies.

The second story is not nearly so well-known but is nonetheless formative of our civilizational story. It comes from the Talmud of the Land of Israel, which weaves together the discussion over the course of two centuries of the rabbis living in the Galilee region of Israel and was completed before the end of the fourth century of our common era.

This story had been carried by tradition from about five centuries earlier. It told of a leading rabbi of those old days who had made enemies as a judge by convicting and executing members of their families. These enemies, family of people he had convicted, used the law to achieve their vengeance. They hired people to give false testimony about the rabbi’s son, who was convicted on that basis.

They testified falsely about him and the verdict was rendered for him to be put to death. As he was being brought out for execution, the witnesses said to the son, “We testified falsely.”

The father wanted to return the case to the court, but his son said to him, “Father, if you want salvation to come through you, then make of me its doormat.” (Talmud Yerushalmi, Sanhedrin 6:3)

The son’s intention is clear: If you allow the witnesses to change their story, people will forever say it was because you were my father; if you let this verdict stand, then everyone will see that the law is above any personal consideration whatsoever and it will be sanctified in everyone’s eyes.

Why are these stories so necessary?

We all understand the binding nature of physical law. If we pretend that gravity will not pull us down, gravity will still pull us down. If we made a mistake and tripped, even if we are very nice, gravity will still pull us down and perhaps we will be hurt. We know that it is real no matter what we think.

With the laws that we live by, what in Hebrew are called mishpatim  or chukkim and what Plato called nomoi, we much more easily imagine that they are tentative things. If we are philosophical, we might say that in the end, we will receive measure for measure, whether in the form of “instant karma’s gonna getcha,” or, if one is not a Lennonist, in a World to Come, heavenly reward, or another lifetime. (READ MORE: The Bible Calls Us to Courage and Freedom) 

The truth is, the upholding of law in our lives requires choice in a way that is unnecessary or irrelevant for physical laws which will keep operating regardless of our will.

This is an age in which civilization itself is challenged. Most of all, the idea of being accountable to the law does not appeal to a class of people who hold themselves above and consider laws as conveniences for controlling the various deplorables, clingers, and rubes whose work they find necessary but whose opinions they despise and would control.

They too believe that law depends on human choice, but to them, that choice is theirs. The people who think law sacred are poor rubes, who really need the elites to rule them. 

Sacrifice is foreign to the elites. The burden of the law is to be carried only by the deplorables. Think of Nancy Pelosi or Gavin Newsom, representatives of their class, during the COVID shutdowns. As for sacrificing themselves to make laws sacred for the future — are you kidding? 

Laws to them are one-way, manipulative only, meant to obtain some good for themselves — the parties in a solemn covenant. For the elites, the solemn covenant binds only those foolish enough to believe in such things.

The elites use the language of egalitarianism, but they do not intend to give up the least bit of their power or privilege. Like everything else, the idea is to be used one-way.

The elites set themselves not only against Plato and the Talmud, but against the whole civilization the stories they told represent.

More than a thousand years after the Talmudic story was set down, the English Common Lawyer and self-taught Talmudist John Selden wove its message and that of Plato into his vision of constitutionalism. Selden fought a king who thought himself above law and fought Parliamentarians who thought themselves above constitutional restraint. He fought religious warriors who wanted to force the nation to adopt their church because it was divine law. Selden successfully carried his point that the variations between churches were not matters of divine law, and so he fought for toleration even for Catholics, a lonely position in 1640s England.

And at the end of his life, he did not join with Cromwell when he was the all-powerful dictator of England for more than a decade. His beloved constitution, in which all parties shared power as per the ancient traditions of England, was not re-established till after Selden’s 1654 death.

Selden saw that the constitution he revered was built on the foundation of sacred law that stems from the Talmudic/Biblical tradition. Only seven basic laws, though, could be said to be universally binding, the seven Noahide laws. But those laws included within them the obligation to develop law in each nation reflecting its own particular experience and the nature of the agreements which bind their people together.

Faithfulness to the agreements on which civilization and law transcend individuals and time was expressed by Selden through the Latin phrase pacta sunt servanda — agreements must be kept. With that phrase, Selden joined the concepts from Jewish law tradition with Socrates’ argument in Crito. Scholar Ofir Haivry writes of Selden’s “repeated identification of the universal first principle of every law and society as the abiding by agreements, pacta sunt servanda.” (READ MORE: American Universities Have Squandered the Public’s Esteem)

Selden seemed old-fashioned to many of the fierce partisans of the day, most of whom place the sovereignty that makes law possible in the individual’s mind — much as today’s elites. Selden embraced something he saw as both timeless and timely — enduring legal frameworks borne willingly by a spirit of devotion to agreements by which the people have lived, generation after generation. This for him was the true English legal tradition.

Of this, Haivry writes:

One of the main features of this political tradition is its combination of preserving customary forms with great flexibility in function, which enables it to successfully preserve constitutional frameworks over centuries, and indeed regards this very feature as beneficial and defining; whereas other “modern״ or “post-modern” political outlooks prize the break with the past and a principled revolutionary nature as essential characteristics.

This tradition is alive today in conservatism at its best and it is equal to the modern task of overcoming the unfaithful arrogance of today’s self-styled elites.

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