No matter what legal tradition you grew up with or which you prefer, all legal traditions share a universal rule which the proponents of modern statism would rather you not think about for too long: nemo plus iuris transfere (ad alium) potest quam ipse habet.
Whether it is the canon law of the Catholic Church, Islamic sharia law, any variation of African customary law, the Roman-Dutch common law, English common law, European civil law, or the tribal law of Pacific Islanders, all legal systems necessarily contain (whether expressly or implicitly) the logical fact that – to translate the Latin above – no one can transfer more rights (to another) than they have themselves.
If the law recognises only God as having the right or power to judge people for their sins, then no body, be it the legislature or ‘the people’, can bestow this right upon another entity. Why not? Because the legislature or the people never had this right or power to bestow in the first place.
If James and Sindile conclude a contract wherein James grants Sindile the right to swim in James’s swimming pool, Carla cannot give Tony the right to swim in James’s pool. Why not? Because Carla never had this right to begin with, so she cannot transfer it to Tony.
This is trite to anyone with a basic education in law. But jurists and lawyers do not like thinking about it for too long, because the longer you think about it, the more the modern institutions of the state begin to collapse conceptually, one after the other.
Leonard Read writes in Anything That’s Peaceful that ‘political officialdom, in sound theory, can have no rights of action which do not pre-exist as rights in the individuals who organize government. To argue contrarily is to construct a theory no more tenable than the Divine Right of Kings. For, if the right to government action does not originate with the organizers of said government, from whence does it come?’
Rule of Law
Consider the Competition Commission. Parliament, somehow, granted the Competition Commission the authority to consider and approve or reject mergers and acquisitions between certain businesses.
Nemo plus iuris is a rule that applies unambiguously to legal subjects. If the Rule of Law is a principle we take seriously, meaning we accept the notion that both governors and governed must be bound by the same law, then we cannot but conclude that nemo plus iuris is a rule that also binds the state. If we say it does not bind the state, then we must also say it does not bind other legal subjects, at which point the law loses its coherence.
The Rule of Law is a supreme value found in section 1(c) of the Constitution, so even our positive law recognises the application of this basic idea that government and civilians must be bound by the same law. If civilians, being ordinary South Africans and their businesses, cannot ‘consider and approve or reject mergers and acquisitions’ that other businesses enter into, then how can we suppose that the Competition Commission can do so?
What is the source of Parliament’s authority to grant this power to the Competition Commission? We have already established that it cannot be the Constitution. It is, simply, an authority that Parliament gave itself in contravention of the principle of nemo plus iuris. In lay terms, Parliament broke the law.
This can be extrapolated to various other areas of law – not merely competition. Virtually every regulation our economy toils under today is grounded in Parliament’s pretend-authority to enable it.
The British sought to circumvent annoying notions like nemo plus iuris by legally formalising the institution of parliamentary sovereignty – the idea that the sovereign, as the source of law, can make any law it wills. However, parliamentary sovereignty is not a principle of law, but an institution outside the law that bends law to serve political expedience. Parliamentary sovereignty, no matter what AV Dicey might have said, can never co-exist with the Rule of Law.
Does the application of nemo plus iuris lead to anarchy without any government? No. Let us contrast the areas of law that encounter difficulties when measured against nemo plus iuris – like competition, hate speech, welfare, etc. – with other state functions: the police and the military, for instance.
Does an ordinary individual have the right to use coercive force against someone else who is in the process of violating the rights of another? Yes, the common law tells us that they do. Therefore, the people can and have transferred this right to the police and to the military to exercise on their behalf at a collective level.
Read explains, writing that because ‘the individual has the moral right to defend his life and property – a right common to all individuals, a universal right – he is within his rights to delegate this right of defense to a societal organization. We have here the logical prescription for government’s limitation.’ This is ultimately why the liberal conception of government is the most coherent, not only with (as it is often accused of) hedonistic libertinism, but with the ancient imperatives of law.
Too often people seek to make out liberalism as just one more of a variety of equally valid political persuasions. Anyone who does this betrays a deep lack of appreciation for what liberalism in fact says and what it in fact is: a recognition of the laws of logic and reality, and adaptation of political institutions to those laws.
Nemo plus iuris is not an anarchic legal principle, but it is a legal principle that makes statists who are invested in the presently boundless scope and power of modern government uncomfortable.
In particular, nemo plus iuris is a devastating argument against the modern conception of democracy.
For all its positives, democracy has a faulty premise. It presumes, in error, that bringing together a group of people to vote or otherwise collectively decide on something, can create new rights and authority out of thin air.
Nobody, we have established, has the rightful authority to tell a business that they may not merge with another business. You will scour the common laws of Christianity, of Islam, of African cultures, of European cultures, of Pacific cultures, and so forth, in vain for such an authority. Democracy tries to tell us that this is irrelevant – a group of people can simply get together and ‘create’ this authority.
This attaches a significant, in my view entirely unearned, weight to discourse and decision-making. It is arbitrary, and its arbitrariness is illustrated vividly when this democratic principle is applied in a more analysable context: Imagine South Africa did not have 65 million citizens, but only 10. These 10, in a totally direct democracy, come together and nine of them ‘vote’ to cannibalise the tenth person. Despite its ‘democratic’ nature, this would be an entirely lawless phenomenon, since not one of the nine voters had the pre-existing authority to vote on such a matter in the first place.
The fact that the weight attached to discourse and decision-making is entirely arbitrary and unearned makes it very dangerous. All tyranny throughout history, at some level of regression, is based on the fallacy that the tyrant has somehow acquired the authority to do things that nobody else has. In a word: magic.
Many things have faulty premises, however, and still prove useful. Democracy is useful for various reasons today, so I am not saying we must abandon it. But it is precisely because democracy’s foundation is conceptually made of sand rather than stone, that we need to be significantly humbler and more circumspect in our application of the democratic principle.
Machtstaat vs Rechtsstaat
We must not be naïve. The state has always done things it had no right to do.
But when constitutionalism came about a handful of centuries ago, humanity finally began to collectively think about the state in terms of law, rather than raw, arbitrary power. The Rule of Law means that the governed and the governors are bound by the same law: the state is bound by law, not above it. But if nemo plus iuris binds us – as it does – then for the Rule of Law to not be an empty gesture, it must also bind the state.
The idea that in politics might makes right (the Machtstaat) is one that humanity has decided to replace with the idea that right pre-exists might (the Rechtsstaat). The process of making this decision practical reality is a slow and arduous one.
As Read writes, ‘As the individual has no moral right to use aggressive force against another or others – a moral limitation common to all individuals – it follows that he cannot delegate that which he does not possess. Thus, his societal organization – government – has no moral right to aggress against another or others.’
If truth, liberty, and justice are things we truly take seriously, then our appreciation of the nemo plus iuris principle must lead us at least to psychologically and emotionally begin changing our perception and understanding of the state. If it does not, at some level we are simply embracing arbitrariness and untainted, expedient violence to impose our subjective preferences upon our fellows.
The views of the writer are not necessarily the views of the Daily Friend or the IRR