Fundamental Assumptions

Every legal writer makes certain fundamental assumptions, but few declare them up front. I have identified some key assumptions that control my perspective, so as a part of my commitment to intellectual honesty, I am making them known.

A.   Logical consistency.
There is a famous quotation of O.W. Holmes that “The life of the law has not been logic; it has been experience.” I don’t know that we can blame Holmes for it, but the prevailing attitude in legal circles today is that laws need not be logical at all, and even glaring inconsistencies are acceptable. So a question naturally arising in any review of lonang is whether we ought to expect a higher degree of logical consistency than what we see in every day legal affairs.

In this connection, I would like to put Blackstone (in particular) to the test. In the second chapter of the Introduction to his Commentaries, he makes the argument that the law of nature and the divine law were authored by the same Creator, and furthermore, speaking of the divine laws, that they “are found upon comparison to be really a part of the original law of nature.” When we also note that the Bible claims God is not the author of confusion (1 Cor. 14:33), it at least suggests the possibility that the laws of nature and nature’s God are, or claim to be, logical and self-consistent. I find this possibility intriguing, and would like to put it to the test by adopting it as a working hypothesis for this work.

One basic application of this hypothesis has to do with conflicts of laws. I have seen many jurisprudential schemes which postulate a hierarchy of rules: cardinal principles, ordinal principles, an hierarchy of rights, and various pecking orders of legal priority. The reason for these legal hierarchies is always the same: when legal rules conflict with each other, the conflict is resolved by knowing which rule has priority, and which must yield. There is an assumption (usually unstated) that in any legal system, fundamental laws – even natural laws and divine laws – will inevitably conflict with each other. A corollary is that any law may occasionally need to be suspended or ignored when a “higher law” applies.

The cynic replies that there are no higher laws – the rule prevails which the judge prefers for his own reasons. Although the cynic decries the resolution as contrived, he nonetheless still assumes the conflict between legal rules is real.

However, there is an alternative view. It is possible to assume that no natural or divine law will ever conflict with another natural or divine law. If two laws appear to conflict, it is only because we have incorrectly applied one or the other rule, or perhaps we have not accurately discerned what the true rules are. Or perhaps, in any apparent conflict, one of the rules which appears to be in conflict doesn’t really apply to the situation at all and is irrelevant. Is it possible to construct a legal system on such a basis? Let us see if it can be demonstrated. In any event, I will try to make it work – just because I like a challenge – and see how far we get.

B.   The meaning of words.
I hope to avoid, as much as possible, wrangling about the meaning of words. That is to say, if we are to have any meaningful conversation at all, we will have to accept the common meaning of words and take most words at face value. It will be difficult enough to re-examine the entire field of law from a lonang perspective – we don’t need to add to the difficulty by removing a common vocabulary. To some extent, this means that I will assume most words have fixed meanings. If it is your persuasion to view words as “living” things whose meaning is malleable and subjective, thank you, goodbye, good luck, we don’t have much to talk about.

The other side of this two-edged blade is that we will undoubtedly discover some words whose meanings have been lost, or at least substantially blurred. Primarily, I am talking about making distinctions that people – legal people – largely ignore today. Examples: rights vs. powers; inalienable vs. fundamental; republic vs. democracy; the list goes on. So, yes, we will inescapably talk about the meaning of words – but how we talk about them will make all the difference.

C.   Implied Authority
I consider the question of implied authority the single greatest issue in the formulation of any legal system. And the question is this: In the delegation of any authority, do we assume that the one who receives such authority may exercise only what is expressly authorized, or do we assume that he may do everything except what is expressly forbidden? In the context of the laws of nature’s God, for example, we see that people were authorized to eat every plant yielding seed and from every tree yielding fruit (Gen. 1:29). Did people have the implied authority to eat meat, or not?

The issue was argued in the early days of the U.S. Constitution (as to whether Congress had implied constitutional powers), but the implications are much broader. We commonly speak of the U.S. Constitution as a document of enumerated powers and state constitutions as documents of plenary powers. But when a state constitution grants the state legislature “all legislative power,” does that legislature also have the authority to exercise some executive or judicial power as it sees fit? Is the express language of any delegation of authority the starting point or the ending point?

My informal appraisal of conventional wisdom is that most people assume the express language of any grant of authority is only the starting point, and that authority is to be implied unless expressly denied. Actually, the majority view is probably more along the line of implying authority even when it is expressly denied. However, I have concluded from a variety of proofs and arguments – which must temporarily be held in abeyance – that the universal rule of lonang is the reverse. In other words, that all authority is limited by the express terms of its grant, and all governments are governments of enumerated powers. More on this later. It is enough for now that I have declared my working assumption. You are forewarned.