To-day no one dares to dispute the fact that the nation alone is
qualified to enact laws for itself through the agency of its chosen
representatives, and that no law can be binding for the people without
their explicit or tacit consent. In Switzerland, where they have
instituted the referendum, the people by their vote can repudiate a law,
made by their representatives in their name, before it comes into force;
and in the other constitutional states they have recourse to the
following expedient: whenever a law is promulgated which seems
inacceptable to them, at the next Parliamentary election they vote for
men who are pledged to do away with it. The people have the power to
make laws, therefore they also have the right to do so, and they do not
hesitate to revolt if this right is tampered with. In recent times no
nation outside Russia has submitted to having laws forced on it, in
framing which it has not co-operated, and which it has not expressly
accepted. The United States tore themselves away from the Mother Country
with the cry: "No taxation without representation!" and more than a
hundred years before that the English people had irrefutably proved to
the Stuart king, Charles I, that he had no right to make and unmake
laws, by condemning him in a court of law with legal formalities and
then having his head cut off by a masked executioner.
The legal code is the concrete form of the Law, and the Law is the
crystallization of the most material part of Morality. And as Morality
binds every member of the community, as man is only tolerated in the
community on condition that he respects Morality, it is a matter of
logic that he should also respect the Law; that is to say, that he must
not only submit to it because he fears punishment if he fails to do so,
but that he must feel obedience to the Law to be part of his Morality,
that he must act lawfully at the dictate of his own conscience, and not
because of the threat of the power of the state. This might be
enunciated as a principle without reservation and without limitation, if
in practice the laws always were, as in theory they should be, moral.
But this is not necessarily the case. The law is a form, and every form
can be abused by filling it with unlawful contents. If an unscrupulous
adulterator of wine fills a champagne bottle of the usual shape,
complete with metalled and wired cork and a label recommending it, with
some disgusting mixture and puts it on the market, he is severely
punished for adulteration of food and infringement of the law protecting
trade marks. But if the government publish in the _Gazette_ foolish,
risky, and perhaps absolutely immoral orders in the form of a law, duly
arranged in chapters, articles and paragraphs, as the people are
accustomed to seeing their moral laws expressed, who impugns them for
it?
Public-domain text, read in full here on John Shaqi.
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