Law and Order

“And when the last law was down, and the Devil turned around on you—where would you hide. . . the laws all being flat? This country’s planted thick with laws from coast to coast—man’s laws, not God’s—and if you cut them down . . .d’you really think you could stand upright in the winds that would blow then?” — A Man for All Seasons, Robert Bolt (1960)

“We don’t pay taxes; only the little people pay taxes.” — statement attributed to Leona Helmsley, hotel heiress, by her housekeeper, testifying under oath.

Ever since Nixon, Republicans have been banging the drum of “law and order.” Reagan made the slogan a mantra, and our Demagogue has put it on steroids.

But a slogan is not wisdom or understanding. Do Republicans really know what “law and order” mean? Do they understand how important they are to our history, our democracy and our way of life? Do they know why?

I think not. This essay explores how far off the mark their “understanding” is and what it portends for human civilization.

Recorded human history runs between five and six millennia. The “official” Jewish calendar counts this Jewish year as 5783. The Chinese record is similar. So let’s just round it off to six millennia.

Every college graduate knows of Niccolò Machiavelli’s immortal tract The Prince. It was written around 1513 but not published until 1532, five years after the author’s death. So if we take the earlier date, 1513, that was 510 years ago, or about 8.5% of recorded history. Thus 91.5% of recorded human history occurred before The Prince came to light.

I never actually read The Prince as a student. So when I did sit down to read it, well into my middle age, I was utterly appalled. Nothing but its details can convey the impression of how bloody, insecure and risky human life was in Machiavelli’s world. Everything—your family, your wealth, your health, and your life — depended literally on the scheming and conniving of minor nobles and their underlings and warriors.

There were no rules. Everything depended on the private schemes and ingenuity of men (women were just baby machines) with evil intentions and those who opposed them. In two instances, delegates were lured to a “peace” conference, where they were subjected to surprise attacks and slaughtered to a man.

When I read about the second slaughter, I put the book down. I concluded that reading further would only entrench my view that human society in medieval Italian city states was a far more brutal version of crabs crawling over each other in a bucket. And this was the state of affairs in the Italian Renaissance, over nine tenths of the way from the dawn of recorded civilization to the present day.

So how did we get from that bestial, supremely violent, dog-eat-dog world that Machiavelli described to the society we have in the United States today? And how did we do it in such a short time, in less than one-tenth of recorded human history?

For Anglo-American nations, the story of law and order begins three centuries before The Prince, with Magna Carta. I don’t know precisely how, but I always sensed the importance of this Great Charter, even long before I studied law. While still a postdoctoral scientist on fellowship in Cambridge, England, I sought out the Magna Carta on my first visit to the British Museum in London.

But the best exhibit on Magna Carta I found decades later, as a tenured professor of law, in the National Museum in Canberra, Australia’s capital. There I learned that Magna Carta had had several versions, years and even decades apart. All were just important—and enforceable!—drafts of an ongoing, regularly-renegotiated agreement declaring the basic operating rules for English society.

In Canberra I also learned how wrong had been my earlier impressions of Magna Carta, gleaned from general reading about it and my decades-earlier visit to the British Museum. The first version, signed in 1215, was hardly a charter of rights for the “common people,” let alone a charter for democracy. The ascendance of the English Parliament, with its elected representatives, still lay some four centuries in the future.

The 1215 Magna Carta was a recorded deal between King John, the absolute monarch of England, and a bunch of barons—landed nobility, each with his own lands, holdings, serfs, and private army. The Barons were unhappy with some arbitrary aspects of King John’s rule. They had met him on the fields of Runnymede, with all their private soldiers, on horseback and in full battle regalia, ready to rumble.

King John saw that he was outnumbered. He feared for his health, his power, his lands and even his life. So he made a deal. The English clergy, who helped negotiate the deal and put it in writing, managed to get a few concessions for themselves. There were even some primitive concessions for noblewomen and their rights to land and inheritance.

But I searched in vain for any mention of the “common people” or basic human rights. In all the several versions of the Great Charter in Canberra—marvelously translated into readable, modern English texts (the originals were in Church Latin)—there was nothing of the kind. Magna Carta was all about the rights and privileges of the rich and powerful, whether in the landed gentry or the Church.

But it was a start. It was a step away from rule in the interests and judgment of the King alone and his family, and often at his whim. And it was a step taken in the face of a bloody battle, and in lieu of mayhem. Out of a credible threat of violence, the rudiments of “law and order” had arisen.

Over eight centuries have passed since that fateful day when King John, outnumbered, sat down to make a deal. In all that time, perhaps the greatest impetus toward modern democracy was conceptual: the Protestant Reformation, which began in 1517. As I have outlined at greater length, the Protestant Reformation undermined the foundation of monarchy by transitioning from a concept of God as a single male deity—in the mode of the alpha-ape tribal leaders from our species’ evolutionary past—to a divine force and power inherent in every individual.

The Reformation thus introduced two wholly new concepts to human consciousness. First, there is a spark of divinity in every individual, which deserves recognition and respect, not just in theory, but in law and custom. Second, because of that spark, the notion of absolute rule by one male alone became intellectually untenable.

The Reformation required the conceptual rejection of a single father figure as Ruler of the Universe. So when the Church of England finally broke with the Catholic Church under King Henry VIII— in large measure to allow him complete discretion in selecting (and murdering) his wives—the British Isles became the chief locus of further development of democracy.

The rest, as they say, is history. Once the mold of autocracy had been broken and the notion of individual worth introduced, the Rights of Englishmen, the rights of Man, and the Enlightenment followed as day the night. So did Parliament, the common law, the power of juries to find facts, and the basics of our modern rule of law.

It took centuries, countless struggles, and more than a few bloody battles, including our American War of Independence, to create was passes for modern democracy. But we still have farther to move, in our habitual zig-zag pattern, to reach a society in which, as Jefferson wrote:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed . . . .”

Jefferson may have been a world-class hypocrite. He kept slaves and freed only his mistress and their progeny. But his words live on, or at least they did until recently.

All this, I think, is what we mean when we say “law and order.” It’s a system of written and customary rules that governs our lives and actions, replacing the thinking or whim of one man alone.

And it’s far more than just having one vote among many in elections. It’s knowing that, if you are accused of wrongdoing, you will have the benefit of regular, established procedures to determine whether you actually did the wrong (the “facts”) and what your punishment will be. It’s knowing that no single person will be your judge, jury and executioner. It’s feeling secure that the person authorized by law to arrest you on suspicion will not become your executioner, as Derek Chauvin did in murdering George Floyd by knee on neck.

This, of course, is where modern Republicans get it all wrong. They see a breach of “law and order” in the very few trash fires and other disorders that occurred during the massive protests after George Floyd’s murder. They see no breach of law and order in that wholly unjustified murder itself, although rightly protested by hundreds of thousands of loyal Americans, mostly peacefully.

But it wasn’t those trash fires or disorders that threatened (and still threaten!) the rights and privileges of Americans. It was the notion that any police officer could get away with such a brazen murder, perhaps thinking that no one would care about a man who was Black, unknown and extraordinarily ugly. It was the notion that any police officer is not bound by rules that protect all citizens, even those accused of crimes. It was the notion that a man being killed after being accused of passing a $20 counterfeit bill has anything to do with the rule of law, the separation of powers, the Rights of Man, the development of Anglo-American courts and juries, and the Western Enlightenment. It was the notion that tortured logic and endless repetition could roll back the clock of social and political development to the time of Machiavelli, when peace delegations could be slaughtered at will as long as their slaughterers were clever and powerful enough to get away with doing so by deluding or fighting off their enemies beforehand or afterwards.

Yes, bringing to justice hooligans who use legitimate protests against injustice as pretexts for theft, violence or trashing private property is part of “law and order.” But so is preseverving the basic institutions of justice that insure our personal safety, our bodily integrity, and our immunity from improper and unjust accusation, trial and punishment as if we were peasant serfs who had displeased an irate tyrant. Which do you think is the most important part?

For the better part of a millennium, Anglo-American societies have excelled at refining and implementing the rule of law. They have struggled hard to create rules and apply them even-handedly, in order to keep all of us from being or becoming subject to another person’s whim.

That’s what “law and order” is all about. And that’s what’s now coming under assault as pols’ personal whim and delusions, political dogma, and conspiracy theories replace the careful and methodical applications of written rules that we Americans and our forebears have refined over the eight centuries since Magna Carta.

It goes without saying that our Demagogue, the current clear front runner for the Republican nomination, is the chief proponent of replacing law and order with personal whim, namely his own. He pushed toward that goal in advising police officers to be rough when putting arrested suspects, convicted of nothing, into police cars. He promoted it when bragging that the way to get women was to “grab them by the pussy.” He promoted it when bragging that he could shoot someone on Fifth Avenue in New York and get away with it.

None of this is law and order. It is vulgar and brutish. It invites citizens and police to take the law into their own hands. It’s an invitation to mob rule by one of the most vulgar, self-centered, uncouth and uncivilized “leaders” ever to achieve a measure of success in Anglo-American politics.

So whenever a Republican speaks of “law and order,” look closely at the facts and the not-so-hidden recommendation. Is he or she justifying a departure from the rules-based order that Anglo-American societies have taken eight centuries to develop, and that are the envy of the educated world? Is he or she promoting “order,” or its opposite: a return to violence and primitive human impulses that our species developed “law and order” to overcome?

It’s hard to compare our Demagogue to anyone in history. He’s unique. Perhaps his closest analogue in history is Julius Caesar.

But Julius Caesar was a distinguished Roman general and noted historian. He led Roman armies that conquered ancient “Gaul,” including large parts of what is now France and Spain. Then he wrote a history of his conquests, called the “Gallic Commentaries,” parts of which I read in high-school Latin in the sixties.

In contrast, our Demagogue escaped military service, let alone combat, citing bone spurs. He never led, let alone won, any organized battle. And to compare his ghost-written book, The Art of the Deal, with Caesar’s “Gallic Commentaries” is like comparing the comic strip “The Simpsons” with Shakespeare. Does anyone think that our Demagogue’s book will be on the reading list of high-school students two millennia hence?

Ancient Rome’s Senators had the good sense to do away with Caesar before his demagoguery could subvert the Roman Republic. (Even so, the forces that Caesar had set in motion, together with environmental lead poisoning of ancient Rome’s elite, probably fixed Rome’s eventual downfall.) Our own Senators twice refused even to convict our Demagogue after his impeachment. They refused for purely selfish, political reasons, apparently without a thought about the effect of their actions on law and order in America.

So it’s now up to the rest of our institutions, our “law and order” writ large, to see that our Demagogue is properly tried and, if convicted, properly punished for his crimes. Under our law and order, juries get to say what is true and what is a false conspiracy theory. Under our law and order, they must do so in accordance with strict rules about what they can consider as evidence, and they must be screened in advance for possible bias. What the so-called “Deep State,“ aka modern regulatory agencies, wants or doesn’t want is irrelevant; only the facts and the law matter in determining guilt and punishment.

Republicans are doing everything they can to make the case that all this is political. But it’s not. It’s applying our traditional and constitutional “law and order” to our Demagogue as if he were subject to them, just like the rest of us.

And make no mistake about it. With the Senate having failed to convict in two impeachment trials, it’s the last hope of American democracy. If our “law and order” can’t bring our modern, much less capable Caesar to justice, there is no backup plan, except for a possible second civil war. Even if our Demagogue loses the next presidential election, his impunity for his crimes will send the wrong message to students of law and order for the rest of human history.

So it’s all up to our prosecutors and judges to preserve our venerable system from corruption and from internal conceptual and political assault. If they cannot, then eight centuries of legal-social development since Magna Carta could be flushed down the drain of human history.

Of course this all would take time. After all, it took about half a millennium for the forces that Caesar set in motion, including the Pompeiian Civil Wars, to cause the Fall of Rome.

But the fate of the rule of law, the mother of law and order, is now self-evidently at stake. And it’s shaky in the most powerful of its national observers, albeit perhaps not the most faithful. If it cannot survive here, then we humans could become dominated by an endless succession of depressingly brutal tyrannies, like those led today by Vladimir Putin, Xi Jinping, Kim Jong Un and Mohammed bin Salman. Our huge, overpopulated nations might come to resemble our evolutionary forebears: tribes on the African savannah, each ruled absolutely by an alpha male ape.

Failure of our American version of law and order to bring the Demagogue to account could even trigger another Dark Age, like the one that lasted nearly a millennium after the Fall of Rome. If that’s not worth some thought and some effort in registering to vote and voting, I don’t know what might be.


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