Is The King Above The Law?

While many readers will say ‘the king is certainly not above the law’, not everyone believes that, especially if they are in power.

The term ‘democracy’ is complicated and often used misleadingly. For instance, the ‘German Democratic Republic’ (a.k.a. East Germany), which was a part of the Soviet Empire, had one male in four reporting to the Stasi (secret police).

Allow me to cut through the complexities by suggesting that it is helpful to identify two sorts of democracies: ‘popular democracies’ stress the rule of the majority, while ‘liberal democracies’ give high priorities to human and civil rights – in effect, they stress the rights of minorities, including the individual. A generous interpretation of the GDR is that it was a popular democracy.

A government has to make coherent and consistent decisions. In effect, that requires a king – someone (or cabal) who is given enormous power. Liberal democracies restrain those powers by submitting the king to lawful constraints.

An example is in US constitution. By way of background, James Stuart (I or VI, depending on where you come from) argued for the divine right of kings, a political doctrine of monarchical absolutism, which asserted that kings derived their authority from God and could not therefore be held accountable for their actions by any earthly authority such as a parliament. They were above the law. In 1649 the English Parliament overruled the claim by executing his son, Charles I. (The English tradition of lawful dissent and rebellion goes back at least to the 1215 Magna Carta whose Article 61 provided for the barons to lawfully challenge the king.)

Such issues troubled the Founding Fathers of the American Constitution ratified 139 years later (so the regicide was closer to them than the signing of Te Tiriti o Waitangi is to us). In between there had been a long debate. Key was John Locke’s Two Treatises of Government, published in 1688/9, which argued that there was a ‘social contract’ between the populace and the person they designated as king. If the king did not act in their interests, Parliament had the right to replace him. (This was written at the time of the ‘Glorious’ Revolution, when Parliament dumped James II and called upon Mary and her husband William of Orange to govern them.)

Faced with providing for a powerful king (the President) and yet restraining his (or one day her) powers in the public interest, the US constitution contained a set of intricate checks and balances, including the impeachment process. Certainly the President was to be selected by a majority (as it happens, of a mix of voters and their states) but the minority interests had to be taken into account.

Not all monarchs/presidents accept this compromise. Instead they take it that they, like kings in fairy tales, had unlimited power barely constrained by law. Perhaps Donald Trump had but a superficial understanding of these issues, but Dick Cheney, vice-president to George Bush II, argued the case with coherence and vehemence.

It is instructive that when Al Gore lost to George Bush II and Hillary Clinton lost to Trump (both by smaller margins than the 2020 outcome) they did not throw Trumpian tantrums but accepted that is where due process had taken the outcome. Barack Obama must have had the gravest doubts about Trump – ultimately justified – but he smoothly handed over power to him. (Instructively, he made Airforce One available to the incoming president; Trump did not.)

In the long run, Trump’s reign may be remembered for the degree that the US constitution was robust enough to restrain a king who thought he was above the law. It did hold, but clumsily and sluggishly. The ultimate defence was that more people (and states) voted Trump out but what happened was a close enough to raise whether there needs to be some attention to the improving its robustness.

One step might be to get a wider understanding that a liberal democracy is not about rule by the majority. Rather the majority chooses the ruler who may reflect its values but is is constrained by liberal principles. That is why we do not just need functional literacy – the ability to read advertisements and orders – but an education which includes an understanding of civic rights and responsibilities.

It is not simply about being above the law of the land. Both Putin of Russia and Xi of China were elected for limited terms but changed their laws to eliminate that restraint. Recourse to using a majority in ‘parliament’ to change the law to increase the king’s power is a familiar ploy in popular democracies. As well as China and Russia, the list of popular democracies includes Brazil (Bolsonaro), Hungary (Orban), India (Modi) and Poland (Morawiecki). The signal is when the rights of minorities are compromised or dissent suppressed. Tot these examples up and there are an awful lot of people who live in democracies of the popular rather than liberal kind.

It is easy for those in New Zealand to hunker down in a liberal democracy, although the Trump episode reminds us we cannot isolate ourselves (as, indeed, does our economic dependence upon China).

However, we also need to be careful not to get trapped in a populist framework. It has become more prominent since the October election with a common theme among some commentariat: that since the government has a majority of seats in parliament it is not constrained and may do what it likes. The side-deals Labour did in the previous three years were not necessarily failures of the democratic process but integral to it. (I did not agree with many of the compromises but I am so often in a minority I have learned to live with them.)

It being this time of the year, it is worth pointing out the Article Three of Te Tiriti o Waitangi is a statement that New Zealand was to be a liberal democracy (albeit they had in mind a nineteenth century notion – we progress). Earlier drafts of the treaty actually had the provisions of Article Three in the prologue preceding Articles One and Two as in a social contract.

Because all this is so familiar we can forget the principles of liberal democracy, especially when we are (always temporarily) in the majority. Each of us is in a minority of one, protected by the principles of liberal democracy with the danger – as Trumpian America illustrated – of backsliding. I am grateful that one out of four friends does not have to report me to the Stasi.