The People, the Law and the State - A brief theoretical exploration

By Kelly Liang
​Kelly Liang is a Sophomore studying Mathematics and Political Theory in the College of Arts and Sciences. 

Lex est quod populus iubet atque constituit - The law is what the people have agreed to and established [1]. This quote of Gaius, a celebrated Roman jurist, describes the source of power of laws, and can be further extended to understand the relation among the People (also the Citizens or the Nationals), the Law, and the State. A further dissection of the quote would lead us to the natural conclusion of a power circuit that works like the children’s game “Paper, Scissors, Rock”: 1) The People gives power to the Law by consents; 2) The Law constructs the State and gives the State power - especially in the case of constitutional government; and finally, 3) the State can use the power to govern the people and execute the Law.

While this model treats the State and the Law separately, the two are actually much entangled in real life. For instance, the Supreme Court in the United States is often described as part of the national coalition of government and sometimes seen as the protector of government institutions, while also having to perform its “Checks and Balances” role because of the principle of Separation of Powers. In Ancient Rome, however, this relation between the Law and the State was much more separated. The Roman Republic was a constitutional republic and the Law was the sole basis of power of the State [2]. While it is hardly appropriate to compare present-day United States to the Roman Republic, the discussion of the Law’s function in the State, as well as the extension of such discussion to the power of people in the State, would still be fruitful. The differences in political structures do not obstruct the discussion of the origin of the State, as this is not a contest of the better form of governance. Rather, it is a discussion of something that is common for all States - self-pronounced or otherwise. Until we can understand the relationship of the different forces in an organic model of government, we may then advance our experience as citizens of a State.

In Cicero’s well-known discussion of the origin of the State in Republic, he stated that all States can, and must, only use their executive power, in the name of a binding standard of regular procedures [3]. In a simpler way: lex [est] civilis societatis vinculum - the law is what holds the society together [4]. This is because a government is acceptable only “if it secures the bond [of law] which first joined men together in the partnership of the commonwealth,” [5]. This passage further shows how the notion of the State is closely associated with Law for the Romans, because the law of the State would be legitimate. Cicero’s statement provides support for the argument of Gaius, especially in 2) of the circuit (see paragraph one), which the essay attempts to draw attention to. While Cicero’s quote seems to capture the essence of the origin of the State, it is not free from debate and criticism. Scholars have debated the meaning of lex in the context of Cicero’s Republic, specifically whether it is taking into account only just laws, or mere consent of laws. This essay will not delve into the matter of interpretation here, but one thing for certain is the absolute emphasis of the element of law, the quality of the matter aside. It is precisely because of this, that the State is not reduced into the pure phenomenon of force, but a structured power for exercising within a framework.

The remaining task now is to show how the law originated from the people. We may now go to the thought experiment of Hobbes in his work Leviathan. In the book, Hobbes famously described the State of Nature as an anarchy with the worst conditions to live in: “with continual fear, and the danger of violent death,” [6]. It is in such an environment, that the ideas of the Law of Nature emerge among the people. Hobbes proposed that fundamental laws concerning safety, liberties and properties, etc, would emerge among the people in the State of Nature. These fundamental laws, or moral codes, as most scholars contends, can be seen as the first few laws that emerge when humans attempt to organise themselves into a structured community. However, these fundamental laws would be mere thoughts if people could not reach a consensus to these rules and agree to act in accordance with them. The law can only have force and maintain itself if people agree to let it have force. In other words, the source of power of the law is people’s consent. This completes the proof for the first step of our power circuit, as stated in the introductory paragraph.

While the theoretical talk of the ideals of Cicero and Hobbes may seem irrelevant in modern day politics, some scholars are actually advocating for the revival of some of the principles of classics in today’s society. One example of that would be scholars proposing to give the power of interpretation of the Constitution from the Supreme Court to the people in the United States. Proposed by law scholar Mark Tushnet, it is an idea against judicial (branch) supremacy [7]. Proponents of Tushnet’s ideas are aligned with the dynamics this essay has proposed: the people gives the law power, and the power of interpretation of the constitution should return to the people. While this idea is theoretically sound, the implementation faces grave difficulty, as the government emerges as the more powerful contender in the competition of power with the people. Therefore, the power circuit might have been destroyed by the establishment of powerful institutions, and there seems to be a reversed power circuit in the making.

The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

References
[1] D’Entrèves, Alexander Passerin. The Notion of State, 76-77. Oxford: The Clarendon Press, 1967
[2] Lakoff, Sanford A. “Plural Autonomy: Roman and Later Republicanism” in Democracy: History, Theory, Practice. Boulder, Colo.: Westview Press, 1996
[3] D’Entrèves, Alexander Passerin. The Notion of State, 80-81. Oxford: The Clarendon Press, 1967
[4] ibid
[5] ibid
[6] Hobbes, Thomas, and E. M Curley. Leviathan: With Selected Variants From the Latin Edition of 1668, 186. Indianapolis: Hackett Pub. Co., 1994.
[7] Tushnet, Mark V., Taking the Constitution Away From the Courts. Princeton, N.J.: Princeton University Press, 1999.
Photo Credit: Christie Blatchford